Foreign Policy In Focus

A recent sentence for members of a death squad represents a step backward for Peru on human rights. 

Cross-posted from WOLA.

On July 20, the Peruvian Supreme Court emitted a highly controversial sentence in a case involving the members of the Colina Group death squad. 

According to human rights defenders and the victims in the relevant cases, the sentence is a major step backward in Peru’s tortured quest for truth and justice in cases of egregious human rights violations. WOLA has long supported the efforts of the Peruvian human rights community and the victims of human rights violations seeking truth and justice, and strongly condemns this setback to overcoming impunity in Peru.
 
The sentence refers to three crimes committed by the notorious Colina Group, a military unit responsible for a series of human rights violations between 1991 and 1992: the 1991 massacre of Barrios Altos in which 15 people, including an eight-year-old child, were murdered and four others gravely wounded, and the forced disappearance in 1992 of journalist Pedro Yauri and of nine peasant leaders from the community of Santa.
 
The verdict not only reduces the sentences of renowned criminals, including former security chief Vladimiro Montesinos, but also turns on its head established jurisprudence of previous Supreme Court decisions, decisions by Peru’s Constitutional Tribunal, and rulings of the Inter-American Court of Human Rights.
 
The Minister of Justice, Juan Jiménez Mayor (recently named Prime Minister), criticized the sentence as “shameful.” Eduardo Vega, Peru’s Ombudsman, stated that the verdict represented a “serious setback” in Peru’s efforts to achieve accountability for grave human rights violations and called for its rectification. President Ollanta Humala also noted his surprise at the verdict. Human rights groups have criticized the sentence and have stated that they will pursue actions domestically and internationally to challenge it.
 
Background
The initial investigation into the Barrios Altos massacre was closed in 1995 after the Fujimori government passed two amnesty laws that granted impunityto state agents accused of human rights violations during the internal armed conflict (1980-1995). The victims and their legal representatives took the case to the Inter-American system, and in 2001, the Inter-American Court of Human Rights emitted a verdict in the case, determining the responsibility of the Peruvian State for the massacre and ordering the investigation, prosecution, and punishment of those responsible. The same verdict determined that the 1995 amnesty laws violated international law and lacked legal standing.
 
As a result, the Barrios Altos case was reopened. The case is a complex one, involving 15 fatal victims and 31 defendants; later the cases of Pedro Yauri and Santa were incorporated into the legal proceedings as part of a “mega-trial” against the Colina Group members. However, the process was plagued by delays. The investigation lasted five years before the public trial started in 2005; then, due to a number of factors, but especially the delay tactics of the defendants’ lawyers, the public trial lasted another five years. Finally, in October 2010, a sentence was emitted finding 19 of the 31 members of the Colina Group responsible for the crimes. The most severe sentences, the maximum of 25 years, were reserved for the intellectual authors of the crime—Vladimiro Montesinos, the de facto head of the National Intelligence Service (SIN), Gen. (r) Julio Salazar Monroe, actual head of the SIN, and Gen. (r) Nicolás Hermoza Ríos, former army chief, and Gen. (r) Juan Rivero Lazo, former head of Army Intelligence—as well as for the chief operational heads of the Colina Group, former Army Major Santiago Martin Rivas and Carlos Pichilingue. The ruling was appealed by the defendants.
 
The Controversial Ruling
The Supreme Court announced its sentence in the case on July 20, 2012. The most controversial measures include a reduction in the sentences for virtually all those convicted, including Montesinos and Hermoza Ríos, which Supreme Court justice Javier Villa Stein, who presided over the court that emitted the ruling, said was in “compensation” for the lengthy legal process. But rights advocates say that the most questionable measures are related to a number of legal arguments that overturn the original sentence’s determination that the Barrios Altos massacre and the forced disappearances of Pedro Yauri and the peasants of Santa constituted crimes against humanity; that these crimes were committed by an organized apparatus of the State that constituted an unlawful association created for the purpose of committing criminal acts; and that Montesinos, Hermoza Ríos, Rivero Lazo and Salazar Monroe were responsible as autores mediatos of the crime—the same legal concept used to prosecute Alberto Fujimori for the Barrios Altos massacre, the La Cantuta murders, and two kidnappings. Of special concern, say human rights advocates, the sentence states that the Barrios Altos massacre does not constitute a crime against humanity. Although the sentence acknowledges that the crimes committed by the Colina Group were part of official State policy, it also states that this policy was not directed against the civilian population but rather against terrorists.
 
