Honduras: The beginning of the end of impunity?

Document source:

Amnesty International
Date:
1 June 1995

INTRODUCTION

A major step forward in the struggle to clarify past "disappearances" has been taken in recent months, following the exhumation in December 1994 of the remains of Nelson Mackay Chavarría, a lawyer who "disappeared" in 1982. The case could spearhead long-awaited official investigations into scores of "disappearances" since 1980. If the government of President Carlos Roberto Reina stands by the commitments it has made since taking office over a year ago, Honduras could be mounting one of the biggest challenges to impunity in the region.

But more recent developments, including death threats against human rights workers and the killing of a retired army major in suspicious circumstances, have raised fears for the safety of those who are bringing military abuses to light. Six months after the exhumation, little progress appears to have been made in bringing those responsible for Nelson Mackay's "disappearance" to justice. As the irrepressible truth about past human rights violations continues to surface, the international community must help to ensure that justice is no longer denied.

THE CASE OF NELSON MACKAY CHAVARRÍA

On 21 February 1982, Nelson Mackay Chavarría, a 31-year-old lawyer and legal adviser for the Ministry of Culture and Tourism, left his home in the Las Leonas district of the capital, Tegucigalpa, to buy a Sunday newspaper. His family never saw him again. Witnesses claimed to have seen him shortly after in the custody of the Dirección Nacional de Investigaciones (DNI), National Investigations Directorate, the now-disbanded investigative branch of the security forces.

Nelson Mackay was one of scores of people who "disappeared" in Honduras in the early 1980s. In the context of armed conflict in neighbouring El Salvador and Nicaragua at that time, the Honduran armed forces intensified their counter-insurgency activity and launched a campaign of political murder and abduction to eliminate suspected government opponents. The most frequent targets of human rights violations were political activists perceived as having links to revolutionary movements in the region. But many others were victims of more indiscriminate repression. Nelson Mackay Chavarría's family believes his "disappearance" may be linked to the fact that, through his work, he may have had access to confidential information about the then Head of the armed forces, whose brother was the Minister of Culture.

Nelson Mackay's family lived for years with the agony of not knowing what had happened to him following his detention, the frustration of constant official denials and the fear of what would happen to them if they continued their search. It was only twelve years later that Lucila Chavarría, Nelson's mother, felt able to approach the authorities in the hope that her son's fate might at last be clarified. In early 1994, she approached the office of the governmental Comisionado Nacional para la Protección de los Derechos Humanos, National Commissioner for the Protection of Human Rights (hereafter referred to as Human Rights Commissioner), to resume her search.

She had been encouraged by a report on "disappearances" in Honduras published by the Commissioner in December 1993, which had included a brief reference to the case of her son. The report, entitled Los Hechos Hablan Por Sí Mismos (The Facts Speak for Themselves) gave no new information about the case, citing the facts which had been investigated and denounced in 1984 by the non-governmental Comité de Derechos Humanos de Honduras (CODEH), Human Rights Committee of Honduras. Nevertheless, it constituted the first official acknowledgement of the state's responsibility for "disappearances" and other human rights violations during the 1980s and early 1990s.

From enquiries by the Commissioner, the family and human rights workers, it emerged that a week after Nelson Mackay's "disappearance" in 1982, residents of Los Amates, a village in the department of Valle bordering El Salvador, had found an unidentified man's body drifting in the nearby Guascoarán river and had buried it.

Following indications that the body might have been that of Nelson Mackay, an international team of forensic anthropologists travelled to Los Amates on 8 December 1994 at the request of the Fiscalía General, Attorney General's Office, to carry out an exhumation at the site where a local farmer had buried the body. The next day the remains, wrapped in a plastic bag, were identified as those of Nelson Mackay Chavarría. Although they were badly eroded, his wife, Amelia Rivera, and his mother, Lucila Chavarría, knew before the scientific process had concluded that the remains were Nelson's: his checked shirt, and other articles of clothing which he had been wearing on the day of his "disappearance", were still partly intact. Dental records were also crucial in enabling the forensic team to identify the remains.

Remains of Nelson Mackay Chavarría, exhumed in Los Amates, Department of Valle, on 8 December 1994. The photograph shows his skull and the checked shirt he was wearing at the time of his "disappearance".

