PART TWO
THE RIGHTS WHICH THE GOVERNMENT OF NICARAGUA IS ALLEGED
TO HAVE VIOLATED
A. The facts of the controversy
1. Part Two of this report will set forth the events which have affected a part of the Nicaraguan population of Miskito origin from December of 1981 to September of 1983, i.e., until a few days prior to the adoption of this Report.
2. These events have been analyzed in the light of the norms of the American Convention on Human Rights, to which Nicaragua is a party, especially those that guarantee the following rights: to life, to personal liberty, to personal security, to due process, to residence and movement, and to property.
3. The Commission will also study the complaints put forward by a group of Indian leaders with respect to the special rights of the ethnic groups that inhabit the Atlantic coast region of Nicaragua.
4. With respect to the right to life, the Commission, while not unaware of other accusations made against the Government of Nicaragua with respect to this right, will concentrate chiefly on the events that took place in December of 1981 in the Miskito villages of San Carlos, and in particular, of Leimus, to determine whether the actions taken by the Sandinista Army constitute a violation of the right to life.
5. Given the interrelation between the rights to personal liberty, personal security and due process, they will be considered jointly in the light of the following facts: a) the detention of Miskitos in San Carlos in December of 1981 and other detentions and restrictions of personal liberty that took place in 1982, and the first half of 1983; b) the imprisonment of Miskitos in Puerto Cabezas and Managua; c) the charges brought against the detained Miskitos; d) the release of Miskitos; and e) the disappearances of Miskitos.
6. With respect to the right to residence and movement, three major situations have concerned the Commission: a) the compulsory relocation of approximately 8,500 Miskitos from their villages in the Coco River region to five settlements located in the interior of the Zelaya Department, known as Tasba Pri; b) the compulsory relocation of approximately 4,000 Miskitos from their villages in the region of the Coco River and the Bokay River, to the Department of Jinotega, to new settlements in the interior of that Department; and c) the repatriation of Miskitos of Nicaraguan origin who are currently refugees in Honduras.
7. Finally, with respect to the right to property, the Commission will study two different complaints which have been submitted. The first refers to the destruction of the houses, personal belongings and crops of the Miskitos, as well as the slaughter of their animals, while the Miskitos were being relocated; the other complaint has to do with ancestral lands which, according to certain Indian institutions, belong to the Miskitos as a people.
8. The IACHR is certainly not unaware that the facts indicated above represent but one demonstration, and a partial one, of the general situation which is broader and more complex. Nevertheless, the Commission has limited its study to these events and to their relation to the norms of the American Convention on Human Rights, since they alone comprise the matter on which the Commission may give an opinion, in accordance with the legal norms that govern its activity.
B. Special protection of the Miskitos as an ethnic group
1. There are a number of international instruments that uphold special rights for certain ethnic and racial groups.
Nevertheless, the American Convention on Human Rights only guarantees individual rights, “…without any discrimination for reasons of race, color, sex, language, status, birth, or any other social condition�? (Article 1). However, the same Convention indicates that the provisions of the Convention cannot be interpreted as “restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State party or by virtue of another convention to which one of the said states is a party�? (Article 29, subparagraph b).
Nicaragua, in addition to being a party to the American Convention on Human Rights, is also a party to the International Covenant on Civil and Political Rights, which expressly sets forth certain rights with respect to ethnic groups. In effect, Article 27 of the Covenant states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
3. That article of the International Covenant on Civil and Political Rights reaffirmed the need to protect ethnic groups, since it was important to establish additional protection for them beyond that granted to the nationals of a state, in order to bring about true equality among the nationals of that state.
4. In a UN debate on Article 27 of the Covenant, the difference between the concepts of “equality and nondiscrimination�? and “protection of minorities,�?1 was emphasized, and the following distinction was made:
The prevention of discrimination means impeding any conduct which denies or restricts the right of a person to equality.
The protection of minorities, on the other hand, although also based on the principles of equal treatment of all peoples, requires a positive action: a concrete service is offered to a minority group, such as the establishment of schools in which education is given in the native language of the members of the group. Such measures, clearly, are also based on the principle of equality: for example, if a child is educated in a language which is not his native language, this can mean that the child is treated on an equal basis with other children who are educated in their native language. The protection of minorities, therefore, requires affirmative action to safeguard the rights of minorities whenever the people in question (the parents in the case of minors) wish to maintain their distinction of language and culture.
At this time, Article 27 is interpreted to mean that the States Parties are obligated to allow persons who belong to those groups to enjoy their own culture, to profess and practice their own religion, and to use their own language.
5. In addition to the above-mentioned Article 27 of the International Covenant on Civil and Political Rights, other UN General Assembly resolutions2 and other international instruments3 have also granted special protection to ethnic groups.
6. With specific reference to Indian populations, on the other hand, the codification and progressive development of international law has been relatively scant.4
7. It should also be considered whether or not ethnic groups also have additional rights, particularly the rights to self-determination or political autonomy.
8. In his presentation to the Commission, Mr. Armstrong Wiggins stated that the Indian peoples of Nicaragua had the right to full self-determination. In part of his statement, Mr. Wiggins stated the following:
The right to self-determination applies to all peoples, including the Indian population of Nicaragua, which possesses territory with defined borders, a permanent population, a government and the capacity to establish external relations.
Mr. Armstrong Wiggins also stated this viewpoint in his article titled “Nicaragua: A Perspective�? (Akwesasne Notes, Spring, 1982). A similar view was set forth by the Coordinator General of Misurasata, Mr. Brooklyn Rivera, in a document of April 8, 1982, submitted to the Commission, although Mr. Rivera expressly denies a secessionist intent on the part of the Indian peoples of the Atlantic region of Nicaragua.
Messrs. Wiggins and Rivera claim that if the territorial and political autonomy of the Indian population is not recognized, their traditional way of life and their cultural identity would be destroyed, since the exercise and enjoyment of the right to a language, culture and religion are meaningless without the right to self-determination.
9. The present status of international law does recognize observance of the principle of self-determination of peoples, which it considers to be the right of a people to independently choose their form of political organization and to freely establish the means it deems appropriate to bring about their economic, social and cultural development. This does not mean, however, that it recognizes the right to self-determination of any ethnic group as such.
10. In the debates of the Third Committee of the General Assembly of the United Nations on the scope of the right to self-determination, some delegates argued that the broadest interpretation should be adopted to prevent domination of weak peoples by powerful nations.
However, the Delegate of New Zealand reflected the majority viewpoint when he indicated that the principle of self-determination was:
Opposed to the idea of colonialism, and related to the wishes of the majority occupying an area or territory, and should not be confused with the rights of minorities scattered within a territory who could be seeking equal treatment with the majority, but not political separation. The Convention on Human Rights would, without doubt, be interested in establishing equal treatment for each person included in those minorities, but this should not be confused with the broader issue of political separation, which involves serious political, constitutional, economic, social and financial considerations, in sum, the capacity for self-government.5
Several states held the opinion that recognition of the right to self-determination of minorities would promote subversion and would finally lead to separation. Consequently, it was agreed that self-determination should be harmonized with the other principles of equality under the law, sovereignty, territorial integrity and political independence that are set forth in the Charter of the United Nations.
The Delegate of Iran expressed the prevailing viewpoint that national sovereignty and territorial integrity could not be undermined under the pretext of exercise of the right to self-determination:
If self-determination is abused and considered as an absolute right, the only result is anarchy. The right can only be considered within the limits of national sovereignty. It cannot be used to undermine the sovereignty of a state over its territory or natural resources; recourse to the right of self-determination to incite dissident minorities to rise up against the state or to endanger its stability would be as contrary to the true spirit of the right of self-determination as aggression or subversion itself. Nevertheless, as history has shown, groups with subversive and aggressive objectives have been used by foreign powers to overthrow the governments of countries whose territory they with to occupy. Many independent countries have been the victims of irresponsible groups that have been incited to destroy the national unity of their own country. Moreover, the right to self-determination should never be confused with the right to secession. Secession is not the result of respect for the right to self-determination, but rather the disregard for fundamental human rights in the absence of free consent of peoples to the exercise of the right of self-determination… [no] country represented on the Committee would exist if every national, religious or linguistic group had the absolute and unlimited right to self-determination.6
With the adoption in 1960 of Resolution 1514 (XV) on the Declaration on the Granting of Independence to Colonial Countries and Peoples, the principle of self-determination was identified by the United Nations with the liberation struggles of colonial peoples in non-metropolitan territories.
Resolution 2625 (XXV), titled Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, developed the principle of equal rights and the self-determination of peoples, and stated:
That the establishment of a sovereign and independent state, free association or integration with an independent state or acquisition of any other freely chosen political status by a people constitutes that people’s means of exercising the right to self-determination.
At the same time, the above-mentioned statement expressly affirmed that the right to self-determination could never be interpreted… in the sense of authorizing or encouraging any action aimed at breaking up or undermining, totally or partially, the territorial integrity of sovereign and independent states that conduct themselves in conformity with the principle of equal rights and the self-determination of peoples described above, and which are, therefore, possessed of a government that represents the entire people to whom the territory belongs, without discrimination by race, creed or color.
Every state shall abstain from any action aimed at the partial or total breaking up of the national unit and the territorial integrity of any other state or country.
11. The above does not mean, in this case, that the absence of a right to political autonomy or self-determination on the part of the Miskitos, Sumos and Ramas of the Atlantic coast grants the Government of Nicaragua an unrestricted right to impose complete assimilation on those Indians.
12. The Government of Nicaragua itself initially followed a policy of preservation of the cultural values of the Indian populations. In effect, the Declaration of the Principles of the Sandinista Peoples’ Revolution on Indian communities of the Atlantic coast, of August 12, 1981, established in operative paragraph 3:
The Government of National Reconstruction supports the preservation of different cultural forms, and grants the Miskito, Criollo, Sumo and Rama communities of the Atlantic coast the necessary means to promote their own cultures, including the preservation of their language.
Furthermore, in April 1980, as stated earlier, a position was assigned on the Council of State to the Indian organizations of Misurasata.
13. Nevertheless, as was also explained, serious difficulties soon began to arise between the Indian population and the Government, which first took the form of detention of the Misurasata leaders, and then the dissolution of that organization, culminating in the disintegration of the Miskito communities that inhabited the Coco River region.
14. In the view of the Commission, for an ethnic group to be able to preserve its cultural values, it is fundamental that its members be allowed to enjoy all of the rights set forth by the American Convention on Human Rights, since this guarantees their effective functioning as a group, which includes preservation of their own cultural identity. Particularly relevant are the rights to protection of honor and dignity; freedom of though and expression; the right of assembly and of association; the right to residence and movement and the right to elect their authorities.
15. Although the current status of international law does not allow the view that the ethnic groups of the Atlantic zone of Nicaragua have a right to political autonomy and self-determination, special legal protection is recognized for the use of their language, the observance of their religion, and in general, all those aspects related to the preservation of their cultural identity. To this should be added the aspects linked to productive organization, which includes, among other things, the issue of the ancestral and communal lands. Non-observance of those rights and cultural values leads to a forced assimilation with results that can be disastrous. For that reason, the Commission considers that it is fundamental to establish new conditions for coexistence between the ethnic minorities and the Government of Nicaragua, in order to settle historic antagonisms and the serious difficulties present today. In the opinion of the IACHR, the need to preserve and guarantee the observance of these principles in practice entails the need to establish an adequate institutional order as part of the structure of the Nicaraguan state. Such an institutional organization can only effectively carry out its designed purposes to the extent that it is designed in the context of broad consultation, and carried out with the direct participation of the ethnic minorities of Nicaragua, through their freely chosen representatives.
C. The Right to Life
1. With respect to the right to life, which the American Convention guarantees in Article 4,7 the Commission will refer to this section to the events that took place in December, 1981, in the villages of San Carlos and Leimus, on the banks of the Coco River, and which led to an undetermined number of deaths.
2. The fact that the IACHR gives special attention to these events does not mean that they are the only ones that have been found to conflict with the observance of the right to life; it is due to the fact that in one case, certain facts denounced as violations of this right were studied by the IACHR, which reached the conclusion that such violations did not take place. With respect to the other incidents, the Commission has not had sufficiently persuasive information to reach a final decision. Finally, two situations in which there were or may have been losses of human lives have been considered by the IACHR with respect to rights other than the right to life, for reasons that will be set forth below.
3. One of the communications that the IACHR received at the beginning of this matter alleged that during the compulsory relocation of the Miskitos to the Tasba Pri settlements, a considerable number of people died.8 The Commission inquired about these facts with the refugee Miskitos in Mocorón, who, unlike their description of what took place in San Carlos and Leimus, could not give a precise description of the events. Furthermore, the Commission privately spoke on two occasions with dozens of inhabitants of the Tasba Pri settlements who had participated in the relocation. Although several of them had severely criticized the Government, none stated any knowledge of any deaths during the course of the relocation.9 This testimony and other information available to the IACHR, failed to confirm the charges that there had been deaths in the course of the relocation of the Miskitos to the Tasba Pri settlements, although that relocation was not carried out in a peaceful, orderly and uneventful fashion, as was claimed by some Nicaraguan officials.