Reactions
Human rights groups have challenged each of these arguments point by point. The systematic nature of the Colina Group’s crimes was documented by the Peruvian Truth and Reconciliation Commission, and has been recognized in sentences emitted by the Inter-American Court of Human Rights in the Barrios Altos case as well as in the case of La Cantuta. The sentence emitted by the Special Criminal Court for the Fujimori case, which was ratified in December 2009 by the Supreme Court, recognized Barrios Altos and La Cantuta as crimes against humanity not only because they were directed at civilians but because they were part of official State policy, they were the result of a planned operation, and they occurred in a context of systematic violations of human rights. Additionally, the Peruvian Constitutional Tribunal recognized in 2005 that the crimes committed by the Colina Group—including the Barrios Altos massacre—constituted “crimes against humanity.”
 
The Supreme Court sentence has been sharply and widely criticized. The Vice Minister of Justice and Human Rights, Daniel Figallo, presented a recourse of amparo before the Constitutional Tribunal, the only legal remedy available within Peru to challenge a verdict of the Supreme Court. Several Parliamentarians have said that they would present a constitutional challenge against the Supreme Court judges who emitted the sentence. Diverse civil society groups, from labor organizations to human rights groups, criticized the sentence on a variety of grounds and said that they would petition the Inter-American Court to nullify the sentence.
 
Gloria Cano, head lawyer for APRODEH, one of the organizations representing the victims in the criminal proceedings, sharply questioned the ruling for its legalistic sophisms and its clear intent to favor not only those convicted in this legal process, but ultimately former president Alberto Fujimori Fujimori, who was convicted in 2009 and sentenced to 25 years in prison for the Barrios Altos and La Cantuta cases. In this regard, Carlos Rivera, head lawyer for the Instituto de Defensa Legal, another NGO representing the victims in this case, stated: “The Villa Stein court has provided a magnificent political tool [to Alberto Fujimori] to challenge his guilty verdict.”
 
As WOLA has noted in the past, international law prevents pardons for crimes against humanity. By removing the status of “crime against humanity” in the Barrios Altos massacre, the Villa Stein sentence could provide new arguments for Fujimori’s supporters to propose if not a challenge to his guilty verdict, then a pardon for Fujimori. However, it is important to note that according to Peruvian law, those sentenced for the crime of aggravated kidnapping, as is the case for former President Fujimori, cannot receive a pardon.
 
Also of concern has been the attitude assumed by Supreme Court Justice Javier Villa Stein, widely seen as the architect of the sentence. In the wake of the wave of criticisms against the Barrios Altos-Yauri-Santa sentence, Villa Stein assumed a combative tone, accusing Minister of Justice Jiménez Mayor of “stoking the fire” and being a “polarizing figure” for his comments criticizing the verdict. He stated that he would welcome a challenge to his sentence before the Inter-American Court, which rights advocates have said they will pursue. Most shockingly, Villa Stein mocked human rights groups, saying they should not continue to “whine” (“lloriquear”) about the sentence.
 
It is important to note that previously, APRODEH sought to have Villa Stein recused from this and other legal processes involving human rights cases due to his political positions. According to APRODEH, with regard to the Chavín de Huántar case, another highly controversial legal process involving the accusation against Montesinos and others for carrying out at least one extrajudicial execution in the aftermath of the hostage rescue operation in the Japanese Ambassador’s residence in 1997, Villa Stein asserted that NGOs defending victims in human rights cases were motivated by a desire to undermine the prestige of the Peruvian Armed Forces. The Constitutional Tribunal rejected APRODEH’s petition, saying that Villa Stein had a right to emit his personal political views and that these would not prejudice the legal proceedings. However, in the wake of the sentence, as well as Villa Stein’s dismissive comments, broad sectors of civil society are calling for his removal as a Supreme Court justice.
 
