Mass Atrocity Monday, 2/3/2014

Did you know that when the Sandinistas came to power in Nicaragua in 1979 they prosecuted thousands of members of the overthrown Somoza regime for war crimes?

I didn’t either.

When we talk about transitional justice, we usually start from Argentina’s 1983 Trial of the Juntas, or if we’re being fancy, from Greece’s trial of coup leaders in 1975. I’d never heard any mention of trials in Nicaragua, though, and was surprised to learn that between November 1979 and February 1981 the revolutionary government conducted over 6,000 trials of former regime officials.

Screen shot 2014-02-03 at 4.37.37 PMThe Somoza family had ruled Nicaragua for over four decades when the Sandinista insurgency erupted into full-scale civil war in 1978. They had maintained their hold on power through control of the National Guard, a military entity created and trained by the United States during its occupation in the early 20th century. As the violence escalated, the regime’s counterrevolutionary tactics encompassed increasing brutality from the Guard, including aerial bombardment of civilian centers, extrajudicial killings, and widespread torture.

7,500 Guardsmen were taken prisoner by the victorious Sandinistas on July 19, 1979. Victims of their abuses called for their heads. The new regime decided against mass murder, but was left with a dilemma. The country’s infrastructure was in tatters as a result of the war, and the devastating 1972 earthquake that had destroyed the capital city, Managua. Judicial capacity was limited and in no way up to the challenge of conducting thousands of trials of former regime officials on top of the normal business of the courts.

By decree No. 185, the revolutionary government created nine Special Tribunals to handle these cases outside of the regular judiciary. During their 15 months of operation, these courts sentenced 4,431 former members of the Somoza regime to prison time, acquitted 229, and released a further 1,760 prisoners following dismissals or pardons.

The trials were not flawless. Although defendants were afforded the right to counsel, in many cases they were subjected to prolonged detention, convicted on the basis of circumstantial evidence, and judged by lay Tribunal members rather than legal professionals. Nevertheless, the Inter-American Commission on Human Rights concluded that the revolutionary government was “sincere” in its efforts to conduct fair trials.

If it weren’t enough of a surprise that these guys were given trials at all, here’s the extra-crazy part: Many of them were charged with international crimes. The Nicaraguan Penal Code included a provision on “Crimes of an International Nature”, which read:

Article 551:  Any person who during an international or civil war commits serious acts that violate the international conventions on the use of weapons, treatment of prisoners and other laws on war commits a crime against the international order and shall be punished by 10 to 20 years imprisonment.

Why is that crazy? Well, 1979-1981 is smack in the middle of what’s generally thought of as international criminal law’s dormant phase. Things looked pretty good for a little while after the trials of Nazi leaders at Nuremberg, with the 1948 drafting of the Genocide Convention and the 1950 codification of the Nuremberg Principles, but then the Cold War set in. Progress on the development of international criminal law stalled for nearly 50 years.

To the extent that international criminal law retained any relevance in the 1960s, 70s, and 80s, it was almost exclusively with regard to escaped Nazi war criminals. The 1961 Israeli trial of Adolf Eichmann, Bolivia’s 1983 extradition of Klaus Barbie to France, and the United States’s 1986 extradition of John Demjanjuk to Israel are prominent among the small handful of cases in which international criminal law was invoked during this period. It was almost never applied, even rhetorically, to ongoing atrocities. (In fact, I ran a search of English language newspapers on ProQuest, and found exactly 30 hits for the phrase “international criminal law” between 1950 and 1989. Only three of them referred to contemporaneous abuses.)

Although the trajectories of international criminal law and transitional justice eventually became tied together, the early examples of successor regimes prosecuting the abuses of the past were all profoundly domestic enterprises. The Trial of the Juntas, for example, tried regime officials on charges of torture, kidnapping, and murder under the Argentine criminal code.

As more and more Latin American countries transitioned from authoritarian rule to democracy throughout the 1980s and early 1990s, the abuses of past regimes continued to be treated as violations of domestic criminal law and of states’ obligations under human rights treaties. This did not change until the mid-1990s, when the UN Security Council’s creation of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda breathed new life into the international justice project.

All of which is to say: It’s a bit of a puzzle that, in 1979, a days-old Nicaraguan regime chose to prosecute the losers of a civil war for war crimes. And what’s more, they directly cited international legal precedent, calling it “Nuremberg without the gallows“.

I think there’s probably some archival research on this case in my future, but in the meantime, if anyone knows more about these trials, please get in touch.

 

*Photo from Shirley Christian, “Nicaragua Cleans Up: 7,000 Face ‘Nuremberg Without the Gallows'”, The Montreal Gazette, p. 25, Dec. 8, 1979

Kate Cronin-Furman

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