Human Rights Nicaragua's Record
The subject of human rights in Nicaragua is as important as it is poorly dealt with in terms of information and analysis. This deficiency results not only from manipulation by media close to the Reagan Administration, but also from a lack of systematic and objective information for which Sandinista sources are themselves responsible.
At long last, the question has been approached in a thorough and complex fashion, providing not only an abundance of figures and concrete data, but also the necessary analytical context. In mid-1987 the Catholic Institute for International Relations (CIIR) in London published the 135-page book Right to Survive—Human Rights in Nicaragua.
envío has chosen to disseminate extracts of this important work in the ten countries (and four languages) in which our magazine is published. We have selected the paragraphs with the richest and most suggestive analysis and those that contain the most significant or lesser known information about the theme. Given that envío and other publications have frequently provided information on basic economic and social rights in Nicaragua—an important aspect of CIIR's human rights framework, as the introduction explains—we have focused most heavily on individual human rights, the subject of a section of the book on the state of emergency. We are also leaving to one side, for reasons of space, more extensive descriptions of the Central American context, contra atrocities, details about the conflicts in the Atlantic Coast and Church hierarchy/State relations, and most of the footnotes in this well-documented text. We hope our readers in English will be tempted to seek out this work in its original as a key resource.*
*Right to Survive will be available in the United States after December 1, 1987, through North River Press, Box 241, Croton-on-Hudson, NY 10520, for $10.64 including postage. (We have changed some of the headings to match the particular extracts printed below.)
Assessing human rights recordsConventionally, a government's human rights record is assessed on the basis of the sum total of human rights violations in a country, which need to be regularly monitored, and this constitutes a government's "human rights record." After investigations are completed and reports published, the human rights record, judged good or bad, excellent or appalling, becomes a yardstick by which the outside world is invited to assess the moral legitimacy of a government. Yet judgments based on this material alone may be unjust. The standards set by international human rights declarations and covenants, and the catalogue of violations of them, provide an incomplete evaluation of a government's record, if they are not set in context and historical perspective. At the most obvious level, clearly it is easier to protect human rights in politically stable, economically prosperous countries with a history of developing democratic institutions than in impoverished nations with a much shorter history of independent statehood and little or no experience of democratic politics, which have yet to develop viable national institutions.
The setting in context of a government's human rights record is doubly important when this record is itself a subject of international controversy. This is the case of Nicaragua where opponents of the Sandinistas, in Nicaragua and elsewhere, seek to portray the government as a gross violator of human rights. Because of the enormous importance that judgments about Nicaragua's human rights record assume in such circumstances, it is essential not only that the evidence on which they are based be trustworthy but that the judgments themselves be fair. The question of fairness involves, apart from careful examination of the evidence, looking at the factors that help or obstruct the effective protection of human rights.
The rights contained in the Universal Declaration of Human Rights fall easily into two categories: civil and political rights, set out in Articles 3 to 21, and economic and social rights in Articles 22 to 27. The reports of human rights groups concentrate on the violation of those human rights clearly established in international law, leaving out, or attaching less importance to, economic and social rights. Human rights groups are Western, in ideology if not always in location, and Western-style democracies have never taken economic and social rights as seriously as political and civil rights. Furthermore, economic and social rights constitute an area in which the obligations of governments to their citizens are less clearly defined and in which it is more difficult to make an objective assessment of a government's performance. To ordinary people, however, both sorts of rights are of fundamental importance. Certainly gross violations of either are experienced as equally calamitous in human and personal terms.
For the purposes of this study, we propose another division, into basic human rights and subsidiary rights. The human rights we classify as basic are those without which the remaining human rights cannot be enjoyed, that is, those guaranteeing life, physical integrity (freedom from torture), freedom from arbitrary detention and adequate access to all that is necessary to sustain life. Thus some civil and political rights and one economic right are treated as basic. The first part of Article 25 states: "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing and medical care and necessary social services ...." In other words, basic human needs are treated as human rights.
Subsidiary rights include the right to take part in and choose the government of one's country by genuine elections; freedom of expression and opinion; the right of peaceful assembly; freedom of movement; the right to a free choice of employment and to equality in employment; the right to participate in the cultural life of the community. All these, and other subsidiary rights, are significant components of the quality of life, but they are not basic rights.
Central America:The denial of basic economic and social needs becomes an issue of basic human rights particularly when it affects large numbers of people and, above all, when it is a structural condition of life for the majority of the population, that is, a situation maintained by the policies of a minority ruling elite. This, with the exception of present-day Nicaragua and Costa Rica, is the case in Central America where the generalized violation of basic economic and social rights is well nigh universal. While poor, the countries of Central America are not among the poorest in the world. The gross deprivation of the majority of the population, that is, the denial of these basic human rights, is not so much the consequence of a lack of resources with which to satisfy them as of political, economic and social structures that perpetuate their denial by concentrating wealth and income in the hands of a small minority.
Wholesale violation of basic rights
Economic and social rights are concerned with the condition of the majority. Civil and political rights, while defining liberties and rights that should be enjoyed by the whole population, enshrine guarantees that are of particular concern to minorities and individuals, and are, by their nature, tested by opposition groups, dissidents, critics and nonconformists. These rights, if effective, enable citizens to organize politically in order to bring about changes in the composition and policies of their governments and, in competitive electoral systems, to put their parties forward as alternative governments. They include the freedoms of association, speech and religion, and the right to a fair trial, to freedom from arbitrary detention and to take part in the government of the country either directly or through chosen representatives.
In Central America these rights too have been systematically violated. Indeed, the violation of these rights is closely related to the violation of basic economic and social rights. The struggle of the poor to obtain recognition of their civil and political rights has gone hand in hand with their struggle for economic conditions to ensure an adequate standard of living. In Nicaragua under Somoza, El Salvador and Guatemala, the consistent denial of all these rights blocked all possibilities of peaceful change and led directly to armed rebellion.
States of Emergency and legitimacyCivil and political rights, however, are precisely those that may be restricted at a time of national emergency. There are few exceptions. Article 27 of the American Convention of Human Rights, which Nicaragua ratified and incorporated into law in 1979, states:
“In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligation under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation....”
Because a state of emergency suspends some important human rights, the only valid argument that can be made for the declaration of a state of emergency is that it is being done to ensure the survival of society and therefore defend human rights. This has to be demonstrated in practice. The case of the government declaring the state of emergency is enormously strengthened if it can demonstrate that it owes its legitimacy to properly conducted and genuine elections. This is the case with Nicaragua today.
A test caseOne measure of a nation's commitment to human rights is the practical steps thatk its government takes to help citizens obtain redress against police abuses and its willingness to prosecute and impose appropriate punishment on police officers found guilty of abuses.
