Last week the big news story was that Daniel Ortega was recommending changing the longest sentence from 30 years to life, purportedly in response to the rape and murder of two girls in Mulukukú. Nicaragua, and Central America in general, have never had life sentences, because their penal legislation has always recognized the possibility of rehabilitation. However, two leaders of the Peasant Movement Against the Canal, after the rebellion in April 2018, were given sentences of over 200 years each, in clear violation of that law. Paradoxically, this is the context in which this interview was done of an expert on transitional justice.
To achieve transitional justice in Nicaragua, the victims of the regime should not forgive and forget
By Eva Inestroza, La Prensa, Sept 20, 2020
The four pillars of transitional justice are: truth and memory, justice, reparations and guarantee of non-repetition.
Monday September 14 was 26 months since Gerald Vásquez was murdered by paramilitaries who carried out an armed attack on the Divina Misericordia Church, which offered refuge to more than 200 young people who were expelled by gunfire from the trenches of anti-government protests in the National Autonomous University of Nicaragua (UNAN-Managua) on the afternoon of July 13, 2018, three months after the beginning of citizen protests against the regime of Daniel Ortega.
Susana Lopez, mother of the university student killed by para-police at the service of the Sandinista dictatorship, said that the damage that they caused her and her family is irreparable, and even though more than two years have passed without those responsible for the death of her son paying for the crime that they committed, she trusts that a process of transitional justice will be applied in the country.
“The person who shot as well as the person who gave the order to shoot have to pay”, pointed out López, who from the Association of the Mothers of April (AMA), an organization that includes more than 100 mothers and relatives of the people murdered during the rebellion of April 2018, have confronted international bodies in order to get justice, reparation, and non-repetition.
Transitional justice
In order to understand the search for these four fundamental pillars to transitional justice, and the necessary process for its application in Nicaragua, it is important to understand what transitional justice is.
A specialist in the Transitional Justice area of the Nicaraguan Foundation for Economic and Social Development (FUNIDES) explains that transitional justice are judicial and non-judicial mechanisms to enable a transition or change to be carried out, be it because a country wants to get out of an authoritarian regime, or is leaving an armed conflict and wants to get to peace.
The specialist, who asked to remain anonymous, points out that the important aspects that nurture what today is considered transitional justice are war crimes, which can be committed against a civilian population when there is an armed conflict, and crimes against humanity; in other words, crimes that are committed against humanity, which are no longer the responsibility of one country, whether there is a desire or not to judge those who have committed human rights violations, but rather that those crimes now are passed to being the responsibility of the international community.
“The development of transitional justice was very marked by historical events in Latin America between the 70s and 80s, there were several dictatorships, above all military ones, in Argentina, Chile, Paraguay and Uruguay. In the mid 90s the concept of transitional justice emerged, which as such basically has to do with judicial and non-judicial mechanisms to carry out a transition to a democratic system,” said the specialist of FUNIDES.
“Since now there have been many experiences on the international level, there is no specific recipe, but there are several mechanisms, which even though they have demonstrated that sometimes they do not function completely, and that are going to depend on the context of the country, they have proven that they help to improve these transition processes,” she argued.
The four pillars of transitional justice are: truth and memory, justice, reparations and the guarantee of non-repetition.
Truth and memory
The specialist pointed out that historically when a country has come out of an armed conflict or a war in search of peace, or from an authoritarian regime toward a democracy, what is wanted is to begin a process of “erasing and starting with a clean slate”, and what this does is make the victims invisible.
“For a sustainable transition process to exist, the victims have to be in the center, because that is the great slogan of transitional justice. The victims have to be in the center, and therefore it is important to know what happened. It is important that the truth be constructed or reconstructed, an inclusive truth that does not only tell what happened from one side, but that can really take up and listen to what the different bands experienced, to say it in that way, and this implies a reconstruction of the historic memory, “ she pointed out.
What is considered to be an entry point for a process of transitional justice to happen, and a classic mechanism, is the creation of a truth commission.
To keep alive the memory of the events occurred since April 2018, the Association of Mothers of April (AMA) created the Museum of Memory against Impunity, which was built for the purpose of contributing to dignifying the victims of the State of Nicaragua and to honor their memory. “The fight to achieve justice has been international, because there is no national justice, and there will not be national justice. As long as this Government is in power, there will be no change. On the contrary, there are reprisals after the harm,” denounced López.
“The Museum of the Memory of April remains alive, especially in the search for that truth and that these crimes not be repeated in the history of Nicaragua,” she added.
