“Crimes against humanity were committed”
“The Nicaraguan State engaged in acts that,
under international law,
must be considered crimes against humanity.
The analyzed facts must be characterized as a widespread,
systematic attack against the civilian population.
The conclusion is based on the geographic
and temporal extent of the acts,
the number of victims snf the severity of the acts of repression,
as well as on the existence of certain patterns of behavior
conducted with state resources,
corresponding to a policy defined and endorsed
at the highest echelons of state power.”
Interdisciplinary Group of Independent Experts (GIEI)
The significance of the acts of violence perpetrated by the State starting on April 18, 2018, compels the question of whether they may be considered crimes against humanity under international law. The question’s pertinence lies in the fact that the characterization of an act as a crime against humanity imposes specific legal consequences at both the state and international level.
“Atrocities committed by
States against their own people”
It is important to remember that the concept of crimes against humanity was created to judge those atrocities committed by States against their own people or against populations under their control. The creation of a concept like crimes against humanity meant recognizing the international relevance of the way States treat their own populations. For this reason the commission of specific serious acts by a State against its own people has ceased to be simply an “internal affair” of that State, coming to affect the whole international community.
The prohibition on committing crimes against humanity has long been part of customary international law and is enshrined in peremptory norms of international law (ius cogens). This means they have universal value, independent of whether the State in question has or has not recognized these norms or signed relevant treaties. Whether or not a State has signed a specific treaty can influence the determination of which mechanisms may or may not be brought to bear in a given case—for example, the International Criminal Court—but the mere characterization of acts as crimes against humanity is defined by international standards that do not depend on a State’s will.
The development of international criminal law has up to now been put into practice with the adoption of a range of legal instruments and institutions, such as the international criminal tribunals created for specific situations (e.g., the creation of the International Criminal Court).
These tribunals, created to judge crimes under international law (genocide, crimes against humanity, war crimes and, more recently, the crime of aggression), demonstrate the development of international criminal law in the last few decades. Nonetheless, these courts only act when States are unable to conduct trials that meet international standards. They are complementary bodies and are normally subject to state jurisdictions. The parties with primary responsibility for judging these crimes are national States.
“A widespread or systematic
attack against civilian populations”
The concept of crimes against humanity is part of customary international law and is applicable to all States, regardless of whether or not they have signed relevant treaties. The concept’s definition enjoys unquestionable consensus and its central aspects have been set forth by the case law of international criminal tribunals, as well as the Rome Statute of the International Criminal Court. The definition contained in this Statute precisely sums up existing consensus on the defining aspects of the concept.
The concept of crimes against humanity is composed of a contextual element and a series of underlying acts that must be present within this context. These acts include murder, torture, rape, forced disappearance of persons, imprisonment or other serious deprivations of physical liberty, as well as acts of persecution, among others.
The contextual element is established by the presence of “a widespread or systematic attack against a civilian population.” The idea of “attack” is defined not only in terms of armed attack, but also as “any type of mistreatment of the civilian population,” and “a course of conduct involving the commission of acts of violence.” This wording has been adopted in the Rome Statute of the International Criminal Court (ICC), which defines attack as a “course of conduct that implies the multiple commission of acts.” The expression “multiple commission of acts” implies not that these acts must be all of the same type (multiple homicides, for example), but that they may involve acts of different types, with differing degrees of severity and still collectively qualify as an attack.
For the establishment of crimes against humanity, the attack must furthermore be widespread or systematic. It is not necessary for the attack to fulfill both requirements (systematic and widespread); satisfying either of the two requirements is enough.
The qualifiers of systematic or widespread refer to the “attack” and not the type of crimes. In other words, the international concept does not require each class of crimes (homicide, torture, etc.) to have been committed systematically or in a widespread manner; rather that these particular crimes form part of a “widespread or systematic attack.”
“An organized pattern of behavior”
The general term refers to “the large-scale nature of the attack and the number of victims.” There is no required minimum number of victims. This is generally determined according to the specific characteristics of each case. One of the Pre-Trial Chambers of the International Criminal Court considered it sufficient for the attack to have been “massive, frequent and carried out collectively with considerable seriousness and directed against a large number of civilian victims.” One element considered relevant to demonstrating a widespread nature is that the attack be perpetrated in different geographic areas of the country.