This report concentrates on the human rights record of the Nicaraguan government. It does so because the government is responsible for protecting and upholding human rights and civil liberties throughout Nicaragua. Less space is devoted to contra atrocities. One possible consequence of this imbalance between accounts of the government's and the contras’ behavior might be the impression that contra atrocities are equated with or even regarded as less important than, say, the government's restrictions of the freedom of expression under the state of emergency. This is not the case.
Such atrocities, however, neither excuse nor justify violations of human rights by the Nicaraguan government. Nor would the restrictions on civil liberties in force in Nicaragua necessarily be different if the contras were a disciplined military force not given to the murder and kidnapping of civilians. Nevertheless the contra atrocities are a crucial element in the debate on human rights in Nicaragua because they are often compared with abuses committed by the government and because the Reagan Administration and its allies have sought repeatedly to misrepresent the situation in Nicaragua, overlooking violations committed by the contras and exaggerating or inventing abuses committed by the government.
Government legitimacyThe fact that the government of Nicaragua derives its legitimacy, in formal terms, from the convincing victory of the FSLN in elections generally recognized as honest and fair does not exhaust the issue of legitimacy. Such a new state also faces the wider and more difficult problem of securing national consensus around itself, its institutions and constitutional priorities. Clearly popular support for the state and its institutions needs to be wider than the support demonstrated for any one party in elections, even the majority party, because it is these institutions that decide who will govern, allocate scarce resources and determine national priorities. In other words, the state needs the support and loyalty of those who lose in elections or feel that their interests are in some way harmed by the political party in power. The difficulties of creating such a consensus around new institutions in the aftermath of a revolution can readily be appreciated. In Nicaragua such difficulties were exacerbated by the feudal character of the Somozas and the lack of a national experience of democratic politics. In mature democratic societies such support and loyalty are manifested in compliance by specific groups or entire sections of the population with policies prejudicial to their interests because they accept the government of the day as legitimate. In such societies the genuine and spontaneous patriotism demonstrated in times of national crisis is typically the product of many years of development of democratic institutions that are seen as responsive, or potentially responsive to popular, majority demands.
It cannot be taken for granted that, had Nicaragua been left in peace to develop along its own lines after the revolution, it would have progressed smoothly towards a new national consensus. The resignations of Alfonso Robelo, Arturo Cruz and other high-ranking government officials, and their subsequent enrollment in the contra cause, show that there was greater agreement about the need to overthrow the Somoza dictatorship than about the sort of state institutions that should replace it. Nonetheless the conduct and result of the elections held in 1984 suggest that a national consensus about the new state and its priorities was not beyond possibility. The destabilization of Nicaragua through the contra war is intended precisely to destroy the emerging national consensus demonstrated in the elections and subsequently in the debate on the Constitution.
Human Rights Agreements Since 1979 One month after taking power, on 21 August 1979, the new government issued Decree No. 52, the Statute of the Rights and Guarantees of Nicaraguans, restating the rights of the Universal Declaration of Human Rights and adding some more. The statute abolishes the death penalty in Nicaragua. It also makes clear that in times of emergency all but the most basic rights may be suspended. The following year the government ratified the American Convention on Human Rights (25 September 1979) and the International Covenant on Human Rights (12 March 1980), together with the optional protocol to the covenant on Civil and Political Rights. In April 1985 Nicaragua signed the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
The following is a list of the international human rights covenants signed by Nicaragua since 1979: 1) International Covenant on Civil and Political Rights; 2) International Covenant on Economic, Social and Cultural Rights; 3) American Convention on Human Rights; 4) International Convention on the Suppression and Punishment of the Crime of Apartheid; 5) Convention Relating to the Status of Refugees; 6) Convention against Discrimination in Education; 7) Convention on the Elimination of All Forms of Discrimination against Women; 8) Declaration on Protection from Torture; 9) Convention on the Prevention and Punishment of the Crime of Genocide. Nicaragua has also signed 58 of the 162 International Labor Organization conventions. (The United Kingdom has signed 79, the United States 7.)
New kind of revolutionary governmentThe Sandinista government has been qualitatively different from any other leftwing revolutionary government—particularly the Cuban revolutionary government which overthrew General Batista in 1959. The nationalist and Christian strains in "Sandinismo" have been as influential as the Marxist components. The abolition of the death penalty, the humane penal system, the passing of a generous amnesty law for those who have taken up arms against the government and the willingness to reach agreements with political opponents are not hallmarks of governments normally labeled as totalitarian.
Some considerations on the contra warThe war, this "total war at the grassroots level," thus clouds human rights issues. Because of the war the international community has not been able to assess how the Sandinistas and the internal opposition would have fared in the task of creating and consolidating new institutions in peacetime, nor how the Sandinistas would have attempted to cope with the contradictions of being a vanguard party pledged to political pluralism.
The war being waged against Nicaragua by the most powerful nation on earth requires a national response. In such a war a simple majority is not enough. What the Nicaraguan government needs for successful survival and resistance is the overwhelming support of the population. The war is clearly intended by its strategists to drive a wedge between the Sandinistas and the rest of the population and to undermine the capacity of the government to mobilize for defense. The human rights violations that the government has committed in the course of the war stem from this situation. The government is least tolerant of those who, without being contras, do not accept the war as a national war for the common good and resent the sacrifices it imposes, agreeing with the Catholic bishops, who in 1983 described the conscription law introduced by the government as military conscription at the service of an ideology.
The greatest violator of human rights in Nicaragua is neither the Sandinistas nor the contras but the US government. In order to make the Sandinistas "say uncle," in order to reestablish unchallenged US control over a region it regards as its backyard, the US government has sacrificed over 20,000 Nicaraguan lives, most of them contras, and caused untold suffering.
The ultimate consequences of the contra war have yet to be experienced. It remains to be seen whether it has destroyed or simply postponed any possibility of creating a new national consensus around a new state, seen and experienced as legitimate by the great majority of Nicaraguans. Only such a consensus will permit the creation of viable legal and social institutions in which the protection of human rights can flourish.
States of EmergencyNicaragua has been governed under states of emergency of varying degrees of severity for all but 16 months of the period since the revolution. Immediately after the insurrection the government declared a state of emergency that remained in force until 29 April 1980. On 9 September 1981, a "state of social and economic emergency" was declared. In December 1981 a state of emergency was imposed in northern Zelaya, the northern Atlantic Coast region. In March 1982 the state of emergency was extended to the whole country, suspending all civil rights that may be suspended according to the Statute of Rights and Guarantees of Nicaraguans. The rights suspended included the rights of habeas corpus and not to be arbitrarily detained in cases involving national security, and the rights to the freedoms of expression, assembly and movement, and to strike. The rights guaranteed unconditionally by Article 49 of the Statute include the rights to life and to physical, psychological and moral integrity, the right not to be subjected to cruel, inhuman or degrading punishment and not to be punished by retrospective laws, and the right to freedom of thought, conscience and religion. These guarantees are repeated in the new Constitution. In making such guarantees the Nicaraguan statute follows exactly the wording of the International Convention on Civil and Political Rights.
