In January Peru’s former president Alberto Fujimori lost an appeal against his conviction for human rights crimes. The Peruvian Supreme Court found him guilty in April 2009 of creating and operating a secret death squad that kidnapped and murdered several Peruvians during the country’s internal armed conflict.
“Fujimori is a fully convicted criminal, and this was his final appeal,” said Ronald Gamarra, a lawyer representing the plaintiffs, at a press conference the day the Supreme Court announced its decision. The ratification of the guilty verdict and the former president’s 25-year prison sentence was “categorical and definitive,” Gamarra said, and any effort to reverse the verdict “would be the last gasp of a drowning man.”
Fujimori’s human rights trial, which began in December 2007, centered on four notorious cases. Two of these—the Barrios Altos massacre of 1991, in which 15 people were killed and four gravely wounded, and the disappearance and killing of nine students and a professor from the Cantuta University in 1992—were the work of the Colina Group death squad. The other two cases involved the kidnapping of journalist Gustavo Gorriti and businessman Samuel Dyer, which took place in the aftermath of Fujimori’s so-called self-coup in April 1992, when he dissolved the Peruvian Congress, took over the judiciary, and suspended the Constitution with the backing of the armed forces and powerful conservative elites.
During the trial, Fujimori repeatedly denied having known of any wrongdoing, referring to the massacres as “a handful of isolated and lamentable episodes.” The judges disagreed. There was compelling evidence, they concluded, that Fujimori was responsible for putting the Colina Group into motion. The court sentenced him to 25 years in prison and ordered him to pay thousands of dollars in reparations to survivors and victims’ relatives.
A milestone in the struggle against impunity in Peru, Fujimori’s conviction represents the first time that a democratically elected head of state in Latin America has been found guilty of crimes against humanity. It is also the first time that a former president has been extradited to his home country to face human rights charges. Most of the credit for this goes to Peru’s vibrant human rights community, which fought tirelessly to confront impunity, end the Fujimori dictatorship, and establish the country’s Truth and Reconciliation Commission.
When Fujimori fled to Japan in November 2000, Peruvian rights advocates followed him there, trying unsuccessfully to persuade the Japanese government to extradite him. In November 2005, when Fujimori left Japan for Chile—presumably to launch his political comeback—they again mobilized. Two years later, the Chilean Supreme Court ruled to extradite Fujimori, setting a major precedent.
After 16 months of judicial proceedings, a special tribunal of Supreme Court justices found Fujimori guilty of autoría mediata for the crimes of aggravated homicide, assault, and kidnapping. In Peruvian law autoría mediata is attributed to those who have the power to create and direct an organized “power apparatus,” and order those who participate in it to commit crimes—in this case, human rights violations. (Ironically, Shining Path leader Abimael Guzmán was convicted using the same concept.)
The verdict outlines the institutional framework in which Fujimori redefined the national counter-insurgency strategy in combating the brutal Shining Path insurgency (and to a lesser extent the Tupac Amaru Revolutionary Movement). A formal public strategy that claimed to respect human rights was put in place, together with a parallel, clandestine strategy designed to violently eliminate suspected subversives.
At the center of the clandestine strategy was the National Intelligence Service (SIN), which Fujimori put in charge of overseeing all counter-insurgency operations. He granted control over SIN to his chief security adviser, Vladimiro Montesinos, and to Nicolás Hermoza Ríos, commander in chief of the armed forces. They in turn created the Colina Group, whose primary purpose was to kill “subversives.” Through his control over the army and the intelligence services, the court argued, Fujimori had direct responsibility for the Colina Group’s actions, including not only the Barrios Altos and Cantuta massacres, but several other murders as well.
The trial was an exemplary process, setting a new standard for the Peruvian courts and clearly meeting international standards for fairness, independence, and impartiality. Fujimori’s due process rights were guaranteed, he was given ample opportunity to defend himself, and the trial was conducted in a transparent and open manner. The sentence itself was widely hailed as exceptionally thorough and analytically sound, which made it very difficult to overturn on appeal.
Fujimori is only the most famous of Peru’s convicted human rights abusers. Since 2001, when an Inter-American Court of Human Rights decision nullified the country’s 1995 amnesty law, opening up the possibility for criminal trials in human rights cases, there have been almost a dozen successful convictions, including eight with firm sentences and dozens of other cases in trial. Moreover, there now exists a series of state institutions dedicated primarily to investigating and prosecuting such cases. Although there is not massive organized public pressure for criminal prosecutions, there is broad public support for accountability in Peru.
But there are other signs that the country is slipping backward on a number of fronts in the ongoing struggle to achieve truth and justice. Fujimori remains very popular in some parts of Peru, especially areas hardest hit by Shining Path violence, and talk of a presidential pardon for him is ubiquitous. Beyond Fujimori, rights advocates worry that many political elites do not support continued trials and that efforts to establish new mechanisms of impunity may be under way behind closed doors.
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Many of the country’s human rights community worry that Fujimori could be pardoned either by President Alan García or by Fujimori’s daughter Keiko, a top contender in the 2011 presidential race, should she be elected. These fears were stoked in December, when García pardoned TV mogul José Enrique Crousillat, sentenced to eight years in prison for accepting $619 million from Montesinos, in exchange for editorial control over his TV station’s nightly news program.