For it to be systematic, on the other hand, implies the presence of “an organized action, following a regular pattern based on a common policy involving substantial public or private resources.” The International Criminal Tribunal for the former Yugoslavia (ICTY) defined “systematic” as the existence of a plan or objective, the large-scale or continual commission of interrelated crimes, the allocation of significant resources and the involvement of authorities. For example, the ICC Pre-Trial Chamber in Muthaura, Kenyatta and Ali understood that “the precise identification of targets by attackers is indicative of the planned and systematic nature of the violence.” This requirement, however, has also been defined, more succinctly, as “a pattern or methodical plan,” the “organized nature of the acts” or “an organized pattern of behavior.” Independent of the systematic nature, the term “attack” is understood to require on its own a certain level of scale and organization.
On the one hand, for an “attack” to be established, it requires that the course of action that has been determined involve the multiple commission of acts. Thus, for example, the decision to undertake one or two selective acts, although with planning, would not be enough to establish an attack in the sense of this concept.
On the other hand, for an attack to be established, some preconceived form of plan or policy must exist, even if it is not necessary for such policy to have been formally adopted. The ICC Pre-Trial Chamber noted that “the implementation of a policy can consist of deliberately neglecting to take measures, intending to encourage that attack.” Ultimately, this requirement aims at excluding from the definition of crimes against humanity those acts that are not interconnected or that may have occurred randomly.
“Against the civilian population”
The widespread or systematic attack must be directed against the “civilian population,” a concept that has been understood to mean individuals who are not incorporated in armed forces or, more precisely, who do not have combatant status under the law of armed conflicts. This requirement implies that the civilian population must have been the principal object of attack without the attack necessarily having been against the entire civilian population. In this sense, the ICC Pre-Trial Chamber has recognized that the civilian population “may cover a group defined by its (perceived) political affiliation.”
In addition to the contextual aspect, the concept of crimes against humanity requires the commission or one or more acts from the catalogue of specific crimes as part of the widespread or systematic attack. These crimes in particular are described in subparagraphs of the Rome Statute of the International Criminal Court (murder, torture, arbitrary detention, etc.).
It does not require a person to have committed multiple acts to be responsible for crimes against humanity. It is enough to conduct one criminal act, as long as this act is part of a widespread or systematic attack against the civilian population. The definition of when a specific act (e.g., a murder) is part of an attack will depend on whether a meaningful connection is present between the specific act and the attack, such that said act, by its nature, would be an expression of the attack, or may be seen to have been facilitated by the existence of the attack.
“A policy defined by the
highest echelons of state power”
Available information makes clear that the Nicaraguan State has engaged in acts that, under international law, must be considered crimes against humanity.
First, the analyzed facts must be characterized as a widespread and systematic attack against the civilian population. This conclusion is based on the geographic and temporal extent of the acts, on the number of victims and on the severity of the acts of repression, as well as on the existence of certain patterns of behavior committed with state resources, corresponding to a policy defined and endorsed by the highest echelons of state power.
The events described in previous chapters of this report, as well as the considerations taken upon analyzing the characteristics of the state violence, show that there has been a decision to foment, based on state power, a course of action involving the commission of multiple criminal acts against protesters and political opponents in which the patterns of behavior can be seen repeating over time and in different places around the country.
Multiple elements indicate that these acts were decided and endorsed by the country’s highest authorities, including the President; that similar events occurred in different places around the country; that these behaviors continued over time; that public resources were used; that virtually the entire National Police structure, within which the President has Supreme Command (the highest rank within “institutional command”) participated; that public rhetoric insulted and demonized protesters; that political and institutional endorsement was given at the top of the executive power through numerous acts, including promotions of high-level police chiefs decided in the midst of the violence; and that investigations of notorious public events involving the use of lethal weapons against protesters were not mandated, despite the fact that the number of killed and seriously injured persons was clear and well known. All these circumstances allow the conclusion beyond a doubt that there was a plan to commit these crimes defined by the highest echelons of the government.
