From 1980 to 2000, Peru was ravaged by a bloody
internal armed conflict whose principal actors were on the one hand the
two guerrilla movements known as Shining Path (Sendero Luminoso)
and Movimiento Revolucionario Tupac Amaru (MRTA) and, on the
other, the Peruvian government, backed by self-defense groups of peasants
(rondas campesinas) and paramilitary groups created by the
intelligence service, such as the notorious Grupo Colina and
Comando Rodrigo Franco.
The conflict left a heinous balance of more than 69,000
people killed (79% of whom were peasants living in remote areas of the
Andes, of indigenous origin and quechua mother tongue); 18,000
victims of enforced disappearance; 500,000 internally displaced people;
the genocide of the Asháninkas indigenous ethnic group; more than
7,000 cases of torture and rape; about 4,000 people arbitrarily detained;
6,000 children forcibly recruited; and 4,600 common graves.
On 28 July 1990, Alberto Fujimori was elected president
of Peru. Since his election, he based his fight against Sendero
Luminoso and MRTA on the widespread use of intelligence
agencies. Serious human rights abuses had been perpetrated even before
Fujimori’s presidency. However, after his election, there was an increase
in the number of grave human rights violations committed. Further, on 5
April 1992, under the pretext that it was too slow to pass an
anti-terrorism legislation, Fujimori dissolved the Congress of Peru and
abolished the Constitution. He adopted a severe anti- errorism legislation
and set up military courts where those who were suspected of being
terrorists were tried by judges “sin rostro” (whose faces were
covered in order for them not to be identified) in the absence of any
judicial guarantee.
Abimael Guzmán, the founder and leader of Sendero
Luminoso, was captured by Peruvian police in 1992. He is currently in
prison, facing a number of charges, including murder and terrorism. In
2006, together with other 11 prominent members of Sendero Luminoso,
Abimael Guzmán was sentenced to life-imprisonment for the massacre of 63
people committed in 1983. The ranks of MRTA were decimated. One of
its leaders (Víctor Polay Campos) was arrested in 1992 and is currently
serving a 35-year sentence in prison, while the other leader (Néstor Cerpa
Cartolini) was arbitrarily executed in 1997 by members of Peruvian armed
forces.
In 2000, Vladimiro Montesinos Torres, the personal
assistant of Alberto Fujimori, who acted as de facto head of
intelligence services under Fujimori’s government, was accused of bribery
of a congressman. This generated a scandal, after which both Montesinos
and Fujimori fled the country. Montesinos was later found in Venezuela and
extradited to Peru. At present, he is in a maximum security prison facing
various charges which range from drug trafficking to murder and he is
serving a 35-year sentence for corruption and illegal arms deal.
The Barrios Altos Massacre
On 3 November 1991, at approximately 11.30 p.m., 6 heavily-armed men
burst into a popular building located in the neighborhood known as
Barrios Altos in Lima, the capital of Peru. When the eruption
occurred, a party to collect funds in order to restore the building was
being held. The assailants covered their faces and obliged the people
present at the party to lie on the floor, after which, they fired
indiscriminately for about 2 minutes, killing 15 people (including an
8-year old boy) and seriously injuring another 4. The assailants fled with
the same speed with which they had arrived.
Judicial investigations and newspaper reports revealed
that those involved in the massacre worked for military intelligence and
were members of the death squad known as Grupo Colina. Purportedly,
the operation was carried out in reprisal against alleged members of
Sendero Luminoso who may have been residing in the Barrios Altos
area.
In December 1991, the Peruvian Senate set up an Investigation Committee to
clarify the events and to establish responsibilities. However, the
Senatorial Committee did not complete its investigation, because in April
1992, Fujimori dissolved the Congress and the investigation begun was
neither resumed nor were the preliminary findings of the Senatorial
Committee disclosed.
