From non-compliance to high impact: Lessons for the African human rights system drawn from precautionary measures and protection of persons deprived of liberty by the Inter-American Commission in Nicaragua

 Clara Burbano Herrera
 PhD (Ghent University, Ghent), Masters in Fundamental Rights (University Carlos III, Spain), Masters in Constitutional Law (National University of Colombia, Colombia), and LLM (University of Los Andes, Colombia)
 Professor of International Human Rights Law, Principal Investigator, ERC Consolidator Project IMPACTUM, Director of the Programme for Studies on Human Rights in Context, Faculty of Law and Criminology, Ghent University, Belgium
 https://orcid.org/0000-0002-8325-7180
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 This article was presented by one of the authors at the Conference on the Implementation of Decisions of the African Court on Human and Peoples’ Rights organised by the Centre for Human Rights, University of Pretoria, on 21 and 22 June 2024 in Arusha, Tanzania. The contribution was made possible thanks to the generous support of the European Research Council (ERC) under the European Union’s Horizon 2021 research and innovation programme (Grant Agreement No 101044852), as part of the ERC project IMPACTUM, and the Research Fund of Ghent University. We warmly acknowledge and are grateful for the support of these institutions. The views expressed are those of the authors alone and do not necessarily reflect those of the European Union or the ERC Executive Agency

 Yves Haeck
 PhD (Ghent University, Ghent), LLM (Ghent University, Ghent);
 Professor of International Human Rights Law, Director of the Programme for Studies on Human Rights in Context, Faculty of Law and Criminology, Ghent University, Belgium
 https://orcid.org/0000-0001-9652-5626
 Yves.Haeck@ UGent.be

 Edition: AHRLJ Volume 25 No 2 2025
 Pages: 1010 - 1044
 Citation: C Burbano Herrera & Y Haeck ‘From non-compliance to high impact: lessons for the African human rights system drawn from precautionary measures and protection of persons deprived of liberty by the Inter-American Commission in Nicaragua’ (2025) 25 African Human Rights Law Journal 1010-1044
 http://dx.doi.org/10.17159/1996-2096/2025/v25n2a24
 Download article in PDF

Summary

This article examines the impact of precautionary measures (also known as provisional or urgent measures) adopted by the Inter-American Commission on Human Rights (IACHR) to protect individuals at imminent risk, focusing on those deprived of their liberty. Detainees, among the most vulnerable groups, are at heightened risk in contexts where the rule of law is under threat. The article argues that, despite limited state compliance in repressive regimes, international human rights bodies like the IACHR play a crucial role in safeguarding at-risk individuals. The symbolic impact of these measures remains significant, especially in cases of extreme vulnerability, as seen with detainees in Nicaragua. While the primary focus is on the Americas, the issues discussed also resonate with the African context. A comparative approach reveals common patterns of vulnerability and highlights the potential for cross-regional collaboration. African human rights bodies, such as the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child, are also competent to adopt provisional measures to protect individuals at imminent risk, particularly detainees facing urgent danger.

Keywords: precautionary measures; symbolic impact, persons deprived of their liberty; justice system; rule of law

1. Introduction

Daniel Ortega is the current President of Nicaragua. After an earlier term as president (1985-1990) and a long time in the opposition, he won the 2006 presidential elections and began his term in office in 2007, and today – after four consecutive elections for five-year terms, the last one starting in 2022 – he remains in power, accompanied by his wife Rosario Murillo, who has acted as his vice-president since 2017.1

Since 2018 the Ortega Administration has become very repressive.2 The repression has affected a diversity of people including students and professors, political opponents,3 journalists, priests, and human rights defenders.4 In general, anyone who expresses a critical opinion towards the state authorities and who defends human rights is at risk.

Initially, the repression targeted demonstrators who showed their disagreement with the reform of the pension system announced in April 2018. Subsequently, more citizens also became targets of repression for expressing critical views towards the government and its repressive actions.

Reports indicate that between 18 April 2018 and 10 February 2023, at least 2,090 people have been arbitrarily detained.5 Between 2018 and 2022, 355 people were killed; more than 2,000 people were injured; more than 3,300 civil society organisations had their legal status revoked (out of 7,227 legally registered),6 and 12 universities were closed.7 Furthermore, over 250,000 individuals have been forcibly displaced to other countries since 2018, while the population of Nicaragua is 6,948,392.8 In February 2023, the state expelled 222 political prisoners and revoked the nationality of 317 individuals.9 In addition, Nicaragua denounced the Charter of the Organization of American States (OAS Charter), which is the constitutive instrument of this regional organisation, on 19 November 2021.10

In this context, the IACHR has granted so-called ‘precautionary measures’ (also often known as provisional measures, interim measures or urgent measures) to protect individuals at serious risk, some of whom have received death threats, who have been the victim of smear campaigns, stigmatisation, and being detained because of their critical position towards the authorities. Although the precautionary measures have protected a diverse range of individuals at risk, this article will focus on those deprived of their liberty. This is for two reasons. First, they represent the majority of people protected by the precautionary measures. Second, they are one of the most vulnerable groups in society, with their lives being under the total control of the state. In sum, we are interested in addressing the impact of precautionary measures in situations of extreme vulnerability, such as those in which detainees are held in Nicaragua.11

The purpose of this article is to analyse the impact of the precautionary measures adopted by the IACHR for the protection of persons deprived of their liberty in Nicaragua.12 It will be argued that in contexts where the rule of law is under attack, international human rights bodies (such as the IACHR) play an important role in protecting people at risk through the adoption of precautionary measures. Despite little or no compliance by states with precautionary measures, especially in the context of repressive regimes, the symbolic impact of such measures is nonetheless significant.13