Pattern of behavior:
Use of military weapons
As emerged in Chapters VI and VII, the clearest and most serious pattern of behavior consists of using firearms, including military weapons, directly against people who were participating in protest actions. The weapons used by the State against the population include, at a minimum, the following military weapons: AK-47 assault rifles, AK-74 assault rifles, Dragunov sniper rifles, PKM machine guns and M16 rifles. The use of small arms (revolvers) and 12.70 shotguns was also confirmed. Likewise, evidence was gathered indicating that indeed the arms were used with cartridges loaded with lead bullets and buckshot.
This practice led to a large number of dead and wounded, as has been previously described, as well as a risk to the life and physical integrity of an indeterminate number of other people who were protesting during the events that were attacked. These behaviors were headed by the National Police, on numerous occasions including the intervention of armed paramilitary groups and with the support of local political authorities.
The use of firearms with lethal capacity or capable of causing serious injury was not the only type of conduct undertaken by the State against protesters, although it was the distinctive pattern during the stage (April 18 to May 30) covered by the mandate of the Interdisciplinary Group of Independent Experts (GIEI, by its initials in Spanish). There were many types of aggression in a context of persecution on political grounds. They include arbitrary detentions conducted on a massive scale and with differing levels of violence; denial of the right to medical care for wounded protesters; and denial of any form of legal protection by the judiciary and Public Ministry authorities.
“People defined as political
enemies were attacked”
An overall assessment of the facts shows that the State defined a course of action that involved the multiple commission of crimes against the civilian population of Nicaragua that can thereby be characterized as an “attack.” Likewise, the characteristics of the events, given their geographic and temporal extent—killings took place in a huge number of Nicaraguan states: Managua, Estelí, Masaya, Matagalpa, León, Chinandega and Boaco—as well as the number of affected victims, the coordination displayed among state and paramilitary actors throughout the whole territory, the existence of defined patterns of behavior and the political thrust these events have shown, fulfill the contextual element for the existence of an attack in both its variants: a systemic and a widespread nature.
There is no doubt that the events were directed against the “civilian population,” in the terms used under the concept of crimes against humanity, and basically against a specific sector: the population that demonstrated in protest actions. In the case under analysis, the “civilian population” element was not problematic, given that it is inconceivable to imagine that in Nicaragua, during the analyzed period, there was an international armed conflict.
It must be said that while the work of the GIEI focused on the violent acts committed from April 18 to May 30, 2018, in accordance with its mandate, it is clear that when the time comes to legally analyze a prolonged violent phenomenon, the view must necessarily comprehend the entire historical occurrence. For this reason, when conditions do exist for implementing independent justice processes, the analysis of the elements that make up the definition of crimes against humanity must also cover the stage of repression that followed May 30, 2018. This view will surely enable identification of other patterns of behavior that fall within a single process of violence and persecution of people defined as political enemies.
These crimes went on after May 30
The analysis of events following May 30 is not, however, irrelevant to understanding and characterizing the events that took place up to that date. To the contrary, state conduct following that date is significant, insofar as it enables am understanding of the level of decision and commitment by state authorities to the repressive policies implemented from the beginning against protesters and political opponents. A comprehensive view of the process of violence reveals that the acts committed up to May 30 constitute the initial phase of an attack against the population that was prolonged beyond that date.
In brief, it can be said that after the phase characterized by repression against protesters (the phase corresponding to the period covered by the GIEI mandate), other phases followed that reaffirmed and deepened the state policy of repression.
Indeed, during the months of June and July, state security forces together with armed pro-government elements took on the task of dismantling barricades and roadblocks with incredibly violent actions, leaving many dead and wounded, detaining participants in the protests—actions often executed by paramilitary groups—and intimidating communities. It is a phase during which the number of people shot to death by firearms in the hands of National Police and paramilitary forces even increased. This portion of the attack was especially heightened in the period immediately prior to July 19, 2018, a national celebration that commemorates the anniversary of the 1979 Sandinista Revolution. These attacks took place in different parts of the country (such as the departments of Boaco, Carazo, Granada, Jinotepe, La Trindad, León, Managua, Masaya, Matagalpa, the Autonomous South Caribbean Region and Rivas, among others) against a clearly defined group of people, principally made up of protesters who opposed the government, including students. There were also violent clashes in the rural areas of San Pedro de Lóvago, Chontales. and Muelle de los Bueyes, in the South Caribbean region.
