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OEA/Ser.L/V/II.62 Doc.
26 May
16, 1984 Original:
Spanish RESOLUTION
ON THE FRIENDLY SETTLEMENT PROCEDURE Approved
by the Commission at its 814th session Resolution
on the Friendly Settlement Procedure WHEREAS:
1.
The complaint presented by the organization Misurasata informs
the Inter-American Commission on Human Rights that various and serious
violations of human rights attributable to the Nicaraguan Government had
occurred following the events of December 1981 and January 1982 that had
taken place in the Miskito communities of the Rio Coco area;
2.
The invitation of the Government of Nicaragua on February 22,
1982 to the Commission to visit Nicaragua in order to learn firsthand
about the situation in the new settlements of the ethnic minorities that
inhabit the Atlantic zone;
3.
The on-the-spot observation in Nicaragua of a special commission
of the IACHR from May 1 to 6, 1982, which was complemented by a visit
made by a special sub commission to a refugee camp in Mocorón,
Honduras, from May 7 to 9, 1982;
4.
The preliminary recommendations delivered by the special
commission to the Government of National Reconstruction at the close of
the on-site visit to Nicaragua;
5.
The Special Report on the Human Rights Situation of the Miskito
Indians in Nicaragua, adopted by the IACHR on June 26, 1982, which was
transmitted to that Government;
6.
The reply of the Government of Nicaragua of August 24, 1982, in
which it analyses the conclusions and recommendations of the
aforementioned special report and proposes to the Commission that it
assume the role of mediator in a friendly settlement procedure;
7.
The consent of the IACHR to serve as mediator in a friendly
settlement procedure, communicated to the Nicaraguan Government by note
of September 20, 1982;
8.
The note of the IACHR to the Government of Nicaragua dated
November 22, 1982, in which it specifies the ways in which it ought to
undertake its conciliatory function, the procedure to be followed and
the measures that ought to be taken by the Government in order to create
the conditions of détente essential for the effective exercise of its
functions;
9.
The visits made by the staff of the Secretariat of the Commission
to Honduras in May 1983 and to Nicaragua in June of that year, in order
to update the information available to the IACHR;
10.
The later notes sent by the IACHR, in which it requested the
Government of Nicaragua to inform it as to how it had been complying
with the Commission’s recommendations and the replies made by the
Government;
11.
The note of September 30, 1983, in which the IACHR informs the
Nicaraguan Government of its intent to make one last effort to reach a
friendly settlement, and for this purpose requests it to undertake a set
of measures which the Commission considers indispensable in order to
continue its function as mediator in the friendly settlement procedure,
in particular a pardon or amnesty for all the Miskitos arrested as a
result of the events that had occurred since December 1981, and the
holding of a conference with ample participation of Miskito leaders
representative of the different sectors of the population;
12.
The reply of the Government of Nicaragua of November 14, 1983, in
which it states that, due to the conditions prevailing in Nicaragua it
is impossible to grant the amnesty requested by the IACHR by the date
set and it rejects participation in the proposed conference of some of
the persons mentioned by the Commission in its note;
13.
The note of the Chairman of the Commission to the Minister of
Foreign Affairs of Nicaragua dated November 29, 1983, terminating the
activity of the IACHR as mediator in the friendly settlement procedure,
and the transmittal on that same date, of the report approved by the
Commission;
14.
The cable also of November 29, 1983, addressed by the Foreign
Minister of Nicaragua to the Chairman of the IACHR, in which he reports,
elaborating on the note of November 14, that the Government of Nicaragua
has decreed a general amnesty in favor of the Miskitos and inviting the
Chairman of the Commission to the ceremony at which the amnesty will be
announced;
15.
The cable from the Chairman of the Commission to the Foreign
Minister of Nicaragua in which he expresses satisfaction that the
amnesty has been decreed;
16.
The cable of April 28, 1984, from the Foreign Minister of
Nicaragua, in which he informs the Chairman of the IACHR of the
agreement, in principle, of that country’s government to hold a
conference such as that proposed by the Commission, even though he
considers that, because of the convulsive climate in the Central
American region, it cannot be held immediately and he again rejects the
participation of certain leaders in the conference;
17.
The provisions of articles 48(1)(f) and 49 through 51 of the
American Convention on Human rights and of articles 42 through 45 of the
Regulations of the IACHR; and CONSIDERING:
1.
That given the problems that have arisen between the Government
of Nicaragua and the Miskito population of that country, it is necessary
to distinguish between those that are long-standing in Nicaraguan
society from others which arose in 1980 and 1981 and deteriorated at the
end of this past year;
2.
That both the long-standing as well as the recent problems have
become intertwined in the context of a situation of conflict with
obvious international repercussions, creating a state of great social
tension within which framework serious violations of human rights have
occurred, attributable to the Government of Nicaragua;
3.
