"I Governed From Hell, Not From the Palace"The Human Rights Trial of Alberto Fujimori
Rise to Power
Alberto Fujimori launched his first presidential campaign in 1990 as an obscure outsider to Peruvian politics. The child of Japanese immigrant parents and an engineer by training, Fujimori made for an unlikely candidate. All the same, his promise of change struck a chord with Peru’s voters. Fujimori reveled in the crowd’s cries of “El Chino” and spun around public rallies in Lima on a bicycle and a tractor.1 He managed to parlay this outsider status into a stunning electoral victory over the famed novelist, Mario Vargas Llosa.
At the time, Peru was in crisis, wracked by hyperinflation and devastated by a bloody 10-year civil war with the guerrilla movements Sendero Luminoso (Shining Path) and Movimiento Revolucionario Túpac Amaru (MRTA). In this chaos, Fujimori’s newly formed political party Cambio 90 promised a return to order. Instead, his presidency ushered in an era of corruption and rampant human rights abuse.
Working beside Fujimori from his very first campaign to the last days of his presidency was security advisor Vladimiro Montesinos, the de facto spy chief of the Servicio de Inteligencia Nacional (National Intelligence Service). 1, 2, 3 Under the banners of counter-terrorism and economic shock therapy, they consolidated executive power, bribed supporters and suppressed opponents.3 The result was a gutted democratic public sphere and a violent campaign of torture, forced disappearance, and extrajudicial assassination.4
On April 5, 1992, Fujimori launched his so-called auto-golpe (self-coup). Declaring a national security emergency, he sent military forces to shut down Congress and the Constitutional Court, and proceeded to launch a counter-terrorism dragnet by decree. While eventually restored the other branches of the government and redrafted the constitution in 1993, his authoritarian brand of democracy continued. Winning the elections of 1995 by controverial means, Fujimori spent much of his last term plotting a third presidential campaign for 2000. Despite the term limits stipulated in his own 1993 constitution, he returned to power in 2000 in an election deemed an obvious fraud by the Organization of American States (OAS).3
From Counterterrorism to Death Squads
Fujimori and Montesinos launched a campaign of clandestine low-intensity warfare to defeat Sendero Luminoso and the MRTA. Under counter-terrorism measures enacted in 1992, suspected guerillas and their sympathizers were tried without due process by military tribunals and “faceless” courts6 whose members wore hoods to conceal their identities.7 Meanwhile, a covert death squad called Grupo Colina began a campaign of targeted assassination against leftist political opponents.5 Grupo Colina was a detachment operating under the Army Intelligence Service (SIE). Despite the government’s best efforts at secrecy, it soon became apparent that Fujimori and Montesinos had pushed Peru’s ‘war on terrorism’ beyond the bounds of legality. With the revelations in the media of the Barrios Altos8 and La Cantuta9 massacres, and the leaking of information to the U.S. embassy, a pattern of widespread human rights violations began to emerge.10
On the night of November 3, 1991, the residents of the Jirón Huanta building at No. 840, Barrios Altos, were celebrating a barbeque when a convoy of police vans suddenly burst down the main road. Their neighborhood chicken roast had been identified as a Sendero Luminoso meeting. Uniformed members of Grupo Colina descended from the vehicles, ordered the revelers to the ground and opened fire with submachine guns. 15 people including children were murdered and 4 others were left gravely wounded.3, 11
Victims carried away from the Barrios Altos massacre, 1992.
The attack was not an isolated incident. In the early morning hours of July 18, 1992, masked gunmen burst into the residences of the Enrique Guzmán y Valle National University, popularly known as La Cantuta. According to the January 25, 2008 testimony of José William Tena Jacinto, a Group Colina member, the death squad abducted nine students and professor Hugo Muñoz Sánchez.12 The victims were tortured, executed, incinerated and then buried in an unmarked mass grave. 4
Initially, Fujimori blamed Sendero Luminoso for the massacres, but as evidence of government responsibility grew, he moved to block the state prosecutor’s investigation. On February 10, 1994, Fujimori signed the “Cantuta Law”,13 which consigned the Cantuta massacre case to a military tribunal. Then, on June 14, 1995, Fujimori signed into law a bill granting blanket amnesty14 to all police and military personnel for human rights violations committed during the 10-year counterinsurgency war.15 Both laws were considered attempts to block accountability efforts from retracing the line of culpability up the chain of command.