The exhumation represents an important breakthrough in the long-standing struggle to clarify the fate of some 184 people who "disappeared" since 1979 in Honduras and has raised hopes that those responsible may at last be brought to justice. The Comité de Familiares de Detenidos Desaparecidos en Honduras (COFADEH), Committee of Relatives of the Disappeared in Honduras, and the Human Rights Commissioner, Dr Leo Valladares Lanza, have noted the historic importance of the exhumations and welcomed the commitment expressed by the Attorney General's Office to initiate judicial investigations against "whoever proves to be involved". Dr. Valladares, pointing out the significance of this step for the clarification of other cases of "disappearance", hailed these events as "the beginning of the end of impunity".

Investigations continued before the Attorney General's Office and judicial proceedings were initiated before the Juzgado de Letras Primero de lo Criminal, First Criminal Court. Relatives, witnesses and members of the military were called to give evidence. The Attorney General's Office also indicated its determination to investigate other cases of "disappearance" and initiate proceedings through the courts as appropriate. These moves renewed confidence in the human rights commitments voiced by the government of President Carlos Roberto Reina since it took office in January 1994. However, subsequent developments have revealed the obstacles and risks still facing those involved in the task of ending impunity for human rights violations in Honduras.

OBSTACLES FACING INVESTIGATIONS INTO "DISAPPEARANCES"

The opening of investigations into the case of Nelson Mackay caused a stir in Honduras, not only because of its significance for other cases of "disappearance", but because several of those allegedly responsible for ordering or carrying out "disappearances" at the height of the repression in the 1980s still occupy senior positions in the military hierarchy and in the civilian administration. Despite signs of a more genuine political will on the part of the government to clarify past abuses, those responsible can apparently still count on some of the means and methods they have always used to evade accountability. As a consequence, little progress appears to have been made in the last six months to bring those responsible for Nelson Mackay's "disappearance" to justice.

The armed forces deny responsibility

The Attorney General's Office has asked the head of the Honduran armed forces, General Luis Discua Elvir, to provide the names of military officers responsible for the units allegedly implicated in cases of "disappearance" under previous governments. Although the armed forces have openly expressed their willingness to collaborate with the investigations, top figures in the military have been swift to publicly deny all responsibility, as have civilian figures from the administrations of the time.

"Los culpables tienen que ser castigados y será la Fiscalía la encargada de hacerlo, nosotros seguiremos adelante porque no se puede retroceder." (Those responsible must be punished, and it will be the Attorney General's Office which will do so. We will continue fighting on because we cannot turn back).

Amelia Rivera de Mackay

Among those summoned to give evidence before the Attorney General's Office in December was a former head of military intelligence, retired Colonel Leónidas Torres Arias. In 1982, Colonel Torres Arias had publicly declared from exile in Mexico that Nelson Mackay and several others had been abducted and killed by a "death squad" set up by the then head of the armed forces, General Álvarez Martínez, under the command of an army major. A tape recorded statement in which he had repeated these allegations had subsequently been rejected as inadmissible evidence in a court case brought by relatives of the "disappeared".1

However, in his testimony to the Fiscalía in December 1994, Torres Arias reportedly denied all knowledge of the army major's involvement in "disappearances", claiming that sole responsibility lay with General Álvarez Martínez, who was assassinated in 1989. The army major publicly implicated by Torres Arias in 1982 currently occupies a senior position in the Fuerzas de Seguridad Pública (FUSEP), Public Security Forces. The Honduran daily newspaper Tiempo subsequently published armed forces documents which, it claimed, indicated that the current head of the armed forces and the head of military intelligence had sought to influence Torres Arias' recent testimony.

Intimidation and threats against human rights workers and other witnesses to military abuses

There are also indications that those allegedly responsible for the abuses under investigation may be resorting to further human rights violations to obstruct the process. The Attorney General's Office revealed it had sought protection for witnesses involved in the investigation following concern for their safety.

