Questions and Answers on the decision of the Prosecutor of the International Criminal Court to close the Preliminary Examination in Honduras

Press release
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The Office of the Prosecutor (OTP) of the International Criminal Court, after having received numerous reports on the grave human rights situation in Honduras following the 28 June 2009 military coup d’etat, publicly opened a preliminary examination on 18 November 2010.

FIDH, alongside other NGOs, submitted two communications to the OTP in 2009 and 2012 under Article 15 of the Rome Statute, alleging that crimes against humanity had been committed in Honduras since 2009. Such crimes include political persecution, killings, enforced disappearances, sexual and gender-based crimes and forcible displacement.

The preliminary examination of the situation in Honduras primarily focused on events that occurred during and after the coup d’etat of 28 June 2009 and in the Bajo Aguan region.

On 27 October 2015, Fatou Bensouda, the Prosecutor of the ICC, announced she would be closing the preliminary examination, as the crimes committed in Honduras did not meet the legal criteria necessary for them to be classified as crimes against humanity.

This Q & A addresses what this decision means for victims of the violence surrounding the 2009 coup, and the worsening state of affairs in its aftermath.

FIDH insists that though the ICC Prosecutor has decided that a full investigation in Honduras is not within her jurisdiction at this point, this in no way indicates that serious crimes have not been committed, and does not exonerate the perpetrators of any crimes.

On the contrary, serious human rights violations have undoubtedly been committed by the Honduran government and security forces, and rampant impunity for such crimes continues to be a major factor in the ongoing turmoil within Honduran society.

1. What is a preliminary examination?

A preliminary examination is the first step the Office of the Prosecutor of the International Criminal Court takes to consider whether or not a situation falls within its jurisdiction and if an investigation should be opened. The ICC can only investigate and prosecute genocide, crimes against humanity and war crimes. The ICC cannot investigate crimes or human rights violations that do not amount to genocide, crimes against humanity or war crimes, no matter how grave and serious these violations may be. This does not mean that the perpetrators of these crimes should not be held accountable—it simply means that the ICC does not have jurisdiction.

During the preliminary examination, the OTP receives information from States, intergovernmental organisations such as the UN, NGOs and human rights organisations, and other credible actors regarding crimes which may have been committed in a particular situation. The OTP team analyses the information it receives to determine whether the alleged crimes likely reach the threshold of the Court’s jurisdiction. However, the OTP cannot conduct a full and thorough investigation into the facts during a preliminary examination.

On 18 November 2010, the ICC OTP decided to open a preliminary examination on the situation in Honduras in order to evaluate “whether the alleged crimes committed in Honduras in the aftermath of the coup d’état of 28 June 2009 could amount to crimes against humanity.” It has received 31 communications and conducted three visits to Honduras, in 2009, 2011 and 2014.

FIDH, together with other NGOs, submitted two communications to support the opening of an investigation by the ICC.  [1]

2. What was the focus of the preliminary examination in Honduras?

The preliminary examination in Honduras focused on three major situations: the 2009 coup, post-electoral violence and repression beginning in 2010, and the violence in the Bajo Aguan region.

The 2009 Coup
The Prosecutor confirmed that a coup d’etat occurred in Honduras on 28 June 2009. She also clearly stated that many demonstrations opposing the coup d’etat were “met with resistance and violence by state security forces.” [2] Further, “the June 2009 coup in Honduras was accompanied by serious human rights violations directly attributable to authorities in the de facto regime.” [3]

Many investigative reports undertaken in the aftermath of the coup conclude that grave violations of human rights were committed by the government and security forces during the de facto government’s rule. [4] Particularly, reports documented numerous extrajudicial killings, political persecution, arbitrary and illegal detention, torture and rape and other sexual and gender based crimes. These crimes were directed at political opponents (particularly members of the FNRG), lawyers and journalists, and other vulnerable groups, including campesinos, indigenous people and racial minorities and members of the LGBTI community.