Finally, a third phase can be seen, which is still underway, characterized by the search for and detention and criminal prosecution of political and social leaders, human rights activists and any people who might have been linked to the protests. This phase of the attack was executed by the same actors—the police force and paramilitary groups—but has also shown active participation by the legal system. Added to this is the fierce hostility toward public demonstrations and even the issuance of a law under which the exercise of the fundamental right to peaceful demonstrations is prohibited.
Numbers from the political repression
Regarding death statistics in the context from April to the present, the GIEI cannot offer its own data, since the work has been concentrated, in accordance with its mandate, only through May 30, 2018. In its October 18 report, the Inter-American Commission on Human Rights (IACHR) estimated the number of deaths from the beginning of the protests at 325.
Hundreds of people who have participated in the protests or are considered part of the opposition are being subjected to criminal trials. According to the Supreme Court president, 546 people were indicted in 146 proceedings as of the end of November. According to available information, as was analyzed in Chapter X of this report, these criminal processes suffer from serious violations of due process, including detentions and searches without a warrant beyond the scenarios envisaged by the law; violation of the 48-hour maximum timeframe contained in the Nicaraguan Constitution for being brought before a judge; the groundless, automatic use of preventive prison; the formulation of indeterminate accusations; biased investigations that do away with basic measures; unreasonable assessment of evidence; neglecting to consider hypotheses favorable to the defense that arise from evidence in the file; and violation of the publicity of hearings despite legal provisions that call for it. As a result of all these acts of persecution, thousands of people fled the country in search of refuge, most of them to Costa Rica. To that effect, the United Nations High Commissioner for Refugees (UNHCR) reported a remarkable increase in asylum requests by Nicaraguans in Costa Rica, reaching a total of 23,000 requests from April to July 2018. The IACHR recently observed that the increase of asylum-seekers from 2017 to 2018 was 1,376%, concentrated in the months of June to August 2018.
The three phases, defined here schematically, cover a continuum of violence that mutated in form, but was in all cases directed from the top level of government and whose objective was the repression of people who demonstrated against government policies or were defined by the latter as political enemies.
As has already been described, one of the characteristics displayed by the events is that some of them were undertaken by paramilitary groups acting together with police forces, but without identifying themselves as state bodies. The conduct of these groups, however, is fully attributable to the State, given that they acted with state consent and control. They must be considered part of the attack, according to international jurisprudence.
Finally, it is worth remembering that crimes against humanity require that the “perpetrator” meet a subjective element, consisting of knowledge of the circumstances of the event which makes it possible to state that an attack exists against the civilian population and that the author’s specific act is part of that attack. Nonetheless, it is understood that this does not require demonstrating that the accused would have had knowledge of all characteristics of the attack, or of all details of the organization’s plan or policy.
The ICTY has suggested that this element is “seen to be fulfilled if the author had the intention of contributing to said attack.” It does not require the author to personally share the objectives or goals that motivate the attack. In this framework, and in light of the information and documentation gathered by the GIEI, it is conceivable that the overwhelming majority of people involved in the acts committed had knowledge of the attack against the civilian population, even in those cases in which they may not have known all the details, and even in those cases in which they may have been driven by personal or other types of motivations, for example, a purely economic interest.
When the time comes to assess specific acts within a prosecution process, in addition to the contextual element (“widespread or systematic attack against the civilian population”), the commission of specific crimes must be verified. Here reference will be made to some of the specific crimes that could be useful for future investigations. The available information indicates that some of these crimes have indeed been committed. Regarding others, it will depend on future investigations, which obviously will not be limited to the time period of the GIEI mandate and should be conducted under conditions that guarantee access to state information and, above all, appropriate treatment of victims and witnesses, a situation that today cannot be guaranteed.
One of the crimes against humanity that, according to the information gathered, have been committed repeatedly is that of murder. This crime includes any act that causes death to one or more persons as part of the attack. It is not required for the act to have been premeditated.
A Trial Chamber of the ICTY held, in particular, that “it can be said that the accused is guilty of murder if he or she, in adopting illicit behavior, intended to kill another person or cause that person serious bodily injury, and therefore caused the death of that person.” In the events analyzed, numerous pieces of evidence show police and members of paramilitary groups shooting directly at people in contexts of demonstrations, occupation of universities and procedures to tear down barricades or roadblocks.