Relatives of the "disappeared" and other human rights activists have once again come under threat. There are fears for the safety of COFADEH's training officer, Leonel Casco Gutiérrez, who according to COFADEH, has received reports of an armed forces plan to kill him. Since January 1995 he appears to have been the object of surveillance by unidentified men on motorcycles. Several members of COFADEH, CODEH and the office of the Human Rights Commissioner have received death threats and have been under similar surveillance in the last year, apparently in connection with their efforts to clarify the fate of the "disappeared".

Recalling another tactic of intimidation frequently used against human rights workers during the 1980s, leaflets mocking the relatives and the Human Rights Commissioner have appeared in recent months in the streets of the capital Tegucigalpa. Leaflets distributed by the self-proclaimed Comité Cívico Constitucional Democrático, Democratic Constitutional Civic Committee, following the exhumation of Nelson Mackay accused the Human Rights Commissioner and the relatives of orchestrating the exhumation for financial gain, under the pay of the government of Cuba.

Sectors of the press have also received anonymous threats, apparently in relation to their coverage of recent moves to investigate "disappearances" and a concurrent drive by the Attorney General's Office to investigate corruption in government. Presidential advisor, retired General Wálter López, publicly threatened to "destroy" the daily newspaper Tiempo for printing a confidential 1984 memo, allegedly signed by him when he replaced General Álvarez Martínez as head of the armed forces, instructing a military commission of inquiry set up in 1984 to guarantee full protection to any army members who may have been involved in "disappearances".2

The killing of Juan Pablo Rivas Calderón

The killing in suspicious circumstances of a retired army major, Juan Pablo Rivas Calderón, on 4 January 1995, has also been seen as an attempt to prevent information regarding military abuses from coming to light. Juan Pablo Rivas Calderón, who was shot dead by unidentified men in San Pedro Sula, had previously denounced before a court and to CODEH that he feared for his life after having accused another former head of the armed forces of acts of corruption. Investigations opened by the Attorney General's Office into the killing do not appear to have made significant progress. Meanwhile, members of Juan Pablo Rivas Calderón's family have received death threats and have been under surveillance since the killing.

On the evening of the funeral, Óscar Wilfredo Jeresano Murillo, Juan Pablo Rivas Calderon's brother-in-law, received an anonymous telephone call warning him not to continue calling for an investigation into the killing. Norma Bessy Jeresano de Rivas, the victim's wife, has also received repeated anonymous telephone calls. On 7 March her son, Juan Pablo Rivas Jeresano, narrowly escaped when a car without number plates appeared deliberately to try to run him over. Similar vehicles have been seen watching the family's home. According to a complaint presented before COFADEH, the family believes this harassment is intended to intimidate them and other witnesses so as to stall the investigation into the killing.

Creating a climate of insecurity

These events have generated a climate of insecurity since December 1994, which has been fuelled by public warnings by the military authorities of the existence of a plot to "destabilize" the country. In early January 1995, General Wálter López stated that protection for President Reina and the current armed forces head, Luis Alonso Discua Elvir, had been stepped up following reports of a plot to kill "a prominent figure" as part of the destabilization plan. On 28 January 1995, a grenade exploded some 100 metres away from President Reina as he addressed journalists during a visit to a construction site in the northern city of San Pedro Sula. While it is not known who was behind the attack and the alleged plot rumours, human rights activists see them as veiled warnings by sectors of the military against any further disclosures about human rights violations.

Legal barriers

Attention has also been drawn in Honduras to the possible legal obstacles the investigations into "disappearances" may encounter. The military authorities and other public commentators have been swift to argue that the "disappearances" under investigation are covered by the amnesty laws passed in 1986 and 1991. Judicial proceedings initiated in 1984 against certain military officials accused of involvement in 27 cases of "disappearance", which resulted in the acquittal of those accused, have also been cited as a barrier to reopening investigations against these officials, in accordance with the principle that they cannot be tried twice for the same offence.

A third argument which has been used to place legal barriers in the way of the investigations is that crimes committed before 1985, such as the "disappearance" of Nelson Mackay, are covered under Honduran law by a statute of limitations, as a result of which investigations cannot be initiated after 10 years have elapsed.