Post-electoral repression and violence
The human rights abuses did not stop once the new president, Porfirio Lobo, took office in 2010. In the words of the OTP, “After the 2009 coup, violence in Honduras has reportedly continued to increase significantly, owing partly to the armed forces’ involvement in matters related to citizen security and to the expansion of drug trafficking and criminal organisations.” [5]

Further, certain groups have allegedly been specifically targeted for persecution, including political dissidents, human rights defenders, members of the legal profession, journalists, teachers, union members, lesbian, gay, trans, bisexual and intersex (LGTBI) persons, indigenous groups and land rights activists. [6]

Bajo Aguán
Another area of focus has been on the violence in the Bajo Aguan region where land struggles continue between campesinos and large landowners (including the recently deceased prepared-food mogul Miguel Facusse) and their private security forces. The OTP recognised allegations in 2014 that up to 100 “members of campesino movements, members of their families and other individuals associated with their movement” had been murdered since the 2009 coup. [7] Other acts of violence against communities have also been committed, allegedly including beatings, torture, enforced disappearances and forcible displacement.

3. Why did the Prosecutor decide to close the Preliminary Examination in Honduras?

The OTP has stated that it found that a number of acts that could constitute crimes against humanity in Honduras were likely committed during the 2009 military coup. However, the OTP received limited information substantiating the existence of a widespread or systematic attack against a civilian population, which is one of the key criteria in classifying crimes as crimes against humanity, and therefore within the jurisdiction of the Court.

After the coup, incidents of killings, rapes, torture, illegal detentions and other crimes could not be proved to be committed “pursuant to or in furtherance of a State policy”.

In the words of the OTP, “While it appears that the de facto regime developed a plan to take over power and assert control over the country, the Office found that the design of this plan and the implementation of measures pursuant to this plan did not entail or amount to a policy to commit an “attack against the civilian population” . [8]

In the Bajo Aguán, the OTP did not have sufficient information to link individual attacks to the alleged overall ‘widespread or systematic attack.’ They were unable to attribute the alleged crimes to identifiable actors, and to a particular course of conduct. It must be reiterated that this lack of information does not mean that the crimes did not occur, but rather that there is no way for the OTP to proceed. [9]

4. Does this mean that crimes were not committed in the aftermath of the coup in Honduras?

No. Closing a preliminary examination does not in any way mean that crimes were not committed. To the contrary, the Prosecutor specifically stated that “There appears to be little doubt that abuses were committed on 28 June 2009 and in its aftermath, and that these were directly attributable to authorities of the regime which had seized power in the coup.” [10]

The Prosecutor also indicated that, “"By no means does this decision minimise the crimes committed in Honduras or their impact on the victims.”  [11]

Few complaints filed to the ICC makes it to the preliminary examination stage, and the fact that the ICC publicly acknowledged the situation of serious impunity in Honduras illustrates the gravity of the situation.

5. Does this mean that those suspected of having committed crimes are innocent?

Those suspected of committing crimes have not been found innocent. Until an actual trial is held, accused persons cannot be judged guilty or not guilty. People accused of crimes have not been “wiped clean” or acquitted by the decision of the ICC not to open a further investigation. This does not mean that the perpetrators of these crimes should not be held accountable—it simply means that the ICC does not have jurisdiction.

In fact, in its 2014 report, the OTP stated clearly: “The June 2009 coup in Honduras was accompanied by serious human rights violations directly attributable to authorities in the de facto regime.”

6. Is it still possible for suspected perpetrators to face justice?

International human rights law requires that these violations be investigated and tried. This is the fundamental responsibility of the Honduran justice system.

Additionally, some crimes, such as torture and enforced disappearances, may also be tried by other countries through the principle of universal jurisdiction.

As a signatory of the Interamerican Convention on Human Rights, Honduras has the obligation to investigate and prosecute those responsible for these crimes. If the government does not take the required actions to prevent and punish these crimes, the State itself may be held liable by the Inter-American Court of Human Rights (IACHR).

The Inter-American Commission on Human Rights has heard or made statements on multiple cases of abuses committed during and after the 2009 coup d’etat, including the case of former president Manuel Zelaya and the case of judges who were unjustly removed from office in the coup’s aftermath. Further, the Commission published multiple reports on human rights violations committed in the context of the coup and its aftermath. [12]

7. Can the Prosecutor re-open a Preliminary Examination?

Yes. The Prosecutor has made it clear that she will not hesitate to re-open a preliminary examination if her office receives additional, compelling information and new facts that could change her prior analysis. This has happened before, as in the case of potential crimes committed by UK soldiers in Iraq, for example. The preliminary examination into their actions was initially closed in 2006 but reopened in 2014 following the submission of new information by an NGO on the widespread and systematic nature of abuses against detainees. [13]

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