Although the events occurred in 1991, judicial authorities did not
commence a serious investigation of the incident until April 1995, when 5
army officials – members of the Grupo Colina – were accused of
being responsible for the massacre. Military courts claimed jurisdiction
in the case, alleging that it related to military officers on active
service. Before a decision could be taken on the matter of competence, on
14 June 1995, the Congress of Peru adopted Amnesty Law No. 26479, which
exonerated members of the army, police force and also civilians who had
violated human rights or taken part in such violations from 1980 to 1995
from responsibility. The effect of this law was to determine that the
judicial investigations were definitively quashed and thus, prevented the
perpetrators of the massacre from being found criminally responsible. The
few convictions of members of the security forces for human rights
violations were immediately annulled. On 28 June 1995, the Congress of
Peru adopted a second self-amnesty provision (Law No. 26492) whose effect
was to prevent judges from determining the legality or applicability of
the first self-amnesty law. Further, the second self-amnesty law expanded
the scope of the first one, granting a general amnesty to all military,
police or civilian officials who might be the subject of indictments for
human rights violations committed between 1980 and 1995, even though they
had not been formally charged.
The enactment of these 2 self-amnesty laws granted
impunity, among others, to those responsible for the Barrios Altos
massacre.
La Cantuta: Disappearances and Extrajudicial Executions
On 18 July 1992, at dawn, a group of soldiers of the
Peruvian army together with members of the Grupo Colina burst
in on the campus of the university La Cantuta and abducted 9
students and 1 professor. Allegedly, they were searching for terrorists
hiding on the university campus. The relatives of the 10 disappeared
people filed several habeas corpus writs and denounced the events
to different authorities. However, no remedy proved to be effective and
the highest authorities of the army denied that any operation had been
ever carried out at La Cantuta. Almost 1 year after the
disappearance of the 10 people, 2 common graves were located. Exhumations
led to the identification of 2 of the 10 victims. Although other mortal
remains and objects belonging to the other disappeared people were found
at the site, no exhumation or process of identification was ever carried
out. Accordingly, 8 people remain disappeared to date, as their bodies
have not been located, exhumed, identified and returned to their
relatives.
In 1994, 8 people were found guilty of homicide by a
ilitary tribunal (the same 8 people had been charged also for the
Barrios Altos massacre). The relatives were not granted access to the
proceedings. No one was investigated or charged with intellectual
responsibility for the crime. As
already mentioned, in 1995 the 2 self-amnesty laws were adopted: this
determined that all those who were awaiting trial in the La Cantuta case
were immediately relieved of their charges and those who were already
serving their sentences were freed. It was only in 2001, after the fall of
Fujimori’s regime that the Peruvian Supreme Court declared the
inapplicability of the amnesty laws and that domestic proceedings on the
events could be resumed.
The Truth and Reconciliation Commission
After Fujimori fled the country, the transitional government led by
President Valentín Paniagua Morales decided to set up a Truth and
Reconciliation Commission (Comisión de Verdad y Reconciliación, CVR). The
CVR was established by decree on 2 June 2001 and mandated to investigate
and elucidate gross violations of international human rights and
humanitarian law committed during the conflict. The CVR was composed of 12
members (all Peruvian nationals, pertaining to different sectors of the
society). On 28 August 2003, the CVR released a final report 1, which
contains findings regarding thousands of abuses, including arbitrary
killings; massacres; enforced disappearances; torture and other acts of
inhumane and degrading treatment; rape and sexual violations; violations
against indigenous communities; violations against children; forced
recruitment; forced displacement and kidnappings. The CVR attempted to
ascribe responsibility to the different perpetrators concerned,
maintaining that all victims were entitled to receive reparations for the
violations suffered, aside from the identity of the perpetrators or their
family relationships.
In its final report, the CVR provided a general
overview of the root causes of the Peruvian conflict and of its peculiar
features and afterwards analyzed in depth 73 cases of outstanding human
rights violations or crimes committed by all actors involved in the
conflict. The CVR conducted investigations over those cases, collected
evidences and examined witnesses. Accordingly, it referred the 73 cases to
the Public Prosecutor, calling for the criminal indictment of those
involved. The Peruvian Ombudsman (Defensoría del Pueblo) was charged with
the monitoring of the implementation of such recommendations.