4. After adopting its report on June 26, 1982, the Commission received information that a number of violent actions had been committed in the second half of 1982 and the first half of 1983 in several villages of the northern part of the Zelaya department, leaving dozens of Miskitos dead. According to this information, those acts of violence took place in the following villages populated by Miskitos: Karata, Landing, Yulu, Dakban, Sandy Bay (which includes 14 closely situated villages some 30 miles north of Puerto Cabezas), Limbaiken, Alamikamba, Seven Benk, Tilba, Musawas, Kuabal, Tasbapaúni and Holoover.
The Government has not denied that there were acts of violence committed in those villages as a result of which some Miskito inhabitants died, as did soldiers of the Sandinista Army, but it has stated that all of them died in the course of the fighting which took place in that zone.
The members of the Commission’s Secretariat who visited the zone in June 1983 sought unsuccessfully to discover what took place in those villages. Thus, interviews held with the inhabitants produced no results, as was the case in the town of Yulu, despite the fact that these interviews were held in the presence only of Moravian pastors who served as interpreters. Under these circumstances, the Commission does not find itself in a position to affirm, or to deny, that these deaths are attributable to governmental authorities in violation of Article 4 of the American Convention on Human Rights.
5. The Commission cannot omit the fact that on December 9, 1982, 75 Miskito children and nine of their mothers died when the helicopter in which they were being evacuated to San José de Bokay from their homes in the border zone with Honduras, near the Coco River and the Bokay River, in the Department of Jinotega, caught fire. Although the Commission finds it a regrettable accident, this does not mean that the Government of Nicaragua is exempt from responsibility, as will be seen when the right to residence and movement is discussed.10
6. Finally, the IACHR has decided to consider the alleged disappearances of Miskitos, which supposedly took place in recent months, in the section on the right to liberty and personal security, and not in this section on the right to life. The Commission made this decision because it believes that those disappearances are not the result of a Government policy of exterminating dissidents, as has occurred in other countries.
7. Having stated the above clarifications, the Commission will now consider the events that took place in the Indian communities of San Carlos and Leimus, in which the Government of Nicaragua does have serious responsibility.
8. In the last days of December, 1981, events took place in those Indian communities and in others located in the north of the Zelaya Department which, according to complaints and testimonies submitted to the Commission, constituted acts of violence perpetrated by the army of Nicaragua against the Miskito population, and which included the capture and summary execution of their inhabitants.
9. For its part, the Government of Nicaragua gave its official version of the events on February 3, 1982, and alleges that it discovered a counterrevolutionary plot, which it called “Red Christmas�? because it was to be carried out during Christmas week of 1981, and which was organized and led by members of the former National Guard of Nicaragua in alliance with members of the Miskito community.
10. With reference to the above-mentioned events, the Commission received the complaint of Misurasata and a statement made by Mr. Steadman Fagoth. In addition, on several occasions it received testimony from former residents of the zone who said they had witnessed these events.
11. In its first communication, the Misurasata organization, after accusing the FSLN of having carried out a policy of “racial hatred�?, “internal colonialism�?, “racial discrimination�?, “assassination and social repression�?, “remilitarization, hunger and deceit�?, in the Atlantic zone of Nicaragua, alleged that the following events constituted genocide:
a. On December 23, the Sandinista Air Force used helicopters and Push and Pull airplanes to bombard the Indian communities of Asang and San Carlos, located on the banks of the Coco River, with 80.lb bombs, thus killing 60 Indians.
b. On December 22, 80 Indians were captured in Leimus near Waspan, from the communities of Asang, San Carlos, Waspuk, Krasa, etc. … And the following night, (December 23), the soldiers killed 35 people and buried them all in a mass grave: Norman, Rogelio and Simeón Castro, Joselin and Asel Mercado, Cristina and Mayra Lacayo, Víctor and Carlos Pérez, Justo Martínez, Villanor Pantín, Roseno Gómez, Luis Fajardo, Efraín Poveda, Celso Flores, Ramiro Damasio, etc. are the names of some of the victims.
Twelve more Indians were killed on December 24, and their corpses thrown into the Coco River.
On the 26th, four Indians were buried alive near Leimus, while the whereabouts of the other 84 Indian prisoners are unknown.
c. The Indian members of the Sandinista Army from the communities of the Raudales (Raiti, Aniwas, Walakitan, Bokay, etc.) are thrown into the river with their hands and feet tied for refusing to participate in the killing of their brothers, and many of their corpses can be found in the communities of Siksayari and Andistara.
12. Mr. Steadman Fagoth stated in his testimony to the Commission:
a. On December 26, 1981—“Leimus Massacre�?—35 people were buried alive precisely in the place known the raft crossing beneath the filamate tree in the Leimus community. Massacres never before seen in the history of the Atlantic coast. (…) Among others, buried there are Mr. José Lino Mercado from Asang, Coco River; Mr. Asel Mercado from the same community; Mr. Panthing of Krasa, Efrain Poveda of Klisnak Waspuc; Juan Poveda from the same community; Luis Fajardo from Raiti; Justo Martínez, Norma Castro, Rogelio Castro, Simeón Castro from Raiti; Carlos Pérez and Víctor Pérez from Raiti; Rocío Gómez, Celso Flores and Ramiro Damacio of Raiti; a survivor of the massacre was Vidal Poveda, brother of Efrain and Juan Poveda, buried in the same mass grave.
It should be noted that the survivor named Vidal Poveda had to bury his brother … it was his turn, he run and was shot while fleeing; he is now recovering in a hospital in Honduras where he took refuge.
It was subsequently confirmed that his left arm had been amputated. The brothers David and Eduardo Flores, both from Raiti, brothers of one of those who was buried alive, Mario Damasio, brother of the other victim and Roger Pérez who was wounded in the abdomen, brother of the two Pérez buried in the same mass grave, all of these survivors, currently refugees in a camp of the Moskitia in Honduras, are eyewitnesses to the most inhumane act that has taken place in the history of our communities.
13. With respect to the events in San Carlos, one of the eyewitnesses stated the following, according to the version recorded by the Commission:11
On Sunday, December 20, the judge of the community (appointed by the Sandinistas) received a note from the “contras�? who had come from up-river from the Honduran side. The judge, Layman Frederick Dublon, received instructions to advise the 6 Sandinista militia who were in the border area of San Carlos, that the “contras�? had come to fight. Only 2 of the 28 “contras�? were Miskitos, the rest being former Somocista guards. Most of the San Carlos population fled to the mountains, terrified by the “contras�? and Sandinistas, although some remained in the village. The day before, on Saturday afternoon, the 6 militia had left for Waspan. Later, when they encountered the “contras�? from Honduras, they returned to the garrison and there was no one in the Command. The “contras�? forced the San Carlos community to give them food, but since the people had none, they took what provisions were available at the headquarters. They were even accompanied by two women when they came from Honduras, who began to cook and who ate and slept that night in San Carlos. This took place Saturday night.
On Monday, December 21, at 7:00 a.m., a helicopter of the Sandinista Armed Forces arrived, and began a battle in which 7 Sandinistas from the helicopter died. After the battle, the Church bell rang and the people returned from the mountains. Layman Frederick, who had remained in the village because he was the spokesman between the Sandinista Front and the people, were detained. According to his relatives, his name is not on the lists of detainees and they fear he is dead. Half of the village of San Carlos fled to Honduras and the other half was moved to Sumubila.
14. With respect to what took place in Leimus, the Special Commission received testimony from Miskitos at a meeting in the refugee camp at Mocorón, at which approximately 150 of them gathered, of whom 10 apparently served as their spokesmen, who spoke with the members of the Special Commission openly, and without showing any hesitation.
15. As stated by a witness, named Leonel Martínez:
On December 23, 70 people were killed in Leimus. The killing led most of the Miskitos to flee to Honduras. The men who were killed had worked for Condeminah, a nationalized goldmine which is now being exploited by the Sandinistas. Apparently, the workers had not been paid, and with only a few days left before Christmas, they decided to go to the Central Office of Condeminah, in Waspan, to collect their pay. They were made to wait for three days, and were finally paid on the third day, on December 23, at 7:00 in the morning.
Having gotten their pay, they were ready to return to their villages, but on the way back they had to go through Leimus. They rented a car, and upon reaching Leimus were detained and imprisoned. At 6:00 in the afternoon, six of the detainees were taken from the jail and shot. Furthermore, the rest were taken in a larger group to the banks of the river and also shot.
Vidal Poveda, another witness, saved himself by jumping into the river. He was shot in the arm, which later had to be amputated. His two brothers were also shot. The names of the victims that can be remembered are: Justo Martínez, Juan Poveda, Joselín Hurtado, Asel Mercado, Ricardo Mercado, Esteban Antonio, Ponier Escobar, Sinforiano Alarcón, Nando Mora, Natalio José, Napoleón Wilson, Gerardo Collins, Celso Flores, Atin Carlos, Layman Frederick, Roger Piters, Carlos Pérez, Eugenio Morales and others.12
Several hours later there was another incident. A truck with 35 men looking for better paid work in Managua, Puerto Cabezas, Bluefields, Bonanza and La Tronquera, returned to their villages by going through Leimus. These men were also detained in Leimus, and since the Sandinistas had already dirtied their hands, they tied them and buried them alive. The Sandinistas tied their hands, covered their heads with hoods, and killed them in groups of five. They were also forced to dig their own graves.
For its part, the Government of Nicaragua gave its version of these events through Captain Roberto Sánchez, spokesman for the Armed Forces of Nicaragua, who in a press conference of February 3, 1982, affirmed that there had been a contra revolutionary plot begun in the month of November, 1981, which included a chain of armed aggressions, seizure of towns, death threats to inhabitants who did not collaborate with the “contras�?, kidnappings, murders and rapes, thus creating an atmosphere of terror and insecurity throughout the region. The plan, stated Captain Sánchez, consisted of simultaneously carrying out ambushes along the length of the Coco River, the only means of communication, in order to paralyze the region and to force the communities to emigrate to Honduras. In Zelaya del Norte, a number of armed incursions were made by counterrevolutionary bands in the border zone and against the inhabitants of several communities, which had been denounced by the Nicaraguan Government. The purpose of the plan was to separate the Atlantic coast from the rest of the country by violent, armed attacks that would be launched from Puerto Lempira, Honduras.
17. According to the Government, the village of San Carlos was taken by the contra revolutionaries who killed six members of the Sandinista People’s Army. The so-called contra revolutionaries controlled the village for 2 or 3 days until they were forced out.
The Government of Nicaragua showed photographs to the Special Commission of the IACHR of the faces and bodies of the Sandinistas, as proof of the fact that they were tortured before being killed, and it accused the residents of San Carlos, (especially those who did not escape to the mountains), of conspiring with the “contras�?, of siding and abetting in the ambush laid for the group in the helicopter, and of collaborating with them in seizing the villages.
18. On November 18, 1982, at its 58th session, the IACHR received 5 members of the Council of Elders of Misurasata who were exiles in Honduras, who came forward to testify and who submitted documents signed by the direct relatives of the victims of Leimus. Both documents are dated October 26, 1982, in Mocorón.
19. The first document reads as follows:
On December 18, 1981, leaders of the Evangelical Development Committee left Asang to go to Waspan, the capital of the Coco River region, to make purchases for the inhabitants of their village, Asang.
Returning to their village, and passing by the Sandinista border post of Leimus, they were detained on December 21 by the Sandinista Command.
On December 23, at 6:00 p.m. they were taken from the jails and shot in cold blood. They were machine gunned or short together with many mineworkers of Santa Rosa by 8 Sandinista soldiers.
The names of the assassinated leaders are: Asel Mercado, 35 years old, married, 6 children; Joselyn Mercado, 68 years old, married, 7 children; Ricardo Mercado, 30 years old, married, 3 children; Esteban Antonio, 44 years old, married, 6 children; Roger Bobb, 23 years old, single; Sinforiano Alarcón, 34 years old, married, 4 children; Napoleón Wilson, 49 years old, married, 6 children; Gerardo Collins, 40 years old, single; Nando Mora, 40 years old, married, 2 children; Macario José, 25 years old, single. All from Asang. They were killed in Leimus.
This statement is signed: Erna Hunter (mother of Asel Mercado); José Mercado (son of Joselin Mercado); Nomilino (wife of Esteban Antonio); José Mercado (brother of Ricardo Mercado); E. Bobb (mother of Roger Bobb); Wialins Wilson (father of Napoleón Wilson); Victoria Collins (mother of Gerardo Collins); Gliantina Krapot (grandmother of Nando Mora); Elfrida José (mother of Macario José) and Semplisio Alarcón (father of Sinforiano Alarcón).