However, AI considers that the main obstacles to the clarification of the fate of the "disappeared" and the bringing to justice of those responsible are political rather than legal. The 1991 amnesty law and its 1986 predecessor cannot and should not be used to prevent the prosecution and punishment of those who committed these crimes. As the Human Rights Commissioner Dr Leo Valladares pointed out in his report The Facts Speak For Themselves, the amnesty laws do not expressly prohibit the trial and punishment of military or security personnel implicated in "disappearances". Indeed the 1991 amnesty decree explicitly recognizes the state's international human rights obligations. These obligations include the bringing to justice of state officials implicated in cases of fundamental human rights violations. For example, Article 18 of the UN Declaration on the Protection of all Persons from Enforced Disappearances establishes that:

"Persons who have, or alleged to have, committed [acts of enforced disappearance], shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction."3

Fiscal Especial de Derechos Humanos

"no tuvieron inicio legal y por tanto no pueden estar finalizados"

"No hay prescripción en los casos en que por acción u omisión dolosa y por motivos políticos se causare la muerte de una o más personas"

The corruption and lack of independence of the Honduran judiciary in the past permitted its subjugation to the military and its ineffectiveness in investigating and preventing human rights abuses. But ongoing reforms to the judiciary, changes in its composition and the restriction of the scope of military jurisdiction (which previously allowed human rights violations to be investigated by military courts) are guarantees that the judiciary will no longer be complicit in or tolerant of human rights violations. The Human Rights Commissioner, in his 1993 report, expressed confidence in the capacity of the current judicial authorities to carry out full and impartial investigations into the "disappearances" he had examined.

While encouraged by the commitment shown by the authorities at the time of the exhumation, Amnesty International and Honduran human rights organizations have more recently noted a lack of significant progress in the investigations opened in December 1994 into the case of Nelson Mackay Chavarría. The victims of "disappearance" and their relatives cannot continue to be failed by the administration of justice. The judicial authorities should demonstrate their readiness to meet the historic challenge of ending military impunity and ensuring that Honduras complies with its obligations under international and domestic law. Such obligations are contained in, among other instruments, the Convención Interamericana sobre la Desaparición Forzada de Personas (Inter-American Convention on the Forced Disappearance of Persons), signed by Honduras on 10 June 1994 and awaiting ratification.

BACKGROUND: THE HUMAN RIGHTS COMMISSIONER'S REPORT

The events surrounding the exhumation of Nelson Mackay Chavarría occurred a year after the issue of the "disappeared" resurfaced in the national debate. Manipulation of the issue during the November 1993 presidential elections prompted the Human Rights Commissioner to undertake a study of past "disappearances" and publish the findings after the elections. On 29 December 1993, the Commissioner published his report, entitled Informe Preliminar sobre los Desaparecidos en Honduras 1980 1993 "Los Hechos Hablan por si mismos" (Preliminary report on the disappeared in Honduras 1980-1993 "The Facts Speak for Themselves"). Over 1,000 pages long, it was the first official acknowledgement that government forces were involved in the "systematic, clandestine and organized" practice of "disappearance" against political opponents throughout the 1980s a fact that human rights groups had been claiming for years and that Honduran governments had denied for over a decade. The Commissioner listed 184 cases reported to him and gave details of 15 illustrative cases covering the period up to 1993.

Among the senior political and military figures implicated in the report as responsible were former presidents Suazo Córdoba and Azcona Hoyo, as well as the current head of the armed forces, General Discua Elvir. It also stated that military advisers from the United States and Argentina were involved in these crimes, dedicating a lengthy chapter to the role played by these governments, and by the contra in Nicaragua, in the repression in Honduras. It condemned the fact that hardly any of these cases have been investigated and no-one punished, even when at an international level the state of Honduras had been found responsible for "disappearances" in an unprecedented ruling by the Inter American Court of Human Rights in 19884. The report pointed to the failure of the judicial system as a factor contributing to this "impunity". It concluded that the phenomenon of impunity has allowed human rights abuses to continue.