Barrios Altos and La Cantuta were among the 73 cases
investigated by the CVR 2. Regarding Barrios Altos, the
CVR affirmed that members of the Grupo Colina were
responsible for the massacre and that they were acting with
the authorization and under the direction of the highest
Peruvian authorities. The CVR found that the same people
were responsible also for La Cantuta case. In both cases,
the CVR recommended to Peruvian judicial authorities to
resume the proceedings against those allegedly responsible
(including those who ordered, solicited or induced the
commission of the crimes).
The CVR attached to its final report some general
conclusions 3, where it summarized its findings and recommendations.
Limiting the analysis to the conclusions concerning Fujimori’s
responsibilities, the CVR found that he always acted in open disregard of
democracy and, in particular, after the coup of 5 April 1992, he
intentionally determined the collapse of the rule of law. Since then, Fujimori adopted a counter-insurgency strategy based on the use of the
intelligence, aiming at selectively eliminating those suspected of being
terrorists. The CVR held that it had gathered sufficient evidence to
affirm that Fujimori, Montesinos and high rank officials of the
intelligence services were “criminally responsible for the killings,
massacres and enforced disappearances perpetrated by members of the death
squad, Grupo Colina”. 4
Although devoid of any judicial power, this finding of
the CVR was a first blow against Fujimori and represents one
of the pillars on which domestic judicial proceedings have
subsequently been based.
The Judgments of the Inter-American Court of Human Rights on the Cases
Barrios Altos and La Cantuta
The judgments on Peruvian cases rendered by the
Inter-American Court of Human Rights before and after the experience of
the CVR have proven to be of crucial importance in the struggle for
justice in Peru.
The application concerning Barrios Altos massacre was
submitted to the Court while Fujimori was still in power and he pretended
to withdraw the acknowledgement of the competence of the Court to escape
international scrutiny. Such withdrawal was rejected by the Inter-American
Court. While the case was pending before the latter, Fujimori fled the
country. The transitional government declared null the attempt of
withdrawal of the competence of the Court and recognized its international
responsibility for the violation of Articles 4 (right to life), 5 (right
to humane treatment), 8 (right to fair trial), 25 (judicial protection) in
conjunction with Article 1.1 (obligation to respect rights) of the
American Convention on Human Rights. On 14 March 2001, the Inter- American
Court rendered a landmark judgment, accepting the acknowledgement of
international responsibility and, at the same time, affirming a key
principle in the struggle against impunity.5 Referring to the enactment of
the 2 self-amnesty laws, the Court considered that:
“[…] all amnesty provisions, provisions on prescription and the
establishment of measures designed to eliminate responsibility are
inadmissible, because they are intended to prevent the investigation and
punishment of those responsible for serious human rights violations such
as torture, extrajudicial, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable
rights recognized by international human rights law.” 6
“[…] Self-amnesty laws lead to the defencelessness of victims and
perpetuate impunity; therefore, they are manifestly incompatible with
the aims and spirit of the Convention. This type of law precludes the
identification of the individuals who are responsible for human rights
violations, because it obstructs the investigation and access to justice
and prevents the victims and their next of kin from knowing the truth
and receiving the corresponding reparation.” 7
“Owing to the manifest incompatibility of
self-amnesty laws and the American Convention on Human Rights, the said
laws lack legal effect and may not continue to obstruct the
investigation of the grounds on which this case is based or the
identification and punishment of those responsible, nor can they have
the same or a similar impact with regard to other cases that have
occurred in Peru, where the rights established in the American
Convention have been violated.”8
Exceptionally, the judgment of the Inter-American Court was considered to
be directly applicable at domestic level and determined the loss of
effects of the 2 self-amnesty laws, allowing the resumption of criminal
proceedings for violations perpetrated during the conflict. The Court
awarded measures of reparation including pecuniary compensation, free
medical and psychological rehabilitation and scholarships. It also ordered
the establishment of a memorial monument to honor the victims and the
organization of a public event where the highest authorities of the State
were to offer their apologies and to acknowledge international
responsibility of the State.