20. The other document submitted by the Council of Elders states:
I, Eduardo Flores and my brothers David Flores and Celso Flores worked in the Santa Rosa mine for three months. We were dismissed and the mine was closed due to a problem with theft of the gold extracted. We had to get our pay by going to Waspan, and for this we had to travel by car for 6 hours to get there, and we arrived on December 16, 1981. On December 17, I was paid together with my two brothers, but I had to wait for my companions whom they did not want to pay. I was returning to my village on December 19 by boat, the engines stalled about 5 kilometers downriver from Leimus. I had to continue on foot to reach Leimus. The Sandinistas detained me there for no reason, put me in jail; I saw that there were many prisoners, some 50 people. I spoke with some of them and discovered that some had been put there on different dates, some on the 12, 13, 14, 15 and 18, so that they let no one go by, and among the prisoners were also my 2 brothers who were detained on December 20. Later other prisoners were brought in on 21, 22 and 23 of December, and the last were arrested on the 23rd at 10:00 a.m.
On December 23, 1981, at 6:00 p.m. or 7:00 p.m., they began to take out 7 prisoners, to whom they gave shovels and they took them to a field and in half an hour we heard shorts. Those 7 were from Asang, and among them were Hazel Mercado, Joselyn, Ricardo and others; thus they began to kill them group-by-group. Finally it was our turn, and I was among the last, with my two brothers, Vidal Poveda, Efraín, Mario Damasio, Rosino Gómez, Evanglio Muller, Tito and nine other men, we were taken last. As we left we had said: “We must try to save one of us, we are the last 18 men, if they kill us no one will ever know what has happened. With that plan, we walked ahead of 40 soldiers armed to the teeth. When we came to a dark part, we began to run in the direction of the river, which was our only hope. When we began to run, the soldiers began to shoot at us like crazy; some of my companions were wounded, we heard groans and cries from the wounded. I, thank God, feel into the river with no wounds and I began to swim, I saw that there was no one ahead of me and I reached the banks of the side of Honduras. After a while I heard someone swimming and crying out, we went to help him but we could not; I and someone else who was swimming close to me were not wounded, we started to look for people on the bank of the river and we found my brother Celso Flores, 19 years old, single, stretched out on the beach. He had been short from behind and the bullet had gone straight through his navel, where is intestines were falling out, and he was in very serious, very bad shape. We asked for help at a house and we stayed there, he was not dead yet. Later we found Vidal Poveda with a shot in his left arm; later we found my brother David Flores who had been shot in the stomach. My brother Celso Flores died on December 24 at 4:00 a.m. and we buried him in Leimus, Honduran territory. Of a total of 83 prisoners only 7 of us had saved ourselves. The names of the officers who were in charge in Leimus were: “Gustavo�?, “Julio Curvelo�?, José María, Eliseo Ingram, from Waspam. We state these facts as family members and sign as witnesses saved from the massacre. Eduardo Flores, Vidal Poveda and Delia de Poveda (mother of Efraín).
21. The Government’s official version of the facts appears in an undated document signed by Deputy Commander Roberto Sánchez, Chief of the Office of the Director of Public Relations of the Defense Ministry, which was submitted to the Commission on September 19 by the National Commissioner, Ambassador Leonte Herdocia. That document states that:
That month, the Armed Somocista Counterrevolution launched from bases in Honduran territory what became known as the “RED CHRISTMAS�? plan, which consisted of invading Nicaragua from Honduras along the border area of Zelaya Norte, to take part of our territory and to declare it a “Liberated Zone�? (seizure of territory from the Nicaraguan state) and having achieved this, to set up a provisional government which would immediately ask for the recognition of the governments of the area and request military support.
The plan was undertaken in late November with armed attacks on Miskito villages on the Nicaraguan bank of the Coco River, following propaganda by the counterrevolutionary station that broadcasts from Honduras, from which the religious beliefs of the Miskito and Sumo villages were manipulated against the Nicaraguan revolution. This attempt to sow confusion was somewhat successful, as some Miskitos moved to Honduras where they were armed by deceit and taken to counterrevolutionary camps by the former agent of Somoza’s Security Forces, Stedman Fagoth Muller, who sent them poorly armed and with little training to invade our territory in support of the Somocista bands that were attacking border villages, so that they would die in combat that they believed would free them from the EPS, and thus accuse our government of mass killings.
In light of this serous situation, the Government of National Reconstruction was obliged to take the necessary measures to defend our territorial integrity and to protect the lives of the inhabitants of the border religion in the northeast, and in view of this war-like situation, a decision was made to evacuate the communities of the Nicaraguan bank of the Coco River, in order to relocate or resettle them deeper within our territory. That evacuation was accelerated in late December, 1981, as counterrevolutionary activity increased, particularly after the attack on the villages of Bilwaskarma and San Carlos, and the killing of military forces and civilians in Krasa and Asang. That is to say, that the entire bank of the Coco River, from Raití to the mouth of the river, was in a state of war, which led to a decision to prohibit river travel.
On December 18, 1981, two vehicles belonging to CEPAD and the evangelical church of Bilwaskarma, arrived from Waspán, occupied by some 30 people, men, women, and children, who wished to travel upriver toward the communities of Asang, Klisnak, Santa Fé, etc.
In response to the passengers’ intentions, the Chief of the Border Post, Sergeant Gustavo Martínez Rivera explained to them that the zone was dangerous and that river transit was prohibited, and since the above-mentioned vehicles had already returned, which made it impossible for them to go back to their point of origin, they decided to remain with their suitcases in the hallways of the local commissariat, where they spent the night. On the afternoon of the following day, soldier Danilo Castro Cordero noticed that a radio antenna protruded from one of the suitcases carried by the passengers (Miskitos), and immediately informed the Chief of the border post, who ordered Lieutenant Juan Antonio Soza González to detain the men in order to investigate the origin of the radio, the purpose of transporting it and its destination. He proceeded to carry out his orders to detain 14 men, who were placed in a cellar of INRA, (Nicaraguan Institute of Agrarian Reform), as there was no jail in the area.
The detainees were subsequently interrogated, and most of them affirmed in their statements that they were collaborators with the counterrevolution. The pertinent measures were then taken to take them into custody, in order to later transfer them to Puerto Cabezas, once conditions allowed, and bring them before the competent courts.
It should be pointed out that after the 14 men were apprehended, the remaining passengers were directed to return to their point of origin, which they did. On December 23, of the same year, at approximately 9:00 p.m., a group of counterrevolutionaries attacked Leimos in order to seize it, and the border guards and the members of the reserve garrisoned there took up defense positions, at which time the detainees took advantage of the opportunity to try to flee, running in the direction of the river, a feasible escape route, since there was fighting and it was not possible to determine precisely which ones succeeded in escaping nor how many died in the crossfire, since in the course of the following day some 300 meters downriver from the Leimus village in a place known as Barcaza, 3 corpses were found floating whose characteristics matched those of some who had escaped.
After these events, and in light of the increase in counterrevolutionary activity, it was necessary to carry out an emergency evacuation of the village of Leimus, and in the evacuation many of the documents of the border post were lost, among them the list containing the names of those who had been detained.
22. On June 9th and 10th, 1983, the Executive Secretary of the IACHR, Dr. Edmundo Vargas Carreño, with an attorney of the Secretariat of the Commission, Dr. Christina Cerna, accompanied by officers of the Government of Nicaragua and the National Commission for the Promotion and Protection of Human Rights, toured several villages and towns in the northern part of the Zelaya Department, in order to verify the circumstances of the deaths that took place in the areas of San Carlos and Leimus.
At that time, those officers stated that some of the persons whose deaths had been alleged to have occurred as a result of the Leimus incidents of December 1981, were still alive. And such was the case of Asel Mercado, Juan Poveda, Simonet Ingram and Loren Ingram, whom the Executive Secretary and Dr. Cerna interviewed during their visit.
23. At the same time, inquiries made by the staff members of the IACHR made it possible to confirm that in December, 1981, there were serious violations of the right to life in Leimus of several Miskitos, which events were attributed to Sandinista Army forces, although the number of Miskitos involved was possibly not as high as that initially alleged. Of the testimony taken by the staff members of the IACHR, of special interest is that of Asel Mercado, who was brought forward at the instructions of the CNPPDH and spoke in their presence, and that of another Miskito who was interviewed privately.
24. Mr. Asel Mercado stated that he was in Leimus from December 18 to 22, together with “35 brothers�? all of whom he “has never seen again.�? He stated that among them were his uncle, José Mercado, his first cousin Ricardo Mercado, Sinforiano Alarcón, who worked in La Tronquera, Esteban Antonio, Nando Mora and Roger Piters. That all of them were detained in Leimus by the Officer in charge, whose first name was “Gustavo�?. That he was carrying beans, flour and sugar to sell in his community, and that he was accused of carrying this load to the counterrevolutionaries, which he denied. He added that on December 22, 1981, at about 12:00 o’clock midnight, the State Security Forces took him to Puerto Cabezas where he was interrogated by Commander Rufo, who assured him that the other 35 people who had been apprehended in Leimus would also be taken to Puerto Cabezas, but since that day he has not heard of any of them, and on the contrary, has heard it said that they were all killed.
25. During the visit of the staff members of the IACHR to one of the Tasba Pri settlements on June 10, 1983, an inhabitant who lived in Leimus at the time of the events narrated in this Report13 spoke with them and gave the testimony transcribed below:
- And what happened in Leimus?
- They did that on the night of the 23rd.
- What did they do?
- They came and took some prisoners. Then they took about 12 of them out into the dark. They put them in the back of a boat and killed them all.
- In a boat?
- Yes, in a motorboat.
- All together?
- Yes, all of them. They were tied up.
- We have been meeting persons here who were released.
- Yes, in the early morning I was coming when we found them dead on the beach.
- Are you from Leimus?
- Yes, from Leimus.
- And you found the corpses?
- Yes, I was quite close to them
- Do you know their names?
- Of those who died?
- Yes.
- No. They were from upriver, from Raití. They were not from here.
- And how many corpses did they find?
- Eighteen and others that they killed that way in the woods.
- And where were the corpses? On the beach?
- They were buried on the other side of the river. Two are buried.
- On the Honduras side?
- No. Yes, on the Honduras side. The soldiers buried them on the other side. They buried them.
- From Honduras?}
- Yes, they took them out.
- And who was responsible?
- Those who did that. The very ones.
- But you don’t know any names?
- “Gustavo�?, was the chief around here, of Leimus.
- But you personally saw the corpses?
- Ah, yes, sure, if I didn’t I wouldn’t say so. That is why I told you that I could show you where they are buried and everything.
- And others were with you?
- No, only me. Everyone realized. The whole town. And anyway you can’t talk around here because they don’t let you. And they are afraid because they don’t let you. And they are afraid because afterwards they might be killed. They kill people here. They take someone prisoner, okay, let’s go for a walk and bang, bang, bang.
- Have there been killings here in the settlements?
- Here, on this mountain.
- People who are fleeing?
- No, deliberately, because they were afraid. If that causes harm to one, there it is, that’s all.
- Is there a strong feeling here against the government? Most of the people?
- We are not at ease. We are in bad shape here, bad. The main thing is that we have no food. We eat almost nothing, what we can find around. They give each of us a pound of rice per week. The food is as bad as it can be.
- You were from Leimus?
- Yes.
- And during the relocation there were killings, difficulties?
- No, there were no killings or beatings. Nothing. Only those that were killed over there.
- And why were they killed?
- Because they felt like it. What were some poor fools going to do there? They had no weapons.
26. On June 11, the CNPPDH submitted to the Commission a Preliminary Report on the investigations carried out by that agency on the events that took place in Leimus in December 1981. That report includes the testimony of Deacon Rodolfo Baquedano Ebeel, originally from Leimus and currently living in the settlement Sahsa. In that testimony, which coincides with that given by Asel Mercado, he states:
That on December 18, 1981, approximately 40 Miskitos coming from Puerto Cabezas and La Tronquera on their way to Asang and San Carlos were captured in Leimus. That all of the detainees who came in a truck were imprisoned in a cellar blocked off with squares of cement. That same day, the witness could see EFRA�?N POVEDA MULLER, of Waspuk, among those who had been captured. He could also see VIDAL POVEDA and SINFORIANO ALARCÓN. That on December 23, at 9:15 p.m., a single round of shots was heard that lasted about 15 seconds. That on December 26, 1981, he spoke with the Sandinista in charge of the Leimus command, named Gustavo Martínez, who informed him that during the night of December 23, 14 of the detainees had escaped. That Gustavo told them that they had shot at them without later finding any trails of blood. That on the 26th of December he spoke with Gustavo Martínez, he saw no sign of corpses anywhere. That Gustavo’s assistants were “Pepe�? and “Chayito Ingrand�?. That on December 26, 1981 there was no gunfire in Leimus. That Gustavo Martínez himself told him that Asel Mercado had been sent to Puerto Cabezas.
27. In accordance with the information and testimony set forth above, which has been carefully examined and weighed, the Commission is convinced that between 35 and 40 Miskitos were detained in Leimus by military forces commanded by an officer who was referred to by some individual witnesses as Gustavo or Gustavo Martínez, and that a yet undetermined number of Miskitos, all unarmed, were summarily executed on December 23, 1981, possibly in retaliation for the events that had taken place a few days before in San Carlos, during which 6 members of the Sandinista army were killed.