While the focus of this article is on the Americas, the issues discussed may also resonate in Africa. Comparative reflection on human rights challenges can illuminate common patterns of vulnerability and inspire innovative approaches to the protection of human rights. This is particularly relevant not only because repressive regimes exist in parts of Africa where personas at are risk, but also because African human rights bodies, namely, the African Commission on Human and Peoples’ Rights (African Commission), the African Court on Human and Peoples’ Rights (African Court), and the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), have the competence to adopt provisional measures to offer protection and prevent human rights violations to persons in a serious and urgent situation, amongst others persons deprived of their liberty, when the ongoing or imminent human rights violation would cause ‘irreparable harm’.14 For example, the African supervisory bodies have, amongst others, issued provisional measures, ordering states to refrain from detention that could cause irreparable damage to a detainee;15 to provide detainees, their lawyers, and their families with adequate information and facts relating to the legal and factual basis for the detention of the applicants’ relatives;16 provide a detainee access to his family members17 and to communicate with them, without any impediment;18 ensuring that the health of detainees was not in danger;19 providing access to medical care to a detainee without adequate medication or treatment;20 and refraining from taking any action that may affect the detainee’s physical and mental integrity as well as health.21 Taking the American context into account creates a valuable space for dialogue and exchange between scholars and practitioners across regions, fostering mutual learning and contributing to the development of more effective strategies for the protection of human rights across the Global South.

This contribution is divided into five sections. The initial two sections provide a concise overview of the Inter-American Human Rights System and explain the scope of two key concepts, namely, precautionary measures and persons deprived of their liberty.

The third section argues that the use of precautionary measures in Nicaragua is characterised by two factors. First, such measures are granted in a context where the rule of law and human rights are under attack with a clear breach of the principle of separation of powers. The executive controls all remaining powers.22 Second, the Penal Code is employed by the authorities to punish and to silence those who are critical of the state. This specific context serves to illustrate the significance of analysing precautionary measures in protecting at risk persons who are fully subject to the authority of state authorities. It also illustrates the compliance challenges faced by precautionary measures in such circumstances and the importance of understanding the impact of human rights decisions.

In the fourth section, a case study is conducted. Comprehensive data about precautionary measures granted to protect at-risk detainees is provided. The analysis of the measures issued in Nicaragua reveals that persons deprived of their liberty are predominantly exposed to three categories of risks. Most of them experience a combination of all three at the same time, namely violations of the right to a fair trial, deplorable prison conditions and the right to health.

In the fifth section, the terms ‘compliance’ and ‘impact’ are defined in the context of this article. The impact of the IACHR’s actions is evaluated at different levels, including the micro, meso, and macro levels. It will be argued that, in the complex Nicaraguan context, the IACHR has played an important role in the protection of persons deprived of their liberty through the adoption of precautionary measures. This is because, despite the often minimal or non-existent compliance with such measures granted, their symbolic impact is high.

The sixth section of the article contains some conclusions.

2 Brief overview of the Inter-American human rights system and the place of precautionary measures within the system

Prior to the analysis of the precautionary measures adopted to safeguard individuals deprived of their liberty in Nicaragua, it is essential to explain two key points: firstly, how the Inter-American human rights system functions; and secondly, the legal basis of precautionary measures within the Inter-American human rights system.

2.1 The Inter-American human rights system

The Inter-American human rights system (IAHRS) was created under the auspices of the Organisation of American States (OAS) in 1948 with the adoption of the Charter of the Organization of American States (OAS Charter or Charter of Bogota)23 and the adoption of the American Declaration of the Rights and Duties of Man (Declaration).24 According to the OAS Charter, the 1969 American Convention on Human Rights (ACHR or American Convention) and the Statute of the Inter-American Commission, the Inter-American Commission of Human Rights is an OAS organ created to promote the observance and defence of human rights.25 It is composed of seven independent members, ‘Commissioners’, who serve in a personal capacity. Created by the OAS in 1959, the Commission has its headquarters in Washington, DC. The Commission is, together with the Inter-American Court of Human Rights (IACtHR), one of the organs of the Inter-American human rights system dedicated to the protection of human rights.26

The Commission interprets not only the ACHR but also the Declaration. Though the Declaration is not a treaty, it indirectly imposes obligations upon all 35 states on the basis of their OAS membership. The Commission was created in 1959 by a political decision of the Ministers of Foreign Affairs of the American states.27 Because the Commission’s mandate was to promote and protect human rights in the hemisphere, it began to document violations and promote human rights provisioned in the Declaration. The Commission was the only regional human rights instrument at the time. In 1965, the Commission was granted competence by the OAS political bodies to examine individual petitions alleging human rights violations. Thus, the Commission started to apply the Declaration by examining the complaints it was receiving.

The ACHR, which entered into force in 1978, is the first regional inter-American human rights treaty, but it has not been ratified by all OAS States (e.g. the US, Canada, some Caribbean island states) and it has even been denounced (such as by Trinidad and Tobago in 1999). The ACHR created the Court, which started to work in 1979 but only began to exercise its judicial competences in earnest in 1988. The Inter-American Human Rights System has three protection levels: (i) states that have not ratified the ACHR have obligations under the Declaration and are supervised by the Commission; (ii) states that have ratified the ACHR have obligations under it and are supervised by the Commission; (iii) states that have ratified the ACHR and have accepted the IACtHR’s jurisdictional competence have obligations under the ACHR and are supervised by the Commission and the Court.