In 1996, the Peruvian NGO, APRODEH (The Association for Human Rights in Peru) brought an accusation on behalf of those killed and wounded at Barrios Altos before the Inter-American Commission of Human Rights. The Commission referred the complaint to the Inter-American Court of Human Rights (IACtHR) and on March 14, 2001, the IACtHR ruled in Barrios Altos that the Amnesty Laws were without legal force. The court ordered the Peruvian Government to reopen the investigation and to pay reparations to the victims.16
(Photo: Ricardo Choy Ki-Fox / Andina)
The Barrios Altos and La Cantuta massacres were the most egregious examples of a widespread and systematic campaign of torture, disappearance and extrajudicial execution, but they were not the only instances where human rights were violated. Later testimony from ex-Grupo Colina agents revealed that Montesinos’ National Intelligence Service had used the General Army Barracks—el pentagonito—as a secret detention center where opposition leaders were interrogated, tortured, and executed. Numerous student, business and political leaders, including even Fujimori’s ex-wife, Susana Higuchi, were allegedly detained in the basement of el pentagonito. 17
The Asociación Pro Derechos Humanos (APRODEH), a Peruvian human rights organization, has extensive information on other human rights violations occurring during Fujimori’s presidency that were not among the cases later authorized for extradition and prosecution by the Peruvian Supreme Court.18
Scandal and Exile
Despite public outrage over Barrios Altos and La Cantuta, Fujimori was hailed domestically for the defeat of Sendero Luminoso and internationally for his economic liberalization and anti-narcotics campaigns. Through a series of legal maneuvers and clandestine deals, he maintained his impunity for corruption and human rights abuses throughout the 1990s.
But in the end, Fujimori’s downfall came swiftly. For years, Montesinos had secretly filmed his meetings as part of an extensive surveillance campaign. Then, in September 2000, a Peruvian television station aired video that captured Vladimiro Montesinos in the act of bribing several congressmen. It was the first of thousands of so-called Vladi-videos to be leaked.
Video footage of Vladimiro Montesinos dispensing bribes.
As the tapes surfaced, Montesinos went underground. Fujimori would soon follow—on November 13, 2000, the President fled to Japan, faxing his resignation to congress from a hotel room.
While Fujimori became a minor celebrity in Japan, Alejandro Toledo’s transitional government in Peru was pressing ahead with the criminal case against him. In August 2001, the Peruvian congress charged Fujimori and Montesinos as co-authors of the Barrios Altos and Cantuta massacres. In March 2003, Interpol issued a warrant for Fujimori’s arrest. Later in July, Peru filed an extradition request to the government of Japan. Despite international pressure, a series of stalling tactics stymied the extradition process. For the time being, Fujimori could enjoy safe haven in Japan.
Peruvian Truth and Reconciliation Commission
(Comisión de la verdad y Reconciliación)
Following Fujimori’s flight from Peru, a transitional government (2000-2001) established a truth and reconciliation commission to address crimes of corruption and human rights violations dating from the 20-year civil war. The Peruvian TRC distinguished itself from the South African truth commission in that it was not bound by prior grants of amnesty. 19 The Inter-American Court of Human Rights had already annulled Fujimori’s 1995 amnesty law, thus the Peruvian TRC had a free hand to present State prosecutors with 42 criminal cases, many of which related to Fujimori’s government. 20 Key members of the Grupo Colina were arrested and subsequently gave testimony that assigned clear command responsibility for human rights abuses to both Fujimori and Montesinos.
The Peruvian TRC released its 9-volume Final Report 21 on August 28, 2003. The report estimated that over 60,000 people died or were forcibly disappeared in the 20-year guerilla war. Roughly half of the deaths were attributable to Sendero Luminoso and a third to Peruvian security forces. In a figure that reveals the high civilian cost of the conflict, only 642 of the 23,149 recorded victims of the twenty-year war died in actual combat.22
In defiance of the pending criminal charges, Fujimori announced his intention to return to Peru to run in the 2006 elections. On November 6, 2005, he entered Chile while en route to Lima. Acting on Interpol’s warrant, the Chilean authorities promptly arrested him.
Fujimori’s return via Chile appears to have been a calculated move. Aware that Peru would file an extradition request, Fujimori gambled that a political exception built into Chile’s 1932 extradition treaty and the higher burden of proof for indictment under Chilean law would work to his advantage. It was hoped that success in the extradition proceedings might foreclose on future prosecutions and open a path to the 2006 elections.
In the end, Fujimori’s gambit was a miscalculation. The groundswell of popular support he had anticipated never materialized. Only a small group of loyal Fujimoristas demonstrated in his favor. In Peru, election officials ruled against placing his name on the 2006 ballot. His presidential ambitions were over; the long extradition battle now began.