It is the view of the Commission that such events constitute a serious violation of the right to life, set forth in Article 4 of the American Convention on Human Rights, and require from the Government of Nicaragua at least a thorough investigation of the facts and a severe punishment for those responsible for these illegal killings.
28. The Government of Nicaragua formally undertook to begin an investigation of these events. Thus, in the Proposal Document of the Government of Nicaragua to the Inter-American Commission on Human Rights of 24 August, 1982, after studying the recommendations of the IACHR contained in its Report of June 26, 1982, it is stated that:
With respect to the recommendation to “investigate all matters relating to the violation of the right to life of the Miskito Indians and to judge and punish those responsible to the full extent of the law,�? the Government of Nicaragua, independently of its belief that there have been no violations of the right to life, has transferred that recommendation to the National Commission for the Promotion and Protection of Human Rights so that this autonomous agency may proceed to carry out an investigation aimed at clarifying the alleged events, in conformity with Article 5 of its Statute.14
Likewise, in its Report to the United Nations Human Rights Committee, the Nicaraguan Government affirmed having carried out a “thorough investigation�? of the events that took place in Leimus, which is linked to the “outrageous attacks�? that had taken place a few days before.15
29. Despite these offers to undertake a thorough investigation of the events that took place in Leimus, the IACHR has thus far only received the document from the Nicaraguan Government titled “Preliminary Report of the CNPPDH on its mandate, contained in the ‘Proposal document for a Friendly Settlement’�?; the version of the events submitted by the Public and International Relations Section of the Ministry of Defense transcribed above, and a certificate from the Judge Advocate of the Sandinista Armed Forces which states that the Military Tribunal of the First Instance of the Office of the Judge Advocate of the Sandinista Armed Forces, on April 2, 1983, decided to fully and finally exonerate Gustavo Manuel Martínez Rivera and Juan Antonio Sosa González, “of the alleged crime of murder�?.
30. In the document of the CNPPDH, after pointing out that “the current state of emergency and the state of aggression experienced by the country has made it impossible to carry out as careful an investigation as the CNPPDH would have liked…�? and that “nevertheless, the Commission (the CNPPDH) intends to continue its investigations until fully clarifying these events…�?, the following conclusions are set forth:
With respect to the events that took place in Leimus, Asang and San Carlos, late in December, 1981, the Commission believes it is appropriate to take into account, for general understanding, the events known as “Red Christmas�? that were referred to in paragraph 27 of this Preliminary Report and the disinformation campaign launched from Radio 15 September that operates from Honduras. The lack of precise and concrete data, together with the serious contradictions encountered in the texts of the complaints, casts substantial doubt on the truth of the allegations. The Commission is certain that some of the alleged victims are still living, as has been clearly demonstrated, and that a sufficient investigation of Mocorón (Honduras) might even provide revealing new information. The versions of the confrontations mentioned in paragraph 31 merit a more detailed investigation.
The preliminary conclusion of the Commission is that there is implausible information with respect to the massacre of Leimus, some of which has been fully clarified. The physical presence of the alleged victims Norman Castro, Asel Mercado, Juan Poveda and Simonet Ingram are persuasive proof that must be evaluated objectively. The Commission does not dismiss the possibility that some of the alleged victims may have died in fighting with the Sandinista forces.
31. The IACHR can only consider unsatisfactory, and in some respects even surprising, the reply that the Government of Nicaragua through the CNPPDH has given. Indeed, the entire document is intended to contest the complaints set forth in the Report of the IACHR of June 26, 1982, rather than to determine the truth of what took place, as the Government offered to do. This explains why this document contains no information as to whether the military officers who may have been involved in the events were questioned. Nor were survivors, such as Asel Mercado, questioned, who stated to the Nicaraguan officials and the staff of the IACHR Secretariat that until that day he had not been questioned with respect to these events.
The Commission, of course, well understands the difficulties of undertaking a thorough investigation given the prevailing military situation on the Atlantic Coast of Nicaragua. Nevertheless, it should be noted that these events took place nearly two years ago, and the only result of investigations thus far has been the discovery that five people whom the complainants thought were dead are fortunately still alive.
32. Finally, the IACHR wishes to refer to the statement of the CNPPDH that it “does not dismiss the possibility that some of the alleged victims may have died in fighting with the Sandinista forces�?. This statement is simply surprising. According to all the information and testimony received by the IACHR, some from the Government itself, the victims were unarmed, were detained by Sandinista military forces, and were in their custody, while the Commission has no information that would lead it to believe that there was fighting in Leimus.
D. Right to liberty, personal security and to due process
1. In view of the fact that observance of the rights to libert,16 personal security,17 and due process,18 are closely related in this case, the Commission will concern itself with these three rights, as they are set forth in the American Convention, in this section. This section will study the following situations concerning the Miskito population: a. detentions and other restrictions of liberty; b. imprisonment; c. trials initiated; d. releases that were granted; and e. alleged disappearances.
a. Detentions and other restrictions of personal liberty
2. A number of Miskitos were detained in connection with the events of San Carlos in December 1981, some of whom were subsequently released.
3. In the first half of 1982, as militarization of the Atlantic zone increased as a result of the incursions of armed insurgent groups and combat in several places in the northern part of Zelaya Department, the number of detentions rose and the Government began to adopt various measures to restrict personal liberty, invoking a state of emergency, and thus created an atmosphere of uncertainty for the inhabitants of the Miskito villages.
4. According to a complaint received by the IACHR, the detentions took place as follows:
Since establishment of the State of National Emergency, the number of detentions in the Atlantic Coast Region has increased considerably. These detentions are made on the basis of allegations or vague accusations that the detainee is involved in counterrevolutionary activities. Detention involves violations of the person, and destruction of his home. The detainee is usually kept incommunicado from two to three months, while interrogated in prisons of the State Security forces, while the family remains uninformed of his whereabouts and the reasons for his detention. The State of Emergency has nullified the habeas corpus remedy, the only legal mechanism to prevent incommunicado imprisonment, to require a hearing before a Judge, and above all to demonstrate the physical and emotional condition of the defendant. Abuse of prisoners is frequent in rural zones, and there are many complaints of rape, beatings, harassment and other illegal proceedings in the prison.
3. According to information received by the Commission, in March 1982, 17 communities on the banks of the Prinzapolka River were militarily occupied, including their temples and schools; in the following months, the communities of Prata, Kushbul, Kligna, Riatí, Arandakna, Wailahka and Musawas were destroyed or burned, leading their inhabitants to flee to the mountains or to Honduras. In July 1982, a state of siege was declared in the communities of Tuara, Sisin, Juaquil, Boomsirpi and Yolotigni, under which the inhabitants were not allowed to leave their homes. In the following months, August, September and October, 1982, the situation is described as follows by a complaint received by the IACHR with respect to 10 Indian communities near Puerto Cabezas:
a. Total proscription of fishing;
b. Expropriation of communal lands;
c. Prohibition of leaving the community;
d. Restriction on masses or religious services, which can be held only with prior permission;
e. State of siege within the communities.
6. These restrictions on the personal liberty of the Miskitos culminated with the enactment of Decree 1132 on November 4, 1982, by which the Government declared the territory of 24 cities in the Departments of Chinandega, Madriz, Nueva Segovia, Jinotega and Zelaya, near the border zone with Honduras, to be a military emergency zone. According to this Decree, which is in force at the time of approval of this report, military authorities, by delegation of the Directorate of National Reconstruction and as necessary to deal with the emergency, may issue whatever orders, regulations and provisions are necessary to maintain order and security and to guarantee national defense.
7. Military authorities have used this authority to detain hundreds of Miskitos without following legal formalities and without allowing any judicial remedy, even the remedy of habeas corpus. Several Moravian pastors who hold great moral authority over their villages are among those who have been detained.19
b. Imprisonment of Miskitos
8. Despite all of the efforts made by the Commission before the Government of Nicaragua to discover the exact number of Miskitos currently detained, awaiting trial or sentence, the Commission is not able to provide an exact number of Miskitos now in prison.20
9. In this respect, it is advisable to bear in mind that under the state of emergency now in force in Nicaragua, a person may be imprisoned either under the regular prison system or by State Security forces. In the latter case, detainees may remain in that situation for an indefinite period of time while under investigation.
10. The Commission considers, in accordance with the various information sources available to it, that in July 1983, there were approximately 400 Miskito detainees in Managua alone. Of these, approximately 300 were in the Managua prison “Heroes and Martyrs of New Guinea�? formerly called the prison of “Zona Franca�?, and 100 were in the Minimal Security Work Farm.21
11. Prison conditions, as observed by the Commission in 198022 and in 1982 have not improved significantly in the Zona Franca Prison, as noted by the staff members of the Secretariat who visited the prison in June, 1983. At that time, the staff members interviewed two Moravian pastors who, while stating that they had not been physically abused during their detention in Managua, stated that they had been cruelly tortured during initial interrogations, and complained of the severe conditions of their imprisonment.
12. On the other hand, the prison conditions in the Minimal Security Work Farm are considerably better. In June, approximately 100 Miskitos were held there, including 12 women. At this time, that figure comes to some 300 Miskitos, according to the statement of the National Commissioner for the Promotion and Protection of Human Rights, as the have all been transferred to that detention center. The women worked in handicrafts and maintenance of the establishment. The men were assigned agricultural tasks, which apparently were carried out satisfactorily. Prison conditions in general are good and almost the only complaint of the prisoners is the lack of communication with their families.
c. Trials of the Miskitos
13. The Commission will consider below the trials of the Miskitos detained at the end of 1981 and the first months of 1982. Most of them were arrested in San Carlos and in Las Minas, but there are also others who were arrested in Sandy Bay, Waspan, Bilwaskarma and Zelaya.
14. During the visit made by the Special Commission to Nicaragua in May, 1982, it had the opportunity to speak with the Miskitos who had been detained, of whom approximately 125 were held in Managua and 47 in Puerto Cabezas, as indicated above.
15. In its conversation with the detainees, the Special Commission received various testimonies on torture and other violations of personal security alleged to have occurred during interrogation sessions by the State Security Force, in order to extract from them signed confessions to be used at their trials.
The Miskitos who were interviewed gave details of the methods used to force them to sign the confessions; a considerable number of them declared that they had been punished, tortured and threatened with death. They were warned that they would have their tongues cut out if they told anyone of these abuses. Some of them showed the Commission members who interviewed them the bruises and marks that they claimed resulted from this physical mistreatment.
16. For the applicable law to be used at these trials the Government turned to the articles still in force of the Law on Maintenance of Order and Public Security, the Procedural Law on the Maintenance of Order and Public Security and the Law on the State of Economic and Social Emergency. By application of these provisions, the Miskitos have been accused of the crimes of not obeying a ceasefire; attempting to reinstate the Somoza regime; and conspiracy to submit the nation to foreign domination. These allegations, as will be seen, have not been supported by sufficient evidence.
17. The Commission is particularly concerned that the applicable procedural law allowed the following irregularities:
a. That the statements of the accused were made to officers of the Department of State Security, without having been taken by a competent judicial authority.
b. That the judge did not even question the accused afterwards and accepted as true the facts contained in the document presented by State Security.
c. That the judge was not obliged to ask the accused if he agreed with what he stated in his declaration, since the defendant was asked only by the officer of State Security whether his statement corresponded to what he had declared.
d. That during questioning, the Miskitos did not have the services of an interpreter, although a large number of them do not speak Spanish, but only their native languages.
e. That the accused were not given prior and detailed information on the charges brought against them before making their statements, nor did they have adequate means to prepare their defense, since they were not permitted the assistance of a defense attorney at the time they made their declarations.
f. That the right not to testify against oneself and to plead not guilty was not observed.
18. As an example, and in order to specify concretely the violation of the above-mentioned judicial guarantees, the Commission has selected the legal proceedings followed against the Miskitos who had allegedly participated in the events that took place in the village of San Carlos, and which like the other proceedings followed against other Miskitos, was carried out under Judge Pompilio Casaya M., District Judge of Puerto Cabezas, who was subsequently removed by the Supreme Court of Justice of Nicaragua.
The disciplinary action of the Supreme Court, which unfortunately did not completely nullify the judge’s actions, states that the dismissal of Judge Pompilio Casaya Mendoza was due to his having committed a number of irregularities.
19. The case record opened with an accusation by the Assistant District Attorney of the Department of Justice of Zelaya, submitted on January 29, 1982. Its tone is sharply critical of the Indian communities of the Atlantic Coast, which is described as a “zone that was previously used only as a hunting and fishing preserve of the various imperialists and their puppets�?; referred to the defendants as “traitors of the Revolution�?, “neo-Somocistas�? and “bootlickers of Somocismo who tried to use the power that the Revolution gave them�?.
The Assistant District Attorney submitted as proof of the charges the confessions of the defendants, all of which were taken in the presence of officers of the Department State Security, in Puerto Cabezas. The above-mentioned statements are dated in the first and second weeks of January, and special care was taken in all of them to include the affirmation, which the accused Miskitos interviewed by the Special Commission stated to be false, that they had been informed of their rights under law to make a statement or to remain silent, and that they chose, in all of the cases, to “spontaneously�? confess their crimes.