On 29 November 2006, the Inter-American Court rendered
a judgment on La Cantuta case which was based to a large extent on the
findings of the CVR.9 The representatives of Peru partially acknowledged
the international responsibility of the State for the violation of
Articles 3 (right to juridical personality), 4 (right to life), 5 (right
to humane treatment, with regards to the material victims of the case), 7
(right to personal liberty) in conjunction with Article 1.1 (obligation to
respect rights) of the American Convention. The Court deemed it
appropriate to further clarify certain aspects of the case. First, it
found that Article 5 of the Convention had been violated not only with
regards to the direct victims of the case but also to their relatives,
whose mental and moral integrity were impaired as a direct consequence of
the events. The Court found also a violation of Articles 8 (right to a
fair trial) and 25 (right to judicial protection) in connection with
Article 1.1 of the Convention. It declared that the proceedings before the
military jurisdiction did not respect the international standards of the
fair trial and that the application of the 2 self-amnesty laws to the case
was contrary to the American Convention and, in particular, amounted to a
violation of Article 2 (domestic legal effects) of the American
Convention. While expressing appreciation for the resuming of trials
before ordinary courts on the case of La Cantuta in 2001, the Court found
that Peru had exceeded any reasonable delay. The Court pointed out that
the facts of La Cantuta were to be seen as part of a systematic practice
of enforced disappearances and extra-judiciary executions perpetrated by
State agents and paramilitary groups. This amounted to a crime against
humanity and a gross violation of ius cogens.
It is worth noting that, while the Inter-American Court
was rendering its judgment over the case of La Cantuta, Fujimori had
already been arrested and was awaiting a decision concerning his
extradition. 10 The Court referred to such issue, noting that:
“[…] States have the duty to investigate human rights violations and to
prosecute and punish those responsible. In view of the nature and
seriousness of the events, all the more since the context of this case
is one of systematic violation of human rights, the need to eradicate
impunity reveals itself to the international community as a duty of
cooperation among states for such purpose. Access to justice constitutes
a peremptory norm of International Law and, as such, it gives rise to
the States’ erga omnes obligation to adopt all such measures as are
necessary to prevent such violations from going unpunished, whether
exercising their judicial power to apply their domestic law and
International Law to judge and eventually punish those responsible for
such events, or collaborating with other States aiming in that
direction. […]”.11
The considerations expressed by the Inter-American
Court constitute an important reference regarding the obligation of States
to judge or extradite people accused of grave human rights violations who
are in the territory under their jurisdiction.
The Court ordered Peru to investigate, judge and
sanction those found to be responsible for the violations, to pay
pecuniary compensation to the relatives of the victims, to carry out the
exhumations and to identify and deliver to the relatives of the eight
disappeared people their mortal remains, to issue an apology in a public
ceremony and to honor the memory of the victims, to provide free medical
and psychological treatment to the relatives of the victims, to publish
relevant abstracts of the judgment in the official gazette of the country
and to establish a program of education on human rights and international
humanitarian law for public officials.
The Trial of Alberto Fujimori
In 2001, Fujimori was charged with corruption and
crimes against humanity and he was banned from holding public offices in
Peru until 2010. On 7 November 2005, he left Japan and travelled to Chile,
where he was arrested. Peru immediately lodged an extradition request,
which was initially rejected and then accepted on appeal by the Chilean
Supreme Court. In September 2007, Fujimori was extradited to Peru and his
trial begun on 10 December 2007 before a 3-judge panel of the Peruvian
Supreme Court (Sala Penal Especial de la Corte Suprema). Regarding human
rights abuses, Fujimori was accused for Barrios Altos massacre and La Cantuta case, as it was alleged that the
Grupo Colina death squad was
under his direct command. 12 Further, Fujimori was charged with ordering
the illegal detention and interrogation of a prominent journalist, Gustavo
Gorriti, and businessman Samuel Dyer, also in 1992. Since the beginning of
the trial, Fujimori rejected entirely the charges and claimed to be
innocent.
