Lessons From The Trial Of Former President Alberto Fujimori
BY RONALD GAMARRA HERRERA
On April 7, 2009, the Peruvian Supreme Court’s Special Criminal Court handed down a unanimous sentence against former President Alberto Fujimori in the four cases of human rights violations for which he was on trial: collective assassinations in Barrios Altos and La Cantuta, and the abductions of journalist Gustavo Gorriti and businessman Samuel Dyer.
The Court, which conducted an impeccable and impartial process, convicted Alberto Fujimori as the perpetrator of means within the framework of an organized power structure, declaring that the crimes committed had been proved “beyond a reasonable doubt,” and that the Barrios Altos and La Cantuta murders constituted crimes against humanity. The court sentenced Fujimori to 25 years in prison for these crimes.
The sentence clearly established the decade-long criminal relationship that existed between Alberto Fujimori and Vladimiro Montesinos, and the relationship between the former president and the military high brass in his role as commander in chief and head of state. This relationship facilitated a systematic policy of human rights violations that included, among other things, at least 50 deaths attributable to the Colina Group.
A verdict handed down against a former head of state sets an historic precedent regarding crimes against humanity perpetrated from the highest sphere of powers, which are usually cloaked in impunity.
The trial against Alberto Fujimori was not a political trial, but a judicial hearing conducted by Supreme Court justices with established and reputable careers in the judiciary and academia; the trial unfolded according to the obligatory guidelines of criminal law and respectful of procedures. The judges of the Special Criminal Court were impartial, transparent and objective throughout the trial. They were careful to guarantee the due process rights of the defendant, and Alberto Fujimori enjoyed the broadest range of guarantees for his defense. The defendant was not tried for his opinions or political actions, but for illicit acts outlined in Peru’s criminal code. Thanks to moral standing of the judges who formed the Special Criminal Court, the criminal trial against Fujimori has made a fundamental contribution to restoring the image of the Peruvian judiciary. The same can be said of the representatives of the Public Ministry who prosecuted the case.
We hold out hope that the historic sentence establishes a new benchmark with respect to pending trials for human rights violations in Peru, which must not be covered by impunity. Truth and justice is needed for the victims, their families and all citizens.
COOPERATION BETWEEN NATIONAL, INTERNATIONAL & HYBRID JUSTICE STRUCTURES
The fight against impunity in cases involving serious human rights violations is recognized as a fundamental concern of the international community. These are violations that include elements that classify them as crimes against humanity, war crimes or genocide.
It is, of course, primarily the role of the state to investigate, try and condemn grave human rights violations attributable directly to individuals. Unfortunately, recent history has repeatedly shown that bringing these individuals to justice is particularly difficult due, in great measure, to the lack of will on the part of states to process and condemn atrocities committed by state agents. In other cases the judicial system may have collapsed or been seriously undermined as a result of authoritarian rule or armed conflict.
Faced with this situation, over the past few decades the international community has fostered the development of specific judicial bodies to deal with different aspects of these crimes and there has been a multiplication of legal avenues1 with international criminal law.2 Examples can be seen in the decision handed down in 1993 and 1994 by the U.N. Security Council creating the ad hoc international criminal courts to try violations of international humanitarian law committed in the former Yugoslavia and Rwanda (International Criminal Tribunal for the former Yugoslavia3 and International Criminal Tribunal for Rwanda).
These decisions served as the foundation for the creation of the first permanent international criminal tribunal, the International Criminal Court (ICC). The statute for the court was approved in 1998 and it came into force on July 1, 2002. The statute has been ratified by108 states. The ICC acts a complement to states when they are unable or unwilling to punish international crimes that fall under the court’s jurisdiction. At the same time, the creation of international criminal tribunals allowed for the establishment of the so-called mixed or internationalized criminal courts in Sierra Leone, Cambodia, East Timor, Kosovo and Lebanon, which were created jointly by countries affected by grave human rights violations and the international community, and combine national judicial systems with the international judicial system.
While individual states continue to be the principal stakeholders of international law, so-called universal jurisdiction has been used increasingly in recent years. This tool offers the possibility of arresting, trying and condemning the perpetrators of international crimes without the limitations generally created by sovereignty, such as the classic criteria of a state exercising jurisdiction with regard to crimes committed within its borders or the nationality of the perpetrator or victim of the crime. Universal jurisdiction incorporates shared and common interest in bringing the perpetrators of atrocities to justice.
The capacity of states to bring about justice in the cases of serious human rights violations has been strengthened through international criminal jurisdiction and universal jurisdiction. As such, international avenues have been used in recent years to make sure that illegal conduct is punished. This can be seen in the cases brought against Augusto Pinochet, Slobodan Milosevic, and Charles Taylor, among others.
