Ochoa Lizarbe v. Hurtado

Peru: The Accomarca Massacre

Peru: The Accomarca Massacre

NO. 07-21783-CIV-JORDAN, 2008 U.S. Dist. LEXIS 109517 (S.D. Fla. Mar. 4, 2008)

IN BRIEF | BACKGROUND | LEGAL PROCEEDINGS

IN BRIEF

CJA represents two women, Teófila Ochoa and Cirila Pulido, in civil actions against two Peruvian Army officers responsible for the killings of their relatives during the notorious Accomarca Massacre on August 14, 1985. The women have filed these cases to seek justice on behalf of all the members of the Asociación de Familiares Afectados por la Violencia Política del Distrito de Accomarca (Association of Relatives of the Victims of Political Violence in Accomarca) who lost loved ones in the massacre. Defendants Telmo Hurtado Hurtado and Juan Rivera Rondón commanded the patrol units that massacred 69 women, children and elderly men in the highlands village of Accomarca in Peru’s southern Andean region of Ayacucho on August 14, 1985.

One of two sister cases, Ochoa Lizarbe v. Hurtado was filed in July 2007 before the U.S. District Court for the Southern District of Florida. This suit accuses Telmo Hurtado Hurtado, a former Second Lieutenant of the Peruvian Army, of direct liability for grave human rights violations and of indirect liability under the command responsibility doctrine, for abuses committed by his subordinates. A default judgment was entered against him on November 21, 2007 for torture, extrajudicial killing, war crimes and crimes against humanity.

In March 2008, a federal court in Miami ordered Hurtado to pay $37 million in damages to the plaintiffs and the estates of their family members. The judgment in this case represents the first time that anyone has been held to account for atrocities committed in connection with the Accomarca Massacre.

Peru filed an extradition request with the United States in 2007. Hurtado’s extradition was finally granted on June 16, 2009. On July 14, 2011, Hurtado was extradited to Peru.

BACKGROUND

From 1980 to 2000, the government of Peru fought a civil war against insurgent groups, including the Maoist-inspired Sendero Luminoso (Shining Path). During the long conflict, both the Peruvian military and the rebel groups committed widespread human rights abuses, torturing and massacring thousands of unarmed civilians.

In October 1981, the government declared a state of emergency in five districts of the Andean highlands region of Ayacucho. Within this “Emergency Zone”, constitutional protections were suspended. Then, in December 1982, the government deployed the Army to Ayacucho. As violence in Ayacucho escalated, many innocent civilians became trapped between the brutality of the Shining Path and the Army. Ethnic and cultural differences between Peruvian Army soldiers and the indigenous, Quechua-speaking residents of the Andean highlands played a significant role in the abuses that the indigenous communities endured at the hands of government forces. According to Peru’s Commission for Truth and Reconciliation, 26,259 people died or disappeared in the department of Ayacucho alone during the civil war.

Beginning in about 1983, the Army targeted the Accomarca district of Ayacucho, claiming that the Shining Path had gained a foothold in the area. In September 1983, the Army raided the homes of eleven people in the town of Accomarca, the capital of the district, and summarily executed them as suspected Shining Path supporters.

The Accomarca Massacre

In August 1985, the Army’s Chief of the Political-Military Command for the “emergency zone” ordered one of his officers to devise an operational plan to “capture and/or destroy terrorist elements” in an area of Accomarca known as Quebrada de Huancayoc. A meeting was convened to discuss the plan that was attended by, among others, Second Lieutenant Telmo Hurtado Hurtado, Lieutenant Rivera Rondón and the commander of Lince Company, Major José Daniel Williams Zapata. At the meeting, the plans of the operation were laid out. Two units from Lince Company would be employed. Williams Zapata chose the Lince 6 patrol unit, commanded by Rivera Rondón, and Lince 7 unit, commanded by Hurtado, to carry out the operation. The attendees were told that any villager appearing in Quebrada de Huancayoc should be considered a communist terrorist.

Then, on August 14, 1985, Lince 6 and Lince 7 entered Quebrada de Huancayoc. With Rivera Rondón’s troops blocking a nearby escape route, Hurtado and his soldiers went house to house forcibly removing villagers from their homes. The villagers were beaten with the butts of weapons and kicked with the heels of soldiers’ boots. They were lined-up single file and herded into houses of death, where Hurtado and his soldiers repeatedly shot our clients’ family members, and then burned them alive amidst desperate screams for mercy. These acts were personally seen and heard by two 12-year old girls, Teófila Ochoa Lizarbe and Cirila Pulido Baldeón, and in this way, the two Plaintiffs were themselves tortured by Hurtado. In all, approximately 69 unarmed civilians were killed by the Army during the operation.