2.2 The precautionary measures mechanism within the Inter-American human rights system

The precautionary measures mechanism is part of the Commission’s function to monitor compliance with the human rights obligations established in article 41(b) of the American Convention and article 18(b) of the Statute of the IACHR, based on article 106 of the OAS Charter, the latter asserting that the primary function of the IACHR is to promote the observance and protection of human rights in the Americas.28

Furthermore, the mechanism of ‘precautionary measures’ is described in article 25 of the Commission’s Rules of Procedure, which stipulates that the Commission may grant precautionary measures ‘in serious and urgent situations when it is necessary to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case’.29 In addition, in accordance with article 63(2) of the American Convention, in instances of extreme gravity and urgency, the Commission may request the IACtHR to grant ‘provisional measures’ to prevent irreparable harm to individuals, even in the absence of a pending case before the Court.30

While it should be noted that the American Convention does not include the precautionary measures, both the Commission’s Rules of Procedure and the Inter-American Convention on Forced Disappearance of Persons have incorporated them. This latter Inter-American Convention recognises the competence of the IACHR to request precautionary measures in its article XIII.31 Furthermore, the binding force of precautionary measures has been acknowledged by the OAS32 and several OAS member states.33

3 Precautionary measures and persons deprived of their liberty

3.1 Precautionary measures

In international human rights law, precautionary measures can be defined as an instrument aimed to prevent irreparable harm to persons in situations of extreme gravity and urgency. They can be ordered by the IACHR, which acts either propio motu or following a petition of the individual at risk or on behalf of the at-risk individual, and can result in the state providing protection to the precautionary measures’ beneficiary. The prerequisite conditions for granting precautionary measures are that the person or group affected is/are in a serious and urgent situation of suffering irreparable harm.

For instance, precautionary measures are adopted to safeguard individuals who are deprived of their liberty and in need of medical care, yet the state fails to provide them with the necessary medication or treatment to continue their existence. Precautionary measures protect any person and groups, including victims and presumed victims of petitions and cases brought before the Inter-American Human Rights System. This includes human rights defenders, women, children, journalists, judges, indigenous communities, and witnesses who have testified before human rights bodies.

A study showed that precautionary measures in the Americas are mainly adopted to protect at-risk detainees, including those detained prior to deportation.34 In other words, precautionary measures are mostly adopted to protect individuals who are under the complete control of state authorities and whose right to life, integrity, and/or health are in danger of violation or deterioration. On such occasions, precautionary measures have been adopted with the aim of preventing detainees from falling below the standard of living that might lead to their death, with the aim that states recognise them as being worthy of equal consideration, respect and dignity.35

Within the Inter-American human rights system, the Commission evaluates a request for precautionary measures by examining whether there is: a serious situation; an urgent situation; and a risk of irreparable harm:36

A serious situation refers to a grave impact that an action or omission can have on a protected right, on the eventual effect of a pending decision in a case, or on the petition before the organs of the inter-American system. An urgent situation refers to a risk or threat that is imminent and can materialise, thus requiring immediate preventive or protective action. And a risk of irreparable harm refers to a harm to rights which, due to their nature, would not be susceptible to reparation, restoration or adequate compensation.

Serious and urgent situations are clearly present when there is an imminent risk to the right to life, the right to personal integrity, the right to health, or the right to a fair trial of persons deprived of their liberty, involving for example, the risk of torture, or serious danger arising from harsh conditions of detention. The function of the precautionary measures is exclusively to protect persons at risk, to prevent human rights violations and/or to preserve the subject matter of the proceedings in relation to pending litigation (if any). In no case do the precautionary measures prejudge the merits of the case; they do not constitute a declaration of international responsibility on the part of the State. Consequently, the compliance with and impact of precautionary measures can be distinguished from the compliance with and impact of a judgment on merits.

It is important to note that in the Inter-American Human Rights System, precautionary measures do not always depend on a particular petition or case being brought before the human rights body. In this regional human rights system, the beneficiary of the precautionary measures is not required to be a party to a case (art 63(2) American Convention; art 27 IACtHR Rules of Procedure). Furthermore, the beneficiary of these measures is not obliged to submit a petition once the precautionary measures have been granted.

3.2 Persons deprived of their liberty

‘[D]eprivation of liberty means any form of detention or placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.’37 This implies that individuals may be deprived of their liberty in a variety of institutions, including detention centres, prisons, and immigration centres. Evidently deprivation of liberty is a broad term. In this article we focus specifically on people deprived of their liberty in detention centres and prisons.38

In certain instances, the deprivation of liberty may be justified, for instance, when enforcing criminal laws. Nevertheless, the deprivation of liberty must be neither arbitrary nor without sufficient legal basis. Furthermore, the rights of individuals deprived of liberty must be respected in accordance with international human rights standards.39 Failure to comply with minimum international standards can never be justified.40 For instance, in the area of health and well-being, the IACtHR underlines the obligation of the State to guarantee these rights in such a way that no detainee suffers more than is inherent in the detention itself.41

Persons deprived of their liberty are considered as one of diverse groups in situations of vulnerability.42 The states are in a ‘special position’ as a guarantor of the rights of persons under their custody. This is the result of the special situation of submission of them with respect to the state that is entitled to regulate the rights and obligations of a population who cannot satisfy, by their own means, the basic needs essential for the development of a dignified life.43 Individuals deprived of liberty are a vulnerable group, as they have been removed from their usual environment and are no longer permitted to manage their own lives. Furthermore, the vulnerability of a person deprived of liberty can be amplified by factors such as sex, age, and sexual orientation. These groups generally ‘encounter serious and specific social and legal obstacles that impede them both from achieving and possessing a set of rights and from enjoying them in the same breadth and depth like citizens who do not form part of that group’.44

