Artículo publicado originalmente en el portal IJ Central.

As stated in a previous post on this website, Latin America has demonstrated a true commitment towards the founding and fundamental principles of the Rome Statute. As of September 2011, 118 states have ratified the Rome Statute, including 15 of 19 Latin American countries, thereby demonstrating the commitment from the world and region to ending impunity and adhering to the rule of law. Furthermore, Latin American states have reinforced their commitment to the Rome Statute system by nominating 5 candidates from the region for the ICC judicial elections, to be held during the tenth Assembly of States Parties in December 2011.

Nicaragua is one of the countries in the Americas that have been reluctant to ratify human rights treaties, especially those that refer to massive human rights violations, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, and the Inter-American Convention on Forced Disappearance of Persons. Nicaragua’s accession to the Inter-American Convention to Prevent and Punish Torture, in 2009, should be seen as an exception to the rule and not as a change in its policy towards human rights instruments.

It should also be noted that Nicaragua’s reticent approach to human rights treaties seems to be a common Nicaraguan policy, regardless of the different governments’ ideologies. In this context, it is not outlandish that Nicaragua is not yet a state party to the Rome Statute of the International Criminal Court (ICC).

Social Situation

Given the difficult social situation in the country, where organized crime is a constant and strong threat to security and political stability, ratification of human rights treaties or the adoption of strong human rights policies do not seem to be a priority.

For example, the latest US State Department country report on Nicaragua identifies deficiencies in its governance system and qualifies it as one of the countries that lacks respect for the rule of law.

This is not news to the local civil society community. International and local NGOs have documented numerous human rights violations on several occasions, including torture and enforced disappearances of people. It is their recording of these violations that has led local NGOs to call incessantly for the government to ratify the Rome Statute, as they view the treaty as being one of the tools that could improve the domestic human rights situation. Like many Latin American countries, Nicaragua has had a history of human rights violations and the issue of dealing with the past is a conflictive topic, which continues to divide local communities.

International Obligations: Fear of the ICC but what about the 1968 Convention on the Non-applicability of Statutory Limitations?

As previously stated, Nicaragua has not signed the Rome Statute of the ICC. At some point, there were reports that a Ministry of Foreign Affairs commission was analyzing the compatibility of the Rome Statute with domestic laws. However, this information was never confirmed and it is uncertain whether or not the alleged commission issued a report on the matter. Also, Nicaragua signed a Bilateral Agreement of Immunity (BIA) with the United States in 2003, an agreement contrary to the ICC principles. It is also – together with the U.S. – the only country that has included a reservation in the annual OAS resolution on the promotion and strengthening of the Rome Statute of the International Criminal Court.

As we noted in our previous posts for International Justice Central on El Salvador and Guatemala – two other states that are not party to the Rome Statute – parts of society fear that joining the Rome Statute could address human rights violations committed in the ‘80s or ‘90s, a fear similarly held in Nicaraguan society. Given the non-retroactivity principle, it is impossible for the ICC to address those crimes. In addition, joining the ICC does not exclude any other means of justice. Therefore, the human rights abuses committed before the entry into force of the Rome Statute should be addressed by local tribunals or by those tribunals that have jurisdiction.

However, Nicaraguan legal standing differs from Guatemala and El Salvador. Nicaragua has the legal international obligation to investigate and prosecute international crimes because on 3 September 1986, the country acceded to the 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Article 1 of the Convention, which entered into force on 11 November 11 1970, stipulates that “no statutory limitation shall apply to the following crimes, irrespective of the date of their commission.”

This means that regardless of the obligations that Nicaragua has before the Inter-American Convention of Human Rights and the rulings of the Inter-American Court of Human Rights, the country has an obligation to implement the necessary laws to prevent impunity. Therefore, the human rights violations committed in the ‘80s or ‘90s have to be prosecuted by the Nicaraguan authorities and the ICC does not have jurisdiction over those crimes whatsoever.

As with many countries in the region, numerous Rome Statute core principles are already binding on Nicaragua through the 1969 American Convention on Human Rights, the Convention on the Non-statutory Limitations to War crimes and crimes against humanity and the rulings of the Inter-American Court of Human Rights.

Even though the new Criminal Code adopted in 2008 incorporates most of the crimes under the Rome Statute, including war crimes, it is important that the Nicaraguan state accede to the Rome Statute.

All for the ICC? If there is no door, a window must be open in the Nicaraguan Presidential election.

According to information by local NGOs, the main obstacles for Rome Statute accession come from the Executive branch, specifically from current President Ortega. Since he entered into office, he has neither shown political willingness nor support towards the ICC. This lack of willingness could be related to the discussions on the La Penca bombing that happened 20 years ago, discussions that have made headlines in the most important newspapers for some time now.

Elections will be held on 6 November 2011 and the political climate seems to be polarized between the Frente Sandinista (that promotes the re-election of M. Daniel Ortega), the Partido Liberal Independiente (whose nominee is M. Fabio Gadea) and the Partido Liberal Constitucionalista, which supports M. Arnoldo Alemán. In terms of the ICC, M. Gadea and M. Alemán have been more positive toward a possible accession, but none of them has made a public commitment to it. M. Ortega, on the other hand, does not even mention the ICC in his platform.

In this sense, a challenge for Nicaraguan society, universities, academics and the media is to seek a clear and direct commitment from the political parties to ratify and abide to core human rights treaties and the Rome Statute.

To conclude, many legal controversies regarding the Rome Statute in Nicaragua have been already addressed by other Latin American countries, most of them already ICC State parties. Therefore, the Rome Statute strengthens international justice and national judicial systems; this is a benefit and we should all strive to support it. This upcoming election in Nicaragua should be seen as an opportunity to address human rights issues and the ratification of the Rome Statute, without taboos or personal agendas.

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Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe