Peru vs Fujimori: justice in the time of reason

Gaby Oré Aguilar
10 July 2008

The trial of Peru’s former president Alberto Fujimori on charges of human-rights violations and corruption has received less attention than some other high-profile prosecutions of ex-rulers, warlords or mercenaries. This is a pity, for it is a fascinating event that highlights issues of truth, justice and accountability that relate both to the singular history of conflict in Peru during the years of Fujimori’s rule (1990-2000) and to the wider experience of judicial progress in Latin America.

The trial, which began on December 10 2007 and is scheduled to end in August 2008, takes place in a location specially set up for this purpose. To enter the courtroom where observers and relatives follow the day’s events is to be struck by the simple but impeccable flow of the proceedings.

Access to the courtroom is subject to security controls. A glass screen divides the hearing chamber into two. In the main area are the stand, the witnesses, lawyers, court reporter and secretaries. In the adjoining area are the relatives and supporters of the accused, international observers and relatives of the victims. The chamber is air-conditioned, there are security cameras, loudspeakers and a monitor where the faces of judges, witnesses, lawyers and the accused can be seen as they take the podium. The accused is seated facing the panel, with drinking-water and a pad for taking notes on a desk in front of him.

This would not be so extraordinary were it not for the stark contrast with the conditions of the trials in which thousands of innocent people accused of terrorism were deprived of their liberty under the Fujimori regime, in arbitrary proceedings flouting the most basic rules of due process, incommunicado detention, harsh restrictions on legal defence and unfair sentences issued by “faceless judges”.
Gaby Oré Aguilar is a human-rights advocate specialising in international human rights and comparative law. Since 1992 she has been engaged as a litigator, legal researcher, policy analyst and grant-making officer in human-rights advocacy and gender-justice issues in Latin America and the United States. She now works as an international consultant based in Madrid. She was an independent observer to three trial hearings in the Alberto Fujimori case in February 2008

Days of wrath, time of justice

In 1992, I witnessed a trial conducted in quite different conditions. It took place in the Picsi prison on the outskirts of the city of Chiclayo, where Segundo X, a 60-year-old peasant farmer from a mountain village in northeastern Peru, faced trial by these “faceless judges” on charges of collaboration with terrorism and treason. Like many others, he was a victim of both the subversive group and of the very system which was supposed to protect him. The anti-terrorist legislation of the time allowed for civilians to be tried by civil and military courts made up of “faceless judges” for crimes of terrorism and treason in the prisons or detention places.

The trial was held in a packed, stifling room a few metres square, with a hole high up in the wall serving as the only window. The anti-terrorist laws had restricted the right to legal defence of those accused of such crimes, preventing lawyers from defending more than one accused at a time. The session unfolded in front of a huge mirror (so that the judges could see us but not vice-versa) and with the judges’ voices - emerging from a single speaker - distorted for security reasons. Many of the accused could barely speak Spanish or understand the questions. It was a perverse farce resulting in a guilty verdict issued only minutes after questioning ended.

Ronald Gamarra, one of the attorneys representing the victims in the Fujimori trial, has been litigating human-rights cases for more than nineteen years as a lawyer at the Instituto de Defensa Legal (IDL), a human-rights organisation based in Lima. He has also served as anti-corruption ombudsman. For most of his professional life he has faced conditions like those described above, if not worse. “This may sound like an exaggeration, but I’ve had to plead my case in the presence of hooded members of the military who would place their guns on the table before I spoke. Those were the kinds of circumstances we had to deal with.”

The unthinkable becomes real

Carlos Ayala Araoz, a prominent Venezuelan jurist and president of the Inter-American Commission of Human Rights in 1998, attended one of the hearings against Alberto Fujimori as an international observer. In a press interview, he highlighted the historic nature of a trial that would have been “unthinkable ten years ago”.

Among openDemocracy's articles on conflicts and politics in Peru:

John Crabtree, "Peru: the next Andean domino?" (24 June 2005)

Ricardo Uceda, "Fantasy Island" (20 September 2005)

Ricardo Uceda, "Peru's election: a second leap into the void" (9 January 2006)

Lisa Laplante, "The cloud of fear: Peru's anti-terror lesson" (7 March 2006)

Justin Vogler, "Ollanta Humala: a Peruvian gamble" (7 April 2006)

John Crabtree, "Peru: the institutional deficit" (23 May 2006)

John Crabtree, "Peru: outing the NGOs" (22 November 2006)

John Crabtree, "Peru: dilemmas of power" (8 June 2007)

John Crabtree, "Alberto Fujimori's return: a political timebomb" (28 September 2007)

Over the last decade, the inter-American system has steadfastly upheld human rights in the region in often difficult circumstances; as a result, extraordinary progress has been made under its auspices across Latin America in the field of criminal law and the prosecution of human-rights violators. A further spur has been the application of the principle of universal jurisdiction, primarily by the Spanish courts. The Augusto Pinochet case disproved the myth that dictators were untouchable. It also offers many lessons regarding justice in Latin America, the most significant of which is highlighted by Fujimori’s extradition for trial in Peru by the government of Chile in September 2007: that democracy paves the way for truth and justice.

In Peru, the opportunity for truth and justice emerged when Abimael Guzmán, head of the Sendero Luminoso (Shining Path) revolutionary guerrilla movement, was caught by police intelligence in 1992. In the years following this breakthrough, Fujimori did his utmost to close down the new legal space it had opened. Instead, he created a parallel power-structure which, with the help of the national-intelligence system and a corrupt army elite, took advantage of society’s fear of a terrorist resurgence by creating the conditions for extra-judicial commando units such as Grupo Colina to act with impunity.

At the same time, the corruption network led by the chief of national intelligence, Vladimiro Montesinos, became the true power behind the presidency (a reputation confirmed when in his testimony on 30 June 2008 he claimed that Fujimori had no responsibility for the violations of which he is accused). A number of spectacular military operations - such as the hostage-rescue at the Japanese embassy in 1997, with the image of a triumphant president walking through the rubble and the bodies of Movimiento Revolucionario Tupac Amaru (MRTA) members broadcast by television channels around the world - served to provide Fujimori with international support, particularly from the Japanese government. The investigations initiated into extra-judicial executions of some hostage-takers after they had given themselves up was shelved by the supreme council of military justice in 2004 following a dispute over jurisdiction with a civil court.

Gamarra explains that the links between the corruption network and the killings and human-rights violations became clear during the corruption investigations following Fujimori’s flight to Japan in 2000. In the course of the trial hearings against Fujimori, several members of the Destacamento Colina spoke of the money which changed hands among the intelligence officials responsible for “managing” these groups. At the time, considerations of “national security” and the “war against subversion” meant that the funds handled by the army leadership and spent by intelligence officials fell into a black hole which was never subjected to scrutiny.

The campaign against corruption and social intimidation began with ordinary citizens in the streets; it was spearheaded in 2000 by the Marcha de los Cuatro Suyos (the march of the four corners). The “transitional governments”, led in turn by the now deceased president Valentín Paniagua (2000-01) and his successor Alejandro Toledo (2001-06), laid the foundations for legal and judicial reforms which would return the justice system to reason. But above all, they made possible the work of the Comisión de la Verdad y Reconciliación (Truth and Reconciliation Commission / CVR), which in its 2003 report succeeded in establishing what has up to now been the most complete and impartial account of the years of violence in Peru.

The victims’ defenders

Several lawyers acting on behalf of the plaintiffs have dedicated their professional careers to representing victims of human-rights violations. Ronald Gamarra, Carlos Rivera and Gloria Cano have represented victims of several of the massacres and other crimes for which Alberto Fujimori is now being tried: they include Barrios Altos, La Cantuta and other notorious cases. These figures began as jurists swimming against the tide, in one of the worst human-rights contexts imaginable. Now, faced with different circumstances, they have an opportunity to make judicial and ethical history in Peru.

Among openDemocracy articles on issues of justice and accountability in Latin America:

Geoffrey Bindman, Juan Garces, Isabel Hilton, "Justice in the world's light" (15 June 2001)

Mariano Aguirre, "Failed states or weak democracies? The state in Latin America" (17 January 2006)

Sadakat Kadri, "The wrong way to combat terrorism" (3 May 2006)

Alan Angell, "The Pinochet regime: an accounting" (12 December 2006)

Jorge Larraín, "Pinochet's death" (12 December 2006)

Carlos Huneeus, "Pinochet's regime: the verdict of history" (13 December 2006)

Ivan Briscoe, "Guatemala: a good place to kill" (17 October 2007)

Adam Isacson, "Colombia: a miraculous rescue, and what comes next" (7 July 2008)

The true measure of these lawyers’ experience and commitment is not so much the many cases they have handled but the lives they have helped repair, the wounds they have helped to heal and the hope they have kept alive in the hearts of the relatives of the victims. But they are aware that the legal defence of human rights, particularly in the context of the Fujimori trial, demands much more of them even than steadfast commitment.