Critics saw Crousillat’s pardon as a test run for a possible pardon for Fujimori. Meanwhile, notable figures have openly come out in favor of letting Fujimori off the hook. When Jaime Bayly, a popular TV personality, tossed his hat into the presidential campaign, he said his first order of business would be pardoning Fujimori, whom he described as a “poor old man” who had done many good things for Peru. Minister of Justice Aurelio Pastor, when asked the government’s position on pardoning Fujimori, did not dismiss the idea and said the government would evaluate a petition should it be presented.
Pastor failed to mention the significant legal impediments to such a move, as human rights lawyer Carlos Rivera noted. Peruvian law clearly states that anyone convicted of kidnapping cannot be pardoned, and normal reductions in time served for good conduct do not apply; Fujimori must serve at least three-quarters of his sentence. Moreover, international law clearly states that pardons or amnesties cannot be granted to those convicted of crimes against humanity. While Fujimori was convicted of crimes codified in Peruvian law, including aggravated kidnapping, homicide, and assault, the Supreme Court justices clearly noted in the verdict that according to international law, these constitute crimes against humanity. But in Peru, politics often trumps law. As one blogger ominously wrote, “Since when has fujimorismo respected the law?”
Rights advocates are concerned that the Fujimori verdict may, in the end, be one of only a handful of successfully prosecuted cases. Hundreds of other human rights cases are languishing in Peru’s judicial system, for various reasons. In some cases the lawyers for alleged perpetrators have successfully used technicalities to stall criminal proceedings; in others, trials cannot move forward because the armed forces refuse to disclose the identities of their officials, who often used pseudonyms while conducting counter-insurgency operations. Other cases remain stuck in the preliminary investigation stage at the Public Ministry—which could have as much to do with lack of resources and legitimate legal problems as with changing political winds.
Shortly after García’s inauguration in 2006, the government announced that it would provide legal defense to all state agents accused of human rights violations, even though many victims lack legal representation. Under García, the special system to investigate and prosecute human rights cases created in 2004 has seen the scope of cases under its mandate expand to include corruption and drug-trafficking cases, which threatens to dilute its effectiveness. Further suggesting that accountability is a low priority under the García administration, successive defense ministers have made generic accusations about the “persecution” of the armed forces and routinely attack human rights organizations in the press. Legislators have repeatedly tried to pass amnesty laws, most recently in 2008, when a leading congresswoman from García’s APRA party called for a general amnesty for military and police officials accused of human rights violations. The military justice system has continued to seek to try human rights cases, despite a 2005 ruling that this is unconstitutional.
Moreover, in a handful of recent rulings, military personnel accused of rights violations have been acquitted, some using questionable legal arguments. Public prosecutor Luz Ibáñez Carranza said there is growing pressure on the part of the military and the executive to bring an end to criminal trials of military personnel for human rights violations. “People need to understand that the public prosecutors and the judges [involved in these cases] are not persecuting members of the military or the police or their institutions,” she said in an interview in October. “What we do is prosecute crimes. That is our constitutional duty.”
The likelihood of political interference in the judicial process not only reflects the fact that political elites in Peru—including García himself—could potentially be put in the dock for human rights violations. It also reflects a recomposition of deeply conservative sectors of the armed forces and the political right in Peru. These sectors refuse to acknowledge any wrong-doing on the part of the military in Peru’s internal conflict and continue to perceive any attempt to hold members of the armed forces accountable as a belligerent act bordering on treason. They have fustigated recent efforts to create a “memory museum” as an insult to the military, and often attack Peru’s Truth and Reconciliation Commission, founded in 2001 to investigate atrocities committed during the internal conflict, as biased. They also accuse human rights organizations of advancing the agenda of “terrorists.”
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Peru’s continuing challenges in defending human rights are not unique. The Fujimori verdict comes at a time when judiciaries across Latin America are struggling to end decades-old impunity for those who committed atrocities in the region’s era of military dictatorships and internal conflict, and to secure justice, accountability, and rule of law.
In Chile, ongoing human rights trials have led to the conviction of more than 200 people, and hundreds more are being prosecuted or are under investigation. In Uruguay, lawyers, prosecutors, and judges are seeking creative ways to work around the amnesty codified in the country’s Expiratory Law, arguing, for example, that the law does not protect civilians or high-ranking military officers.
So, even though the law was upheld in a recent referendum, a handful of key cases have been prosecuted, with impressive results. Most notably, former dictator Juan María Bordaberry, retired army general Gregorio Álvarez (one of the key leaders of Uruguay’s military regime), and seven other military officials have been sentenced for various crimes, including human rights abuses.
And in Argentina, trials against more than 1,400 perpetrators of crimes against humanity are in process—with significant public backing. About 60 convictions have been handed down since the Supreme Court ruled the amnesty laws to be unconstitutional in 2005. While these trials often proceed painfully slowly and convictions are still too infrequent, they nonetheless constitute significant progress.
In this context, Fujimori’s conviction represents a major precedent in Peru and all of Latin America. Indeed, the Peruvian precedent—the prosecution and conviction of a former president for grave human rights crimes—is an achievement of global significance. But it can still be undone by politics.
Jo-Marie Burt is associate professor of political science at George Mason University and was an accredited observer to the Fujimori trial for the Washington Office on Latin America (WOLA). Coletta A. Youngers is an independent consultant and Senior Fellow at WOLA. Their reports on the Fujimori trial are available at cgs.gmu.edu/HRJDProject.htm.