From a practical point of view, studies show a systematic violation of rights of persons deprived of liberty in various countries of the region.45 This situation reflects a broader image of persistent democratic deficits in the respective domestic orders – considering that a truly democratic regime is defined by its formal and substantial dimensions that propose the protection of human rights as an infrangible limitation on the principle of majority rule.46 As a reaction, the Inter-American human rights system has focused its efforts on the promotion and consolidation of human rights standards, with the aim of ensuring that all persons deprived of their liberty enjoy the conditions necessary to preserve their human dignity.47

4 Nicaragua, a country where the rule of law is under attack and human rights are at risk

The rule of law is a universal principle that serves as a precondition for the defence of human rights and for ensuring equal treatment before the law.48 It has become a ‘global ideal and aspiration’.49 In the Americas, the key elements of the rule of law and its interconnection with democracy, human rights, and political rights are enshrined in the ‘Inter-American Democratic Charter’, which states in its article 3: 50

‘[E]ssential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.’

In this regard, the IACHR has reiterated that in a democratic society, the rule of law and human rights are inextricably linked.

Although statements and documents at the inter-American regional level reaffirm the importance of the rule of law and its close connection with democracy and human rights, it is a matter of concern that in some Latin American countries there has been a persistent tendency towards the emergence of dictators and/or authoritarian presidents. These regimes have been characterised by the complicity of the judiciary and parliament in attacks on the rule of law and human rights.51

This is particularly evident in Nicaragua. In its report entitled ‘Concentration of Power and the Undermining of the Rule of Law’, the IACHR warned that Nicaragua was undergoing a gradual process of concentration of power and deterioration of democratic institutions, with electoral processes, for example, failing to meet the minimum standards for free and fair elections.52

The Commission has stated that while killings perpetrated by state authorities represent the most serious form of violation of human rights and the rule of law, they are by no means the only one in Nicaragua. Other violations include deprivation of liberty, attacks, disappearances, physical, psychological and sexual violence, stigmatisation, smear campaigns, criminalisation, individual and collective threats.53 These actions affect not only directly the victims, but also their relatives. From a legal perspective, these actions can be seen as violations of their right to life (art 4 ACHR), physical and mental integrity (art 5 ACHR), sexual and health rights (art 26 ACHR, art 10 Protocol of San Salvador),54 personal liberty (art 7 ACHR), freedom of assembly (art 15 ACHR) and freedom of expression (art 13 ACHR) to name just a few.

With regard to detained individuals, a number of international human rights bodies have expressed concern about their arbitrary detention. It has been stated that the continued lack of independence of the judicial system has facilitated the use of criminal law to criminalise and persecute dissenting voices through hundreds of proceedings on unfounded and disproportionate charges, as well as serious violations of the right to a fair trial.55

The IACHR has expressed that the judicial proceedings lacked judicial guarantees. Furthermore, it has highlighted the lack of official information regarding the whereabouts of the detained persons and their legal situation. In particular, in June 2021, the IACHR and the Regional Office of the UN High Commissioner for Human Rights for Central America and Dominican Republic (OHCHR) condemned the criminal prosecution of Nicaraguan opposition leaders and urged the State to release all the persons detained in the context of the crisis.56

In August 2021, the European Union (EU) imposed targeted sanctions on eight Nicaraguans accused of ‘serious human rights violations’ and undermining democracy, including Vice-President Rosario Murillo.57 The sanctions include freezing assets, forbidding EU citizens and companies from making funds available to the people listed, and a travel ban that prevents them from entering the EU. Fourteen Nicaraguans have been sanctioned by the EU since 2020.58

In September 2021, the Commission and the OHCHR issued a joint statement condemning the criminalisation of individuals identified as political opponents in Nicaragua.59 In August 2023, the IACHR and the Office of the UN High Commissioner for Human Rights for Central America and the English-speaking Caribbean (OHCHR) condemned the continued violations of human rights in detention centres. They referred to the lack of access to medical care and essential medicines, the isolated detention system, and the limitation of family visits.60 The Commission noted the persistence of arbitrary detentions and deprivation of liberty for political reasons to repress opposition and criticism of the government. This was designed to convey a sense of intimidation and control to the population.61

Furthermore, in 2023 the UN Deputy High Commissioner for Human Rights, Nada Al-Nashif, addressed the UN Human Rights Council and provided an oral update on the human rights situation in Nicaragua. She expressed regret that restrictions on civil space continued, with repeated cases of arbitrary detention of those exercising their fundamental freedoms. It was mentioned that ‘(…) 17 women and 54 men, including political opponents and human rights defenders, remain arbitrarily detained according to civil society sources. Some criminal trials are reportedly held without the physical presence of the accused, who participate only via video call, and without legal assistance. Our Office has documented reports of torture in detention, as well as information about threats against prisoners and their relatives cautioning them not to denounce conditions of detention (…)’.62

The IACHR has called on the Nicaraguan government to respect and protect human rights and to investigate human rights violations. The IACHR has expressed concern that the persistence of repression and the widespread situation of impunity63 for human rights violations committed in Nicaragua has led to a serious political, social, economic, and human rights crisis.64 The persistence of human rights violations in a context of a breakdown in the principle of the separation of powers is a matter of concern.65 The context in Nicaragua is unquestionably one of a crisis of the rule of law.