On 7 April 2009, the Chamber of the Peruvian Supreme
Court delivered an extremely detailed judgment 13 where Fujimori was found
guilty of command responsibility (autoría mediata) for aggravated murder
of 25 people, serious bodily harm and kidnapping. 14 Given that the
offenses were materially perpetrated by intelligence officers that
operated in the Grupo Colina, and that they were committed in the context
of a widespread practice, they were qualified as crimes against humanity.
In its judgment, the Court collected a significant number of testimonies
and the findings of the CVR as well as the judgments of the Inter-American
Court were taken as evidences.
The Court meticulously reconstructed the origin of the
Grupo Colina, which was set up in August 1991 and operated until the end
of 1992. It was composed of high-ranking intelligence officials (some of
whom appointed by Fujimori), who responded directly to Montesinos, whom,
in his turn, responded exclusively to Fujimori, meeting with him daily and
reporting to him about all details of intelligence operations. The
constitution of Grupo Colina must be contextualized in the overall
counter-insurgent strategy conceived by Fujimori (who, as a president, was
also the commander- n-chief of the army and the absolute head of the
intelligence services): he consciously decided to abandon the rule of law
and to selectively annihilate those deemed to be members of Sendero
Luminoso and MRTA instead of regularly arresting and giving them a fair
trial. In fact, Grupo Colina’s mission was not to arrest suspected
terrorists: the squad was meant to physically eliminate pre-selected
targets, by means of arbitrary killings, enforced disappearances and
massacres.
Fujimori planned such strategy of systematic human
rights violations, authorized it and, once public opinion
called for the clarification of the events, adopted all
measures to grant impunity (through, for instance, the use
of military tribunals and the enactment of the self-amnesty
laws) to Montesinos and the members of Grupo Colina. 15 As
mentioned, Fujimori was constantly informed by Montesinos
on the development of his ruthless intelligence strategy and,
in particular, he knew all details concerning Barrios Altos and La Cantuta operations.
Of particular interest is the fact that the Peruvian
judges agreed with the prosecutor in saying that Fujimori was responsible
for the crimes as “autor mediato” and not as a principal or an instigator
or an accomplice. This means that he bears primary active criminal
responsibility, as a perpetrator who has acted through an intermediary and
not as a superior whom, by omission, has failed to prevent the commission
of crimes perpetrated by his subordinates. According to the judgment, the
“autor mediato” actually commits a crime through another person, taking
advantage of his position over his subordinates in the context of an
organized power machinery. Fujimori was the apex of such organized power
machinery and those who materially perpetrated the crimes were mere
executors, who, in fact, were interchangeable (to Fujimori, it did not
matter who committed the act of killing or forcibly disappearing his
targets as long as the action was “successfully” finalized). Further,
executors were not necessarily aware of the overall strategy of all
details of the operations.
In order to reach such conclusions, the judges of the
Supreme Court had to be persuaded that:
• such organized power machinery existed and Fujimori
was at the top of it;
• Fujimori exercised absolute command over the said organized power
machinery;
• the organized power machinery was placed and acted outside the
control of the law;
• Fujimori could “use” different interchangeable material executors to
serve his purposes; and
• Material executors were highly likely and fully available to commit
the “necessary” crimes.
In the view of the jury, the testimony and documentary
evidence presented corroborated all mentioned requirements and Fujimori
was sentenced to 25 years in prison (until 10 February 2032, when he would
be almost 95-year old) and to the payment of pecuniary compensation to
cover damages caused to the victims and their relatives.
Another aspect of the judgment which vests great
importance to honor of the victims and to restore their dignity and that
caused genuine satisfaction among civil society and relatives of the
victims, is that the judges officially declared that it had been
established beyond reasonable doubt that none of the 29 people
disappeared, killed, kidnapped or seriously harmed in the events under
scrutiny was in any way related to the activities of Sendero Luminoso nor
a member of the latter. After more than 17 years of infamous hints, the
memory of 29 people was finally honored and truth re- stablished to the
advantage of their relatives and of society as a whole.