Although the state of emergency regulations give the government sweeping powers, they have been used with discretion and the severity of their application has varied in response to the perceived contra threat and the political moment. During the pre-election period, from August to November 1984, there was a gradual relaxation of the state of emergency, enabling opposition parties to function normally. Prior censorship was not removed altogether, but the amount of censored material in La Prensa was significantly reduced. This milder application of the state of emergency was maintained until 15 October 1985, when a new state of emergency was declared, giving the security services wider powers of investigation and detention and further curbing strikes and the freedoms of speech and association. In November, however, the National Assembly amended the terms of the emergency decree, limiting the restriction on freedom of movement to war zones, and the restriction of freedom of expression to matters concerning military and economic affairs considered prejudicial to national security. Public meetings, demonstrations and strike actions were permitted with prior authorization. Habeas corpus was restored in nonpolitical cases. As a result of these amendments the scope of the new state of emergency is not significantly different from the one already in force.
The states of emergency, with their varying degrees of severity, reflect the Nicaraguan government's perception of the threat posed by the contra war. The purpose of the first state of emergency was to give the government the necessary powers to maintain order during the initial post-revolutionary period. The state of emergency imposed in northern Zelaya in December 1981 was a response to a series of raids from Honduras by Miskitu antigovernment guerrilla forces allied with the FDN, the most important contra force, which was at that time beginning to operate as a structured counterrevolutionary group with support from the United States.
Treatment of Somocista PrisonersThe Permanent Commission for Human Rights, which is hostile to the government, published a list of 419 people who had been reported as having disappeared following detention between July and December 1979. Three hundred and one of these alleged disappearances occurred in July 1979, when order had not been fully restored and the new government had not been able to disarm the less disciplined units which had participated in the insurrection.
In the event, the government opted to set up a system of special courts (Tribunales Especiales de Justicia). These were created by Decree 185 on 5 December 1979 and functioned until 19 February 1981, when they were dissolved. They consisted of nine special courts and three appeals courts. A special prosecutor was appointed with a staff of nine.
At the time of the insurrection and during the following weeks between 7,000 and 8,000 former members of the National Guard and civilian supporters of the previous regime were taken into custody. Six thousand three hundred and ten were tried by the Special Courts. One thousand seven hundred and sixty were pardoned or had their cases dismissed, 229 were acquitted and 4,331 received prison sentences. At the end of World War II the French government charged 4,598 people with espionage and treason, of whom 756 were condemned to death.
In July 1986 Tomás Borge, the Minister of the Interior, said that of the 4,331 Somocistas who received prison sentences, some 2,157 remained in prison, the rest having been pardoned or released on the completion of their sentences. Since 56% of the prisoners received sentences of over ten years, this demonstrates that at least some 260 of those prisoners serving longer sentences have been released. At the end of January 1987 the government announced pardons for 300 prisoners, some of whom were former members of the National Guard, tried and imprisoned after the insurrection.
Violations of the right to lifeThe two most important cases of extra-judicial executions by the Nicaraguan Army or the security forces were on the Atlantic Coast. In December 1981 a group of 17 Miskitu civilians were shot at Leimus in northern Zelaya, apparently in reprisal for an attack on an army unit in which several Sandinista soldiers were killed. Reports of these killings were first published by Americas Watch in May 1982. The response of the government was to commission an investigation. The findings of the investigation, however, have never officially been made public. According to the Lawyers Committee for International Human Rights, those responsible for the Leimus massacre were included in the amnesty granted to all Miskitu prisoners. A brief report by a government official is included in Ministry of the Interior documents published by the US State Department. This account, by Sub-Lieutenant Raúl Castro González of the Ministry of the Interior, indicates that those who participated in the shootings were jailed but released six months later on the orders of Comandante Joaquín Cuadra, the commander-in-chief of the armed forces. The second case is that of 69 Miskitu civilians who were detained by the Nicaraguan Army or security forces in the Puerto Cabezas area between July and September 1982 and were allegedly executed by their captors. The government has not identified or punished those responsible but has implicitly acknowledged responsibility by paying a small pension to the families of some of the victims.
The fact that there have not been any further atrocities on the Atlantic Coast, such as the Río Leimus and Puerto Cabezas killings, is to be welcomed. This, however, does not excuse the Nicaraguan government from providing a full and public account of these incidents, as they have been asked to do by several human rights organizations.
The major item of evidence advanced to sustain the charge that the Sandinista government has systematically violated the right to life is the testimony of Alvaro Baldizón, who worked as a special investigator for the Ministry of the Interior with the rank of sub-lieutenant until he defected to the United States in July 1985. His accusations are contained in a document published by the US Department of State in February 1986 with the title "Inside the Sandinista Regime: A Special Investigator's Perspective." Baldizón's personal testimony, however, has been found to be unreliable. It was analyzed in detail by Americas Watch which found crucial contradictions about dates and places.
Baldizón asserts that the Sandinista government has murdered 2,000 people in a systematic program of extermination directed personally by Tomás Borge, Minister of the Interior. Human rights violations, however, are not difficult to investigate in Nicaragua and it is inconceivable that this number of people could have been murdered without reports being made to human rights organizations. Americas Watch estimates that the number of recorded killings outside combat and disappearances for which the Nicaraguan government is responsible in the last six years is "close to 300."
Abuses by Sandinista ForcesIt is difficult to provide accurate quantitative figures for abuses carried out by government security forces or the army. Between 1982 and 1985, however, Amnesty International, Americas Watch and the Washington Office on Latin America documented 130 civilian deaths, in at least 22 separate incidents, including the 86 Miskitus mentioned above. Two of the incidents, causing 11 deaths, were the result of indiscriminate attacks by army patrols in a war situation. Four of the incidents involved drunken soldiers or militiamen. In ten of the incidents, there was an investigation by the government and in at least six cases those responsible were found guilty and sentenced to long terms of imprisonment.
Over 600 Sandinista soldiers are at present serving prison sentences. According to the military prosecutor's office, the majority of them were found guilty of common crimes, such as robbery or assault. A small proportion, however, were found guilty of abuses of power. According to the prosecutor's office, one of its officers is attached to every active unit and is empowered to impose punishments in the field. In addition, every soldier carries a small manual, "El Manual del Soldado Sandinista," enjoining good behavior and encouraging him to report abuses of power or indiscipline to his officers.
