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  Number 471 | Octubre 2020
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Nicaragua

“The sexual violence committed by the State of Nicaragua is a crime against humanity”

A sexual violence Court of Conscience, representing the Platform for Access to Justice created by Nicaraguan human rights organizations and the Arias Foundation for Peace and Human Progress, conducted a legal analysis in San José, Costa Rica, of the testimony of 18 Nicaraguan victims of sexual abuse after being arbitrarily captured and held by armed men in the pay of the Nicaraguan regime. We offer extracts of its findings, concluded on September 11.

COURT OF CONSCIENCE

Eleven women and seven men had the courage to tell their stories of torture that took place at different locations in Nicaragua between April 21 and August 25, 2018, during the months of greatest mobilization by and repression of the April 2018 Rebellion.

Their stories were told to and evaluated by a Court of Conscience formed by four women jurors with considerable international experience: Almudena Bernabéu, Clemencia Correa, Alda Facio and Sonia Picado. Bernabéu is a lawyer from Spain who directs the Guernica Center and recently played a crucial role in the ruling passed down in the Spanish Court against former Salvadoran Colonel Inocente Montano for his responsibility in the murder of six Jesuit priests from the Central American University (UCA) in El Salvador [November 16, 1989]. Correa is a psychologist from Mexico and an expert in accompanying victims of human rights violations. Facio is a jurist from Costa Rica and founder of the Women’s Caucus for Gender Justice at the International Criminal Court. And Picado, a jurist and diplomat, also from Costa Rica, was a judge at the Inter-American Court of Human Rights.

They were crimes against humanity


The court received testimonies from the victims and from expert witnesses about the basis of the facts: expert opinions on context, psycho-social aspects, chain of command and legal issues. What follows are extracts from the ruling handed down by the Court of Conscience, which concluded that “the State of Nicaragua committed crimes against humanity.”

The first denouncements:
to establish a record


“Considering the reports of the United Nations’ High Commissioner for Human Rights (HCHR) and the Inter-Disciplinary Group of Independent Experts (GIEI), which show evidence of the crimes committed by the State in Nicaragua starting from the 2018 events;

“Recognizing the testimonies of eighteen representative victims, whose arbitrary detentions were accompanied by the impossibility of accessing judicial authorities to report and demand justice for their human rights violations; and

“Emphasizing that, for the victims, the intention of the court is to publicly denounce for the first time the sexual violence to which they were subjected, establishing a precedent of what they experienced.”

This ruling is an input for
demanding international justice


“That according to the testimonies presented by the victims, we establish that the State violates fundamental rights by torturing, making legitimate defense impossible, forcing them to testify against themselves, violating the legal principle of in dubio pro reo (innocent until proven guilty), among others.

“That a group of Nicaraguan human rights organizations and the Arias Foundation for Peace and Human Progress decided to create the Platform for Access to Justice, which conducted a process lasting over a year and called upon us to form a Court of Conscience to learn about the use of sexual violence as a crime against humanity by agents of the Nicaraguan State.

“That a Court of Conscience has the purpose of granting alternative justice for those persons who are victims of human rights violations, empowering them in their demand for their rights and providing recognition that contributes to re¬pa¬ration for the harm caused.

“That in the court process the situations experienced by the victims have been systematized and documented to show the use of sexual violence as a method of torture by state agents.

“That the ruling of this Court of Conscience acts as an input to demand justice from the national, regional and international organizations for the defense and protection of human rights.

“That the Court of Conscience is an autonomous and independent court, composed of international experts, human rights advocates with vast experience in the human rights protection systems of both the United Nations and the Organization of American States; acting with absolute independence, which is based on having no other interest than that of verifying the facts; acting with absolute adherence to international criminal law and international human rights law, Nicaraguan criminal law and customary law.”

Expert opinion on the context


“The expert opinion on context told us that, with the return of Ortega to government in Nicaragua, a progressive process began of dismantling the democratic institutional system and the Rule of Law, which was evidenced, among other ways, in the corrupt control by the [governing] party of the branches of government (Executive, Legislative and Judicial); the disarticulation of institutional infrastructure designed for accountability; disrespect for citizens’ rights enshrined in the Political Constitution such as freedom of expression; de facto elimination of the right to peaceful assembly, demonstration, mobilization and participation in public affairs; and disrespect for physical integrity and not to be arrested for political reasons.”

Expert opinion on
psychosocial aspects


“The expert opinion on psychosocial aspects concludes that the psychosocial impacts of sexual torture reported by the victims in the interviews are consistent with the results of the Post-Traumatic Stress Diagnostic Scale. This means that, for the victims, torture and sexual torture are not events that are in the past, but are re-experienced in traumatic flashbacks, causing current suffering that affects all areas of their lives.

“We can affirm that the discourse of hate by the regime’s political leaders towards the people who participated in the protests, repeated during the detentions and torture, as well as the social polarization, gave rise to public servants and those participating in parapolice or paramilitary groups com¬mi¬¬tting these atrocious acts.”