Fujimori’s representatives appealed the judgment,
claiming for its annulment. The First Transient Criminal Chamber of the
Supreme Court is in charge of handling the appeal and has a 4-month term
to deliver its verdict.
Conclusions
The judgment sentencing Alberto Fujimori to 25 years in prison
represents a historical victory of justice over impunity and it is highly
instructive precisely because it has been flawlessly conducted by a
domestic court. This shows that international tribunals must be considered
a complementary support (in particular, international mechanisms of
protection of human rights) and a last resort (international criminal
tribunals) to combat injustice. The fact that a former dictator is judged
by his country’s own judicial system concretely reaffirms the primacy of
law and brings cleansing and educational effects. All the more so when
also the other prominent figures of all the parties to the conflict (with
the notable exception of one of the leaders of MRTA that was arbitrary
executed by the army) have been captured, judged and sanctioned by means
of domestic fair trials.
Indeed, the cogent conclusions reached by the 3-judge
jury that condemned Fujimori come as a result of a long struggle and they
are based on a number of other initiatives of domestic, international and
transitional justice. In this case there has been a virtuous interaction
among these different levels, which has led to the carrying out of a fair
trial in its most appropriate venue and has also set a number of
fundamental references:
• military tribunals are competent only over offenses of a military
nature, committed by military personnel and can never judge over alleged
gross human rights violations; • people accused of grave human rights
violations cannot benefit from amnesties or similar measures; and
• a State in the territory under whose jurisdiction a person alleged to
have committed gross human rights violations is found, shall extradite
or surrender that person or submit the case to its competent authorities
for the purpose of prosecution.
In particular, the conviction of Fujimori conveys a
global message of hope to relatives of victims of enforced disappearance
and of State terror all over the world: no one, including the most
powerful and subtle dictator, is beyond the law. Civil society and the
legal system are watching and are calling for ineluctable answers.
No matter how long this may take, truth must be
disclosed, justice served and memory restored and preserved.
____________________________
End notes:
1 For information on the CVR and the integral version of the final report
(in Spanish), see
http://www.cverdad.org.pe/.
2 See Final Report of the CVR, Lima, 2003, Tome VII, sections 2.22 (La Cantuta) and 2.45 (Barrios Altos).
3 The conclusions formulated by the CVR can be found, in the Spanish
version athttp://www.cverdad.org.pe/ifinal/conclusiones.php. For the
findingsconcerning Fujimori, seeparas.98-104.
4 Ibid., para. 100.
5 Inter-American Court of Human Rights (IACHR), Case Chumbipuma Aguirre
and others (Barrios Altos) v. Peru, judgment of 14 March 2001, Ser. C No.
75.
6 Ibid., para. 41.
7 Ibid., para. 43.
8 Ibid., para. 44.
9 IACHR, Case La Cantuta v. Peru, judgment of 29 November 2006, Ser. C.
No. 162.
10 Infra, para. 4
11 IACHR, Case La Cantuta, supra note 9, para. 160.
12 It is worth noting that 24 alleged members or accomplices of
Grupo
Colina have been arrested and are currently under trial. 13 have already
been convicted for slaughter.
13 The integral version of the judgment, in Spanish, can be found at:
http://www. gacetajuridica.com.pe/noticias/sentencia-fujimori.php.
14 Although the Court referred to “enforced disappearances” committed by
Grupo Colina all through the text of the judgment, it did not find
Fujimori guilty of such crime as, when the events took place, enforced
disappearance was not codified as an autonomous offense under Peruvian
criminal code.
15 The kidnappings of Gustavo Gorriti and Samuel Dyer were carried out as
a part of the mentioned systematic practice as both were considered
“troublesome” by Fujimori who, accordingly, ordered their abduction and
their interrogation in the basements of the headquarters of the Military
Intelligence Service by members of the Grupo Colina. Both Gorriti and Dyer
testified at the trial against Fujimori.