Justice on Trial
The victims of political violence in Peru have fought long and hard to overcome diverse forms of institutionalized impunity, including two amnesty laws that prevented them from knowing the fate of their missing loved ones and seeing those responsible for these crimes prosecuted and punished. After the Peruvian Truth and Reconciliation Commission released its 2003 report recommending the criminal prosecution of several cases of grave human rights violations, special bodies were set up in the Public Ministry and the Judiciary to investigate and prosecute these crimes and facilitate the rights of the victims to truth and justice. A number of important sentences, including the Fujimori verdict, were emitted staring in 2005. In recent years, however, human rights organizations in Peru have denounced a number of obstacles that have emerged that have undermined these special human rights courts and the broader process of justice for victims of state-sponsored human rights violations in Peru. The Villa Stein sentence is one more factor contributing to new forms of impunity in Peru today.

Jo-Marie Burt is an Associate Professor at George Mason University and Senior Fellow at the Washington Office on Latin America (WOLA).

I’ve spent the last week or so preparing for an interview with the British travel writer Michael Jacobs. In the process, I plowed through his wonderful recent book Andes, an account of Jacobs’ journey along the Andean spine of South America. A beautiful mix of history and first-person observation, Andes above all showcases Jacobs’ talent for dialogue, as he conveys tidbits of talks with academics, politicians, artists and regular Joes. 

In one scene, Jacobs relates his chance encounter on a bus journey with a witness to the mid-1980s slaying of German couple at the hands of the Shining Path in Peru, a story that shocked Westerners into awareness of the violent civil war that devastated the country throughout significant chunks of the 1980s and early 1990s. The tale—as terrifying as it is sad—takes place “at around this time of year, on a bus owned like this one by the Molina Union.”

A group of Sendero Luminoso terrorists, some little more than young boys, had blocked the road with boulders. We all had to get out of the bus. They took everything we had, even though most of us were as poor as they were…The Germans of course did not really know what was going on. I told them there was nothing to worry about. But they weren’t stupid. Many people around them were sobbing and moaning.

Eventually we were all told we could get back on the bus. The Germans were on the point of stepping in through the door. A young man, the leader of the terrorists, held them back. “Not you!” he shouted. I pleaded with him to let the Germans go. I said they have done nothing…” They are traitors,” he replied. “All foreigners are traitors.”

The Germans asked me to repeat what had been said. Strangely, they did not seem frightened any more. It was if they suddenly knew they were going to do, and that there was nothing that they could do about it. I just told them that everything was going to be alright. They held hands tightly and looked into each other’s watery eyes. They obviously were very much in love. I was shoved onto the bus. I could hear the gunshots as we pulled away.

I was reminded of this story by the news this week that Peruvian intelligence officers had arrested Elisa Monica Culantres Cordova, partner of Shining Path leader “Comrade Artemio,” who was nabbed outside Lima seven months pregnant. Besides being a direct connection to the most powerful surviving member of the once-revolutionary movement, Cordova had been wanted for numerous acts of terrorism that left dozens dead, including eleven national police officers. 

This may not seem like a big deal: the conventional wisdom holds that the Shining Path has been reduced to a skeleton of its former self, and poses no serious threat to Peruvian state security. As it so often happens, however, the conventional wisdom is wrong. 

One of the perverse effects of the American-led war on drugs in South America—largely under the umbrella of Plan Colombia—has been the so-called balloon phenomenon, where drug production has been pushed out of Colombia and spread around to its neighbours in the continent’s south and east. New market opportunities produced exploding profits seized by armed factions associated with traditional coca farming families, chief among them the Shining Path. 