In response to the Assistant District Attorney’s request, on January 29 the Court of Puerto Cabezas issued an arrest order for the accused, as if they were still at liberty, when in fact most had been apprehended in December and were in incommunicado detention. At the same time, by means of an official communication of the same date, he asked the Operation Section of the Director General’s Office of State Security to send him the persons whose names he listed in his two page note who, he indicated, “are detained for having participated in the events of San Carlos�?.
Also on the 29th, the date of the complaint and the official letter in which the Judge requested that the detainees be sent to him, State Security responded by sending an placing the detainees at the disposition of the Judge. On the same date, the Court notified the detainees of the contents of the charges brought by the Assistant District Attorney, and gave them two days to reply to these charges.
Given the length of the above-mentioned documents, which take up the first ten pages of the record, and the fact that they all bear the same data, the impression of the IACHR is that it had all been prepared in advance to comply with established legal formalities. But what has most drawn the attention of the Commission is that the judge warned the defendants to respond to the charges within two days of notification, when he knew that their replies were part of the proof of the Assistant District Attorney’s charges.
The appointment of a defense counsel in these circumstances also appears to be a mere formality, since the statements and replies of the defendants had been obtained by State Security. This impression was later confirmed by the useless and even counterproductive role played by the defense counsel, who, when the time came to present his case, tacitly acknowledged the charges brought against his clients, with the two exceptions, of whom he said: “Their crime cannot be proved, since they did not have any direct or even indirect participation in the events of San Carlos�?.
With respect to the lack of autonomy and impartiality alleged by the accused on the part of Judge Pompilio Casaya Mendoza, it is enlightening to quote verbatim the introduction of some of his official communications, particularly that on page 16 of the record, which he addressed, on February 1, 1982, to “Comrade in charge of the Operations Section of the Office of the General Director of the State Security�? in the following terms:
Today when the Sun of Liberty of our Commander-in-chief CARLOS FONSECA AMADOR shines in all its splendor, I address you for the following purpose.
The confessions have been written in a style which is easily seen by those who interviewed them not to be the language of the Miskitos. There is no indication that any of the accused have been assisted by an interpreter, and as the confessions are all in Spanish, the Commission wishes to know how the interrogators managed to communicate with the accused, 70% of whom only speak the Miskito language.
The Commission also notes with concern that the record includes the signatures of Miskitos who are completely or almost completely illiterate. Despite this circumstance, all of the testimonies without exception contained a statement, certified by the presiding officer, that once the confession had been given, it was read by the defendant, who in acknowledgment of his agreement with its content, attached his signature to render it legitimate.
20. All of the procedural abnormalities noted in the record of the case on the events of San Carlos, which would nullify that procedure, are not unlike the abnormalities contained in the proceedings followed against the other detained Miskitos. To this should be added the fact that the lower court’s guilty verdict was rendered without examining and considering the extent of individual participation on the part of each defendant, but rather grouped them together and gave them different sentences.
21. Another fact which concerns the Commission relates to the performance of the defense attorneys. In a meeting with them in Bluefields, the Special Commission learned that they had not spoken with their clients, and therefore had not had an opportunity to hear their versions of the events. Clearly, this is extremely damaging to the proper discharge of their duties and makes it difficult to clarify whether each of the accused in fact committed the alleged crimes. According to information received by the Commission, the defense attorneys in general are unable to prepare an effective defense due to the limited period for the submission of evidence (8 days) and the distances to be covered to gather data to support the defendant’s case, which means that they cannot present witnesses or expert evidence, nor produce evidence by examination of exhibits by the judge. On the other hand, the State Prosecutor has all the time he may need to gather such evidence.
22. A further abnormality noted by the Special Commission was the television broadcasting of the incriminating confessions by the defendants themselves before the final verdict was rendered. The broadcasting of these statements, in the opinion of the Commission, leads public opinion to prejudge the guilt of the defendants, and is a practice totally at variance with the fundamental dictates of due process. Fortunately, this anomaly is presumably being corrected, according to information provided to the Commission by the Government in its reply concerning implementation of the preliminary recommendations set forth by the Special Commission during its visit to Nicaragua in May 1982.
23. Another serious anomaly, in the opinion of the Commission, is that the Court record does not state precise charges. It is not clear that the defendants participated actively in the acts of sabotage or acts of pillage, looting or vandalism that were attributed to armed groups of former Sandinista guards.
24. With respect to what was called by the Assistant District Attorney “arms and military ordnance�? in the possession of the accused in the San Carlos case, the statement is obviously exaggerated since the description of the arms contained in the record of the Court Proceeding, maintained at the request of the claimant, indicates that the alleged weapons of war were but old rifles, perhaps useful for hunting or personal defense, the possession of which is easily explained given the region where their owners lived.23
25. On August 24, 1982, the Government of Nicaragua, through its Permanent Mission to the OAS, informed the Commission of the Bluefields Court of Appeals decisions of July 1, 1982, in the appeals of the guilty verdicts handed down by the Judge of Puerto Cabezas. According to this information, 26 cases were provisionally dismissed, and three were definitively dismissed; sentences were considerably reduced in the remaining cases, some of them by more than 70 percent. According to this information, the longest sentence was reduced from 30 to 14 years imprisonment with an additional two years of forced labor. It was also reported that “the corresponding special remedy of annulment in criminal proceedings has already been applied, and is currently being processed. It is to be hoped that, as a result thereof, sentences will be reduced in some cases and others will be dismissed�?.
26. On September 16, 1983, the Supreme Court, by means of a remedy of annulment in criminal proceedings, nullified some of the sentences handed down by the Bluefields Court of Appeals, dismissing the cases of 35 Miskitos from San Carlos, 8 from Sandy Bay, 12 from Waspan and 8 from Zelaya. Nevertheless, it denied the remedies sought on behalf of 35 Miskitos from Las Minas and 7 from Bilwaskarma, who had been sentenced previously, because the statute of limitation had expired. According to the note of September 16, 1983, from the Foreign Ministry of Nicaragua to the Chairman of the IACHR, “the persons whose remedy of annulment was denied for being presented when the deadline had expired, still have the right to bring a special remedy of review, and the lawyers who submitted the remedy beyond the time limit are being submitted to an inquiry initiated by the Supreme Court of Justice.�?
27. Although the decision of the Supreme Court of Nicaragua was tardy and partial, it remedied a situation of manifest injustice in which the applicable norms of due process which are guaranteed by the American Convention on Human Rights and to which Nicaragua is a party, had been disregarded.
d. Release of the Miskitos
28. On January 3, 1983, the Commission was informed by the Ambassador, Permanent Representative of Nicaragua to the OAS, of the names of 49 Miskitos who had been released, on two occasions, in the course of December 1982.
Later, on August 3, 1983, the Commission was again informed that 45 Miskitos who had been detained had also been released.
In addition, the Ambassador of Nicaragua to the OAS ADVISED THE commission by note of September 26, 1983, that a pardon had been granted to 18 Miskitos.
29. Together with these releases, the Commission has taken note of the efforts being made by the National Commission for the Promotion and Protection of Human Rights in Nicaragua to obtain a pardon for a considerable number of Miskitos, and thus establish better conditions for an understanding between the Government and the Miskito communities.
30. The Commission has also taken due note that on September 2, 1983, the Ministry of Justice, at the instructions of the Government Directorate, prepared a Draft General Amnesty Decree for all Nicaraguans of Miskito, Sumo, Criollo or Rama origin, which would cover those detained in Nicaragua and even those outside of Nicaragua, without exception. The amnesty, as reported by the Government, would cover all crimes committed from December of 1981 to date. Nevertheless, the events of the 7, 8, and 9 of September, which included the bombardment of the Augusto César Sandino Airport of Managua and other attacks, led the Government to make a decision to issue the decree “whenever the wave of aggression ceases and when the more concrete results of the noble and repeated efforts of the Contadora Group can be seen.�?
31. Despite these efforts, which the Commission acknowledges and esteems, it finds that there is still a considerable number of people detained without charge, or sentenced in violation of the minimal norms of due process. In light of these considerations, the Commission has persistently pressed the Government of Nicaragua to grant a general pardon or amnesty to all Miskitos; on the one hand, this would correct past injustices, and on the other, would contribute to establishing conditions for better relations with the Miskitos.
32. The Commission also regrets, as it indicated above, that it cannot give a precise figure of the number of Miskitos who have been detained and where they are now; it can only insist, once again, that the Government of Nicaragua publish the complete list of all detention centers, both those of the prison system and those under State Security, and that it issue lists of the names of detained Miskitos.24
e. Disappearance of Miskitos
33. The failure to make public information about the detentions carried out by civilians and military authorities has resulted in complaints concerning the disappearances of a considerable number of Miskitos. Given the IACHR’s past experience in other countries with this abominable practice, these claims of disappearance have been a principal source of concern to the Commission.
34. According to a complaint submitted by the Permanent Commission on Human Rights of Nicaragua, disappearances have occurred under the following circumstances:
Beginning in July 1982, hundreds of Indian Miskitos were captured in the communities of Zelaya Norte, and were taken to Puerto Cabezas where they were kept incommunicado. Their families were later informed by the local authorities that they had been taken to Managua, to the jail known as Zona Franca, but after making great efforts to reach that city, to visit their imprisoned relatives, they were informed by the offices of the National Prison System that those defendants had not been moved to Managua.
Seventy-two cases of DISAPPEARANCES in these circumstances have been reported to our offices and the Permanent Commission of Nicaragua has made repeated efforts on behalf of our Nicaraguan brothers before the authorities of the Ministry of the Interior, responsible for these captures, both in Managua and in the First Special Region, which is located in Puerto Cabezas, although thus far no authority has taken responsibility for the fate of these prisoners, nearly ONE YEAR AFTER THEIR CAPTURE.
Although some relatives of these prisoners have indicated that they have been informed by other prisoners that their relatives “WERE TAKEN�? from the cells, on the night of July 19, 1983, to an unknown destination, the hope that they will be found alive is still harbored, particularly in the light of the “APPEARANCE�? or DISCOVERY of Mr. MANUEL THOMPSON CLARK, who had been detained on July 19, 1982 and was allowed to be visited by his family until May, 1983, after which time he remained incommunicado in the State Security prisons at Puerto Cabezas.
35. The list of names of the disappeared provided by the Permanent Commission on Human Rights of Nicaragua includes the following persons:
Larry Wellington August, Emilio Wellington August, Alberto Wellington August, Neman Wellington August, Tomas Borge Kittle, Carlos Rammer Berry Sula, Askin Reginald Francis, Bernardo Chow, Tomas Pineer Ritchinal, Luis Chow Jacobe, Vernon Werster Silvano, Ambrosio Thompson Bigman, Augustin Zamora, Justiniano Natalian, Candido Urbina, Unecio Usyan Amadias, Harold Davis, Guierdin Maikel Castillo, Martin Fracia Warman, Milton Hodson Wilson, Roberto Alfred Joseph, Maikel Amdias Williams, Nicolas Zamora, Alfonso Flores Frank, Alfonso Wilson Teofilo, Adistan Norman Lam Amadias, Guadalupe Romero, Jose Saiman Tacio, Carlos Amadias Williams, Alberto Zamora Warman, Ricardo Zamora Warman, Bernardo Martinez David, Mostemos Bertan Daysi, Leytran Teofilo Humberto, Cipriano Omier Prado, Rene Arthurs McDonalds, Julio William Godoy, Wilfredo Rodríguez Garth, Hernaldo Vargas Albina Vargas, Harry Williams, Ignacio Martínez Teofilo, Ricardo Estriano Chico, Paul Taylor Jr., Harold Warman, Napoleón Joel, Medando Zeledon Lackwood, Rodriguez Garth, Gregorio Joel Alfius, Gabriel Anderson, William Lopez, Plutario Ronas, Pinley Amstrong, Justo Herbacio Lampson, Feliciano Arthurs Lopez, Lorenzo Parquier, Salitan Pasquier, Agapito Almanza, José Salvador, Nicolás Hernández, Celestino Amstrong, Daniel Lopez, Rosa McWilliams, Concepción Rosales, Pedro Gonzalez, Andres Soza, Electerio Picktan, Jose Mitchelie, Harold Jerry, Eniterio Dixon, Anibal McLean and Antonio Manzanares Lackwood.