In January 2006, the Peruvian government filed a petition with Chile for extradition. The request presented 12 criminal charges: 10 for corruption and 2 for human rights violations. Despite the Chilean Supreme Court prosecutor’s recommendation to extradite, High Court Judge Orlando Álvarez rejected the request, declaring the charges “not considerable.” 23
Soon after, the press revealed that Álvarez had copied and pasted elements of the defense lawyer’s brief into his decision and had employed an evidence standard not in compliance with either Chilean or international extradition norms. 24
In response, the Peruvian state appealed Alvarez’s decision. After considerable delay, the Chilean Supreme Court presented a unanimous ruling on September 10th 2006 that approved Fujimori’s extradition. The decision was publicly announced on September 21st and Fujimori was transferred to Peruvian custody the following day.
The trial of Alberto Fujimori represented a turning point in the history of international human rights prosecutions. On April 7, 2009, Fujimori was convicted by a 3-judge panel of the Peruvian Supreme Court for overseeing crimes against humanity. The verdict marks the first time a democratically elected president has been convicted of human rights crimes in his own country. It is hoped that the verdict will contribute a strong precedent for holding political leaders accountable for human rights violations under the ‘command responsibility’ doctrine and will provide a compelling argument against sovereign immunity defenses.
The human rights trial, which began on December 10, 2007, centered on four charges: the Barrios Altos massacre of 1991, the Cantuta massacre of 1992 and the kidnapping and torture of journalist Gustavo Gorriti and businessman Samuel Dyer in the aftermath of the April 5, 1992 “self-coup”.
In separate proceedings, Fujimori still faces charges of corruption and abuse of authority in four cases involving phone tapping, bribery, embezzlement of state funds for illegal purposes and the transfer of $15 million in public funds to Vladimiro Montesinos.
Fujimori had previously been convicted and sentenced to 6 years in prison for ordering the illegal search of Montesinos’ wife’s apartment in 2000, presumably to suppress incriminating evidence.
Structure of the Trial
Following opening arguments, the human rights trial was divided into three main phases. The first phase heard testimony from over 60 witnesses: survivors, Grupo Colina agents, journalists and members of the military High Command. 25, 26
The second phase featured testimony from 18 experts including international law scholars, forensic anthropologists and two commissioners from Peru's Truth and Reconciliation Commission. In this phase, CJA worked closely with Peruvian NGOs representing the victims, especially the Association for Human Rights in Peru (APRODEH).
In August 2008, CJA's International Attorney, Almudena Bernabeu, traveled to Lima to prepare two expert witnesses who testified for the prosecution. Jose Antonio Martin Pallin, an emeritus justice of the Spanish Supreme Court, testified on state terrorism and state crimes. Kate Doyle, from the National Security Archive, testified on declassified U.S. documents on human rights abuses carried out under the Fujimori government. 27 In addition, CJA briefed numerous legal issues for the prosecution including procedural rules on the admissibility of declassified documents in Spanish and U.S. law.
In the third phase, which began on September 29, 2008 and concluded on January 7, 2009 the prosecution presented documentary evidence against the ex-president. The prosecution and lawyers representing the civilian’s families [la parte civile] made closing arguments from January 8 – February 16, 2009. Closing arguments for the defense were given from February 16, 2009 – March 30, 2009. Finally, in the 159th and 160th sessions of the trial, the ex-president argued his own defense over the course of April 1 and April 3, 2009. Fujimori closed the proceedings with a resounding, if somewhat self-inculpatory defense:
"I had to govern from hell, not from the government palace, the hell that terrorism had installed in three quarters of Peru…I only hope that those who sentence me try to imagine that hell and don't try to civilize it from a distance." 28
(Photo: Poder Judicial)
The prosecution’s case was built on the assertion that Fujimori had command responsibility for the formation of Grupo Colina,29 its logistical provision and its illegal activities, as well as for the arbitrary detentions in the SIE basement. The task of the prosecutors was to demonstrate three elements in order to prove command responsibility:
1. That the perpetrators of the crimes were in an effective line of
2. That regardless of the head of command’s level, he or she knew or had the means to know that these acts occurred.
3. That he or she failed to take reasonable measures to prevent the acts or punish the subordinates.
The test for command responsibility has been articulated in a number of rulings by international criminal tribunals, notably in the International Criminal Tribunal for the former Yugoslavia’s judgment in the Kordic and Cerkez case (2001):
“It should be emphasized that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or had reason to know' of the offenses and failed to act to prevent or punish their occurrence.” 30,31
In contrast, Fujimori’s defense pursued a strategy of outright denial. While asserting that he personally led Peru's “war on terrorism”, Fujimori denied that he had any responsibility for the so-called parallel strategy. At every turn, the defense has claimed that the tactical details of the counterterrorism campaign were the responsibility of Montesinos,32 or of Fujimori’s subordinates and that Fujimori had no direct links to Grupo Colina.33 Accordingly, the defense challenged all circumstantial evidence pointing to Fujimori’s role in the chain of command and claimed that only written orders connecting the ex-president to the alleged acts would have been sufficient to pass the command responsibility test. Fujimori’s defense also rested on the assertion that the Shining Path had achieved “strategic equilibrium”—i.e. posed an existential threat to the government—and that the 1992 coup and counter-subversion campaign were necessary acts conducted in a state of transcendent emergency.
On these two points, an Argentine expert witness, Col. José Luis García, disagreed. García testified that the lack of written orders was characteristic of low-intensity warfare throughout Latin America and that verbal evidence of a command structure had been used in analagous cases to establish command responsibility.34 In fact, ever since the Nuremberg tribunals, contextual factors—a systematic pattern of atrocities, a demonstrable command hierarchy—have been regarded as probative evidence of intent and command responsibility in the absence of written orders. 35
García also noted that Sendero Luminoso was far from achieving ‘strategic equilibrium’ in 1991-1992, as it had suffered major setbacks in the cities and in its rural strongholds.26 In any case, certain crimes for which Fujimori is charged—notably torture—violate jus cogens norms under international treaties and customary international law that permit no exceptions for states of emergency or other exceptional circumstances. 36
Many trial observers 37 expected damning testimony from Vladimiro Montesinos—himself already convicted in the first of seventy charges—and Nicolas Hermoza Rios, ex-head of the Joint Chiefs of Staff. 38 Instead, both witnesses contradicted previous sworn statements which had implicated the president, and testified that Fujimori had no knowledge of the acts and no role in their planning.39
In the end, the witness testimony provided over 160 trial sessions and the more than 500 documents presented by the prosecution were sufficient for the Supreme Court to convict Fujimori on all four charges, by a unanimous decision. Reflecting the severity of the crimes, Fujimori was sentenced to the maximum penalty of 25 years in prison.
The judgment, 40 which numbers over 700 pages, methodically addresses each of the defenses presented by Fujimori and features an extensive analysis of the command structure which allowed the court to arrive at a verdict of autoría mediata—a cognate of the doctrine of command responsibility, which, under Peruvian law, assigns culpability to those who have the authority to direct or command an individual or a system for the crimes of their subordinates. Tellingly, Abimael Guzmán, the ex-leader of Sendero Luminoso was also convicted of autoría mediata. Of particular importance to the families of the victims, the court also determined that there was no evidence linking any of the victims of the massacres to ‘subversive activity’. 41
Although, the conduct of the Supreme Court in the proceedings and the sentencing has been upheld as exemplary by numerous international human rights organizations—and the verdict has been widely celebrated around the world—there are those in Peru for whom the Fujimori verdict is a most unwelcome development. Fujimori’s daughter, Keiko Sofía Fujimori—who has become an increasingly outspoken politician—called for peaceful protests against an “unjust verdict”. Several thousand so-called Fujimoristas heeded the call and protested the announcement of the sentence. 42 Certainly, the Fujimoristas are waiting with anticipation for the results of the appeal for annulment filed by Fujimori’s defense.
The lingering power and influence of Fujimori’s supporters makes it likely that there also will be an attempted political intervention in the case. Peru’s political situation remains volatile, with current president Alan García’s administration embroiled in corruption scandals. 43 García—whose human rights record from the 1980s is also tarnished44—has publicly supported Fujimori and has restricted the activities of human rights organizations in Peru. On October 21st, 2008, a congressman from the ruling APRA party presented an amnesty bill for the military and police officials currently on trial for human rights violations. 45 At the same time, Fujimori’s daughter, Keiko Fujimori, has launched an ambitious political career and formed Fuerza 2011, a coalition of fujimorista parties. Having already won a landslide victory in the Congressional elections for Lima, Keiko Fujimori seems to have her eyes set on the presidential elections in 2011. She has already declared that—if elected—she would pardon her father. 46
Despite the lingering speculation that Fujimori might be pardoned, at least one expert, Jo-Marie Burt of George Mason University, has expressed doubt:
“As the convictions in the cases of Gustavo Gorriti and Samuel Dyer are for aggravated kidnapping, by Peruvian law Fujimori cannot be pardoned and the normal reductions in time served for good behavior do not apply; Fujimori must serve at least three-quarters of his sentence.” 47
One thing is certain: Fujimori’s supporters will pursue a range of strategies to undo the verdict. Human rights advocates in Peru and their international partners remain vigilant to ensure that the sentence is carried out and remains in force.
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[accessed 12 May 2009]
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