In the case of Alberto Fujimori, the trial of the former president on charges of grave human rights violation was carried out directly by a national court without having to employ mechanisms for international criminal jurisdiction or universal jurisdiction. The trial was conducted by Peruvian judges César San Martín Castro, Víctor Prado Saldarriaga and Hugo Príncipe Trujillo, who have long and illustrious careers on the bench and in academia, and who scrupulously adhered to the legal guarantees for defendants. Evidence was presented, debated and assessed based on the set rules. Fujimori was not tried based on opinions or his political actions while president, but on acts or omissions typified in the criminal code. Finally, the verdict handed down employed a dogmatic criminal formula that is widely accepted in national jurisprudence: Fujimori was convicted of aggravated homicide, assault, and kidnapping.
The three judges certainly took into account international treaties on human rights, the most advanced dogma on criminal and procedural material, particularly from the German and Spanish systems, and the jurisprudence established by the international criminal tribunals. The court applied international standards on due process throughout the trial, and the resolutions emitted during the process and the sentence invoked the jurisprudence of international criminal tribunals and those that have applied universal jurisdiction.
It is important to cite the actions and decisions of the Inter-American human rights system, particularly the Inter-American Court of Human Rights, which cleared the way for the judges who tried and sentenced the former president. The same holds true for the actions of the Second Criminal Chamber of the Chilean Supreme Court. Its historic decision of Sept. 21, 2007, based on the existence of “proved presumption of responsibility” and, in some cases, “sufficient elements of conviction,” approved former President Fujimori’s extradition and allowed for his trial in a national court.4
THE COMPLEMENTARY ROLE OF TRUTH COMMISSIONS
The Special Criminal Court has stated that the probative value of the Peruvian Truth and Reconciliation’s Final Report lies in the so-called contextual facts that establish the existence of numerous forced disappearances and arbitrary executions committed by state agents in a systematic and widespread manner.5
Truth commissions are non-judicial mechanisms established to investigate grave violations committed in the past. They are part of what is known as mechanisms for transitional justice, but do not replace the Judiciary. The creation of a truth commission does not imply supplanting the function of the attorney general or the judicial branch – the only bodies constitutionally charged to investigate, try and punish crimes – but its work could complement the essential role played by judicial mechanisms to protect human rights and combat impunity.
Obviously, the affirmations of a truth commission do not constitute evidence, per se, of individual responsibility, because this would require other elements that can only be obtained through a trial and due process. However, the conclusions provided by a truth commission constitute the findings of a state entity regarding a factual situation, as well as the qualified opinion of people convoked by the state to serve a public function, and domestic and international courts have assigned them probative value.6
The Fujimori affair has revitalized extradition as a mechanism for inter-state cooperation on judicial issues, specifically with regards to human rights. Beyond the critiques and questions raised about this mechanism,7 the Chilean Supreme Court’s ruling breathed new life into extradition as a procedure that can be used by states in criminal cases.
The Fujimori case in every sense constitutes a wake-up call to states concerning their primary obligation to investigate, try and punish grave human rights violations. It also reaffirms the complementary character of international criminal tribunals and is a warning to former heads of state who take refuge in other countries that their attempts to evade justice will be frustrated and they will be extradited and tried. It is, in the end, a call to end impunity.
Ronald Gamarra Herrera is executive secretary of the National Human Rights Coordinating Committee (CNDDHH), law professor at the San Marcos National University and a lawyer for the civilian plaintiffs in the trail against Alberto Fujimori Fujimori. He was adjunct prosecutor in the ad hoc prosecution office created to investigate cases involving Fujimori – Montesinos (2001-2004).
ENDNOTES
- http://www.icrc.org/web/spa/sitespa0.nsf/html/6u3nxv/$File/irrc_861_Geiss.pdf [↩]
- International criminal law includes “all the norms that support punishment in a direct manner in international law” as maintained by Werle, Gerhard, International Criminal Law Treaty. Tirant lo Blanch, Valencia, 2005, paragraph 76. [↩]
- U.N. Security Council Resolution 808 (Feb. 22, 1993) created the ICTY with the exclusive goal of trying the people presumably responsible for grave violations of international humanitarian law committed in the former Yugoslavia between Jan. 1, 1991 and a date that would be set by the council once peace is restored. [↩]
- Gamarra, Ronald, A leader takes flight: the indictment of Alberto Fujimori, in Lutz, Ellen, and Reiger, Caitlin, Prosecuting heads of state. Cambridge, Cambridge University Press, 2009, Pages 95- 110; The same author in “The Fujimori Case: Prosecuting a Head of State,” Center for Global Studies at George Mason University, Working Paper Nº 4, Spring 2009, Pages 18-33. [↩]
- Supreme Court Special Criminal Court. Exp. 19-2001-AV. Sentence, paragraph 123. [↩]
- The Inter-American Court has recognized the probative value of truth commissions (in cases involving Guatemala, Paraguay, Chile, and Peru), as have courts in Argentina, Chile, Guatemala, Peru, Spain, and the United States. [↩]
- García, Beatriz, “Extradition in Spanish, international and community order.” Editorial Comares, Granada, 2005, Page 477; See also Prado, Víctor, The Future of Extradition: European order for detention and delivery. In Revista Institucional del Ministerio Público, distrito judicial de La Libertad, Nº 2, May 2006, Page 125. [↩]