36. At the end of the visit to Nicaragua of the Executive Secretary and Dr. Cerna, the National Commission for the Promotion and Protection of Human Rights—which the Government had entrusted with carrying out the pertinent investigations with respect to the claims of disappearances—provided the following information with respect to 28 names that appeared on the list of the Permanent Commission:
Luis Chow Jacobe (according to information of the Ministry of the Interior, released on July 29, 1982, and is not now in Zona Franca); Hernaldo Vargas (according to information of the Ministry of the Interior, released on August 1, 1982); Adistan Norman Lam Amadias (according to information of the Ministry of the Interior, released on August 1, 1982); Tomas Borge Kittle (according to information of the Ministry of the Interior, was released on July 31, 1982); Pinley Amstrong (not in Jail); Ricardo Zamora Warman (not in jail); Larry Wellington August (not in jail); Neman Wellington August (not in jail); Alberto Wellington August (not in jail); Emilio Wellington August (not in jail); Martin Francis Warman (not in jail); Bernardo Chow (not in jail); Justiniano Natalian (not in jail); Tomas Pineer Richinal (not in jail); Alfonso Wilson Teofilo (on the list of defendants in Zona Franca appears as Teofilo Wilson Balberino, detained October 12, 1982, crime: counterrevolutionary. Penalty: under indictment and orders not to leave the jurisdiction); Guadalupe Romero (on the list of prisoners of Zona Franca appears as Guadalupe Romero Guzman, detained on October 12, 1982. Crime: counter-revolutionary; penalty: under indictment, and orders not to leave the jurisdiction of the Judge of Puerto Cabezas; Nicolás Hernandez (on the list of prisoners of Zona Franca appears as Hernandez Salvador Nicolas, detained July 20, 1982; crime: counterrevolutionary; penalty: under indictment, not to leave the jurisdiction of the Judge of Puerto Cabezas); Celestino Amstrong (on the list of prisoners in Zona Franca, appears as Anstran Jacobi Celestino, detained July 19, 1982; crime: counterrevolutionary; penalty: under indictment and orders not to leave the jurisdiction of Puerto Cabezas); Cipriano Omier Prado (according to a note sent to the IACHR on January 5, 1983, was released on December 2, 1982, appearing under the name Napoleón Joel Francis); Justo Herbacio Lampson (according to a note sent to the IACHR of January 5, 1983, was released on December 15, 1982); Albina Vargas (according to a note sent to the IACHR of June 5, 1983, was released on December 2, 1982); Domingo Filemon Talavera Pérez, (the Ministry of Foreign Affairs informed the IACHR on March 13, 1983, that he is not on the prison list); Manuel Thompson Clark (detained in Special Region I, at the orders of the Ministry of the Interior, on October 25, 1982); Clover Lezcano Perez, Abundio Perez Lopez and Jacinto Lopez Mendez (between April 15 and 20, 1982, died in combat with Sandinista troops, note of the Ministry of the Interior of April 20, 1982); and Nicolas Zamora (appears on the prisoner list of Zona Franca as Tomas Zamora Nicolas, detained March 1, 1982; crime: counterrevolutionary; penalty: under indictment and orders not to leave the jurisdiction of Puerto Cabezas).
37. The staff members of the Secretariat of the Commission, during their visit to Puerto Cabezas, attempted to inquire about the fate of Mr. Manuel Thompson Clark, who according to the Permanent Commission on Human Rights “had been detained since July 19, 1982, and had been visited by his relatives until May, 1983, since kept incommunicado in the State Security jails of Puerto Cabezas�? and who, according to the National Commission for the Promotion and Protection of Human Rights was “detained in Special Region I under the orders of the Ministry of the Interior since October 25, 1982.�? Commander Julio González, in charge of Special Region 1 of Puerto Cabezas, informed the staff members of the Secretariat that he “had never detained a Miskito by the name of Manuel Thompson Clark�?, and showed a registry listing detainees, which did not include reference to Manuel Thompson Clark. Likewise, the two detainees who spoke to the staff members of the Secretariat in private, and who had been detained for two months and one year respectively, indicated that they had never heard mention of Manuel Thompson Clark.
38. The Commission can only express its deep concern over the facts described above, that shoe contradictory information given by Government agencies and which, therefore, should be investigated as soon as possible.
39. The Commission recognizes that the problem of the disappearances of Miskitos in Nicaragua entails aspects different from those in other countries where this deplorable phenomenon has taken place. For that reason, the Commission allows the possibility that, lacking a census of the population and given the conflict situation obtaining in the Nicaraguan Atlantic Region, some Miskitos may have changed their names, which is not unusual among them, and are now living in places other than where they lived before, or that others, who were presumed to have disappeared, may have moved to Honduras. However, at the same time, the Commission cannot fail to express its deep concern over this problem, given the absence of any kind of formality in carrying out detentions of Miskitos, the lack of notification to their families when they have been moved to Managua, and the absence of a list containing the names of Miskitos who have been detained and their place of detention.
E. Right to Residence and Movement
1. With respect to the right to residence and movement that the American Convention on Human Rights guarantees in Article 22,25 this section studies three situations: a. the compulsory relocation of Miskitos in January of 1982 from their communities on the Coco River to the Tasba Fri settlements in Zelaya Department; b. the compulsory relocation of Miskitos in November and December of 1982 from their communities on the Coco and Bokay rivers in Jinotega to settlements in the interior of that Department; and c. the repatriation of Nicaraguan Miskitos currently residing in Honduras.
a. The relocation from the Coco River Region to Tasba Pri
2. With respect to the compulsory relocation of approximately 8,500 Miskitos from the Coco River to five camps in what has been called Tasba Pri, in this section the Commission will consider the compatibility of this measure with the obligations undertaken by Nicaragua under the American Convention on Human Rights. The Commission will seek to establish whether the relocation was legally justified by the fact that there was an emergency in Nicaragua which authorized its authorities to adopt such a measure, even though the emergency was declared subsequent to the relocation.26
3. Article 27 of the American Convention on Human Rights, applicable to this case reads as follows:
Article 27. Suspension of Guarantees
1. 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 obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.
2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.
3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.
4. Since the right to residence is one of the rights that may be suspended, the Commission will limit its examination to considering whether in this case the requirements set forth in paragraph 1 of Article 27 have been met, i.e., that the compulsory relocation move was undertaken: a) in time of war, public danger or other emergency that threatened the independence or security of the State; b) that it was adopted for the period of time strictly required by the exigencies of the situation; and c) that it was not inconsistent with other obligations under international law and did not involve discrimination on the ground of race, color, sex, language, religion or social origin.
The formal requirements set forth in paragraph 3 of Article 27 were not observed by the Government at the time of the relocation, as has been indicated. The effects of that omission will be considered at the end of this section.
5. With respect to the first requisite of paragraph 1 of Article 27, i.e., that there be a state of war, public danger, or other emergency that threatens the independence or security of the State, the doctrine generally accepts the propriety of suspension of obligations in terms of human rights only when there are extremely, serious circumstances.27
6. For its part, the European Convention on Human Rights and Fundamental Freedoms28 and the International Pact on Civil and Political Rights29 set forth provisions similar to those of the American Convention, since all of these instruments require the existence of a serious national emergency, that the measures adopted be “strictly required by the exigencies of the situation�? (these terms are the same in all three instruments) and that those measures be compatible with the state’s other international obligations.
7. The European Commission has several times considered the bases of the declaration of a state of emergency. The criteria arising from the implementation of the European system indicate, on the one hand, that the threat to the normal life of the nation should stem from an important disruption, certainly one greater than a mere civil disorder; that the danger should be real, in the sense that the danger to security is imminent and not latent or potential; but, at the same time they recognize that the State has a margin of discretion to determine the existence of these threats to its normal life.30
8. The United Nations Human Rights Commission, for its part, has also had to deal with some problems in this respect, and has shown understanding towards states that have truly suffered serious internal disturbances, as was the case of Lebanon, although that country did not send notification of the suspension of rights.31
In light of this background, the Commission considers, in interpreting the first part of paragraph 1 of Article 27 of the American Convention, that the emergency should be of a serious nature, created by an exceptional situation that truly represents a threat to the organized life of the State.
10. Were the events that took place near the Coco River, on the border zone with Honduras, in December of 1981, of such a nature?
11. The Government of Nicaragua, in the statement made by its representatives to the Commission on March 4, 1982, stated that they had previously planned to transfer part of the Coco River population to a more fertile region protected from annual floods, but that the frequent incursions of the “counterrevolutionary bands�? from the Honduran side of the river had created a “war situation in the zone�? that they viewed as part of an international attack on Nicaragua that represented a “growing danger to its territorial integrity and national sovereignty�?. As a result, the Government decided on December 28, 1981 to evacuate the entire area and make it a military zone.
With specific reference to the problem of relocation of the Miskito population, Commander Campbell, in the interview held with the Commission on March 4, 1982, stated that the Government had previously decided to relocate part of the population inhabiting the banks of the River Coco to more fertile lands and more secure areas, in view, among other things, of the frequent flooding of the villages on the river banks as a result of the rising of the Coco River and the poverty of the land, which cannot produce sufficient food or food of sufficient nutritional value.
The resettlement process was planned to be carried out in stages, beginning with efforts of persuasion. However, Commander Campbell added, the resettlement process necessarily had to be undertaken quickly for military reasons, due to the war situation in the zone as a result of the presence of counterrevolutionary camps along the left bank of the Coco River, in Honduran territory, whose existence had been repeatedly denounced by the Government of National Reconstruction.
Commander Campbell explained that these “counterrevolutionary bands�?, have constantly harassed the border towns either by shooting from the other side of the river or through frequent incursions into Nicaraguan territory, which had also been repeatedly denounced by the Government of Nicaragua. The Commander added that this is part of an international aggression against Nicaragua to destroy its revolution, and represents a growing danger to its territorial integrity and national sovereignty. Thus, the revolutionary government decided to declare this strip of territory a high security military zone, and proceeded to reinforce detachments. This situation meant that the civilian population was trapped between two military forces. The Commander said that for that reason, the Government of National Reconstruction, acting responsibly and in the interest of saving the lives of the Miskitos, decided to relocate the inhabitants of the above-mentioned communities to five new settlements where they are now being resettled, community by community, and where the government is building houses for them and providing them with food and the necessary medical care.
12. The Commission finds that the security of the Nicaraguan state was truly threatened by the incursions of the groups of former members of the National Guard, which justified the declaration of a state of emergency and its maintenance. The ongoing penetration of these armed groups into Nicaraguan territory demonstrates that there was a real and imminent threat to the security of the State.
13. The Commission will now consider whether the second requisite established in paragraph 1 of Article 27 of the American Convention has been met, according to which the measures adopted shall be strictly required by the exigencies of the situation, in terms of the duration and nature of such measures.
14. According to the above-mentioned criterion, the measures adopted should be proportionate to the danger, both with respect to degree and duration; thus, once the danger that threatens the security of the State has been overcome, the special provisions should also be terminated.
15. The basic measure adopted by the Government was the relocation of approximately 8,500 persons from the banks of the Coco River to five new settlements situated approximately 60 kilometers from the border with Honduras. These settlements are: Wasminona, Sahsa, Sumubila, Truslaya and Columbus, and as a whole they are called Tasba Pri, in Miskito.
16. According to a government publication titled “Tasba Pri�?, the relocation has given the population opportunities they did not formerly have with respect to health and education; according to that publication:
The organization of the population by family and neighborhood units, to which the Indian peoples are accustomed, has been guaranteed in the existing settlements. All of the members of each of the communities are together, which guarantees that their social structure will not be disrupted.
In all of the settlements, the population has been vaccinated against malaria, measles and tetanus. Health campaigns have been carried out that include environmental and personal hygiene, with emphasis on the use of boiled water to prevent disease.
The children are organized by school age, and schools have been built in all of the settlements. Normal religious worship takes place in Sunday services. Likewise, cultural events among the populace of the settlements have taken place, such as the organization of festivals, dances, choirs, and musical groups, and sports are encouraged among children, young people and adults.
17. The reasons for carrying out the relocation are presented by the above-mentioned publication in the following terms:
What were the reasons that led the People’s Sandinista Revolution to decide to relocate the Río Coco communities?
The TASBA PRI program is not something new and improvised. It was immediately preceded by the feasibility study undertaken by the Revolutionary Government through its Nicaraguan Institute of the Atlantic Coast (INNICA) in November of 1980, to improve and lend dignity to the lives of the Miskitos inhabiting the Nicaraguan side of the Coco River. (Commission’s underlining).
This resettlement will safeguard the Miskito population from the attacks of counterrevolutionary bands, and ensures protection of their principal human rights: the right to life and the right to work in peace.
The resettlements will solve the historic problems of the inhabitants, which are a subsistence agriculture, lack of fertile lands, inaccessibility of the region and consequent difficulties for transporting inputs and obtaining state services, and the floods which annually cause serious damage to housing and crops.
18. In light of the above-mentioned considerations, the Commission considers that the Government’s plan to relocate the population of the Coco River was replaced due to military necessity. The plan to voluntarily relocate the Coco River population to “improve and lend dignity to the living conditions of the Miskitos�? would have been justifiable only if that move had been voluntary, as was allegedly planned.
19. The Government’s argument that this planned relocation was changed as a result of a military emergency requires careful examination to determine whether it was in proportion to the nature of the emergency. The prevailing situation in the zone at the time of the move was in fact very tense, and created both a danger to the lives of the Miskitos and a threat to the Nicaraguan Government; this situation has been confirmed by subsequent developments in that region. It could be considered, then, that the requirement of proportionate measures has been met.
