Nicaragua: Expatriation as an Aggravated Form of Political Persecution

In an unprecedented move in the modern history of international law, Nicaragua has stripped more than 300 dissident citizens of their nationality in the last two weeks. 222 of these citizens were deported to the United States on 9 February (see here), with the Managua Appeals Court (Tribunal de Apelaciones) removing their nationality the day after (see here), i.e. after the fact. Other 94 citizens, most of them already in exile, have been the object of a similar judicial farce which culminated in a decision of the same Court on 15 February (for the surreal appearance of Presiding Judge Ernesto Rodríguez Mejía see a 7 min video here; for the official website of the judiciary see here). In a spontaneous show of solidarity Spain, now followed by two Latin American States (Argentina, Chile), offered these persons their nationality (see here and here).

Political persecution by a family-run dictatorship

The General Secretariat of the Organisation of American States (OAS) reacted with a strongly worded statement to the deportation, which sums up the current situation in Nicaragua aptly:

What happened today is not … a “liberation.” These people were unjustly imprisoned -some for years- for thinking, expressing, or writing opinions contrary to the prevailing regime in Nicaragua. Many of them were tortured and cut off from all contact with the outside world. This group of people has now been sentenced in trials without any guarantees for alleged “treason against the homeland” and “incitement to violence, terrorism and economic destabilization,” among other alleged crimes. They were stripped of their Nicaraguan nationality and all their citizenship rights “in perpetuity.” They arrive in the United States supposedly “deported” from their own country.

The crimes committed against these people must not go unpunished, and their rights must be restored as soon as possible. In Nicaragua there are still people imprisoned and tortured for thinking differently, there are still people who live daily in fear of being arrested, tried and sentenced without any legal or procedural guarantees. The Nicaraguan regime continues to be oblivious to the principles of democracy and respect for human rights, and we must continue denouncing its abuses.

[T]here is still a long way to go until all Nicaraguans, without exception, can once again enjoy freedom in their own country.

As to the other 94 dissidents, the judicial decision, essentially identical to the indictment (acusación), does not contain concrete acts imputed to these persons. Instead, it refers, inter alia, to a conspiracy against the “national integrity” (“conspiración para cometer menoscabo a la integridad nacional”) as well as to highly nebulous offences “against the peace, sovereignty, independence and self-determination of the Nicaraguan people, inciting to destabilization of the country” (“en perjuicio de la paz, soberania, independencia y la autodeterminación del pueblo nicaraguense, incitando a la desestabilización del país”) and to “trafficking with the honor of the country” (“traficando con la honra de la patria”) which the accused “committed and continue to commit” (“ejecutaron y continúan ejecutando”). What is punished here with the deprivation of nationality and other sanctions (inter alia confiscation of assets) is nothing else than the continuous criticism of the Ortega/Murillo dictatorship by these citizens, among them (see here) well-known novelists as Sergio Ramirez and Gioconda Belli as well as politicians, diplomats, judges and church representatives, many of them once part of the Sandinista revolution and movement in its early days. In short, this is a clear-cut case of political persecution by a family-run dictatorship which has concentrated all power in the president (former revolutionary Daniel Ortega) and his wife vice-president (Rosario Murillo) and systematically undermined the rule of law, fully controlling and using the judiciary for its political objectives (see here, here and HRC Res. 49/3 of 31 March 2022 establishing a Group of Human Rights Experts on Nicaragua).

The judicial decision has been preceded and accompanied by legislative changes. The government-controlled National Assembly (Asamblea Nacional) amended Article 21 of the Constitution on 9 February, adding a clause which strips the “traitors to the homeland” (traidores a la patria) of their nationality (“Los traidores a la patria pierden la calidad de nacional nicaragüense”), thereby undermining the guarantee of nationality contained in Article 20 of the Constitution. This constitutional reform is complemented by two ordinary laws. Ley 1055 was already adopted on 22 December 2020 and regulates the loss of nationality in line with Article 21 of the Constitution. The more recent Law 1145 of 10 February 2023 (i.e. one day after the deportation of the 222 dissidents to the U.S.!) authorizes, in its Article 2, the loss of the nationality of those persons who have been convicted pursuant to Law 1055, inter alia for treason (traición). Interestingly, the government did not even wait for the entry into force of the constitutional amendment (requiring a second legislative decision, see here) and applied Law 1145 retroactively, at least with regard to the 222 deported citizens. In other words, Nicaraguan nationals have been deported!