5 Precautionary measures versus types of danger faced by persons deprived of their liberty in Nicaragua

As previously mentioned, the IACHR adopts precautionary measures to safeguard individuals in serious and urgent situations to prevent them from suffering irreparable harm. Any person or organisation can submit a request for precautionary measures in favour of an identified or identifiable person or group of persons who find themselves in a situation of risk, such as persons deprived of liberty in appalling conditions.

Several precautionary measures have been granted with regard to Nicaragua. Our research shows that between 2010 and 2024,66 the IACHR adopted 132 precautionary measures to protect persons at risk. The high number of precautionary measures granted is directly linked to the repressive regime that began in 2018. Indeed, there exists a notable fluctuation in the number of such measures granted before and after the year 2018, and this can be attributed to the existing political climate. Specifically, between 2010 and 2017, the Commission granted a total of 4 precautionary measures, none of which pertained to individuals who were deprived of their liberty.67 In stark contrast, from 2018 to June 2024, the Commission granted a total of 128 precautionary measures,68 and of those, 47 were issued regarding individuals deprived of their liberty (36.7 per cent of total number of precautionary measures).

Our findings indicate that a total of 157 persons deprived of their liberty have received protection through precautionary measures. This data set comprises 96 men (67 per cent), 44 women (28 per cent),69 1 transgender woman (0.7 per cent), 5 anonymous individuals (3.8 per cent), and 20 families of people at risk (15 per cent).70 The IACHR played a crucial role in safeguarding the at-risk individuals and protecting their rights to life,71 personal integrity,72 and health.73

The analysis of the precautionary measures adopted in Nicaragua reveals that individuals who have been deprived of their liberty face three types of danger. Most of them experience a combination of all three at the same time:

Context 1: ‘legal actions by the justice system’:74

Those who challenge the status quo and express dissent towards governmental policies are subjected to investigation and criminalisation by the justice system in collaboration with other national authorities. The criminal proceedings to which they are subjected do not adhere to international human rights standards. Criminal law is used as a tool for control and repression. Those who seek protective measures allege that they have been accused and/or punished for a range of criminal activities, including terrorism, conspiracy,75 drug trafficking,76 illegal weapon possession,77 and common crimes. They also claim that they have been subjected to prosecution for activities that are perceived to be contrary to peace.78

For example, with regard to the protective measures taken to safeguard Mr Medardo Mairena Sequeira and Mr Pedro Mena, the two beneficiaries had been held incommunicado for a period exceeding 60 days, and their relatives had not been officially informed of their whereabouts. After their arrest, they had repeatedly complained of irregularities in the criminal proceedings. Yet, a domestic court found them guilty of terrorism and sentenced each to 216 years of imprisonment.79 It is also worth noting that the beneficiaries were deprived of their liberty after Mr Mairena formalised his decision to run for the Nicaraguan presidency.80 The Commission requested Nicaragua to ensure that Mr Medardo Mairena could access his legal representative in accordance with relevant standards.81 Additionally, the IACHR requested that Nicaragua immediately examine the possibility of providing alternatives to deprivation of liberty and report on any actions taken to investigate the alleged events that led to the adoption of these precautionary measures in order to prevent the recurrence of human rights violations in the future.82

In general individuals claim that they have been detained, processed and/or punished without a due process, and/or without access to a lawyer.83 The aforementioned cases serve to illustrate the lack of judicial independence.

Context 2: ‘deplorable prison conditions’:

In general, the Nicaraguan prison system does not guarantee the most basic of needs to those who are deprived of their liberty. The conditions are often even worse for those who criticise the government and are arbitrarily detained, such as political opponents, human rights defenders and journalists. For instance, they are not granted rights that other inmates enjoy like receiving visitors and having access to reading material. They are denied access to drinking water,84 are provided with insufficient and low-quality food, and they do not get mattresses.85

Persons deprived of their liberty endure various forms of inhumane treatment; 86 some are subjected to overcrowded conditions,87 while others experience solitary confinement.88 In particular, women inmates have reported a lack of access to hygienic products and trans women have not received hormone treatment.89

It has been claimed that the case of JNSR involved a ‘prolonged deprivation of liberty under even more deplorable and unsanitary conditions, persistent acts of mistreatment, isolation, incommunicado detention, constant interrogations, the lack of adequate and sufficient food, as well as the lack of access to timely, adequate, and specialized medical care’.90 It was reported that the beneficiary suffered from a number of health problems, including rhinitis, headaches, and joint pain in the knees. In this context, the family members were unaware of the beneficiary’s health status, whether he had access to medical care, or his personal medications.91

Context 3: ‘the right to health at risk’:

The IACHR has granted precautionary measures to persons deprived of their liberty who are ill and do not have access to medicines or medical treatment.92 In these cases, the complainants usually allege that the detainees are seriously ill and that there is a high probability of serious consequences for their right to life, personal integrity and health. This includes the elderly too.93 It has also been alleged that state authorities prevent detainees from receiving medication from their relatives.94

It should be noted that a number of the beneficiaries are over the age of 60 years and have specific needs related to their age. This situation was described in the precautionary measure adopted to protect Mr Oscar Vargas Escobar, a 76-year-old man with health problems, the co-founder of the Sandinista National Liberation Front (FSLN), and a political dissident and critic of the Nicaraguan government.95 He was particularly vulnerable due to his advanced age and pre-existing health conditions, including chronic heart disease, hypertension, and glaucoma. Mr Vargas allegedly lost 10 pounds in prison and showed signs of pain and difficulty getting up. A hernia was identified between the 4th and 5th lumbar vertebrae. It was alleged that he slept on a very thin mat over cement and without a blanket to shield him from the cold. Even though his relatives had brought him a sleeping blanket, the prison officers informed them that the detainee was not permitted to receive it. In addition, Mr Vargas was allocated to a cell with a sealed door and was not allowed to see anyone. 96