That in order to effectively protect the human rights of a group
of Nicaraguan Miskito citizens, the Commission, on the basis of
complaints received began the processing of this case, and for that
purpose directed itself to the Nicaraguan Government;
4.
That the Nicaraguan Government first invited the IACHR to carry
out an on-site observation to ascertain the situation and later
requested it to assume the function of mediator in a friendly settlement
procedure with respect to the problems that had arisen with the Miskito
population, in an effort to resolve them on the basis of respect for the
human rights set forth in the American Convention on Human Rights and
following the procedure established by the Convention;
5.
That the analysis of the recommendations made by the Commission
and the replies given by the Nicaraguan Government permit an objective
evaluation of the results obtained through the friendly settlement
procedure;
6.
That in that evaluation account must be taken of both the
existence of diverse circumstances which determine the degree of
compliance by the Government with certain recommendations of the
Commission and the very nature of the problem to be solved by means of
the actions recommended;
7.
That the subject matter of the friendly settlement procedure, the
recommendations of the Commission in this regard, and the actions taken
by the Government of Nicaragua have been as follows: a. Beginning with the forced displacement of the Miskito communities
on the Coco River to the interior of Nicaragua, the Commission
recommended to the Nicaraguan Government that it state that this move
was a temporary measure and that it would therefore guarantee the return
to their places of origin to those who wishes to return once the
emergency was over. The Government of Nicaragua complied with this
recommendation of the IACHR. b. In view of the transfer to Honduras of a large number of Miskito
Indians as a result of the circumstances indicated in the report, the
IACHR recommended to the Government of Nicaragua that it facilitate the
voluntary repatriation of Miskitos now refugees in other countries, thus
contributing to family reunification, in order to respect in this manner
the right of residence and movement of that population. The Government
stated its willingness to comply with this recommendation of the IACHR,
and in January of this year, it established a committee to encourage and
facilitate repatriation of the Miskitos. Representatives of religious
institutions and international organizations participate in this
committee. c. In view of the poor physical condition of the Miskitos in
detention as a result of the events mentioned, the Commission
recommended improving the conditions of detention. The Commission was
subsequently able to ascertain that this recommendation had been carried
out by the Nicaraguan Government with regard to Miskitos detained under
the system of minimal security farms, but not with regard to those in
detention in Zona Franca prison. d. In light of the many and serious irregularities that had taken
place during the trials of the Miskitos, the Commission recommended that
the standards of due process of law be observed in their trials, which
would include, among other things, abolishing the practice of torture
confirmed in some cases, eliminating television broadcasting of the
defendants confessing while the trial was still in progress providing
proper legal assistance to the accused, and reviewing the sentences
issued by the Court of Puerto Cabezas. The Government of Nicaragua
complied with the Commission’s recommendation, which included review
and dismissal by the Supreme Court of Justice of most of the sentences
handed down and the removal of the judge responsible for the
irregularities committed. e. The Commission recommended that the Moravian ministers of the
Atlantic Coast who had been arrested be pardoned and this recommendation
was complied with by the Government. f. Taking into account the action by the Government of Nicaragua
which prevented many church people from returning to the Atlantic Coast,
the Commission recommended that this prohibition be invalidated. The
Government complied with the Commission’s recommendation. g. In view of the distressing situations brought about by the
separation of families as a result of the forced displacement and the
search for refuge in Honduras on the part of the Miskito population, the
Commission, for humanitarian reasons, recommended to the Nicaraguan
Government that it create conditions to facilitate the interchange of
letters between the camps of Tasba Pri and Mocorón. The Government
complied with this recommendation, working jointly with the
International Committee of the Red Cross. h. In view of the destruction by Nicaraguan Government agents of the
houses, crops and communities in general, as well as the livestock of
the Miskito communities, justified by that Government’s arguing the
need to deprive the armed groups operating in the area of resources, the
Commission recommended that Miskitos whose property had been destroyed
by government action be economically compensated. The Government has not
carried out this recommendation by the IACHR, arguing that the expenses
incurred in providing housing, food, medical attention, land and farming
implements to the communities located in the new settlement constituted
adequate compensation. i. Bearing in mind that one of the basic aspects of the conflict
which has arisen between the Government of Nicaragua and the Miskito
population is that which concerns the Miskitos’ claims to their
ancestral lands, arguing that the Government is violating their rights
to those lands and introducing changes detrimental to the system of
tenure and exploitation of these lands by means of the Agrarian Reform,
the Commission recommended that the Government provide a fair solution
to the problem of the ancestral lands claimed by the Miskito population.