Villagers collect the dead following the 1985 Accomarca masacre. Image from the archive of the Peruvian Truth and Reconciliation Commission (CVR).

After the massacre, Hurtado and Rivera Rondón submitted written reports about the operation. In their reports, neither Hurtado nor Rivera Rondón made any mention of the interaction with civilians in Quebrada de Huancayoc or the fact that troops had killed dozens of people.

Years later, in 1993, Hurtado was convicted by a Peruvian military council of abuses of authority and making false statements. Although these charges related to the Accomarca Massacre, Hurtado was never prosecuted for the actual abuses that occurred. Moreoever, despite the 1993 conviction, Hurtado’s six-year sentence went unenforced. Then, in 1995, former President Alberto Fujimori passed an amnesty law which shielded military personnel who had been involved in the counterinsurgency from all prosecution.

Impunity for Hurtado ended in 2002, when the Peruvian Supreme Court nullified the amnesty law that protected him from prosecution. Shortly thereafter, Hurtado fled Peru for the United States in 2002, where he found safe haven in Miami Beach.

U.S. Immigration Proceedings

Thanks in part to the efforts of CJA and our courageous clients, an Immigration and Customs Enforcement (I.C.E.) investigation revealed that Hurtado had falsely claimed on a 2002 visa application that he had never been arrested or convicted of a crime. As a result, Hurtado was charged with two criminal counts of immigration fraud in March 2007. He pled guilty to the charges and was sentenced on June 29, 2007 to six months in prison.

Prosecution in Peru

The Peruvian authorities have also initiated a criminal investigation into the Accomarca Massacre. In that context, Peru sought the extradition of Hurtado and filed an extradition request with the United States in 2007. Hurtado was finally extradited to Peru on July 15, 2011, marking the first time that a CJA defendant was extradited to face trial for human rights crimes.

The Accomarca Massacre trial in Peru started in November 2010 and is ongoing. On January 19, 2012, Hurtado testified in the criminal case in Peru for the first time and initially denied any wrongdoing. In a complete turn around, during his testimony on April 9, 2012, Hurtado confessed that he was responsible for the killing of 31 villagers. He also testified for the first time that he was ordered to cover up the military High Command’s role in the Accomarca Massacre. A decision on the first part of the trial is expected in the fall of 2012.

LEGAL PROCEEDINGS

Complaint

On July 11, 2007, CJA and pro bono co-counsel Morgan Lewis and Bockius LLP filed a lawsuit in the U.S. District Court for the Southern District of Florida on behalf of two Peruvian women, Teófila Ochoa and Cirila Pulido Baldeón, against Hurtado for his role in the Accomarca Massacre.
The complaint states claims, under the Alien Tort Statute and the Torture Victim Protection Act, for the extrajudicial killings of the women’s relatives and for the torture they personally endured in fearing for their own lives. The complaint also includes claims for war crimes, because the killings and torture occurred in the context of the civil war, and crimes against humanity, because the massacre was part of a widespread or systematic attack by the government against the civilian population of Peru. The plaintiffs assert that Hurtado is directly liable for these crimes, and that he is also liable under the internationally recognized doctrine of command responsibility.

Default Judgment

After Defendant Hurtado failed to respond to the summons and complaint, the plaintiffs filed a motion for default judgment. On November 21, 2007, District Court Judge Adalberto Jordan granted the motion for default judgment and set a trial date to determine damages.

Trial on Damages

Trial was held in February, 2008 in Miami. At trial, CJA client Ochoa Lizarbe’s testimony was interrupted by the presence of U.S. marshals who brought Hurtado into the courtroom in a prison jump suit and shackles pursuant to our subpoena seeking his testimony. Hurtado refused to participate in the proceedings. Testimony was also given by former Peruvian Senator Javier Diez Canseco and Eduardo Gonzalez of the International Center for Transitional Justice.

Final Judgment

On March 4, 2008, Judge Jordan ordered Hurtado to pay $12 million dollars in compensatory damages and $25 million in punitive damages to our clients and to the estates of their family members.