During the same period [1982-85], the contras have been responsible for at least 1,185 civilian deaths. Given gaps in the data and lack of knowledge about the fate of hundreds of peasants who have been abducted and forcibly recruited by the contras, this figure seriously underestimates the number of civilians they have killed. The contras have singled out individuals for torture and execution because they are known supporters of, or worked for, the government. They have been guilty of indiscriminate attacks on the civilian population, causing heavy loss of life.
Amnesty International and Americas Watch continue to call for a full and public explanation of past government abuses. Americas Watch urges the government to set up a reliable system for the prompt reporting of arrests to the families of those concerned. Both organizations confirm, however, that there is no government policy of extra-judicial execution or murder. Even allegations made by the CPDH do not suggest that extra-judicial executions or disappearances are sanctioned by the Nicaraguan government. The CPDH published complaints of 15 disappearances that occurred in 1985 and 16 deaths reported in 1985. These complaints, however, are published without further investigation. Only one or two of the alleged disappearances and four of the alleged murders by government troops or security forces in 1985 appear to deserve extensive further investigation.
Cases of torture? Few cases of physical torture have been reported to human rights organizations. Again, Amnesty International and Americas Watch state that there is no evidence that the use of torture is sanctioned by the Nicaraguan authorities. People detained for interrogation under the state of emergency regulations, however, have reported the use of conditions of detention and interrogation techniques that could be described as psychological torture. Other observers have referred to these interrogation techniques as "white torture." Most cases of such interrogation techniques are connected with the DGSE [State Security] detention center of El Chipote in Managua.
Detainees report that the cells in El Chipote are below ground level and are ventilated only by a vertical shaft in the ceiling. The door is a solid metal sheet and has a small window flap through which the guards can inspect the prisoner. The light is switched on only for meals, otherwise the prisoner is kept in gloom, if not total darkness. Prisoners are issued standard prison overalls, a pair of rubber sandals, soap, toothbrush and toothpaste. The lavatory is a hole in the floor at one end of the cell. Washing water is supplied by a pipe jutting out from the wall at head height above the hole in the floor. The water is turned on for about ten minutes a day. The cell also contains a bunk bed with a mattress.
Human rights organizations and the International Committee of the Red Cross have made repeated requests to be given access to prisoners held in DGSE detention centers, but the government has so far refused to permit such visits.
DetentionIn normal circumstances Nicaraguan law allows the police to detain suspects for up to nine days before bringing charges against them. Under the state of emergency there is no limit to the time for which someone suspected of a political offense can be held for investigation by the DGSE. The numbers of suspects held under the state of emergency and the length of time for which they are held have been among the main concerns of human rights organizations.
Under the state of emergency that was in force before 15 October 1985, it was reported that 25% of detainees were charged or released within a month after their detention, a further 50% charged or released between one and three months after their arrest, and the remaining 25% held for longer than three months before being charged or released. The length of time detainees were held was not changed by the declaration of the new state of emergency on 15 October.
There are several estimates of the number of people held under state of emergency regulations, as opposed to those sentenced for security-related offenses by the Tribunales Populares Antisomocistas [TPAs, described below] and, between 1980 and 1983, by the ordinary courts. Such people can be divided into those who have been charged and are awaiting trial by the TPAs, held in the prisons of the national penitentiary system, and those who are under investigation by the DGSE.
In a press conference on 18 July 1986 Tomás Borge, the Minister of the Interior, said that 1,802 people were being held on charges linked to contra activity. Of these, 1,025 were awaiting trial. In an interview in July 1986 the CPDH estimated that there were 2,000 detainees held without charges having been laid against them. In the same [19 July 1986] Washington Post report the CPDH is reported as saying that 2,000 people were being held in Managua alone. According to another estimate provided by the CPDH in April 1986, about 600 people were being held in the national penitentiary system pending trial or appeal hearings in the TPAs and a further 1,500 were being held for investigation in DGSE facilities. Since no independent visits to DGSE facilities are permitted, it is impossible to dispute these estimates with alternative sets of figures. There are indications, however, that the CPDH figures are exaggerated. According to independent sources on the Atlantic Coast, at the time when the CPDH was claiming that the DGSE was holding 100-150 detainees in Puerto Cabezas and 80-100 in Bluefields, there were only 15 people in DGSE custody in Bluefields and none in Puerto Cabezas.
Due process and trial proceduresThe major legal instrument used by the government against alleged political offenders is the Law for the Maintenance of Order and Public Security passed in July 1979 and modified in June 1982. The principal criticism of this law is that it relaxed the standards of evidence needed to secure a conviction and severely limited the time in which the defense could present its case. Since April 1983 all cases involving charges under Articles 1 and 2 of the Public Order Law have been heard by the Tribunales Populares Antisomocistas (TPAs), a system of special courts similar to the special courts used to try former members of the National Guard.
The TPAs have been functioning since June 1983. In the period from June 1983 to May 1986, 1,215 people were brought before them. The lower court sentenced 846 people to terms of imprisonment ranging from 3 to 30 years, and the appeals court reviewed 553 individual cases. Thirty-four defendants were acquitted by the lower court and a further 15 by the appeals court. According to figures provided by the TPAs, in addition to those who were acquitted, 126 defendants were set free during this period. Three cases were withdrawn, 72 defendants were amnestied and 41 sentences were [revoked]. Three defendants were pardoned, one was released by a measure described as "liquidación de condena" and six defendants received suspended sentences. In addition, two defendants were given probation; three minors—under 17 years of age—were referred to the juvenile courts, and one defendant was transferred to the ordinary court system. The majority of those who were sentenced received sentences of between three and ten years.
The majority of the defendants are peasants from the war zones who are accused of collaborating with the contras, by providing them with food or information about the movement of local officials or army personnel. Given the isolation in which such defendants live, it would be extremely difficult to make a strong case against them. Certainly, for the outsider reading the files, it is impossible to form a clear impression of their guilt or innocence. One Sandinista official excused the weakness of the prosecution case by claiming that to have given more explicit evidence would have revealed the source of government intelligence.
The reading of court transcripts... gives the impression of a ritual rather than a legal defense. The defendants themselves routinely declared that they never signed the confessions of guilt produced in court and claimed that this, their court appearance, was the first occasion on which they had heard them. In two cases, they said they were asked to sign a document purportedly giving consent for transfer from one prison to another. Many of the defendants are illiterate, signing their alleged confessions with thumbprints or extremely shaky signatures. It is fair to assume that they would be unable to read the typewritten statements produced by the DGSE. It is commonplace, in ordinary criminal cases, for the defendant to allege at the beginning of a trial that any confession was extracted through torture or trickery. According to a lawyer working in a university legal aid center, this is a habit that persists from the Somoza era.