Disdain for international law

The removal of the nationality, first of all, violates the 1961 Convention on the Reduction of Statelessness which Nicaragua joined with effect of 29 July 2013, the same Daniel Ortega being President. This Convention only allows for a loss of nationality (by renunciation, removal etc.) if the person concerned does not become stateless (Articles 5, 6, 7(1)(a) and (6), 8(1)). Furthermore, the deprivation of nationality is only allowed in limited and specific circumstances (Article 8(2)(a) in connection with Article 7 (4),(5); Article 8(2)(b): obtained by misrepresentation or fraud). Otherwise, a State must retain its right to deprive a person of its nationality, at the time of joining the Convention, for specific grounds (Article 8(3)), namely:

(a)  that, inconsistently with his duty of loyalty to the Contracting State, the person

(i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or

(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;

(b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State.

Nicaragua has made no declaration or reservation to that effect (see here and the respective Decreto de Aprobación here). At any rate, according to Article 9, “[A] Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.” Thus, the kind of deprivation of nationality at issue here, i.e., as part of political persecution, is explicitly prohibited.

The measure also violates the right to nationality pursuant to Article 20 of the American Convention on Human Rights (ACHR), especially its para. 3: “No one shall be arbitrarily deprived of his nationality.” So far, this provision has only become relevant once, namely in the case of the Israeli-Peruvian businessman Baruch Ivcher. In another (prominent) Latin American case of a removal of nationality, that of Chilean politician and diplomat Orlando Letelier of the Allende government (see Decreto 588 of 2 September 1976 of the Pinochet dictatorship), there was no legal remedy, not least because Letelier was later assassinated by the Chilean secret police DINA in Washington D.C. on 21 September 1976. Ivcher obtained Peruvian nationality in 1984, renouncing his Israeli nationality but then lost it pursuant to an executive order (Resolución Directoral) of 11 July 1997 during the Fujimori government. The Inter-American Court of Human Rights (IACtHR) found a violation of Article 20 of the Convention (here, para 86 ff.), stressing the importance of nationality as a human right which offers a minimum legal protection (para. 86, 87) and arguing that the removal was arbitrary as, inter alia, demonstrated by the fact that the administrative authority issuing the mentioned executive order was inferior to the one conceding the nationality in the first place (para. 93-96). To be sure, compared to this case, the removal of the nationality of more than 300 citizens is not only much more severe in quantitative terms, but the political nature of the measure is also much more evident than in the Ivcher case.

This measure is just another act of the Ortega-Murillo dictatorship in its widespread and systematic persecution of dissidents amounting to a Crime against Humanity according to Article 7(1)(h), (2)(g) of the Rome Statute of the International Criminal Court (ICC). It is not a hard case to argue that the context element of Article 7 of the Rome Statute is met in the Nicaragua situation. Just take a look at the OAS statement quoted above, the 2021 OAS Report, HRC Res. 49/3 establishing the already mentioned Expert Group and the Human Rights Watch 2022 World Report. All these documents demonstrate the widespread and systematic human rights violations taking place in Nicaragua without giving them the name they deserve in terms of international criminal law (ICL): Crimes against Humanity, especially by way of “persecution”, that is ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity‘ concerned (Article 7(2)(g) of the Rome Statute), namely the Nicaraguan citizens stripped of their nationality, deported, exiled and object of other rights violations.

It remains to be seen what the HRC Experts Group makes out of all this in its upcoming Report to the HRC at its 52^nd session taking place from 27 February to 31 March 2023. At any rate, it is worthwhile noting in this context that Nicaragua is not a State Party to the Rome Statute and has secured a Russian veto in blocking a possible UN Security Council referral of the Nicaragua situation to the ICC (Article 13(b) Rome Statute). The Ortega/Murillo government has persistently refrained from condemning the Russian aggressive war against Ukraine in the respective votes in UN General Assembly (last Thursday, Nicaragua was among the seven states that voted against the resolution demanding Russia “immediately” and “unconditionally” withdraw from Ukraine). There is still hope that justice will be done at some point, perhaps by way of decentralised prosecutions in States willing to do so. Germany, with its recently further strengthened ICL unit at the Federal Prosecutor General (Generalbundesanwalt), could take the lead and thus show to the world that there are crimes beyond Ukraine worthwhile to be prosecuted.