In many cases, high-powered offensive weapons including weapons of war were used, shooting directly at people. This information would confirm the classification of the acts as the crime against humanity of murder. On this point it must be noted that not only are the behaviors that have caused death pertinent, but also all those in which people’s lives were put at risk, even when the shot may not have led to a fatal result. In other words, the attempts as well as the faits accomplish are relevant.
The known facts also include the arbitrary detention of hundreds of people for demonstrating or being defined as opponents, events which, according to available information, would constitute crimes against humanity of imprisonment or other severe deprivation of physical liberty.
This crime requires that “the perpetrator has imprisoned one or more persons or has subjected them in some other way to a severe deprivation of physical liberty.” In this regard, the Elements of Crimes suggest that the severity of the behavior must have been such that it constitutes an infraction of fundamental norms of international law. The ICTY has indicated that this is the case when, for example, the imprisonment is arbitrary; that is, when there is “a deprivation of individual liberty without due process of law.” Therefore, defining features of this crime include the fact that the persons may have been imprisoned without a warrant or without informing them of their rights or of the content of the accusation against them.
As has been told in Chapter VII, the severity of the imprisonments committed during the first moments of the repression against the protests in Nicaragua was constituted by the fact of having taken place in the midst of massive raids with no type of judicial review. Rather, attempted judicial remedies were neutralized by state action, people remained subjected to the exclusive discretion of the National Police, and in addition the imprisonments were in many cases conducted in inhumane conditions that included various forms of abuse, as has been adequately recounted.
The policy of jailing protestors and people defined as opponents to the regime continued under different modalities. The most notorious is that linked to the criminali¬ization and preventive detention of hundreds of people subjected to irregular proceedings. Moreover, many of these detentions were committed by paramilitary groups and in other cases by police forces, but without warrants, without informing the detained of their rights and, on occasion, denying all information regarding their whereabouts to their family members.
Another crime for which clear evidence exists is the crime against humanity of persecution, which requires that the “perpetrator has severely deprived one or more persons of their fundamental rights, in contravention of international law,” that the perpetrator has directed his or her conduct against that person or persons based on the identity of a group or collective, and that his or her conduct has been directed against these persons for recognizably unacceptable motives, such as political motives.
Although acts of murder, torture, imprisonment and rape could constitute the crime against humanity of persecution, acts of persecution are not limited to them. Other deprivations of fundamental rights of comparable severity could also constitute the crime of persecution. Thus, for example, the lack of medical care for demonstrators and other victims of attack by police and paramilitary forces could be considered an act of persecution and therefore a crime against humanity. But there are also documented violations of the rights to integrity, liberty and security of persons, freedom of expression, the right to assembly and due process, as well as severe affectations to property rights, among others. An important feature of this crime against humanity is the discriminatory intent. In this regard, Human Rights Council special rapporteurs described part of the events as a “witch hunt,” referencing the “patterns of repression against any dissent... indicative of a policy implemented by the authorities to eradicate the structural conditions that provide support to opposition voices and critics” of the government.
Acts of sexual violence
Likewise, as was reflected in Chapter VII, there are complaints, which will need to be investigated when appropriate institutional conditions are in place, referring to actions that, if confirmed, would constitute other specific crimes against humanity. Some complaints refer to the period covered by the GIEI mandate, but there are also later complaints that were not recorded or analyzed by the GIEI because they fell outside the mandate. Nonetheless, in a legal proceeding they should be included.
Thus, for example, there are complaints of alleged rapes that could constitute the crime against humanity of rape. This crime has been defined as an act through which “the perpetrator shall have invaded the body of another person via conduct that shall have led to penetration, as slight as it may have been, of any part of the victim’s or the perpetrator’s body with a sexual organ, or the victim’s anal or vaginal orifice with an object or another body part.”
It further requires that the invasion “has taken place by force, or under threat of force or through coercion, such as that caused by fear of violence, intimidation, detention, psychological oppression or abuse of power... or exploiting an environment of coercion, or having been conducted against a person incapable of giving free consent.”