In his groundbreaking report, the Commissioner had called for judicial investigations to clarify who was responsible for the "disappearances" and bring them to justice. These investigations should include those named in his report, all military intelligence officers, the civilian authorities responsible by omission (such as members of the judiciary) and foreign agents involved. Previous amnesty laws could not apply and there could be no talk of forgiveness until justice had been done. He also recommended measures for the compensation of victims and relatives, and for the location of at least 16 clandestine cemeteries where the "disappeared" are said to be buried. He also made recommendations for judicial and military reforms aimed at providing safeguards against "disappearances" in the future.

The new government takes up the gauntlet

Following a landslide victory by the Liberal party in elections in November 1993, President Carlos Roberto Reina took office on 27 January 1994. The Liberals also won a majority in Congress and strong representation in the new judiciary. President Reina, a former President of the Inter-American Court of Human Rights, came to power pledging to undertake a "moral revolution" in all aspects of government and an "end to impunity" for human rights violations.

President Reina's promises to follow up the Human Rights Commissioner's recommendations were met with threats and verbal attacks by the military High Command. The Supreme Court and the Attorney General, Dr. Edmundo Orellana, also pledged to follow up the recommendations of the Commissioner and to ensure those responsible for the human rights violations documented were brought before the courts.

A Comisión Especial de Fiscales, Special Commission of Prosecutors, was appointed by the Supreme Court in January 1994 to advise on the implementation of the Commissioner's report. Meanwhile evidence of past human rights abuses continued to come to light. In May 1994, the Supreme Court authorized a team of foreign forensic experts to carry out exhumations in Jacaleapa, near Danlí, El Paraíso, at sites believed to contain the remains of "disappearance" victims. The remains of six people were found but none were positively identified, despite expectations that the remains might include those of relatives of certain members of COFADEH. Although the forensic examination concluded that the six had been murdered, two with clear signs of detention, no further steps were taken to identify the remains. The armed forces denied responsibility claiming that the victims had been killed by the former Nicaraguan armed opposition Resistencia Nicaragüense, Nicaraguan Resistance, known as the contra.

The unexpected outcome of the Jacaleapa exhumations and the apparent absence of any measures to follow up the Human Rights Commissioner's recommendations undermined hopes of any progress on the issue of the "disappeared". In November 1994, however, the findings of the Comisión Especial de Fiscales were made public. The Commission found that the investigation of most of the cases in the Commissioner's report was very difficult, even impossible in some cases, due to the scarce information available which did not provide proof of the participation of certain persons or agents of the state.

The Commission acknowledged that "disappearances" and torture allegations could not be submitted to a court since they are not included as crimes in the current criminal law. However, it argued that if each stage in a "disappearance" is considered such as illegal detention, kidnapping, even murder the crimes thus identified do exist in criminal law and proceedings may be initiated. However, it concluded that the resources to undertake the necessary investigations were not available at the moment.

The Commission also saw the need to find clandestine cemeteries where the "disappeared" would have been buried and to proceed with the exhumation of remains and identification; this would establish that a murder had taken place. It would then be possible to proceed to prove the participation of those responsible in each case.

The Commission then examined the cases of several people who had been "disappeared" for varying periods and had then "re-appeared" and had given testimonies to the Commission. It called on the Supreme Court to take action on each case or to convey the cases to the Attorney General for him to initiate the appropriate proceedings. The Commission concluded that there was a case to be answered by those who victims and witnesses had identified as perpetrators (among them military and police high ranking officers), under Honduras' Constitution and Penal Code; that the ten-year statute of limitations did not apply as the perpetrators were public officials and that the responsibility of those identified as perpetrators is clear as their conduct in the "disappearance" and "re-appearance" of the victims clearly identified them as authors of these crimes. The Commission concluded that the Ministerio Público (Public Ministry) should submit the cases to the courts. However, over six months since the publication of the findings of the Comisión Especial de Fiscales, no progress has been made in following up its recommendations.

The context of human rights reform

While the political obstacles facing the investigations into "disappearances" are formidable, these are occurring in a context of ongoing human rights reform. Since 1993 reforms have been underway to reduce the political power of the military and transform the police. Many of these reforms include preventive safeguards against human rights violations in the future and provide greater guarantees for the state's capacity to carry out effective and impartial investigations into these "disappearances".