The existence of precautionary measures is a reliable indication that the situation is serious.97 These measures are only adopted by the IACHR when there is a serious and urgent situation that may lead to irreparable damage to the at-risk person’s rights.98

6 Precautionary measures concerning persons deprived of their liberty in Nicaragua: from non-compliance to high impact

So far, this contribution has shown that, within the current socio-political landscape in Nicaragua, the IACHR has issued precautionary measures to protect detainees in a high-risk context characterised by a crisis of the rule of law, human rights violations and terrible prison conditions. The purpose of this article, however, is to examine the impact (beyond compliance) of precautionary measures issued by the IACHR on the protection of persons deprived of their liberty in Nicaragua.

6.1 Addressing the key concepts of ‘compliance’ and ‘impact’

To assess the degree of compliance and impact of the precautionary measures, it is necessary to begin by clarifying what is meant by ‘compliance’ and ‘impact’ in this article. In previous research, we had stated that the compliance of a precautionary measure is not the same as its impact.99 Compliance is related to the action or actions that the state concerned takes to obey the order given by the IACHR. For example, actions related to compliance could include the hiring of additional prison staff, the construction of a new prison, the transfer of sick detainees to a specialized hospital, or writing responses to the resolutions of precautionary measures.

The impact of UMs can be understood as the effects generated by the requests formulated in the adopted measures. These effects may be examined across three distinct dimensions: (a) the impact on the direct beneficiaries (direct impact); (b) the impact beyond the beneficiaries (indirect impact), which may include relatives of the beneficiaries, residents of their communities, other persons deprived of liberty, prison staff, and actors at the national, regional, and international levels; and (c) the impact in terms of producing shifts in attitudes, ideas, ideologies, or frameworks of interpretation (symbolic impact). This last dimension may be further divided into direct symbolic impact and indirect symbolic impact. The impact of the precautionary measures could be the recovery of ill prisoners who have received adequate medical treatment (direct), the decrease of the rate of overcrowding in the prison, or the decrease of the rate of violence between the detainees (indirect), or when the precautionary measure alters the public perception of detainees (symbolic).

It is not always the case that compliance generates a positive impact. A measure may be implemented (complied with), but it may not achieve the desired effects. For instance, the state hires additional prison officials to control violence inside the prison, but they are not trained according to human rights standards. In fact, the new staff aims to control violence with more violence. To assess the symbolic impact that precautionary measures may have, it is necessary to examine the success of the precautionary measures in terms of broader goals of advancing recognition and protection of rights. It is pertinent to assess the extent to which precautionary measures have served as an effective instrument for ensuring social justice (positive symbolic impact).

It is regrettable that the adoption of precautionary measures can also provoke unfavourable reactions by states, which can have a negative indirect impact on society. For example, this can occur when a state, in response to a request from the precautionary measures, decides to denounce the American Convention on Human Rights or argues that precautionary measures lack binding force. Therefore, in some instances the compliance (implementation) of precautionary measures is not carried out in practice, which could have a negative impact on the issue for other potential beneficiaries (negative indirect impact).100 Consequently, the impact of precautionary measures has a certain connection with compliance. However, the impact is not necessarily caused by compliance. The lack of compliance may also have an impact, which can result in effects (impact) on the beneficiary and/or on society.

To some extent, the positive or negative evaluation of a precautionary measure will depend on the expectations of the evaluator. If the expectations of the specific precautionary measures are low, the evaluation of compliance and impact will probably tend to be positive. If the expectations are very high, the evaluation is likely to be negative. For this reason, and in order to try to be objective in the analysis of compliance and impact, it is necessary to know what the situation of danger was, what the measure requested by the IACHR was, what exactly the state did, and to what extent the situation of the beneficiary changed after the measure was adopted.

It is also relevant to consider whether other external factors have had an impact on the outcome. For instance, it would be beneficial to analyse the influence of the media or social activism in certain contexts.

6.2 Nicaragua: a very low and inexistent level of compliance

Following the adoption of the precautionary measures by the IACHR, Nicaragua has responded in a number of ways. From a stricto sensu perspective, Nicaragua has consistently failed to comply with the precautionary measures. The state has even claimed that the beneficiaries of the precautionary measures are criminals, that their right to a fair trial has been respected, that they are in good health, and that the prisons have been properly staffed. In practice, those who benefit from the precautionary measures in Nicaragua continue to be held in deplorable conditions, with serious violations of their fair trial rights.

The responses provided by Nicaragua can be categorised into four distinct groups, with some occurring simultaneously:

• No response: On some occasions Nicaragua did not respond at all.
• Precautionary measures protect criminals and/or (the IACHR) violate(s) the principle of sovereignty: on some occasions, Nicaragua has stated that the IACHR violates its sovereignty and that the precautionary measures are used to protect criminals.
• The USA is behind precautionary measures: Nicaragua has also stated that ‘the IACHR is subject to the interventionist policy of the United States of America, whose purpose is to use this human rights body to violate the institutionality and sovereignty of the State of Nicaragua’.101
• The situation of danger does not exist: Nicaragua has denied the existence of a situation of extreme gravity and urgency. On this point it is necessary to provide further explanation.