As detailed in Chapter VII, there are some complaints of this type of conduct during the time period covered by the GIEI mandate. There are also complaints of acts following May 30, 2018. All this will need to be appropriately investigated. It should only be recalled here that the requirement of a widespread or systemic nature refers only to the attack and not to each specific crime. A single rape, or any other action among those foreseen in the definition of the concept, will be a crime against humanity if it is significant related to the attack, such that the former could be understood to be a part of the latter. Neither does it require that the perpetrator have committed various actions.
Acts of torture
The complaints that refer to acts of torture will also have to be investigated. The GIEI has received some complaints that were reflected in Chapter VII, but it has not been able to access the necessary information or take evidentiary steps in exercising the collaboration foreseen in the Agreement to be able to verify each situation. It is also known publicly that there are complaints of this type of conduct in periods after May 30. Should these complaints be verified, the acts could constitute crimes against humanity of torture.
According to the International Criminal Court Statute, for an act of torture to be established within the framework of crimes against humanity, it is necessary for the “perpetrator to have inflicted on one or more persons severe physical or mental pain or suffering,” that he or she “had this person under custody or control,” and that the suffering was not “solely the result of imposing legitimate sanctions” inherent or incidental to said sanctions. The ICTY has suggested that the expression “severe pain or suffering” expresses the idea that only significant acts of severity can be considered torture.
Although jurisprudence has not determined the exact level of pain required for an act to constitute torture, there are complaints, detailed in Chapter VII, that, should they be verified, would undoubtedly reach this threshold. The Office of the United Nations High Commissioner for Human Rights (UNHCHR) has also reported receiving testimonies that indicate that some detainees have been subjected to physical torture—including burning with electric guns and/or cigarettes, use of barbed wire, beatings with fists and pipes, and attempted strangulation—as well as psychological torture, including death threats.
Future investigations will also need to analyze if the crime of forced disappearance has been committed in those cases in which the lack of information has been denounced regarding the whereabouts of persons detained by the State or by paramilitary groups. Forced disappearance as a crime against humanity is characterized by the capture, detention or kidnapping of one or more persons and the refusal to recognize this detention or to give information about the fate or whereabouts of the person or persons.
Nonetheless, within the requirements normally demanded for the establishment of this crime against humanity, it has been required “that the perpetrator have had the intention of removing this person or persons from the protection of the law for a prolonged period of time.” The GIEI has not been able to verify this situation during its mandate. It is something that will have to be determined in the future through wide-ranging investigations in an appropriate context.
The verification that specific acts constitute crimes against humanity has some specific legal consequences that have both internal and international impact. As was explained more fully in Chapter Xc of this report, in the prosecution of these crimes States must apply their own internal order—including both state and international norms—and must give answers that are compatible with certain basic universally applicable rules t since these crimes affect the international community.
Non-applicability. First, crimes against humanity have no statute of limitations according to customary international law. The imprescriptibility of this type of concept was incorporated into Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968), as well as into the European Convention on the Non-Applicability of Crimes against Humanity and War Crimes (January 25, 1974).
This position has been confirmed as well by the ICTY in the Furundzija case, relating to the crime of torture; by the Inter-American Court of Human Rights in the case of Barrios Altos; by the European Court of Human Rights in Kononov v. Latvia; as well as by various national courts, including the Supreme Courts of Chile and Argentina, the French Court of Cassation and legislation of various States. The Rome Statute also indicates that the norms regarding criminal statutes of limitations do not apply to crimes against humanity. Overall, courts prosecuting acts that constitute crimes against humanity under international law shall not apply statutes of limitations on such acts.
Prohibition against amnesties and norms that prevent prosecution. A second feature that emerges from the determination of certain acts as crimes against humanity is that States have the obligation to investigate and punish the guilty. It is for this reason that such crimes are not subject to general or unrestricted amnesties, nor is the establishment of norms allowed if their effect is to prevent prosecution and punishment of those responsible.