20. The forced evacuation of nearly 8,500 people, in some cases in the middle of the night and by armed forces, to create a military zone is only justifiable in the absence of any other alternative to meet a serious emergency. Even granting the Government of Nicaragua a margin of discretion, since it was a military decision applied to a military emergency, the Commission must now consider whether the duration of the measure is appropriate to the situation.
21. The relocation is justified by an emergency situation; therefore, the measure should not outlast the emergency, and termination of the emergency should allow the return of the civilian populace to their original region, if they so desire.
22. A note of June 15, 1982, addressed by the Government of Nicaragua to the Chairman of the Commission, regarding the right of the Miskito population to return to the Coco River when the emergency is over, stated the following:
The Government of Nicaragua guarantees, as stated by a member of the Junta, Dr. Rafael Córdoba Rivas, … than when the danger on the border is over, those who wish to return to their places of origin may do so, and the Government of Nicaragua has surpassed the adequate compensation suggested by giving these Nicaraguan citizens land, homes, seeds, fertilizers and farm tools, and medical attention, without charge.
23. This reply implies, in the opinion of the Commission, that the Miskitos who choose not to remain in Tasba Pri once the emergency is over may return to the Coco River region, which means that the measure would be limited only to the duration of the emergency, thus meeting the other requisites established by the pertinent norms; nevertheless, they will not receive assistance from the Government to reestablish their communities.
It may be understood from the note that the Government considers that it has met its obligation to compensate the Miskitos for their losses by providing them an alternative social framework in Tasba Pri, which nevertheless was neither requested nor accepted by the Miskitos. Certainly this refusal to provide compensation represents a serious obstacle for the return of the Miskito population to the Coco River Region, and contradicts in fact the declared willingness of the Government to allow that population to return to the zone, once the current emergency is over.
24. Nevertheless, the Government of Nicaragua has stated to the Commission that it had planned the relocation for reasons of economic development, and that it was to be carried out voluntarily. To impede their return, directly or indirectly, would imply that the resettlement arising from the compulsory relocation is permanent, which would be contradictory to the statements given by the Government and in violation of the right to residence and movement set forth in the American Convention.
25. Due to the circumstances under which the relocation took place, it is only justifiable on the basis of the military needs invoked by the Government. Therefore, in order for these measures to fall within the parameters set forth in paragraph 1 of Article 27 of the American Convention, they should be adopted “for a period of time strictly required by the exigencies of the situation�?. For that reason, the Government should expressly declare that the Tasba Pri project may only be carried out with the Miskitos who voluntarily choose to remain there, and in addition, should declare that it will assist in resettling other Miskitos who wish to return to the Coco River Region, which entails granting them adequate compensation for the loss of their property.
26. The Commission will now consider the third requisite set forth in Article 27(2) of the American Convention, i.e., that the exceptional measures that have been adopted, “are not incompatible with the other obligations … of international law and do not involve any discrimination based on race, color, sex, language, religion or social origin.�?
27. The preponderant doctrine is that massive relocation of population groups may be juridically valid if done with the consent of the population involved.32 In fact, with the exception of some cases of relocation of Indians, which are subject to criticism, the large majority of population relocations for reasons of economic developed have taken place after negotiations with the populace concerned, and with assurances of adequate compensation.
28. The view set forth above should be taken into consideration in studying this matter. For that reason, in cases where the State has moved an Indian minority, study of the conduct of that State should verify that the move is not based on one of the proscribed forms of discrimination.
29. Studies on the forced relocation of rural communities in America show without exception that this process is a traumatic experience, particularly when it concerns Indian populations with strong ties to their land and homes.33
30. When governmental restrictions are aimed at limiting the rights of a racial group, the rationale for such restrictions should be declared strictly and explicitly, in order to determine if the motive was racial discrimination. In this case, it is necessary to determine if the relocation was a form of punishment applied to what may have been considered a disloyal ethnic group.
As indicated by the above background, the problems encountered by an Indian population as a result of relocation can affect that population seriously, considering the special ties they have with their original lands. In the Indian’s complex scheme of values, what gives meaning to life is its intrinsic connection with their land, their livestock, their plantations, their cemeteries, their religion and a complex weave of other elements that combine to infuse the territory with a deep spiritual meaning. In that culture, a sense of value is closely tied to one’s place of origin. For that reason, it is important that the international community seek to avoid, if possible, disturbances of Indian populations.
31. In this case, the Commission is of the opinion that the relocation for military reasons was not carried out in a discriminatory fashion but that if the Miskitos are not helped to return to the Coco River region, once the military emergency is over, their prolonged stay in Tasba Pri will be come a form of discriminatory punishment, in violation of the American Convention on Human Rights.
32. Finally, the Commission wishes to refer to the fact that the Government of Nicaragua did not make use of the right of suspension of guarantees prior to the relocation, nor did it report to other states on the “provisions application of which has been suspended�? and “the reasons that gave rise to the suspension�? until March 15, 1982.
33. Since the evacuation took place during the press censorship imposed by Decree 511, which effectively isolated the Atlantic Coast from the rest of Nicaragua, an atmosphere of terror and confusion was created that together with the incendiary broadcasts of Radio 15 September led to the dramatic flight of 10,000 Miskitos to Honduras, to avoid relocation.
34. The Commission considers that this result might have been avoided, at least in part, if the Government of Nicaragua had declared the state of emergency in the Coco River zone in December, 1981, when it decided to relocate the population, and if it had reported on the military justification for the temporary evacuation. This measure would have undermined the credibility of the Radio September 15 reports of relocation to concentration camps, and it would have avoided the consequent panic which gave rise to the exodus of half of the Miskito population from the Coco River region to Honduras.
35. This omission has now led to the problem of how to induce the Nicaraguan population of Miskito origin now in Honduras to return to their country. The arbitrary detention of Miskitos and the absence of proper treatment thereof by the Government, because it considers them a subordinate and suspect population manipulated for military purposes, has given rise to a deep-seated distrust in the Nicaraguan Miskitos who are in Honduras.
That is one further reason that leads the Commission to consider that once the Government of Nicaragua has decided that the military emergency in the border zone is over, it should provide and even encourage the return of the Miskito population from Tasba Pri and Honduras to the Coco River zone, and help them to reestablish the communities that were destroyed.
b. New evaluation of Miskitos from the Coco River and
Bokay River to settlements in Jinotega
36. In November, 1982, another evacuation of Miskito communities that inhabited the surrounding areas of the Coco River and the Bokay River in the Department of Jinotega took place. The Commission only learned of these relocations when it learned of the tragic accident that took place on December 9, 1982, in which 75 children and 9 mothers lost their lives when the helicopter that was transporting them to the new settlement of San José de Bokay, between Jinotega and Matagalpa, caught fire.
37. Initially, the Commission received the following information from the National Commission for the Protection and Promotion of Human Rights in Nicaragua on this matter:
The National Commission for the Promotion and Protection of Human Rights shares the deep sorrow and indignation of the Nicaraguan people at the terrible death of 95 Miskito children and 9 mothers, who were evacuated by helicopter from the border zone with Honduras to safe places, far from the siege of the counterrevolutionary bands coming from that country. Rescue by another helicopter from Wiwilí was impeded, due to the damage done to it by those same bands.
While the Government of National Reconstruction was protecting the right to life of these children and that of the communities located in the border zone with Honduras, the counterrevolutionaries satisfied their hatred and vengefulness with the innocent blood of these 75 children.
Since the right to life is inherent in human beings, this tragedy mourned by Nicaraguans takes on greater significance since this right has been violated for the most important part of a people, the lives of their children. The National Commission repudiates and denounces these criminal acts, that not only move the conscience of our people, but which unite the deepest feelings of all of those who struggle throughout the world for the protection and observance of human rights.
38. Apart from this communication, the IACHR has received no further information from the Government of Nicaragua, with respect to that evacuation.
39. During their visit to Nicaragua, the Executive Secretary of the IACHR and Dr. Cerna, on June, 1983, received the following statement from the only survivor, Mrs. Lesbia Castillo, who lost her three-month old son and several relatives in the accident:
The name of the new settlement where they were to be taken was called San José de Bokay. They began the evacuation at the beginning of November. Since they couldn’t take everyone to the new settlement at one time, they had to make several trips, so they decided to concentrate everyone in a community called Ayapal, to later be relocated in San José de Bokay. The vehicle that was to relocate the population was in bad condition, i.e., it had had accidents. Both the people and the crew knew this. I say that the helicopter had accidents because it was loaded with bundles and ran into a tree, and one of its blades was broken. The helicopter was being repaired on the 18th and 19th so as to be used in the evacuation.
On November 1, the entire town of San Andrés de Bokay was taken to the Ayapal community. We were in Ayapal for 20 days (I mean the people of San Andrés de Bokay), and there were people from other refugee communities there. The authorities gave us food but even so we were homesick for our community and belongings (home, farms, livestock, etc.)
After we were evacuated, the communities and houses were burned, and the livestock killed to be eaten. I am talking about our natal community San Andrés de Bokay. On December 9, one of those in charge of the evacuation told all of those evacuated from the Ayapal communities that they were al going to be evacuated to a new San José de Bokay settlement where we would live definitively. He also emphasized that a) the flight would only take children, the sick and the elderly; b) the others would have to go on foot to the new settlement. The person in charge said this after the helicopter had already made three trips to the settlement. For the fourth trip, the mothers of the small children who were going in the helicopter complained because they wanted to go with their children. There were even some who said they preferred to go with their children on foot if they could not go with them in the helicopter. But the person in charge insisted that only the children, the old people and the sick could go and the mothers let their children go alone. Once those of us who were going were inside (they let me go in the helicopter because I had a three-month old child), the pilot said to the other mothers that they would make six more trips after this one. Immediately after it took off, the helicopter had another accident, and a whole blade fell off, and immediately in the sight of all the passengers who were desperate, the plane fell, turning over on the landing strip of Ayapal, where the main door stuck in the ground.
The crew was made up of a pilot, a copilot and a mechanic. They were aboard, and the above-mentioned people in charge did not help or stay there to try to save lives. Instead they got out through a window and tried to save themselves. The death of those children was slow because help was needed to get out of the helicopter. But no one would help anyone then. The number of passengers aboard were: 79 children from 3 days old to 15 years of age. Seventy-five of these died, and only 4 were saved. There were 10 adults, mothers, and I was the only one that was saved from the tragedy. The crew, a pilot, a copilot and a mechanic saved themselves. The fire followed its slow course while the hopes of saving these children and adults disappeared. Six coffins were made and they put the remains of the children and their mothers in the coffins to give them a Christian burial.
40. In the view of the Commission, testimony of the only survivor contradicts the version given by the Government of Nicaragua with respect to the cause of the accident. In addition, the fact that the evacuation was carried out in secret and without external observers suggests once again the same critical observations that the Commission made with respect to the relocations carried out in January 1982, to Tasba Pri. From the viewpoint of the IACHR as mediator in a friendly settlement, it can only regret not having been informed of this evacuation until after the helicopter accident. It is clear, given the role that the Commission had assumed at the very initiative of the Government of Nicaragua itself, it should have been duly informed of this new compulsory relocation of Miskito populations, particularly if one bears in mind that the Government of Nicaragua was already informed of the misgivings and concerns that the Commission had expressed with respect to the way in which the earlier relocation to Tasba Pri had taken place.
c. The relocation of Miskito refugees in Honduras to Nicaragua
41. Both in its preliminary recommendations and in the recommendations contained in its Report of July 26, 1983, the Commission pointed out that, if possible, voluntary repatriation of the Nicaraguan Miskitos who had taken refuge in Mocorón should be facilitated. For that purpose, the Commission stated that it would be desirable to have the assistance of the Government of Honduras and of the United Nations High Commissioner for Refugees and both were asked for their cooperation.35
42. For its part, the Government of Nicaragua always stated its willingness to accept such relocation. It even made that relocation the central point of the Commission’s intervention in the friendly settlement procedure.36
43. Nevertheless, as stated above, the arbitrary detention of Miskitos, the destruction of their property and the lack of proper treatment by the Sandinista Government has led to a deep distrust by the refugee Miskitos in Honduras of the Nicaraguan Government.
44. After twice interviewing Nicaraguan refugees of Miskito origin in Mocoron and other camps in Gracias de Dios Department of Honduras, the Commission has reached the conclusion that for the time being such repatriation is not possible, given the resistance of the large majority of the Miskitos to returning to Nicaragua. Nevertheless, should prevailing circumstances change, the Commission believes that efforts to bring about their repatriation should again be undertaken in the future.
45. Despite the foregoing, the Commission considers that efforts can be made through the UNHCR and with the cooperation of the Government of Honduras so that, in some cases, some Miskito families may be reunited, as is the case for example of the heads of family who have remained in Nicaragua, such as the pastor of the Moravian church, Tomás Escobar, whose family is now in Honduras.
F. Right to Property
1. With respect to the right to property set forth in Article 21 of the American Convention on Human Rights,37 the issue studied in this report has two distinct aspects. The first is the claim made by the leaders of Misurasata and Indian communities to an inherent right of the Indian people to possess, use and enjoy their ancestral lands, as well as its resources and riches. The second refers to the destruction of the homes, crops, livestock and other belongings of the Miskitos in the course of the compulsory relocation to new settlements.