The process of reform gained momentum with the appointment in 1994 of the Fiscal General, Attorney General, at the head of the Ministerio Público. Reformed in 1993, the Public Ministry is responsible for investigating de oficio all denunciations of human rights violations. It is also responsible for the new Departamento de Investigación Criminal (DIC), the criminal investigation body which replaced the notorious military-controlled Dirección Nacional de Investigaciones (DNI). The DNI, implicated in numerous cases of killings, torture and "disappearance" in the past, was formally disbanded in June 1994, leaving a vacuum until the creation of the DIC in 1995. The Attorney General's office includes special prosecutors' offices dealing with human rights, corruption, drug-trafficking, and the protection of children, the disabled, indigenous people and the environment.

In February 1995, Congress granted constitutional status to the office of the National Commissioner for the Protection of Human Rights, to allow it to play a supervisory role complementary to the investigative role of the Fiscalía General.

A constitutional reform in May 1994 abolishing forced conscription reaffirmed civilian control over the military, although there were moves to restart conscription pending the reform's ratification. In January 1995 the government set up the Comisión Especialísima, consisting of government and non-governmental representatives, to make recommendations for combatting crime, improving the juvenile criminal justice system and to increase civilian control over the police.

AI'S RECOMMENDATIONS

Since the government of President Reina took office in January 1994, Amnesty International has called repeatedly on the authorities to honour their commitment to end impunity for "disappearances" and other violations under past administrations. It has also appealed to the new government to ensure full investigations into recent cases of possible extrajudicial execution and ill-treatment. An Amnesty International delegation visited Honduras in May and June 1994, meeting the new authorities to discuss their human rights commitments. The delegates also assessed the progress of institutional reforms and of investigations into past "disappearances" and recent abuses. While encouraged by the government's manifest commitment to human rights reform, Amnesty International urged the administration to fulfill the expectations and obligations upon it by making a historic break with impunity.

In the light of developments since the government took office with regard to the unresolved issue of the "disappeared", AI welcomes the commitment demonstrated by the President, the Attorney General's Office and the Human Rights Commissioner to put an end to the impunity which has shrouded these cases for over a decade. It notes the historic importance of the measures taken so far to investigate and clarify individual cases as well as to further the process of institutional reform which will strengthen the framework for human rights protection in Honduras.

AI welcomes reforms aimed at safeguarding against similar abuses in future and expresses the hope that these will reinforce the capacity of the judiciary to see that justice, so long denied, is finally done in the cases of the 184 victims of "disappearance" in Honduras. It welcomes moves by the Supreme Court and the Attorney General's Office to initiate investigations into the case of Nelson Mackay and other "disappearance" cases and to comply with the recommendations of the Human Rights Commissioner.

AI calls on the authorities:

To pursue with vigour its investigations into the "disappearance" of Nelson Mackay Chavarría which appear to have made little progress since the beginning of the year;

To ensure that prompt, thorough and impartial investigations are initiated into the other cases of "disappearances" included in the Commissioner's report and the findings of the Comisión Especial de Fiscales. Investigations should clarify the fate of those "disappeared" and establish responsibility both for carrying out and ordering the "disappearances". Those responsible should be brought to justice following proceedings which meet international standards for fair trials;

To remove alleged human rights violators from their posts pending the results of any investigations. AI is concerned that many of those named in the Commissioner's report have been promoted by Congress, sending a message which is at odds with the government's discourse of intolerance of human rights violators;

Once official responsibility has been established, the authorities should set up appropriate mechanisms for granting fair and adequate redress, including financial compensation, to the victims and their dependants. The awarding of compensation does not, however, relieve the state of the obligation to bring those responsible to justice;

To implement other recommendations made by the Commissioner for Human Rights to clarify past "disappearances" and prevent their recurrence, in particular those aimed at furthering the process of judicial and security force reform;

To investigate the killing of Juan Pablo Rivas Calderón and the threats against human rights worker Leonel Casco Gutiérrez and relatives of the "disappeared";

To take steps to guarantee the safety of witnesses, relatives, human rights activists and others whose role in the process of bringing to light abuses by the military renders them vulnerable to intimidation, including members of the press;

To ratify the Inter-American Convention on the Forced Disappearance of Persons, signed by Honduras on 10 June 1994.