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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.
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.
[ Table of Contents | Previous | Next ] 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.” |