In July and August 1986, 606 cases were sent to the TPAs by the DGSE. This represents a sharp increase over the previous rate at which cases were being processed. The Ministry of Justice is reported to have stated that the tribunals tried 160 people in the first five months of 1986. According to one defense lawyer quoted in the same report, this increase is a response to the contra vote taken by the US Congress in June. It is more likely, however, that it reflects the Ministry of the Interior's known wish to reduce the growing backlog of detainees awaiting trial and the higher numbers of detentions during 1986. It is unlikely that the DGSE would have been able to prepare so many charges after 25 June 1986, when Congress finally approved the contra aid.
The composition of the TPAs, the lack of jurisdiction of the Supreme Court and the expedited trial procedures are all prejudicial to the due process of law. The Supreme Court has pressed repeatedly for jurisdiction over all courts of law in Nicaragua. The Nicaraguan government has justified the setting up of both the Tribunales Especiales de Justicia and the TPAs by referring to the need for swift and exemplary justice. Relatives of people killed or maimed by the contras have complained about lenient treatment of contra prisoners and there is strong popular feeling against them. [But] until the government reforms the TPAs by demanding a higher standard of evidence and placing them under the jurisdiction of the Supreme Court, the suspicion must remain that they are used to remove from the war zones people who are suspected of aiding the contras or whose loyalty is merely in doubt.
In mitigation it can be said that, if this is the case, the TPAs are an extraordinarily laborious way of accomplishing this objective and also quite selective. If the TPAs do have a counterinsurgency objective then the number of people serving sentences imposed by the TPAs—846 in three years—is small in relation to the extent of the areas in which the contras have operated. At the same time, it must be recognized that the government has a problem. The contras rely on information provided by local people to ascertain the whereabouts of army patrols and the travel plans of local government officials such as agricultural extension workers, health promoters and teachers. This information is used to plan ambushes. It is understandably a goernment priority to deny this information to the contras.
Although the new Constitution places all courts under the jurisdiction of the Supreme Court, it will not have an immediate effect on the TPAs. The government has already announced that the TPAs will continue to function until the state of emergency can be lifted.
The prison systemWhen the Inter-American Commission on Human Rights [IACHR] visited Nicaragua in October 1980, its delegation inspected ten prisons in different parts of the country. With three exceptions—the Orlando Betancourt prison in Chinandega which was in the process of construction, the Ruth Rodríguez women's prison in Granada and the Francisco Meza youth rehabilitation center—they found the conditions "deplorable." Overcrowding and poor food were the most frequent complaints. At the same time the delegation recognized that these conditions "were due in large part to the special postwar circumstance," and that "of necessity the government had to use the former regime's detention institutions, which [in] the best of times had been rudimentary and which deteriorated notably in the years prior to the fall of Somoza." Between the time of the mission and the publication of the report, the government closed three of the prisons that had been most criticized by the IACHR. In its first report on Nicaragua in March 1982, Americas Watch also found severe overcrowding in the two principal prisons, the Cárcel Modelo Jorge Navarro (Tipitapa) and the Cárcel Héroes y Mártires de Nueva Guinea (Zona Franca) that were used to house "Somocistas" who had been tried by the Tribunales Especiales de Emergencia.
There have been significant improvements in the national penitentiary service in the past four years. A system of farm prisons (granjas abiertas) was started in 1982. Now there are 14, 13 under the supervision of the prison service and one for soldiers who have been sentenced to terms of imprisonment by the military courts, which is under the responsibility of the Fiscalía Militar. A fifteenth open farm prison, for women, is to be opened shortly. Some of the farm prisons are classified as open and some as semi-open.
Tipitapa, Nicaragua's only high security prison, is no longer overcrowded. An Americas Watch representative who visited Tipitapa in March 1986 found it much improved and was told that it was operating at 80% of capacity. Opportunities for work had been greatly expanded. Two thousand one hundred and sixty-two of Tipitapa's 2,860 inmates are former members of the National Guard or "Somocistas."
It is envisaged that the penal system in Nicaragua will offer the prisoner the possibility of a gradual progression through five stages to complete liberty on completion of sentence. The guidelines regarding the assignment of prisoners to each category of prison, however, are not yet in fact observed because sufficient open and semi-open prisons have yet to be built.
l. The first stage is the closed system, ordinary prison life without work.
2. In the second stage the prisoner is still held in a closed prison but is able to work and receives greater privileges and more visits. If the prisoner demonstrates good behavior, he may, after serving 30% of his sentence working in a closed prison, move on to the semi-open system. It appears that a prisoner may progress to Stage 2 as soon as he has been tried, depending on the availability of work in the prison to which he is sent.
3. In the semi-open system the prisoner is held in a low-security jail with freedom to move around within the grounds, and is taken out to work during the day. After serving 20% of the sentence in the semi-open system, the prisoner moves on to the open system.
4. In the open system there are no security measures. The prison officials do not carry arms and the center is run by an elected council of inmates. Contact with families is frequent. There are weekly visits; once a month the prisoner is given a weekend leave, and once every six months is allowed home for a week. After serving 10% of his sentence in the open system the prisoner is allowed home on probation.
5. During the probationary period the prisoner remains under police supervision but lives and works as a normal citizen. The penitentiary authorities are supposed to guarantee the probationer a job at this stage in his rehabilitation so that he will not be tempted to return to crime. It is not clear if they are able to do this in the present economic circumstances.
Throughout the system, prisoners are encouraged to participate in cultural activities and to continue their education.
Since pardons are granted on the basis of good behavior and evidence of rehabilitation, there is a strong expectation that once a prisoner has progressed to the open prison system his sentence will be drastically reduced by a pardon. There are evidently possibilities for shortening the stages outlined above because there are several former National Guard soldiers and officers serving 20- to 30-year terms, who have already progressed to the open system. An evaluation of the open farm system, conducted between 1982 and 1984, found a very low rate of recidivism (15%) among participants. The psychologist who conducted the study found that "90% of the respondents indicated that their experience in the program had helped them to see more clearly the forces at work in their lives and had in fact helped them to take more control over their lives."