This position is repeatedly upheld by the Inter-American Court of Human Rights in its jurisprudence. For its part, the European Court of Human Rights has concluded that amnesties are generally incompatible with the European Convention in cases of torture. Likewise, the African Commission on Human and Peoples’ Rights concluded that Zimbabwe’s “Clemency Order” was incompatible with the African Charter on Human and Peoples’ Rights. In its General Observation No. 20, the UN Committee on Human Rights notes that under the International Covenant on Civil and Political Rights, of which Nicaragua is a member, “amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee that these acts are not committed within their jurisdiction; and to ensure that such acts do not occur in the future.” UN practice, especially since the 1990s, has clearly been against accepting amnesties or pardons for crimes against international law..
Possible prosecution by courts in other States. It must be emphasized that the classification of acts as crimes against humanity means that they are in turn subject to the universal competence regime. In accord with customary international law, it has been accepted that international crimes may be brought to trial by the jurisdictional bodies of any State, regardless of the acts not having been committed on their territory or by one of their nationals, or against one of their nationals, or in detriment to their sovereign interests as a State. In other words, irrespective of the act in question being covered by the internal jurisdiction of the State in accord with any of the traditional principles of exercising jurisdiction for crimes provided for in internal law.
Moreover, it is conceivable that this kind of broad competence by foreign judiciaries could be exercised, at least regarding the outset of an investigation, without requiring the presence of the accused in the territory of the State that initiates the investigation. Effectively, in their separate opinions in the case of the Arrest Warrant, Judges Higgins, Kooijmans and Buergenthal of the International Court of Justice, held that the exercise of universal competence could be undertaken even when the person charged with the crime in question was not in the territory of the State when the investigation began. Although there are no set elements for considering universal competency as collateral to other forms of traditional competence—such as those based on the principle of territoriality, active nationality, passive personality or protection—it is clear that Nicaragua has not begun criminal investigations against state officials or against members of paramilitary groups. Therefore, the way to exercise universal competence for crimes against humanity is clear.
Possible intervention by the International Criminal Court. Crimes against humanity are covered by the material competence of the International Criminal Court. Although Nicaragua up to now has not been a State Party to the Rome Statute, there are two mechanisms that would make the ICC’s intervention possible.
On one hand is the case where the UN Security Council remands the situation. On the other, the State of Nicaragua itself could in the future formulate a declaration of acceptance of the jurisdiction under the terms of Article 12, Paragraph 3) of the Rome Statute. This acceptance of the ICC’s jurisdiction would be retroactive and, in this way, would also include under the temporary jurisdiction of the Court the violent acts of the period analyzed here. This possibility is expressly envisaged in the ICC Statute. In the case of a declaration of acceptance of the ICC’s jurisdiction, those people who were accused could not invoke any kind of sovereign immunity before the ICC.
What to do based on the principle of universal justice
In the legislation put into effect in the United States (Nica Act, signed by President Trump on December 20), “there is important progress that I assume was proposed by Senator Ted Cruz. It’s the inclusion of the principle of Universal Justice, which allows for those implicated in crimes against humanity, violators of human rights and corrupt individuals to be reported and prosecuted in US courts. To this one must add the offer of President Bolsonaro of Brazil, who has also proposed trying them in that country’s courts. There will be neither impunity nor immunity for them this time. They can run, but they cannot hide.” (José Luis Velásquez, ex-Ambassador of Nicaragua to the OAS in an interview with El Nuevo Diario, December 14, 2018).
“The GIEI report is an essential basis for upcoming trials against Daniel Ortega’s dictatorship because it is a deep, credible investigation of the facts. Any family member of someone who has been killed, illegally detained, tortured or condemned in a kangaroo court can go to a third-country court where the principle of universal jurisdiction has been incorporated in its legislation. The United States has it. Brazil has also said they are willing to undertake these trials. In these and other countries one can file charges so that the murderer, torturer or accomplice may be tried.” (José Pallais, urist and ex-legislative representative in declarations to La Prensa, December 29, 2018).
“Our call goes out to countries to recognize the principle of universal justice to begin proceedings against those whom we indicate in our report must be investigated for crimes against humanity in Nicaragua. It is the most immediate and effective option for these crimes to be punished.” (Amerigo Incalcaterra and Claudia Paz y Paz, two of the four members of the GIEI, in the debate held in the Washington DC Woodrow Wilson Center, January 22, 2019).
Chapter VIII of the Interdisciplinary Group of Independent Experts (GIEI) report presented in Washington before the Organization of American States on December 21, 2018.