On August 27, the Inter-American Court of Human Rights held a hearing to discuss the situation of the Nicaraguan prisoners of conscience who had previously been granted Court protective measures. The absence of the Nicaraguan government representative from this hearing surprised no one. However – What was the relationship between the Inter-American Human Rights Court hearing and the fact that the Ortega-Murillo regime subsequently allowed the political prisoners a very brief family visit?
During the hearing, the Court demanded proof that the political prisoners were still alive. I don’t think the regime had any interest in submitting such evidence by permitting the prisoners brief visits, following months of total isolation and uncertainty. However, I believe these visits are due to the formal determination that the State holds international responsibility for their deeds.
The detention and concealment of these citizens was followed by the removal of legal protective measures that blocked any confirmation of the prisoners’ physical integrity and state of health. In addition, they were denied their due process rights, starting with the right to defense. All this, as seen through the lens of international human rights standards, constitutes forced disappearance.
Put in another way: if the Ortega-Murillo regime maintained the prisoners’ detention and isolation, they were on an accelerated path to having the Inter-American Court determine that Nicaragua is internationally responsible for forced disappearance. Having the international community and organizations express their concern for the human rights situation in Nicaragua isn’t the same thing as having the Inter-American HR Court find the country formally responsible for forced disappearance. The latter would have a substantial impact on the regime’s international image.
I fear that it was this kind of pragmatism – which has characterized the Ortega-Murillo regime – the factor that opened the way to the prisoners’ visits, and not the government’s benevolence.
Having said this, a valid question arises. Are these persons no longer considered victims of forced disappearance, given the fact that they’ve received visits from their family members? Without a doubt, the response creates a challenge for the jurisprudence of the Inter-American Court, with two scenarios to consider.
First, they could reaffirm the established criteria, which sustains the existence of forced disappearance as long as the detention and concealment of people persists. That is, only if the crime continues.
In a second possible scenario, the Inter-American Court could broaden the protection of people’s right to be protected against forced disappearance. Despite the useful effect of the brief visit, which reduced the anxiety of the families, the removal of the prisoners’ legal protective measures persists. Such elimination of guarantees is the ultimate goal of the concealment, and thus of the forced disappearance.
Although the brief family visit had a positive emotional impact on the relatives and the imprisoned people themselves, that doesn’t change the fact that there are continual violations to due process, including their right to defense. Nor does it change the fact that they haven’t been evaluated by forensic doctors and psychologists to determine if they’ve suffered torture. Independently of whether the Inter-American Court eventually determines that forced disappearance ended when the regime gave evidence of life; or that they determine that this definition remains in effect due to the erasure of legal protective measures, the regime’s conduct not only represents a grave violation of human rights, but also a crime against humanity.
It’s a crime against humanity because the detentions are based on laws that violate the Nicaraguan Constitution and the country’s international Human Rights commitments. The detentions are carried out in opposition to these norms, and the Interior Ministry has been made an instrument of them, along with the Police and the Judicial Powers. In synthesis, all these factors constitute the fundamental context of crimes against humanity. In the policy of persecution that the regime has implemented against the opposition, we find that there exists imprisonment or grave deprivation of liberty. This violates international human rights norms. In accordance with that established in Article 7, Paragraph 1, Item e.) of the Rome Statutes, it fits the definition of a crime against humanity.
In conclusion, the criminal legacy of the Ortega-Murillo regime will include people’s forced disappearance, be it for the period when they arrested and concealed these people, or because the Inter-American Court broadens the standard of protection against forced disappearance to include the persistent removal of legal protective measures.
In either of the two cases, that forced disappearance will be considered a crime against humanity, accredited as such for the context of orchestrating them through the institutions controlled by the regime. Supposing that the Inter-American Court doesn’t view the removal of legal protective measures as cause to determine continued forced disappearance, it should then dictate that the State’s responsibility for the imprisonment or serious privation of liberty fits the definition of a crime against humanity.