The International Committee of the Red Cross (ICRC) is permitted access to all the prisons of the penitentiary system. In 1985 ICRC representatives started extended visits of three to four weeks, three or four times a year, to Tipitapa and Zona Franca. The detainees visited by the ICRC are former National Guard soldiers and "Somocistas" and prisoners accused of, or sentenced for, counterrevolutionary activities. The ICRC is given unrestricted access to every part of the prisons and can talk to the detainees without the presence of witnesses. In September 1985 the ICRC reached an agreement with [the] government permitting it to run seminars for members of the National Penitentiary Program and the police.
The only difficulty in the penitentiary system is with former members of the National Guard in Tipitapa, approximately 1,000 in number, who refuse to work. Americas Watch describes their prison regime as 'harsh'. They are limited to one family visit every two months. 'The system generates friction, as the prison authorities resent the inmates' lack of cooperation and refusal to accept the rules. Thus there are frequent breaches of discipline, and sanctions are imposed, including loss of visiting rights. Given the infrequency of visits, loss of entitlement to a single visit means that four months elapse between the times that they see their families.'* One person who has had contact with the 'non-cooperators' among the prisoners reports, however, that their morale is in general higher than that of those who do work, because they have a greater sense of their own worth, refusing to accept the premise of their gaolers that they need rehabilitation.
*Americas Watch, Human Rights in Nicaragua, 1985-1986, p.42.
In a continent notorious for appalling prison conditions, where brutality and corruption are the norm, Nicaragua's penal system stands out as a genuine effort to find a more humane yet affordable alternative. Such criticism as there is concentrates on lack of resources, which is a feature of the Nicaraguan economy as a whole and is not limited to the prison system.
Population DisplacementThe displacement of people is part of war and Nicaragua is no exception. It is estimated that 250,000 people (8% of the total population) have been displaced within Nicaragua and a further 29,000 people are classified as refugees living outside the country. These figures do not include the contras or the tens of thousands of Nicaraguans who have left the country voluntarily and taken up residence in the United States or neighboring Central American countries for political or economic reasons.
The displaced in Nicaragua are peasants from the northern parts of the country and Miskitus and Sumus from the Atlantic Coast. The great majority of the displaced have moved voluntarily to escape the fighting and harassment by the contras. The most notorious case of involuntary displacement is that of the 8,500 Miskitu Indians who were moved from their communities along the Río Coco border with Honduras to the settlements of Tasba Pri. It should be noted here, however, that in 1985 these Miskitu Indians were allowed to return to the Río Coco. Over 50,000 peasants from the Pacific side of the country have been obliged to move by the government in the past two years. Some have been glad to move and others have done so against their will. As with other human rights issues in Nicaragua, the reality has been grossly distorted by the Reagan Administration, which has claimed that the Nicaraguan government's resettlement program is incarcerating peasants who do not support it in a "Stalinist gulag."
Human rights organizationsThere are three human rights committees in Nicaragua: The government-funded CNPPDH (National Commission for the Protection and Promotion of Human Rights), the Permanent Commission for Human Rights (CPDH) and the Legal Affairs and Human Rights Commission of CEPAD. The National Assembly also has a Human Rights Commission. The Moravian Church supports three legal offices under an organization called the Association of Jurists of the Atlantic Coast, and the Law School of the Central American University (UCA) provides a legal aid service that assists in the defense of people charged under the Public Order Law.
The CPDH is openly critical of the government and has been accused by the government of publishing misleading reports. In November 1985 CPDH was told that it would have to submit copies of its reports for prior censorship. When Americas Watch representatives questioned Tomás Borge, the Minister of the Interior, about this later that month, they were told that there was no intention of censoring CPDH, but that the Ministry of the Interior wanted to receive copies of all CPDH reports as soon as they were published. In May 1986, in what is considered to be a further positive step, the Ministry of the Interior began to answer CPDH's letters requesting information about individuals reported as detained.
CPDH's potentially valuable advocacy for human rights as a private organization is flawed by its willingness to publish unsubstantiated allegations as fact. Its independence has also been compromised by donations from sources close to the US government:
The National Endowment for Democracy, a public foundation that distributes funds of the US government, gave a concession of $50,000 for assistance in the translation and distribution outside Nicaragua of the Permanent Commission's monthly reports. The concession was administered by PRODEMCA, a group dedicated to Central American affairs. During the Congress debate in March over the package of $110 million, PRODEMCA published full-page adverts in the Washington Post and <>New York Times supporting military aid to the contras.*
*Washington Post 16 July 1986.
In June 1980 the government set up the CNPPDH, thus implementing the recommendations made by a UN Human Rights seminar in 1978 regarding the setting up of national institutions for the protection and promotion of human rights, which were subsequently adopted by the General Assembly. Though government-funded, the CNPPDH is officially autonomous. In practice, the willingness of the CNPPDH to challenge the government has depended on the strength of character of its directors, of whom there have been several. One of the first tasks of the CNPPDH was to make recommendations for the pardon of Somocista prisoners condemned by the Special Emergency Tribunals. Its conscientious performance of this task did not make it popular among Sandinistas and others who felt that imprisoned members of the National Guard fully deserved their lengthy prison sentences. Other tasks have included drawing up recommendations for prisoners to be released on probation and reviewing prison conditions. More recently the CNPPDH has devoted considerable effort to documenting contra abuses.
Although it is not part of CNPPDH's work to intervene on behalf of people detained for political reasons, its office, which is a short walk from the CPDH, is visited by many of the people who go to the CPDH to report the detention or possible disappearance of a relative because their primary concern is to obtain information and the person's release. There are some indications that CNPPDH under its new director, the former Supreme Court Justice Vilma Núñez, will be more vigorous in investigating suspected cases of government abuse of human rights. Dr. Núñez was responsible for a significant amendment to the state of emergency now in force. She persuaded the National Assembly to insist that the families of detainees should be informed by the DGSE of their place of detention. On 10 December 1986, Human Rights Day, Dr. Núñez delivered a speech before President Daniel Ortega, Tomás Borge and the most senior officials of the Ministry of the Interior and Supreme Court. She said that the CNPPDH would “carry out our investigations and promulgate our findings and ask for action by the competent authorities. Our commitment is to guarantee human rights to our people. Our difficult work must be part of the revolution, [part of] the respect for human rights. Besides fighting against the contras, it is also our job to fight for human rights. There are those who consider this policy idealistic in wartime and costly to the revolution. But confronting them is the great majority of the Nicaraguan people who feel that it is necessary to defend human rights as part of the revolution.”
Other human rights organizations CEPAD's Legal Affairs and Human Rights Commission was set up in 1985 to meet several needs. First, to advise Protestant denominations or churches that had no legal status (personería jurídica) and wanted to put their affairs in order. Second, CEPAD's member churches wanted a specialized commission to study the new Constitution that was then being drafted and to make recommendations when it was submitted for discussion. Third, recognizing that some abuses were being committed in the war zones by government soldiers, they wanted a commission that could gather, study and report on human rights violations. The commission has made representations to the government on behalf of members of Protestant churches detained under the state of emergency regulations and, in a number of cases, has obtained their release. This success has brought extra work. Catholic priests are now bringing to CEPAD the cases of their own parishioners who are in detention.