Carlos Rivera has been a member of the Instituto de Defensa Legal since the early 1990. He describes the understanding that underpins his work: “Early on we learned that litigation is very important. It’s in this domain that the most critical human-rights issues have been confronted and crimes investigated. Litigation is a very powerful tool, it has made it possible to challenge and overcome policies of impunity. But today, the complexity of the cases and the judicial context in which we find ourselves demand not only a good knowledge of legal theory and process, but a strong grasp of advocacy and media strategy. The professional demands are greater.”

The victims’ lawyers are fully conscious of the political pressures surrounding the case. But neither politics nor the balance of power are on trial, and the independence of the judiciary and the confidence that lawyers acting for both parties have in the court are crucial to the legitimacy of the process. The court trying Fujimori - described by one of the lawyers as “the best court any accused person or relative of a victim of human-rights violations could hope for” - has at all times shown a respectful attitude towards the rules of due process (see the trial-monitoring blog www.fujimoriontrial.org).

During the hearings, Fujimori’s defence has attempted to argue under questioning that the Grupo Colina (or Destacamento Colina) was a paramilitary body, and that Fujimori knew nothing about the actions of such “detachments”. But the members of the Grupo Colina themselves have demolished these arguments, recounting in detail how they belonged and reported to the army hierarchy. The sordid details of massacres and killings, told in some cases without a trace of moral respect for the lives of the victims, continue to have a strong human and media impact.

On the basis of the evidence, Rivera has affirmed that the Destacamento Colina “was part of the regular structure of the army’s intelligence system” rather than - as claimed by the defendant - a paramilitary group. On 9 April 2008, another Peruvian tribunal found various senior officers guilty of the massacre of La Cantuta in 1992, in a ruling that could yet have a profound impact on the Fujimori trial.

At this point in the proceedings, the chain of command - from the former president to the lowest ranking agents acting as the material executors - has, from the point of view of the victims’ lawyers and some observers, been sufficiently proved.

The legal and symbolic value

The confidence that the judges inspire does not free those who are defending the rights of the victims of the onerous task of establishing new legal precedents. In the 1990s, international criminal law laid a firm foundation for the assessment of evidence in cases of crimes committed during periods of violence and armed conflict; now, the court faces the challenge of developing this body of case-law domestically. “My aim is that this court understand that the evidence of the crimes of which Fujimori stands accused must be assessed in the context of the abuse of power”, says Gamarra.

The international community’s support for these efforts to restore society’s confidence in the rule of law is an important condition for their success. Its contribution to the work of the Comisión de la Verdad y Reconciliación and to Fujimori’s extradition for trial is well-known. In this respect, ensuring that international observers as well as the foreign press are present at the trial helps reaffirm both the justness of its outcomes and its relevance to the progress being made (in the region and beyond) in justice and democracy.

Despite its turbulent political history, Latin America has resisted the reign of impunity. This effort has involved many parties, from the victims themselves to the Inter-American Human Rights system, operating and forging alliances on many fronts. The struggle against impunity has succeeded in forging a human-rights movement which for more than two generations has embarked on one of the biggest transformations of the region’s post-colonial history.

“Someone has commented that this trial is a kind of extension of the truth-commission hearings - only this time it’s not the victims, but the perpetrators who are talking”, says Carlos Rivera, referring to the impact of the trial on public opinion. Indeed, the symbolism of the trial for Peruvian society goes beyond even this. The vast majority of the 70,000 victims of the violence were Quechua-speaking campesinos and campesinas from the most excluded regions of the country. For a population which has historically mistrusted judicial institutions that operated against their interests and served only those in power, this trial is an act of reconciliation with these institutions. It may prove to be only one among many others which must be addressed if discrimination and other factors which gave rise to the violence are to be eradicated.

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