2. In his written presentation to the Commission, Mr. Armstrong Wiggins, on his own behalf and on behalf of the Indian Law Resource Center, stated that if the intention of the Sandinista Government was to permanently locate the inhabitants of the Coco Region elsewhere, this would be prejudicial to their interests and the basic rights of the Indians. Mr. Wiggins added that if such relocation were permanent:
… then the Indians of Nicaragua are experiencing the same, classic anti-Indian rights policy which Indians have historically suffered throughout the Americas. They are being forcibly uprooted from their traditional homelands and from their traditional ways of life by their more militarily powerful non-Indian neighbors. This would mean that Indian property rights to substantial areas of their territory and Indian cultural rights to continue their way of life are being usurped. If this is the objective, then the Indian right to self-determination is being denied not merely as a temporary emergency measure but as official government policy for the indefinite future. Such outrageous denial of these Indian peoples’ most basic human rights would fairly be called imperialism.
3. For its part, Brooklyn River, Coordinator General of Misurasata, in his presentation of April 8, 1982, claimed that a fundamental part of the allegations of his organization related to the problem of the lands, since the Indians’ rights to the lands in Indian Territory should be recognized as a whole and not in parcels or sections guaranteed by the Government. Likewise, Rivera stated that the Indians’ right to the natural resources of their own land should be guaranteed.
4. The position of the Government of Nicaragua has thus far been diametrically opposed to that set forth by Wiggins and Rivera. In the view of the Government, the Indians have no special rights that allow them to exercise rights other than those of other Nicaraguan citizens in Nicaraguan territory. Thus, in a document submitted to the United Nations Seminar on resources and other forms of protection for victims of racial discrimination, the Minister of the Nicaraguan Institute of the Atlantic Coast, William Ramírez, refuting these special rights of the Indian communities, stated:
Territorial unity stands above any other consideration and is not subject to discussion of any kind. The imperialist dream is to separate the Atlantic Coast from the rest of Nicaragua. We will never permit this. Our Indians are as Nicaraguan as any other citizens, and they have the same rights as any one of us.
5. In addition, the Agrarian Reform Law that came into effect on August 21, 1981, has tried to harmonize the eminent domain of the Nicaraguan state over its national territory with the interests of the Indian communities, by providing in Chapter VIII that:
The State may dispose of the amount of land necessary so that the Miskito, Sumo and Rama communities may work them individually or collectively and so that they may benefit from their natural resources, so that their inhabitants may improve their standard of living and contribute to the economic and social development of the Nicaraguan nation.
Nevertheless, the Commission is not informed about how this provision has been implemented. On the contrary, it is aware of Misurasata’s disagreement with agrarian reform as it concerns the Indian communities.
6. The Commission is not in a position to decide on the strict legal validity of the claim of the Indian communities to their ancestral lands. This does not mean that it is unaware that this problem is one of the most serious between these communities and the Government of Nicaragua, and a de facto situation that must be recognized and considered sooner or later. In addition, it should be taken into account that this kind of problem is neither novel nor exclusive to Nicaragua, since there is a large number of similar situations in America, where vast groups of the Indian population have seen their development potential diminished, due to the absence of a political response that would adequately take into account the peculiarities of their social and economic organization. The resolution of this kind of problem by the Government of Nicaragua would represent a valuable precedent for consideration of similar situations. Obviously, this in no way implies a limitation on the sovereign rights of Nicaragua over its territorial integrity. Hence, the Commission recommends to the Government that it study a just solution to this problem as soon as possible, and that it meet both the aspirations of the Indians and the requisites of territorial unity of the Republic.
7. With respect to the destruction of the homes, crops, livestock and other belongings of the Miskitos at the time of the relocation, Government officials themselves have recognized that these acts took place. It would therefore be appropriate for the Government, in conformity with the American Convention on Human Rights, to authorize just compensation for the destruction of their property to those concerned
Notes___________________
1 UN Secretary General: The Main Types and Causes of Discrimination, UN Publ. 49.XIV.3, paragraphs 6-7.
2 The UN General Assembly has adopted some resolutions on minorities or ethnic groups, such as Resolution 217 C of the General Assembly (III), of December 10, 1948, in which the United Nations declared that it “cannot remain indifferent to the fate of minorities�? and that “it is difficult to adopt a uniform solution to this complex and delicate issue, which presents special aspects in each state where it arises�?; and resolution 532 B (VI) of February 4, 1952, in which the General Assembly stated its opinion that “the prevention of discrimination and the protection of minorities constitute two of the most important aspects of the positive work undertaken by the United Nations.�?
3 The Convention on Combating Discrimination in Education (UNESCO) of 1960, in Article 5, recognizes “the right of all members of national minorities to carry out educational activities of their own, among them, that of establishing and maintaining schools, and according to the policy of each state on education, to use their own language.�?
4 In this respect, the only significant instrument is Convention Nº 107 of the International Labor Organization on the protection and integration of Indian populations and other tribal and semi-tribal populations in independent countries, which establishes that “it shall be the obligation chiefly of governments to carry out coordinated and systematic programs to protect the populations in question and progressively integrate them into the lives of their respective countries�?, and it states that until this occurs, “special measures should be adopted to protect the institutions, persons, property and labor of the populations in question, as long as their social, economic, and cultural status prevents them from benefiting from the general legislation of the country of which they are nationals.�? However, there has not been a significant number of ratifications of that agreement, and Nicaragua has not ratified it.
5 UN Doc. GAOR, 3rd Committee, page 321. (1952).
6 UN Doc. A/C.3/SR.888, 13 GAOR 3rd Committee, page 257 (1888 Session. 1958).
7 Article 4 of the Convention establishes: 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.
8 In his statement to the Commission, Mr. Steadman Fagoth stated that “at least 393 Miskitos were killed�? in the course of the relocation.
9 The testimony of one of those inhabitants with respect to this matter is transcribed on page 92.
10 See Section E of this Chapter, Subsection b) “New evacuation of Miskitos from the Coco River and the Bokey River to settlements in Jinotega.�?
11 The Commission has made slight stylistic changes in this version (as well as in other testimony that will be cited below) to facilitate comprehension.
12 The names in this group appear in the complaint made by Misurasata as people who were buried alive.
13 The name of this witness is in the Commission’s file.
14 Proposal Document of the Government of Nicaragua to the IACHR, August 24, 1982, page 16.
15 United Nations, Human Rights Committee: Study of the report submitted by the states parties in conformity with Article 40 of the Pact, Nicaragua CCPR/C/14/ page 3, March 8, 1983, page 54.
16 Article 7 of the American Convention states: 1. Every person has the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. 3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. 7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
17 Article 5 states: 1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
18 Article 8 states: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.
19 Among the pastors and Moravian clergy who are currently imprisoned or who were detained and have disappeared, the following may be cited: Higinio Morazán, Morris Vidaurre, Nilio López, Sandalio Patrón, Angel Bello, Serminio Nicho, Fernando Justiniano, Nicolás Zamora, Ortega Walden, Lorenzo Nicho, Tomás Zamora, Teodoro Downs and Samuel Mercado. The following pastors and Moravian Religious were detained and later released: Juan Martínez, Tomás Dixon, Guido Herrera, Burton Benjamin, Santos Kleban, Salvador Sarmiento, Santiago Obando, Finler Vanegas, Gustavo Downs, Ricardo Castillo, Rolando Downs, Bernardo Arthur, Joaquín Webb, Diógenes Molina, Abel Flores and Roberto Peralta.
20 When the Special Commission visited Nicaragua in May 1982, there were 172 Miskitos in detention: 125 in Managua and 47 in Puerto Cabezas.
21 In his visit to the Secretariat of the Commission on September 19, 1983, the National Commissioner for the Promotion and Protection of Human Rights, Ambassador Leonte Herdocia, stated that on that date approximately 300 Miskitos were detained and that all of them were in the Minimal Security Work Farm near Managua.
22 See “Report on the Situation of Human Rights in the Republic of Nicaragua�?, OEA/Ser.L/V/II.53 doc.25 of June 30, 1981, pages 97 and 98.
23 Page 121 states verbatim in the record that the apprehended arms were the following: “1. Old rifle, approximately a meter long, make and model number impossible to determine; 2. A twenty-two (22) rifle model number 812225 LORI-E, with other letters that are illegible; 3. An old rifle, with no apparent make, model or number, approximately a rod long; 4. Shotgun Number 9T651, with no indication of make or model, approximately a meter long; 5. Shotgun which shows on the upper part of the cock the following number, 641-449, approximately a meter long, make and model impossible to determine.�?
24 The Government of Nicaragua, on December 1, 1983, promulgated a decree, which in its resolutive part provides: “ARTICLE I: Amnesty is granted to Nicaraguan citizens of Miskito origin who have committed crimes against public safety and order and whatever related crimes between December 1, 1981 and December 1, 1983, and who currently are found in any of the following situations: A) Under detention, whether already sentenced, pending sentence, pending trial, by order of the Attorney General’s Office, or detained for investigation. B) At large, either inside or outside national territory. ARTICLE II: Amnesty is also granted to all Nicaraguan citizens who, because of the events that occurred along the Coco River or, whatever other event that has occurred as a consequence of the aggression that has been imposed upon northern Zelaya between December 1, 1981, and December 1, 1983, have become involved in the criminal activities referred to in Article I. ARTICLE III: In order to partake in the benefits of this law, Nicaraguan citizens who are outside national territory may freely return and join in the tasks required by the Revolution. ARTICLE IV: The Delegation of the Government Junta in the northern Zelaya region is empowered to adopt the appropriate procedures to facilitate and expedite the reunification and the reincorporation in daily activities of all those benefited by the amnesty. ARTICLE V: Upon publication of this decree, the police and the authorities of the judicial, penitentiary, and security systems must immediately release the persons benefited by the amnesty.�? A small number of Miskitos remain in detention, however, since they were not covered by this amnesty.
25 The pertinent parts of Article 22 of the American Convention states: “1. Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law. 2. Every person has the right lo leave any country freely, including his own. 3. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others. 4. The exercise of the rights recognized in paragraph 1 may also be restricted by law in designated zones for reasons of public interest.�? Article VIII of the American Declaration of the Rights and Duties of Man states: “Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will.�?
26 It was only on March 15, 1982 that the Government of Nicaragua suspended for thirty days, which could be extended, “throughout national territory, the rights and guarantees set forth in Decree Nº 52 of August 21, 1979 with the exception of the provisions of Subparagraph 2 of Article 49 of that Decree.�? The Decree suspending these guarantees was sent to the General Secretariat of the OAS on March 22, 1982.
27 In this regard, see, for example, Higgins: Derogation Under Human Rights Treaties, 48, British Year Book of International Law, page 282-3.
28 Article 15 of the European Convention states: 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Article 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
29 Article 4 of the International Covenant on Civil and Political Rights states: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
30 The first analysis of the invocation by a State of an emergency to justify suspension of obligations arising from the European Convention was prepared by the European Commission in the case of “Cyprus�? (Greece vs. the United Kingdom of Great Britain, 1958-1959). Additional bases of investigation to determine the existence of an emergency and whether the measures adopted by a government were “strictly limited to the exigencies of the situation�?, were prepared in three other cases by the European Commission and Court. The “Lawless�? case (1961); the Greek Case; and the case between the Republic of Ireland and the United Kingdom (1976-1978).
31 UN Doc. 34 UN. GAOR supp. Nº 401.
32 The Institute of International Law, at its meeting in Sienna, 1952, adopted the position that population relocations may be legal only if they are “voluntary�?. (44/2 Annuaire. 138 (1952).
33 For example, a study of the programmed relocation of approximately 10,000 Navajo Indians demonstrated the following negative effects arising from resettlement: For most of the people who have been moved, the deep shock of the forced relocation is similar to the grief caused by the death of a father, wife, or son. This multidimensional tension has given rise to numerous negative effects. The relocation undermines the person’s self-confidence, who finds it humiliating to have been unable to protect his basic interests. In the case of the Navajos, these interests were preservation of their native soil (for them, and more importantly, for their children), their homes, their system for raising livestock associated with their way of life, and environmental ties to their birth sites. The trauma of resettlement alters the family group and the lives of each of its members. It undermined the influence and authority of the head of household when he or she has been shown to be unable to preserve the family’s way of life. The individual members of the family may suffer severe depression. Violence, alcohol abuse and mental and physical illnesses are too frequently closely related to compulsory relocation. The move also undermined the influence and authority of local leaders. Since most of those relocations are resisted, in one way or another, their leaders are discredited if they cooperate with the authorities of the resettlement process. On the other hand, these leaders are also discredited if the relocation takes place despite their opposition. See Scudder: “No place to go. Effects of Compulsory Relocation on Navajos�?, 1982.
35 See Sections L and N in Part One.
36 See paragraph 5, Section N, Part One, which contains the proposal of August 24, 1982 of the Government of Nicaragua.
37 Article 21 of the American Convention states: 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law.