Expert opinion on chain of command


“The verticality of command was identified: one gave the order and the others obeyed. All who participated in the captures were armed, some with weapons of war, dressed in uniforms or as civilians, and were hooded. The torturers were police officers, men and women, parapolice and civilians. Cubans and Venezuelans were mentioned for their way of speaking. They acted with violence, intimidation and threats.”

Expert opinion on legal issues


“The testimonies collected and analyzed leave no doubt about the practice of torture in Nicaragua in the framework of the protests that started in 2018, or about the use of rape as a form of torture implemented indiscriminately.

“Sexual torture, particularly rape, has been part of a systematic plan by Nicaraguan authorities, accompanied by the promotion of impunity for human rights violations and crimes against humanity. The Nicaraguan State has committed crimes against humanity, with participation by both material and intellectual authors.

“The testimonies of courageous people attest to the gravity, scale, systematic and generalized nature of the state action. These testimonies are only a small sample of criminal events that deserve to be classified as crimes against humanity; crimes condemned by the civilized world that harm not only the integrity of the victims but also global human conscience and dignity. Therefore, their authors and those responsible are true enemies of the human race and common enemies of humanity as a whole. This is a crime that transcends borders.”

[In this section the cruel methods of torture are detailed from the victims’ testimonies, which include beatings, extraction of fingernails and toenails, breaking of teeth, being forced to witness the torture of others, being left without water and food for prolonged periods… and aberrant rapes. In one extreme case, 15 men raped one woman prisoner.]

Legal basis:
Legislation on torture


“Recalling that the United Nations Convention against Torture defines torture as having the following conditions: it must be inflicted intentionally; it must cause severe pain or suffering; it can be physical or mental; it must have the intention of obtaining information or a confession from the victim or a third party, punishing the victim for an act com¬mi¬tted or suspected of having been committed; intimidating or coercing the victim or others; or any reason based on dis¬crimination of any kind; and it must be inflicted by or at the ins¬tigation or with the consent or acquiescence of a public offi¬cial or another person acting in an official capacity. (…)

“Recognizing that the Inter-American Convention to Pre¬vent and Punish Torture states that ‘the existence of cir¬cumstances such as a state of war, threat of war, state of sie¬ge or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of tor¬tu¬re’ (Article 5). In the same vein, the OHCHR International Covenant on Civil and Political Rights prescribes that even in exceptional situations the protection of the person must be preserved and torture prohibited (Article 4.2).”

“Considering that Article 7 of the Rome Statute, which es
¬tablished the International Criminal Court, defines crimes against humanity.

“Considering that Article 486 of the Nicaraguan Penal Code defines torture as: ‘Someone who submits another per¬son to any kind of physical or mental torture for criminal investigation purposes, as a means of intimidation, personal punishment, preventive or punitive measure, or for any other pur¬pose, will be punished with seven to ten years imprisonment.” [Ed: For the record, this same article also specifies that any public official directly participating will have a further eight to ten years in prison; any public official who does not prevent torture when able to do so will get five to seven years and cannot hold any public post for five to nine years, or if knowing about it but is unable to prevent it and does not report it within 48 hours will get the same.]

Conclusions: They were
systematically tortured


“After having meticulously reviewed the expert opinions and other evidence available to this court, there is no doubt that the State of Nicaragua committed a crime of torture by the sexual abuse and rape of women and men while they were in the custody of the country’s police and parapolice.

“Although the testimony of only 18 people has been examined, which in principle could represent an obstacle to identifying patterns and determining whether the torture was systematic (necessary to conclude that the crime of tor¬tu¬re does in fact constitute a crime against humanity), after meticulous consideration of the facts and the expert opinions provided, this court has had the opportunity to corroborate that in the case of arbitrarily detained people, all of whom were transferred to police stations or private farms in different parts of the country and that once there all these people were guarded and subject to the control and will of the police and parapolice equally, all of them were subjected to similar torture and humiliation, and all of them were subsequently threatened. Therefore, this court concurs with the determination of the United Nation’s Office of the High Commissioner for Human Rights (HCHR), with the report of the Inter-Disciplinary Group of Independent Experts (GIEI) and resolves that the sexual violence committed by the State of Nicaragua constitutes a crime of torture and that these tortures were systematically committed by state agents against the Nicaraguan civilian population, constituting, therefore, a crime against humanity.”

Reparation for the harm:
Include their voices


“A series of comprehensive reparation measures is proposed, although it is difficult to speak of measures of this kind in a context of impunity and control of state institutions by the government.

“In the current context, these measures could be seen as a new abuse, intimidation or attempt to silence the victims in their search for justice. This is why the reparation measures are presented within the framework of a transition to democracy in which the dignity of the victims is recognized.

“In order for these measures to have a reparation meaning for the victims, they must be implemented with their participation and agreement as well as including their voices, in any process of transition to democracy.”

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