Truth Commission
Truth commissions have to comply with certain basic criteria, the specialist explained. For example, they cannot be managed by the Government which has been reproached.
“Because it is clear that it is going to distort everything and is going to tell their story. The truth commission has to be impartial, which is normally created within the State because it needs a budget, but it is fundamental that it be composed of people who have recognition, legitimacy and when the commission has been formed, it needs to begin to do a very concrete report which takes into account and represents the largest amount of human rights violations that happened during the conflict,” specified the specialist.
Truth Commissions do not have penal power as such, she explained, but are an input that afterwards is presented to legal institutions for the information to be processed. In addition to the fact that, those who compose it make recommendations on the other pillars that have to do with transitional justice.
The regime of Daniel Ortega and Rosario Murillo, through the National Assembly, approved the creation of a truth commission on April 29, 2018, which was sworn in on May 4 of that same year, to investigate the deaths and harm caused during the protests begun on April 18, 2018. Nevertheless, it was noted by several organization and civil associations for their prejudiced conclusions on the descriptions of the crimes committed, which covered up and benefitted the regime.
“In 2018 a truth and reconciliation commission was created in Nicaragua, but it was not recognized by any human rights organization on the international level, nor nationally, because it was clearly completely prejudiced,” commented the specialist.
Justice
The word transition is added to the word justice, because it deals with a process of transition towards democracy, justice by itself is not enough, states the coordinator of the transitional justice area of FUNIDES.
“Since so many human rights violations have been committed that the traditional judicial systems come up short, then transitional justice says that justice has to be done, but so that what happened not be repeated, one, the victims have to be the center, and two, it is important that several structural reforms have to happen to prevent human rights violations from happening again,” insisted the specialist.
Therefore, the role that justice has is to take up again what refers to truth and memory, and investigate the principal people responsible, ensuring that those who have not been sentenced or accused of crimes against humanity be judged and sentenced, even though the State may not want it.
“An international institution can come in and begin a legal process. Admittedly this is pretty complicated, but it is possible,” warns the specialist. In addition, she states that crimes against humanity cannot be negotiated and cannot be the object of an amnesty.
“Justice is going to depend a lot on the willingness that a new government may have in Nicaragua, to really not allow and not apply amnesty laws, but fundamental there is the role the civil society may have, that can demand and insist, that can oversee whether processes are really carried out, and in the case that there is no state willingness, advocacy can be done from the international community because, as I was saying, there are mechanisms so that crimes against humanity be judged and not prescribed, and can be done on the international level,” recommended the expert of FUNIDES.
Such was the case of the Chilean dictator, Augusto Pinochet, she pointed out. “He was tried a long time afterwards. The Chilean State was protecting Pinochet, but at a moment in which he was in England, which was a party to the Rome Statutes, is what allowed these international trials to happen. Chile was not party to it, that is why Pinochet was very protected in that sense, and Spain, that also ratified the Rome Statutes, tried him and England allowed it,” the specialist in transitional justice said, providing the context.
For his part, the political analyst and former ambassador of Nicaragua, Mauricio Díaz, also gave the example of the dictator Pinochet, who was arrested in London on October 16, 1998, because of his presumed implication in crimes of genocide, international terrorism, torture and disappearances of people which occurred in Chile during his dictatorship between the years 1973-1990, and up to the moment of his death had an arrest warrant against him.
“An independent prosecutor pursued him when he left his protection, from his niche that was the Chilean geography. The same is going to happen to the regime here, they are not going to live in peace, at least in the world, even though they are entrenched within the national geography, clad in a concept of sovereignty that serves to clothe them in impunity,” said Díaz.
Nevertheless, the former ambassador indicated that in order to apply transitional justice, the barbarities that have occurred within the country rooted in the explosion of the crisis of 2018 would have to be documented through an impartial and independent Truth Commission, which in his judgement will not be possible, if the State continues being controlled by Daniel Ortega. “Another government would have to do it, in the future, that would say that the more than three hundred and so murders, those tortured, women raped are not going to be left unpunished.”
Reparations
In this pillar, the specialist in transitional justice of FUNIDES indicates that listening to the victims is very important, knowing what it is that happened, and which begins to try those responsible.
“The victims have the full right that their rights be restored to the extent possible, there are several forms of restoration if you wish, a classic one is economic restorations. It is known that everything that a violation of human rights means cannot be recovered through money, but people broke with their life projects, and have the full right to receiving some type of restoration,” expressed the specialist.