The Commission thus far has not seen a clear expression of the will of
the Nicaraguan Government to carry out this recommendation. j. In view of the Miskito claims that they are not participating
adequately in the administration of the Atlantic zone, the Commission
recommended that provisions be made for such participation by the people
of that region. The Government has not complied with this recommendation
of the IACHR, although it has reported that it is taking steps to
overcome this problem. k. In view of the Nicaraguan Government’s dissolution of the
Misurasata organization, the arrest of its leaders and their subsequent
release and exile, the Commission recommended to the Nicaraguan
Government that it authorizes Misurasata or another institution which
authentically represents the Miskito population to function, allowing
the leaders of Misurasata to return to Nicaragua. The Government has not
carried out this recommendation, as it feels that the leaders of
Misurasata are involved in activities which affect Nicaragua’s
domestic and international security. It has reported, however, that a
new organization representative of the Nicaraguan Miskito population is
in the process of formation, to which the Government has guaranteed the
right of association, and it has invited the Commission to witness the
process whereby the new organization is being created. l. As a result of the serious violations of the right to life
committed by soldiers of the Sandinista Army, which occurred in the
community of Leimus in December 1981, the Commission recommended that
the Nicaraguan Government investigate the deaths which occurred in those
places and punish those responsible. The Government has not complied
with this recommendation of the IACHR because, although those presumed
to be responsible were brought to trial they were acquitted despite the
fact that the Commission considers that there is sufficient evidence to
convict them. m. With a view to establishing a favorable climate for the friendly
settlement of the problem existing between the Nicaraguan Government and
the Miskito population, the Commission recommended that the Government
grant a broad amnesty to all Miskitos in detention. The Government has
complied with this recommendation of the IACHR by granting the amnesty
requested on December 1, 1983, although a small number of Miskitos who
are not covered by the amnesty in reference remain under arrest. n. With a view to solving the problems which still subsist between
the Government of Nicaragua and the Miskito population, many of which
require detailed consideration and a cool dialogue between the parties,
the Commission recommended that a conference be held which would allow
broad participation on the part of the Miskito leadership, even
including those accused of subversive activities. The Government of
Nicaragua has consented, in principle, to the holding of this
conference, but it has expressed the view that, given the existing
climate of tension, it could not be held immediately; and the Government
has reiterated its refusal to talk with the leaders whom it considers to
be involved in activities against the security of the State. o. Bearing in mind that the existing climate of conflict in the
region directly affects the observance of human rights, the Commission
recommended that the Nicaraguan Government seek a peaceful settlement of
problems which have arisen with Honduras. Subsequently, this matter was
included on the agenda of items to be negotiated within the framework of
the Contadora Group’s peace efforts. 8.
Throughout the friendly settlement procedure significant advances
were made toward the improvement of the observance of human rights, but
important problems which must be resolved in the future remain pending.
Among these, some of the problems, such as the matter of punishing those
responsible for the deaths that occurred in Leimus, depend on the actual
will of the Nicaraguan Government to overcome them. Other problems to be
resolved concern matters which, despite the Nicaraguan Government’s
initial refusal, can yet be subject to reconsideration in the framework
of imaginative solutions. These problems include the issue of economic
compensation to the Miskitos who have lost their property as a result of
the actions of government agents, because if this condition is not met,
obstacles will arise that will thwart, in fact, the Nicaraguan
Government’s avowed will to allow the Miskitos to return to their
places of origin once the emergency is over. Other problems remain open
to discussion and the IACHR hopes that they will be resolved in the
future. Such is the case of the ancestral lands and of the adequate
participation of the Miskito population in the administration of the
Nicaraguan Atlantic coast.
9.
In view of the impossibility of reaching an agreement on the
representatives of the Miskito community and of holding now a dialogue
between the groups concerned, it is not possible to continue the
friendly settlement procedure. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1.
To bring to an end the friendly procedure pursued with respect to
matters affecting the human rights of a segment of the Nicaraguan
population of Miskito origin.
2.
To state for the record that it has not been possible to achieve
a friendly settlement, in part, due to circumstances beyond the control
of the Nicaraguan Government.
3.
To express its appreciation to the Government of Nicaragua for
the necessary facilities provided to the Commission to enable it to
carry out the functions of mediator in the friendly settlement procedure
and for having complied with some of the recommendations made.
4.
To express its decided willingness to continue cooperating with
the Government of Nicaragua and with all the affected sectors in the
search for a peaceful and lasting solution to the pending problems which
still affect a considerable number of Nicaraguans of Miskito origin.
5.
To accept the Nicaraguan Government’s invitation to the
Commission to observe the process by which the new organization, that
will bring together the Miskitos living in that country, is formed.
6.
To publish the Report on the Situation of Human Rights of a
segment of the Nicaraguan population of Miskito origin, which was
transmitted to the Government of Nicaragua on November 29, 1983.
7.
To send this report, by means of the Secretary General of the
Organization of American States, to the fourteenth regular session of
the General Assembly, in accordance with Article 52, paragraph f) of the
OAS Charter.
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