The Human Rights Commission of the National Assembly is one of the Assembly's 12 specialized commissions. Originally its function was to report to the Assembly on bills relating to human rights and to make recommendations on pardons under the Ley de Gracía proposed by the CNPPDH. At the end of May 1986, the Commission approved 308 pardons for persons, including 5 Costa Ricans, 5 Hondurans and 60 contras, from about 580 requests. Three hundred further pardons were announced at the end of January 1987, including that of Sam Hall, the US citizen accused of spying, whom the government judged to be unbalanced. The predominant criterion used to determine who should be pardoned is whether it is thought that those pardoned will not commit further crimes or, as some have, go over to the contras.
The existence of these organizations, with their different functions and degrees of independence from government, is encouraging. They do not in themselves constitute guarantees for human rights but their experience shows that the government is willing to allow independent organizations to challenge the decisions of officials and to act on reports of abuses, especially when complaints are made by organizations which are not seen as politically motivated.
Life under the State of EmergencyDwelling exclusively on human rights violations committed by the government or the contras can give a partial view of life in Nicaragua. In spite of the war and the state of emergency, Nicaragua does not give the impression of being a repressive society. There is a large resident foreign press corps. Journalists and delegations make frequent visits and are able to obtain and conduct interviews with private citizens and members of the opposition without government interference. Opposition politicians visit and receive frequent visits from diplomats based in Managua. There is no curfew under the state of emergency and, with the exception of the war zones, there is no restriction on movement around the country. Foreign tourists, including US citizens, are admitted to the country without visas. There is a considerable number of foreigners living and working in Nicaragua, of whom US citizens are the largest national group.
Everywhere the visitor will find young men and women in olive-green fatigues; some are soldiers on guard duty armed with AK-47 automatic rifles, others are off-duty or are members of the militia. They are almost invariably friendly even when they are refusing a request. Indeed, it is a frequent complaint of journalists that officials tend to prefer a misleading but gracious explanation to a simple refusal. The Sandinista police are famous for their courtesy and good manners and for being no respecters of rank when it comes to giving traffic tickets. One US resident has commented, "If the police behaved here [as badly] as they do in New York, we would be horrified."
On Sundays Catholics go to the mass of their choice, celebrated by a priest in sympathy with, or hostile to, the revolution. Protestants, who have increased in number since 1979, go freely to their own churches, many of them simple chapels set up without official registration. Discotheques in Managua are open late into the night and, despite prices that are far beyond the ordinary Nicaraguan pocket, are full. They attract their share of "internacionalistas," of course, but still the majority of the clientele is Nicaraguan.
Dr. Gustavo Parajón, president of CEPAD [and now, member of the National Reconciliation Commission], commented about the state of emergency:
“Despite the fact that in October 1985, when the state of emergency was imposed, we were alarmed and worried, life in general has not changed very much. There are restrictions on the political parties which need permission to hold their outdoor rallies. But for the common person there has been no perceptible change. The same restrictions apply for outdoor religious meetings but, in most cases, permission has been granted. As far as the work of CEPAD... is concerned, we have continued to operate as usual, and this is the case for other church and private organizations.”
Freedom of expression The issue of freedom of expression is particularly controversial. The war, as most foreign observers agree, justifies some degree of censorship. Nonetheless, Nicaragua, as the government from time to time acknowledges, and the opposition demands, needs a critical press. The Sandinistas maintain that they wish to uphold pluralism, and there is a political opposition that, within the four walls of the National Assembly, in interviews and small political gatherings, speaks out vigorously against government policies. The debate is important for Nicaragua but at the same time it is one of the issues that has been most used by interested third parties, such as the Reagan Administration, to attack the Sandinistas.
The arguments about freedom of expression have centered on La Prensa, the opposition paper that was suspended indefinitely by the government on 26 June 1986, following the approval by the US House of Representatives of the Reagan administration's $100 million aid package for the contras. Until June 1986 La Prensa had been published after extensive censorship by the government Directorate of Communication Media, a section of the Ministry of the Interior.
The contra aid vote of 25 June 1986 in the US House of Representatives was the event that triggered the government's decision to suspend La Prensa. Jaime Chamorro, however, had risked government reprisals against the paper in April 1986, when he wrote an article in the Washington Post openly supporting President Reagan's request for aid to the contras: "...Those Nicaraguans who are fighting for democracy have the right to ask for help wherever they can get it," he wrote. Chamorro claimed that the real danger of the Sandinistas was that they "...could inspire, aid and arm, from Managua, insurgencies throughout Latin America, 'movements of national liberation' that will convert the entire continent into an immense base of insurrection." La Prensa was saved on that occasion by the defeat of the contra aid bill. Announcing the decision to suspend La Prensa on 27 June 1986, Daniel Ortega cited the grant the paper had received from the National Endowment for Democracy in the United States and accused La Prensa of "having become an accomplice of the aggression that the Reagan administration is launching against Nicaragua."
The indefinite suspension of La Prensa has not ended the debate about censorship. On 2 August 1986 Daniel Ortega, speaking in Chicago, agreed to stay within the "present legality." The "present legality" refers to the strict limits which the government at present imposes on news and opinion.
[In September 1987, complying ahead of schedule and unilaterally with the peace accords signed in Esquipulas, Nicaragua announced an end to all "prior censorship" and said that La Prensa and Radio Católica, which had been closed down, could reopen with no further restrictions.]
Civil liberties in NicaraguaThe whole area of civil liberties is a problem in Nicaragua. The right to suspend the freedoms of expression and association at a time of emergency is recognized by international law. The extent and nature of the emergency which Nicaragua is facing ... establishes a prima facie case for the state of emergency. One can acknowledge also that, in the context of this emergency, the DGSE performs a distasteful but necessary function, spying on people, gathering information, planting informers, infiltrating the opposition and, finally, detaining and interrogating suspects.
Despite the state of emergency, basic rights have been protected. Nevertheless, the state of emergency gives the DGSE very wide powers of arrest and detention. Use is made in interrogation of the threat of indefinite detention. At the same time, the ordinary citizen has no legal recourse against arbitrary detention by the DGSE. Although the experience of being detained, interrogated or threatened by the DGSE cannot rank with the crimes perpetrated by the contras, it is sufficient to instill fear in most ordinary people. The widespread use of these techniques and the large number of people who are released after questioning indicates that their purpose is to intimidate as well as to detect contra activity. Since these acts are primarily directed against known and open opponents of the government, identified by their membership [in] opposition political parties or unions, their effect may also deter people from lawful opposition.
Amnesty on the Atlantic CoastOn 1 December 1983 the government granted an amnesty to all those who had been convicted of criminal offenses in northern Zelaya between 1 November 1981 and the date of the amnesty. Three hundred and seven prisoners, some serving long sentences, were released immediately. In December 48 Miskitus arrested in southern Zelaya were also released. By mid-1984 only eight Miskitus were still in prison. A new amnesty was announced in February 1985. In July 1986 the Moravian Church reported that there were no Miskitus in prison for political offenses.
Human rights in the new ConstitutionTitle IV, which may broadly be defined as the human rights section [of the Constitution that went into effect in February 1987], is by far the longest, accounting for one-third of all the articles (69 out of 202). It is divided into six chapters dealing with individual, political, social, family and labor rights and those of the communities of the Atlantic Coast. Students of constitutional economy might wonder at the length of the Title, in view of Article 46, which reads:
“In the national territory, each person is entitled to the protection of the state and to recognition of the rights inherent in the human person, to the unqualified respect, promotion and protection of human rights, and to the full effect of the rights defined in the Declaration of Human Rights; the American Declaration of the Rights and Duties of Man; the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights of the United Nations and the American Convention on Human Rights of the Organization of American States.”
This article is remarkable for three reasons; first, the Nicaraguan Constitution does not contain a clause, found in some Constitutions, making treaties, in the words of the United States Constitution, "the supreme law of the land." On the contrary, Article 182 provides, inter alia, that treaties in conflict with the Constitution "have no value whatsoever," thus giving binding effect to the international human rights instruments named in Article 46 [above]. This represents an extraordinary commitment to what has come to be called the "international bill of rights." Second, the inclusion within the chapter called "Individual Rights" of the various named instruments suggests that the intention is to make them fully self-executing and available to individuals as a source of enforceable rights. Third, there is perhaps nothing surprising about a reaffirmation of the letter and spirit of the Universal Declaration and the two Covenants, which are products of the multi-ideological United Nations system. But Article 46 also refers specifically to the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, two documents entirely devoid of socialist—not to mention Marxist-Leninist—influence.
Why, then, was it necessary to spell out in elaborate detail, chapter by chapter, article by article, paragraph by paragraph, virtually every provision of the documents named in Article 46 and some additional ones to boot? They are all there: the right to life, liberty and security; to privacy; equality before the law; freedom of conscience and speech, of movement and residence; the presumption of innocence and other guarantees of due process; freedom of association; the right of petition; protection of minors and the disabled; the right to work and to strike, to food, shelter, health and much, much more.
It is not difficult to discern the reason. After a century of authoritarian rule, followed by three decades of one of the most brutal dictatorships of this century, the Nicaraguans did not wish to leave the formulation of the gains of their revolution to a set of texts formulated by outsiders.
As a contribution to the literature of human rights, the Nicaraguan Constitution is already something of a landmark, with its embellishments on the standard clauses, its specific incorporation of the international law of human rights, its repeated acknowledgment of the demands of women, its novel solution to the problem of ethnic minorities, its unique mix of Latin American, social-democratic and neo-radical traditions. It will be—indeed it is already being—studied by drafters of other Constitutions.
Similarly, the process by which the Nicaraguan Constitution was forged will stand as an example of pluralism within revolutionary leadership. The serious and relatively low-keyed debate in the National Assembly that followed the earlier phases of political party acrimony has also made a positive contribution to the tone of political dialogue in Nicaragua, at least with those political sectors willing to engage in dialogue with the Sandinista government.
ConclusionCommentators have speculated to the point of tedium on possible divisions within the FSLN, especially within its nine-member directorate. The starting point of such speculations is the real division of the FSLN between 1975 and 1979 into three factions or "tendencies." After nearly eight years in government, however, the National Directorate's experience of unity is twice as long as that of division. There are no authoritative accounts of divisions among the nine, and this is not for want of trying to find out by diplomats, journalists and political enemies. This is not to say that there are no disagreements among the members. According to sources close to the government, disagreements do exist but they do not become stable divisions by which some could be classified as "moderates" and others as "hardliners." The fact that disagreements have not been ventilated in public is in itself an extraordinary political phenomenon.
What does this mean for human rights? Simply, that the government's record on human rights since 1979 is a better guide to its human rights policies than alleged intentions derived from study of the FSLN's grounding in Marxism-Leninism or its supposed division into "hardliners" and "moderates." It is the record of a government that has had to learn from experience, has received advice from all quarters and often, following its own counsels, has rejected that advice. It is the record of a government that, since 1981, the Reagan Administration has sought to destabilize by economic and financial blockade and war waged by a proxy army of contras.
The record we have described is not the record of a government bent on totalitarian rule. Few gross abuses can be attributed to the armed forces and the state security service, even though they have not been subject to any external regulation and citizens have not had any statutory means of seeking redress for injustices committed by them. On the contrary, there has been increasing willingness to put on trial and punish members of the armed forces accused of abuses of power. Rulings on habeas corpus by the Supreme Court, including the limited form permitted for security-related offenses under the state of emergency, are now obeyed by the security service.
The war is enormously costly in human and material terms. The balance, however, is not completely negative. The war has forced the government to evaluate all its policies in terms of the political support they generate and to acknowledge that some of its early policies were undermining its bases of political support. This has led to sweeping changes on the Atlantic coast and in the agrarian reform program towards greater autonomy and independence. The same effects are felt in the field of human rights. Every wrongful arrest and false accusation undermines support for the government. The CNPPDH and the Human Rights Commission of the National Assembly are widening their roles. The government has moved to reduce time spent in pretrial detention and to curb abusive behavior in the interrogation phase of detention. Serving army officers and security officials have received exemplary punishment for violating human rights. There has been no repetition of the grave abuses that were committed on the Atlantic Coast in 1981 and 1982. All these improvements have taken place under a government that, from the beginning, was committed to tempering justice with mercy, through the abolition of the death penalty and, subsequently, through the policy of amnesty for the contras.
The new Constitution establishes internationally recognized human and civil rights as part of Nicaraguan law. There will be enormous pressure domestically and from abroad to implement the suspended provisions of the Constitution as soon as the war is clearly over. Full implementation of the Constitution with all the human rights it guarantees, however, will take many years, and will depend on Nicaragua's realizing of its early hopes of health, education and welfare for all. The ending of the war is an essential precondition of implementation of the Constitution and this depends, now as always, on the US government.