Even though there are also symbolic type restorations, among these that the State recognize what happened, that sites be created to remember and commemorate. “So that the population not forget and these crimes not be committed again. In addition are reparations concerning psychological accompaniment, since the surviving victims of the relatives who are the indirect victims, are left with serious trauma and emotional impacts,” she added.
In terms of reparations, the mother of Gerald Vásquez pointed out that more than two years later the Ortega Murillo regime has not even recognized that the youth that were murdered during the protests were students. She deplores the fact that the dictatorship couple continue categorizing them as criminals.
“I have gone through psychological even psychiatric treatments, the harm to me and all the mothers that this regime caused us is irreparable. Nevertheless, we are going to continue being the voices that they silenced with bullets, we are going to dignify their names, their memories, because they have still not recognized that they were students, they say that our children were criminals,” objected López.
Nevertheless, the specialist of FUNIDES recognized that it is not possible for the pain to be completely repaired, even though the pillar of reparation be applied, it will not be accomplished. “Even though the wound cannot be completely healed, but on seeing that the transition does not forget what happened, that is to say, that we have to deal with the past, shouldering what was done, that these are the victims, and all needed resources have to be sought so that the victims be restored, and above all to prevent a conflict of this magnitude from happening again,” she recommended.
Guarantee of non-repetition
Even though to achieve this last pillar of transitional justice requires medium and lon- term work, in the case that a dictatorship end and a democratic government begin, the principal institutions that committed violations, were accomplices or allowed the human rights violations, cannot continue the same, indicated the expert.
In other words, “for the population to once again have confidence in the State, normally the institutions that are implicated like the Army, Police, judicial system, Legislature, an immediate task is that there has to be a profound transformation, not just of the people who had a role of involvement, but also how to return to allow these institutions to be independent again, have a vision of professionalism and democracy,” said the specialist of FUNIDES, as an immediate response, as long as there is a democratic change.
Nevertheless, she pointed out that in the long-term educational programs should be carried out, where topics about a culture of peace can be developed. “That being able to have peace implies developing skills, also in a collective way, that allow for conflicts to be resolved without having to get to violence,” she said.
For Guillermina Zapata, this last pillar on the guarantee of non-repetition is linked to truth and memory, which has cruelly marked her life and that of her family in the two dictatorships of Somoza and Ortega.
The National Guard of Somoza killed her older brother on April 28, 1978 and four decades later, her oldest son, Francisco Reyes Zapata, 34 years of age, was murdered by a well-aimed bullet, direct to the head, while he participated in the protest march on May 30, 2018, Mother´s day in the country.
“The objective is that the youth not be forgotten, and that history not be repeated again. My family fought against the dictatorship of Somoza. We lived through that war, we lost a brother and 40 years later they killed my son. As mothers we have seen that international organizations have made an effort to support us, that is why I have faith that transitional justice will be achieved,” expressed Zapata. “I know it is not going to happen overnight, justice can be slow, but we are going to achieve it,” she added.
The regime is betting on forgetting
After the overthrow of the dictatorship of Somoza four decades ago, the hostilities of two armed conflicts, like the insurrection and the counterrevolution of the 80s, former ambassador Mauricio Díaz commented that a transition process has not been experienced in the country. On the contrary, he says that Nicaraguans have had a short historic memory, which is why the regime is betting again on forgetfulness.
“These [people of the regime] are betting on forgetfulness, that the people will forget, and it is a historical political curse, because we Nicaraguans forget, we have a short historic memory and they are betting on it being forgotten,” he pointed out. Nevertheless, at the same time, he recognizes that the events that occurred rooted in the civic rebellion of April 2018 are “fresh”, and the ongoing reports and pronouncements of the international community are keeping alive the memory of April and the crimes committed by the regime.
“One of the few things that were achieved in Nicaragua with the National Dialogue was that it permitted the entry of the Interamerican Commission of Human Rights (IACHR), the report done by the Interdisciplinary Group of Independent Experts (GIEI) and the Special Follow up Mechanism for Nicaragua (MESENI). All of these inputs are key and have been key because they have allowed that everything that has happened in Nicaragua be made visible on an international level, from a well-recognized external organization,” concurred the specialist of FUNIDES.
“There is a very clear, very powerful report, from a recognized institution in terms of human rights, and effectively this is going to serve as an input for judicial processes that can happen in the future. Everything that has been done, and what can continue being done on an international level, is very important to accelerate a process of democratic transition in Nicaragua,” recommended the expert.