It is imperative to acknowledge that the level of compliance is exceedingly low, if not entirely absent, specifically with regard to:

Context 1: ‘legal actions by the justice system’:

Nicaragua has argued that the beneficiaries will be or have been prosecuted in accordance with national law, following constitutional principles and guarantees and respecting human rights.102 Nicaragua has emphasised that the IACHR, by issuing precautionary measures, is contravening internal processes and allowing persons considered criminals by the Nicaraguan justice system to evade the actions of the national authorities.103 Those who benefit from precautionary measures are engaged in criminal activities that undermine the peace, security, and human rights of the Nicaraguan people.104

Context 2: ‘deplorable prison conditions’:

In response to the allegations of inadequate prison conditions, the state has asserted that the beneficiaries ‘are provided with cells that are ventilated and illuminated, as well as with eating utensils, beds, mattresses, access to television, books and magazines, and toilets with individualised separation for privacy, showers, laundry and drinking water, among others’.105

Context 3: ‘right to health at risk’:

In relation to the right to health, it can be observed that Nicaragua has affirmed that the necessary medical attention has been made available to the beneficiaries. 106

In essence, Nicaragua has argued that the risk situation does not exist and that, as a result, the precautionary measures should not have been adopted or should not be maintained. Therefore, compliance with the precautionary measures has been inexistent.107

7 Analysing the impact of precautionary measures in Nicaragua

It was mentioned that the impact is related to the effects of the precautionary measure on the beneficiaries (direct impact) and on society at large (indirect impact). The impact of the precautionary measures could be observed in diverse ways, for instance, in a reduction in the rate of overcrowding in the prison; a reduction in the rate of violence between detainees; or the recovery of ill prisoners who have received adequate medical treatment.

In previous studies conducted in 2019 and 2024, we discussed the impact of precautionary measures on individuals deprived of liberty.108 It was acknowledged that the issues within prisons have a multiplicity of effects, extending beyond those directly affected by the application of precautionary measures. This recognition highlighted the potential for precautionary measures to have an impact on a wider range of individuals than those to whom they are applied directly. Consequently, it is necessary to conduct an impact analysis at various levels. In addition to considering the impact of precautionary measures at the micro-level (beneficiaries), we also examined the meso-level (staff and visitors). This article elaborates further on these two levels, and also includes an analysis of the macro-level (states, institutions and international human rights bodies).109

7.1 Levels of analysis

This methodology incorporates the aforementioned perspectives to provide a more comprehensive assessment of the impact of precautionary measures. It proposes three levels of analysis: the micro-level, the meso-level and the macro-level. This implies that the various types of impact may manifest themselves differently at the different levels of analysis.

• Micro-level: the micro-level refers to the beneficiaries of the precautionary measures, which in this instance are individuals deprived of their liberty. To identify the impact of precautionary measures on the beneficiaries, it is essential to include their experiences. It would be ideally desirable to include their voices when conducting research with this population, in accordance with ethical considerations.
• Meso-level: The meso-level refers to the environment of a person deprived of liberty, including their family, their friends, other people in their neighbourhood, and other people incarcerated with them. In addition, the meso-level refers to prison staff, any other people in the prison that might be affected by implementing precautionary measures, and social movements working with the rights of detainees. As mentioned in the introduction, incarceration can have consequences for the environment of the detainee in various ways.
• Macro-level: The macro-level refers to all forms of impact that can be observed at the global, regional, and national (institutional) level. It thereby refers to all effects following the precautionary measures in international and national initiatives, such as changes in international and regional human rights bodies, and national institutions. Moreover, it refers to wider public discourse, and how international and national media portray deprivation of liberty following the precautionary measure.

  7.2 Nicaragua: Analysis of impact at micro-level (beneficiaries)

  7.2.1 Direct impact: Low (prison conditions/fair trial)

The low level of compliance has had a direct effect on the low level of direct impact. Beneficiaries of precautionary measures in Nicaragua continue to be held in deplorable conditions, with serious violations of their rights to a fair trial, life, personal integrity and health. Beneficiaries who are ill have not received medical attention, and the state authorities have not even allowed their relatives to provide them the care that those in prison need.110

7.2.2 Symbolic direct impact: Positive and high (beneficiaries’ voices)

From the perspective of those deprived of their liberty (and their relatives) in Nicaragua, we must acknowledge that the IACHR has listened to their demands, voices and concerns.

The IACHR has reacted quickly to the Nicaraguan situation and has carried out several activities with the aim to protect the human rights of persons deprived of liberty, many of them detained without due process and kept in appalling conditions. The Commission has held public hearings,111 organised country visits,112 issued press releases113
and reports,114 received petitions,115 sent diplomatic notes,116 requested provisional measures,117 and decided precautionary measures.118 For instance, during the period of April 2018 and June 2024, the IACHR organised a total of 20 public hearings related to Nicaragua. Eight of these public hearings concerned persons deprived of their liberty.

7.3 Nicaragua: Analysis of impact at meso-level (other prisoners/relatives/prison staff/civil society)

7.3.1 Indirect impact: Low (other prisoners)

Other prisoners: Conditions of detention in which precautionary measures were adopted remain deplorable. The IACHR continues receiving and adopting precautionary measures to request respect for the fair trial, to request medical care for ill detainees, and to collectively protect prisoners who are in detention facilities with structural problems such as overcrowding, violence, and illness. It seems that the adoption of precautionary measures has not had an effect beyond the beneficiaries of precautionary measures.119

7.3.2 Indirect impact: Negative (other actors)

Journalists, human rights defenders, and political opponents have advocated for human rights and informed the public at large when human rights abuses have occurred and if political prisoners have been adopted. The work of these individuals has brought attention to the critical situation in Nicaragua and those deprived of their liberty.120 However, this has also had a negative impact, as they have been detained or they have to go into exile.

