Ochoa Lizarbe v. RondónPeru: The Accomarca Massacre II
CJA brought civil lawsuits on behalf of two women, Teófila Ochoa and Cirila Pulido, 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.
The first of two sister cases, Ochoa Lizarbe v. Rondón was filed on July 11, 2007 before the U.S. District Court for the District of Maryland Southern Division. This suit accuses Rivera Rondón, a former Lieutenant of the Peruvian Army, of engaging in a joint criminal enterprise with other military officers.
In February 2009, Judge Peter J. Messite denied Rivera Rondón's motion to dismiss the case. Rivera Rondón appealed the denial, but on September 22, 2010, following the Supreme Court’s decision on foreign sovereign immunity in Yousuf v. Samantar, the Fourth Circuit upheld the decision of the District Court.
Bringing Rivera Rondón to Justice in Peru
Criminal accountability in Peru remains a top priority for our clients and CJA. Authorities in the U.S. opened an investigation into Rivera Rondon and initiated removal proceedings against him for false statements he made in his immigration forms about his role in the Accomarca massacre. Rivera Rondon was arrested in March 2007 and deported to Peru on August 15, 2008 where he was immediately detained in connection with a pending criminal human rights case regarding the Accomarca massacre. The criminal trial in Peru began on November 18, 2010. CJA has formed an international legal team to assist with the prosecution which includes attorneys from APRODEH and the Institute for Legal Defense. CJA is also assisting in the preparation of expert witnesses. The case in the U.S. remains stayed pending the resolution of the criminal trial in Peru.
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 Andean 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 the Shining Path supporters.
The Accomarca MassacreIn 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, Lieutenant Rivera Rondón, and Second Lieutenant Telmo Hurtado Hurtado as well as 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.
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. After soldiers raped some of the women, Hurtado’s troops forced approximately 50 people, including several pregnant women and elderly residents, into two buildings. Hurtado then ordered his troops to open fire. Hurtado also threw a grenade toward one of the buildings, causing an explosion and a fire that burned the building with the villagers inside. 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).
Rondón’s Immigration to and Subsequent Deportation from the U.S.
Rivera Rondón was never brought to justice for his role in the Accomarca Massacre. He came to the United States in the early 1990s and bought property in an upscale suburb of Washington D.C., in Montgomery County, Maryland. There he lived under the radar until 2003, when he was arrested and charged with the sexual abuse of a young relative. In 2005, the charge was reduced to "contributing to a minor child in need of assistance" and Rivera Rondón was given a one-year suspended sentence. This conviction eventually launched a chain of events which would return Rondón to Peru. On March 23, 2007 agents of the U.S. Immigration and Customs Enforcement (I.C.E.) arrested Rivera Rondón in Baltimore for failing to tell immigration officials that he had been convicted of a crime. Rondón’s involvement in human rights abuses was also cited as a reason for his arrest.
Finally, on August 15, 2008, Rivera Róndon was deported by I.C.E. to Peru where he was immediately detained by Peruvian authorities and a criminal human rights investigation was initiated. In an example of the “inside-outside” approach to transnational human rights accountability, a CJA attorney traveled to Peru to assist local prosecutors and the investigative judge Salvador Neyra on the human rights prosecution. On January 14, 2009, criminal authorities in Peru concluded the initial investigation phase into human rights crimes committed by Rivera Rondón. The criminal trial in Peru against Rivera Rondón began on November 18, 2010 and is ongoing.
ComplaintCJA and pro bono co-counsel Morgan Lewis and Bockius LLP filed the complaint against Rondón on July 11, 2007. The suit was brought on behalf of two Peruvian women, Teófila Ochoa and Cirila Pulido, who were eyewitnesses to the massacre of their families and neighbors in Accomarca.
The complaint includes 7 claims of torture, extrajudicial killing and crimes against humanity. The plaintiffs assert that Rivera Rondón bears responsibility for engaging in a joint criminal enterprise with officers and soldiers in the Peruvian Army who carried out the Accomarca Massacre as well as officers in the Peruvian Army who planned Operation Huancayoc.
Motion to DismissOn December 21, 2007, Rivera Rondón filed a Motion to Dismiss. arguing, inter alia, that:
- The plaintiffs’ complaint was not filed within the 10-year statute of limitations of the Torture Victims Protection Act (TVPA).
- Rondón enjoyed immunity under the Foreign Sovereign Immunities Act (FSIA).
- Plaintiffs failed to exhaust all available remedies in Peru.
- The act of state doctrine and
- The “political question” doctrine barred the court from hearing the suit.
- Plaintiffs failed to state a claim under the Alien Tort Statute and the TVPA.
Statement of the Peruvian Ambassador to the U.S.On April 7, 2008, Felipe Ortiz de Zevallos, Ambassador of Peru to the United States, filed a letter with the court expressing Peru's vigorous opposition to Rivera Rondón's claim of sovereign immunity for his actions at Accomarca. Having learned that Rivera Rondón was asserting immunity under the FSIA by arguing that his participation in the Accomarca Massacre was done “in his official capacity on behalf of a foreign government as a member of the Peruvian army,” the Government of Peru, through its Ambassador to the United States, wrote to the district court directly, stating “it is an untruthful statement that the actions of Mr. Rivera Rondón were the result of directives or regulations coming from the Government.”
Motion to Dismiss DeniedOn February 26, 2009, the court denied Rivera Róndon’s motion to dismiss, rejecting all nine separate arguments for dismissal, and agreeing with plaintiffs that the court did not lose jurisdiction over Rivera Róndon when he was deported. Citing the decision in our Somalia case, Yousuf v. Samantar, Judge Messitte wrote, “[a] recent decision from the Fourth Circuit puts to rest the entirety of Rivera Rondón’s FSIA arguments.”
Rondón Appeals to the 4th CircuitOn June 15, 2009, Rivera Róndon filed a petition for interlocutory appeal on the basis of FSIA immunity with the Fourth Circuit Court of Appeals in a renewed effort to have the case dismissed before it can be judged on its merits. On July 24, 2009 we filed our brief opposing defendant’s petition. At the District Court, on August 12, 2009, Judge Messitte denied Rondon's motion to certify all nine issues for interlocutory appeal. We filed the memorandum opinion denying Rondon’s motion for certification with the Fourth Circuit and also informed the court of the granting of certiorari by the U.S. Supreme Court in Yousuf v. Samantar on the same FSIA issue.
Following the Supreme Court’s decision in Yousuf v. Samantar holding that the FSIA does not provide immunity from suit for former foreign officials, the Fourth Circuit instructed the parties to file supplemental briefs addressing the effects, if any, of the Supreme Court decision on Rivera Rondón’s appeal. The parties filed briefs on August 13, 2010. On September 22, 2010, the Fourth Circuit issued an order denying Rivera Rondón's appeal and upholding the decision of the District Court in its entirety.