Like the FARC in Colombia, elements of the Shining Path have switched gears from Marxist revolution to the trafficking of drugs in an attempt to maintain relevance and a measure of political power. According to InSight,

The new reach of the Shining Path has also allowed the rebels to diversify the routes they use to smuggle cocaine out of the Peruvian highlands on their way down to the Pacific Coast, where shipments are bought by the Mexican drug cartels and smuggled northwards through the Pacific...Shining Path rebels escort shipments across stretches of Peru, charging drug traffickers up to $30 a kilo. The rebel columns are not only marching through the mountainous terrain but have access to vehicles and are able to cover large distances quickly.

Recently elected president Ollanta Humala made the war on drugs a priority concern in his successful bid for the country’s highest office, but there’s reason enough to be skeptical of his ability to follow through successfully. As government attention to the drug trade intensifies, and becomes increasingly violent, Shining Path traffickers have invested their booming proceeds in outfitting the movement’s foot soldiers with the latest in military technology. Again, Insight:

Another effect of the army offensives against the rebels has been to force them to better arm and equip themselves, using the proceeds from drug trafficking to buy weapons on the black market. Police intelligence sources are cited tracking more than 100 rifles (mostly AKMs, the upgrade of the basic AK-47 Kalashnikovs produced in the 1960s) and some rocket-propelled grenades used to target military helicopters, one of which was hit in 2009 in Santo Domingo de Acobamba (Huancayo province).

But the bigger threat may reside in Humala’s constituent base made up in part by the country’s powerful coca growers union, the leadership of which has demonstrated ties to the Shining Path. If Humala institutes aggressive policies that threaten coca production generally and leave behind piles of bodies, his political future will be cast in serious doubt. On the other hand, if the Shining Path is permitted to reconstitute itself in any guise—political movement or trafficking outfit—Humala will almost certainly guarantee himself a legacy of failure. Meanwhile, the country’s conservative forces, who have demonstrated no qualms about instituting human-rights abusing mano dura policies to squash threats to the state—will be primed to recapture the mantle of political leadership.

Cross-posted from the Tumblr site Peru Elections 2011.

With nearly 99.697 percent of the vote counted as of Wednesday morning, Ollanta Humala has maintained a three point lead over Keiko Fujimori, assuring his victory in Peru’s hotly contested presidential elections. Humala has maintained his three point lead, with 51.5 percent of the vote compared to 48.5 percent for Keiko Fujimori. Humala’s win was hailed by many as a victory for democracy and the promise of social justice. In the end, despite the highly polarized electoral climate, hope defeated fear.

Yet as noted by Peruvian analyst Carlos Basombrío, Humala’s honeymoon appears to be over before it even began. Despite the fact that he has yet to be declared the official winner, since Sunday night Fujimori supporters have been demanding that he announce his economic team in order to calm the nerves of national and international investors – this notwithstanding that key Humala advisors have repeatedly said that there will be no nationalizations or property confiscations and that they would ensure macroeconomic stability. Yesterday Humala announced his transition team, which will be led by his Vice Presidential candidate, Marisol Espinoza. The list reflects the diversity of views that his campaign came to represent, including, for example, more left-wing economists such as Félix Jiménez and Humberto Campodónico and the moderates who joined forces with Humala in the second round, such as Kurt Burneo, who was the deputy Economic Minister, and Daniel Schydlowsky, who was the head of the state bank, COFIDE, under the Toledo government. 

Humala is already being pressured from all sides. He will have to implement the promises of his campaign to develop economic and social policies that will make Peru a more equitable and inclusive society – promises which brought him over 30 percent of the vote in the first round. But he won on Sunday by moving beyond his political base to gain support from more moderate sectors who in many instances voted for Humala in order to prevent Keiko Fujimori from being elected president, which they feared would mean a return to the corrupt and undemocratic practices of her father’s government. While some of these moderates support Humala’s core idea of the need to achieve a more just country, they may have very different ideas about how to achieve that change.

Humala is also under tremendous pressure from conservative economic elites who are threatening to withdraw investments from the country if he strays from economic orthodoxy and who will no doubt show resistance to even moderate policy change, such as increasing taxes on mining companies (hardly considered radical in Latin America today). Experiences in neighboring countries, such as Bolivia, give credence to concerns of attempts at economic sabotage by those staunchly opposed to Humala. Indeed, in her surprisingly late concession speech (although it was clear on Sunday night that Humala was poised to win the elections, Keiko Fujimori waited until 5:30 pm the next day to admit her defeat), Fujimori warned that she represents 48 percent of the population and that her supporters will insist on “continuity” with regards to the prevailing economic model. 