7.3.3 Symbolic impact: Positive and high (plurality of voices among various actors)

From the perspective of other actors, beyond those deprived of their liberty, it is also evident that the IACHR has also listened to their demands, voices and concerns. As previously stated, the IACHR has engaged in a number of initiatives with the objective of safeguarding the human rights of individuals deprived of liberty and disseminating information about the situation in Nicaragua to the international community. The Commission has conducted public hearings, organised country visits, issued press releases and reports, received petitions, sent diplomatic notes, requested provisional measures, and decided precautionary measures. During its working visits to Nicaragua, the IACHR gathered field data and received significant contributions from civil society.

Between April 2018 and December 2018, the IACHR conducted three working visits to Nicaragua. During these visits, the Commission conducted site visits to various cities, including state institutions, health centres, hospitals, the Institute of Forensic Medicine, and detention centres. The Commission gathered empirical data from the field and received substantial input from civil society.

The Commission has facilitated dialogue between a range of actors, including with the Nicaraguan authorities, through these activities and the adoption and follow-up of precautionary measures. The IACHR’s various activities have been highly valued by detainees’ relatives and civil society, and in some cases have empowered them to continue to raise their voices at the national and international levels.

7.4 Nicaragua: analysis of impact at macro-level (national and international level)

7.4.1 Indirect impact: Negative

The precautionary measures and the other activities carried out by the IACHR have implied from certain perspectives a negative impact. More specifically, we have seen that Nicaragua has decided to denounce the OAS Charter in 2019. This means that – to a certain extent – the OAS will not be able to monitor the situation in Nicaragua.

7.4.2 Symbolic indirect impact:Low

Prisoners remain a stigmatised group by the authorities and are to some extent neglected by them. The authorities continue to use the penal code to silence and punish the opposition and anyone who disagrees with the state apparatus. The state has no incentive to promote structural changes that could improve conditions for prisoners.

7.4.3 Indirect impact: Positive/high (other international human rights bodies)

One of the key factors contributing to the high symbolic impact of the precautionary measures issued by the IACHR is the fact that the situation of detainees has prompted the attention of other international human rights monitoring bodies. These international human rights bodies have expressed concern about the arbitrary detention of individuals, the continued lack of independence of the judiciary, which has facilitated the use of criminal law to criminalise and prosecute dissent through hundreds of proceedings on unfounded and disproportionate charges, as well as serious violations of the right to a fair trial.121

In particular, the Regional Office of the UN High Commissioner for Human Rights for Central America and the Dominican Republic (OHCHR), the Office of the UN High Commissioner for Human Rights for Central America and the English-speaking Caribbean (OHCHR) and Ms Nada Al-Nashif, the UN Deputy High Commissioner for Human Rights, have all issued statements, expressed concern and provided updates on the human rights situation in Nicaragua.122

It is important to note that while the IACHR has adopted precautionary measures, it has also used its other functions to disseminate information about the critical situation of prisoners and the general critical situation in Nicaragua. This has been achieved through the publication of thematic and country reports, press releases and visits by the Rapporteur on persons deprived of their liberty, among others. This indirect impact explains why other international human rights bodies have expressed their concern about the situation of persons deprived of their liberty in Nicaragua and have called on Nicaragua to respect human rights.

8 Some conclusions

Over the years, Nicaragua has experienced a repressive political climate, with the authorities often using the criminal law to silence individuals who voice their opposition. This situation illustrates the lack of respect for international human rights standards and the attack on the rule of law.

The adoption of precautionary measures by the IACHR in relation to persons deprived of liberty in Nicaragua perfectly illustrates the structural problems of the Nicaraguan prison system since 2018. In a few words, people detained without a fair trial, prisoners who are ill and do not have access to medical care, relatives who do not have any information about their relatives arbitrarily detained, lack of food, torture: this is the context in which the precautionary measures are being adopted in Nicaragua.

In the current political climate in Nicaragua, individuals who have been deprived of their liberty have found that the IACHR plays a crucial role. As an international human rights organ, the IACHR has responded quickly to their demands and needs. It has granted precautionary measures, organised public hearings, published reports and requested provisional measures, among others.

The IACHR provides protection for prisoners at risk through precautionary measures, while also condemning human rights violations. It does this by gathering information, informing and raising awareness within the international community, highlighting the context of human rights violations, and exerting international pressure.

This article has argued that, although the compliance rate with precautionary measures remains low, their direct, indirect, and symbolic impacts – particularly at certain levels – are nonetheless significant. The IACHR, through its precautionary measures, plays an important role in listening to persons deprived of their liberty, their relatives and other actors, and in demanding that Nicaragua respect, protect and guarantee the human rights of persons in detention.

In the long term, the adoption of precautionary measures and other actions taken by the IACHR will likely have a significant impact on the pursuit of justice and reparation in future transitional justice processes relying on the right to memory and truth.

Although this article primarily focuses on the Americas, the issues it addresses are also relevant to Africa. Engaging in comparative reflection on human rights challenges can reveal shared patterns of vulnerability and encourage the development of innovative strategies for human rights protection. This relevance stems not only from the presence of repressive regimes in certain African countries but also from the fact that African human rights bodies, specifically, the African Commission, the African Court, and the African Children’s Committee, are empowered to adopt provisional measures to safeguard individuals at risk, such as persons deprived of liberty. These bodies have, in fact, issued such measures to protect their most basic human rights. Considering the American context thus provides a valuable opportunity for dialogue and exchange between scholars and practitioners across regions, promoting mutual learning and contributing to the formulation of more effective approaches to human rights protection throughout the Global South.