Humala’s victory is a stunning metaphor for the long-standing divide between Lima and the rest of the country. In stark contrast to past Peruvian elections, as noted in Otra Mirada, for the first time Lima and the agro-export northern regions of the country did not determine the winner. Though he lost by a significant margin in Lima (where Fujimori got 58.4 percent of the vote) and in some northern departments, he won 17 of 26 regions outright, concentrated in the south, central and jungle regions of the country. He took Puno with 78 percent of the vote, Cusco with 75 percent, and Ayacucho with 73 percent. He won with over 60 percent of the vote in Apurímac, Arequipa, Huancavelica, Huánuco, Madre de Dios, Moquegua and Tacna. While it may be fair to say that Humala did not win a mandate for radical change, he certainly has a mandate for some change. In particular, he has a mandate to address the concerns of the provinces regarding the concentration of economic and political power in Lima.

Another major challenge Humala faces is a deeply fractured Congress, which since 1993 has been a unicameral body and now has 130 members. His Gana Peru coalition has 47 members of Congress. Humala thus lacks an outright majority that would allow him to easily implement his economic and social programs. He also faces a powerful and usually united opposition in Keiko Fujimori’s Fuerza 2011 which has 37 members, with  potential allies among another 20 representatives from right-wing parties (including APRA’s four representatives), which will most likely try to block his social and economic proposals. However, the last-minute support thrown to Humala’s candidacy by former Peruvian president Alejandro Toledo has allowed him to build at least a short-term coalition with Peru Posible’s 21 congressional representatives, which constitute the third largest block in Congress. That gives Humala a potential total of 68 votes in Congress, an extremely slim majority but a majority nonetheless. It remains to be seen whether or not Humala will be able to hold this coalition together in order to initiate crucial social and economic changes – and fend off the likely incessant attacks from the political opposition.

With the second largest voting bloc in Congress, Fujimori’s Fuerza 2011 is a political force to be reckoned with. Yet as Gustavo Gorriti asserts in IDL-Reporteros: “Despite the statistics, the defeat of fujimorismo leaves this movement with an uncertain future.” He points out that even with the support of Peru’s powerful economic sectors and business associations, Cardinal Juan Luis Cipriani (an outspoken member of Opus Dei), the major media and President Alan Garcia, Fujimori still lost the election. 

Of particular significance for Keiko Fujimori is what now happens to her father. Securing his release from jail remains a primary objective of his supporters and now there will be even more pressure for some action to be taken before Humala assumes office on July 28. As we reported previously, it appears that the Constitutional Tribunal is poised to accept a writ of habeas corpus presented by Alberto Fujimori’s attorneys, which would amount to a revocation of the ratification of the original sentence. If that happens, a new trial to review the appeal of the April 2009 conviction would be held that could lead to Fujimori’s exoneration, or to a different sentence that could facilitate a presidential pardon.

Alternatively, Peru’s president could immediately pardon Fujimori.  (Although Peruvian law prohibits pardons from being granted to those convicted of aggravated kidnapping, as was the case with Fujimori, and international law prohibits pardons from being granted to those convicted of crimes against humanity, it would hardly be the first time that a Peruvian president subverted the law.) Already, there are calls for Garcia to do just that. Just two days after the elections, APRA Congressman Jorge Vargas called on Garcia to pardon Fujimori on humanitarian grounds, due to his age and allegedly poor health. An opinion poll already shows that most Peruvians oppose granting a pardon to Fujimori. It would be a true mockery of the will of the Peruvian voters if after they rejected the return of fujimorismo, the convicted former president were set free.

Cross-posted from the Tumblr site Peru Elections 2011.

With Ollanta Humala the virtual winner of Peru’s presidential elections, it is time to think about the very real challenges he faces as he prepares to take office on July 28, 2011.

Before analyzing the real policy and governance challenges facing Humala, we thought it important to examine an immediate challenge he faces: the need to calm the waters in Peru after a deeply polarizing political process that pitted his nationalist proposals against the more conservative program of Keiko Fujimori. It is important to remember that Humala and Fujimori were the two candidates that generated the highest degree of rejection among Peruvian voters on the eve of the first-round elections. In the second round, then, many voters found themselves forced to choose between the “lesser of two evils.” This resulted in a sharp and polarizing political process, which endured a grueling two months between the first and second rounds.

The polarization rippled through Peruvian society. Families were divided over which candidate to support. One middle-class lawyer told us that she supported Humala because she was vehemently opposed to a return to fujimorismo, but that the rest of her family supported Fujimori, and they implored her not to publish negative stories about Fujimori on her Facebook page. When she refused, her brother refused to speak to her.

More worrisome, the race and class-based divisions that are such a remarkable feature of Peruvian society came to the fore with a virulence not seen since the height of the internal armed conflict in Peru. This was seen in the media, with remarks with racist undertones or even overt racism were heard frequently. Aldo Mariategui, the director of the right-wing daily Correo, wrote in his column on the day before the elections warning that Humala would be a dangerous choice for Peru and implored his fellow citizens to vote for Fujimori in sharp, denigrating tones, “Peruvian, don’t be stupid at the voting booth tomorrow.” Fernando Szyszlo, the famous Peruvian painter, said that Peruvians faced an impossible choice in Sunday’s electoral contest. A triumph of Ollanta Humala, he said, “would be the triumph of the uneducated, of the ignorant, of those who do not know what is good for the country.” If Fujimori triumphed, he said, it would be “a victory for the corrupt.”

Peruvians concerned at the tone of racist remarks created a Facebook page called Democratic Shame in which people could denounce such behavior. Over 7,000 people have joined the page and have shared offensive remarks they have received or observed in the course of the campaign. One post read: “Shitty Indians!!! Only they could be so ignorant!!!” Another said: “Shitty Puneños… Die of cold, now let Ollanta send you clothes!” (Many people from Puno, especially children, have died due to extreme cold weather in Puno in recent years, and there have been frequent charity campaigns to prevent more deaths.) Ollanta Humala’s Facebook page was frequently intervened with racist comments and posts, also posted on Democratic Shame’s Facebook page. After the first-round vote, one Facebook user posted [sic]: “Shitty Indian, renounce your candidacy” while another said, in allusion to Humala’s supporters, “Son of a bitch, no one wants you, people who vote for people like you have know idea of what would happen if you become president, they are ignorant just like you…”

Peru is undoubtedly a society marked by deep racism. This was noted by Peru’s Truth and Reconciliation Commission, which identified long-standing racism and exclusion as the root cause of the violence that devastated Peru in the 1980s and part of the 1990s. The current climate of polarization is deeply informed by this racism and by the classism that accompanies it. Humala has promised a government of national unity that brings together the country’s diverse democratic sectors and that is open to the participation of Peruvian civil society. This is an important step in the right direction, but tackling the underlying classism and racism that reared its ugly head in this electoral process will require much more than that.

Cross-posted from the Tumblr site Peru Elections 2011.

On April 7, 2009 former Peruvian president Alberto Fujimori was convicted for human rights violations in three cases: the Barrios Altos massacre, the forced disappearance of nine students and a professor from La Cantuta University, and the kidnappings of journalist Gustavo Gorriti and Samuel Dyer.

The legal proceedings against Fujimori demonstrated beyond reasonable doubt that he was the key architect of a state plan to eliminate suspected subversives and opponents of his regime. He was sentenced to the maximum penalty in Peruvian law, 25 years.

The verdict was ratified on December 30, 2009 by a tribunal comprised of five Supreme Court justices. This was the final appeal, and the ratification means that Fujimori’s sentence of 25 years is firm and not subject to further appeal.

The Fujimori trial and sentence are regarded by Peruvian and international jurists, scholars and human rights observers as fair and impartial, and impeccable in guaranteeing and respecting the defendant’s due process rights. The Washington Office on Latin America organized several international missions to observe the trial and can attest to this directly.

Moreover, the guilty verdict against Fujimori has been hailed by international legal scholars such as Kai Ambos and Juan Mendez as a milestone in global justice efforts to end impunity and guarantee accountability for crimes against humanity such as forced disappearances, extrajudicial executions, and torture.

Fujimori did not question the impartiality of the judges nor did he impugn the proceedings against him while they were taking place. However, after the first sentence was ratified in December 2009, Fujimori and his allies launched a political and legal strategy to question the legitimacy of the verdict. This is because for the political project of fujimorismo, the release of Alberto Fujimori is an essential objective. Given the history of fujimorismo, especially its manipulation of the Judiciary and its trampling on democratic institutions to achieve its objectives, there is major concern among democracy and human rights activists that Fujimori could be freed using questionable methods.

There are two avenues by which Fujimori’s supporters have sought to have their leader released.

The first is via a presidential pardon. Since the initial verdict was handed down the question of whether or not the current president, Alan Garcia, would pardon Fujimori (presumably in exchange for a future promise of protection from prosecution for human rights violations committed during his first government) or whether his daughter, should she be elected president in 2011, would pardon her father. From the day of his conviction, Keiko Fujimori repeatedly stated that her “hand would not tremble” to pardon her father.

However, there are significant problems with this avenue. Peruvian law prohibits pardons from being granted to those convicted of aggravated kidnapping, as was the case with Fujimori. International law prohibits pardons from being granted to those convicted of crimes against humanity; the judges clearly stated in their verdict that the crimes of aggravated homicide, assault and kidnapping of which they found Fujimori guilty are crimes against humanity in international law.

Moreover, it would be costly politically to grant Fujimori a presidential pardon. The vast majority of Peruvians now believe Fujimori was guilty of these and other crimes, the Fujimori sentence is viewed positively by two-thirds of the Peruvian population. It is perhaps for this reason that Keiko Fujimori has recently pledged not to pardon her father if elected. Her change of heart may be related to her faith that a second avenue to freeing her father is still available: a legal strategy that seeks ultimately to overturn the Fujimori conviction. To this end, Fujimori’s lawyers have submitted no less than 17 writs of habeas corpus to Peru’s Constitutional Tribunal (TC).

The TC has agreed to hear at least one of these writs of habeas corpus, but has stated that it would wait until after the presidential elections to emit its ruling. This habeas corpus essentially challenges a ruling that denied Fujimori’s petition alleging that the Supreme Court judges named to review his appeal of the April 2009 verdict were not impartial and requesting their removal from the case. Human rights lawyers note that while the TC has handed down very important rulings in the years since Peru’s democratic transition in 2000-2001 that established important human rights jurisprudence in Peru, in recent years it has handed down several rulings that move away from some of this jurisprudence that represent a backsliding in efforts to combat impunity (for example in 2010 the TC ruled that crimes it had previously considered crimes against humanity, in which no statutes of limitations can apply, were in fact simple crimes and that statutes of limitation did apply).

If the TC were to accept the argument outlined in the writ of habeas corpus, it would amount to a revocation of the ratification of the original sentence, and a new trial would be held that could lead to Fujimori’s exoneration, or to a different sentence that could facilitate a presidential pardon. WOLA and its partners in Peru are deeply concerned at such a prospect, which is especially likely should Keiko Fujimori be elected president of Peru this Sunday.

Should this comes to pass, not only is it highly likely that Alberto Fujimori will be freed; it is also probable that Vladimiro Montesinos, along with other members of the Fujimori regime currently serving prison time for corruption, drug and arms trafficking, and human rights violations will also be set free, and that a general amnesty will be put in place effectively ending attempts to achieve accountability for human rights violations committed in the context of Peru’s internal armed conflict. Such an outcome clearly puts Peru’s fragile democracy at risk. It would likely generate political and social discontent and instability, which could elicit the kind of repression and authoritarian practices of the Fujimori years that Peruvians have fought so hard so overcome.