Fujimori on Trial :: Fujimori procesado

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-COMMENTARY- International Seminar: Those responsible for human rights violations

August 22nd, 2008 · 1 Comment

By Christina Prusak, NYU Law student

While the trial of Alberto Fujimori takes place between the hours of nine and five on Mondays, Wednesdays and Fridays, an equally, if not more important facet of the judicial process took place outside the courtroom on June 25th and 26th in the Cultural Center of the Pontific Catholic University of Peru as a group of domestic and international scholars, lawyers, journalists and human rights activists gathered to discuss the trial’s importance, progression and purpose.  The moderately sized lecture hall was full of eager attendees, armed with questions for the panel, exemplifying the thirst for this sort of formalized debate, which has been fairly scant to date. 

The panelist’s views were varied and at times in direct conflict, as some chose to emphasize the power and importance of the trial in the international context while others honed in on the functional deficiencies and weaknesses.  Interestingly, it was primarily foreign panelists who engaged in critical discourse while their local counterparts tended to defend the trial’s progression.  Luis Pásara, from the University of Salamanca in Spain, asserted that the trial has lost focus, dragging on with imprecise interrogations and superfluous procedural exercises such that it is no longer being “hecho por los ciudadanos” or, in other words, conducted by the citizens.  Douglas Cassel, director of the Center for Civil and Human Rights in the United States, gave a list of actions he would personally take to improve the trial’s progress and criticized the chamber judges for being too conservative and cautious.  On the other hand, Peruvian panelists, such as Ronald Gamarra and Francisco Soberón, chose to skirt polemic issues and instead focused their lectures on the trial’s strengths and precedent-setting importance. Given that there was no direct dialogue between the panelists, the contrasting approaches hung in the air as unresolved tension at the end of each evening. 

While facilitating the exposition of a variety of diverse viewpoints was clearly one of the panel’s greatest strengths, at the same time, it was disconcerting that none of the criticisms of the trial’s progression came from a Peruvian participant.  Domestic observers’ hesitancy to criticize the progression of the trial is understandable given the desire to solidify an aura of legitimacy and respect for the judicial process so that the ultimate decision not only carries contemporary but precedential weight.  This reluctance can perhaps even be understood as a residual effect of the extradition process, during which Peru fought fiercely to prove it could provide the ex-president with a fair and just trial.  However, establishing legitimacy must not be confused with turning a blind eye to any deficiencies and shortcomings.  Ignoring the weakness of the judicial process in the end will only serve to undermine its legitimacy, providing fodder for those wishing to undercut its substance and value.  

Legitimacy is not incompatible with realism and honest acknowledgement of deficiencies and weakness, which are destined to abound given not only the unprecedented nature of this criminal prosecution of a “democratically” elected political leader for human rights violations, but also the imperfect nature of any judicial process, generally speaking.  I would argue that transparency, in the fullest sense possible, is far more important than flawless procedural execution, especially given that no one realistically expects the Peruvian judiciary to function as a perfect well-oiled machine given due to past corruption and the complicated nature of the issues it is charged with resolving.  Thus, critically scrutinizing aspects of the trial does not mean that all is lost, it means accepting a more rigorous path to ensure that all possible is gained.  Honest evaluation of the shortcomings of the trial is constructive criticism that, in the end, can contribute to the ultimate legitimacy of the judicial process by ensuring transparency.

One speaker who exemplified through a nuanced discourse the practice of constructive criticism was George Mason University professor, Jo-Marie Burt, who was primarily responsible for the organization of the seminar and lectured on Wednesday night.  After acknowledging that the trial exemplifies the means by which the concepts of truth and justice can be integrated to better achieve reconciliation, she then noted its limitations, identifying, for example, evidence of residual military power causing difficulty in obtaining access to various military documents throughout the trial’s progression.  Burt’s observations ring true with any observer who has attended the trial and listened to the chants and drums of the military droning in from the military base outside during witness testimony.  An acknowledgement such as hers seems not only appropriate, but essential to legitimize the judicial process as sweeping such weaknesses under the rug only provides fuel for later criticism that could threaten to undermine the entire process if launched after a judicial decision.

However, this type of constructive criticism and strict scrutiny must come not only from the international community, but from the domestic sector as well for it to have a real impact, especially with respect to the ultimate decision and its supporting jurisprudence.  While international observers’ commentary and critique is invaluable given its distinct perspective and often greater personal distance from the issues implicated, in the end, the trial is being domestically executed by the Peruvian judiciary for the Peruvian people.  This in turn implicates that for such criticism to resonate and affect the progression and ultimate outcome, it is essential that it also emanate from domestic observers.  Moreover it is important that such criticism be made now, before a final decision is issued, so that it can impact the course of justice and ensure true transparency and legitimacy. 

It is important to acknowledge that despite the deficiencies identified this seminar should be considered a great success insofar as it exemplifies how the human rights community can contribute to transparency and legitimacy by providing a forum for formalized debate, discussion, and exposition of diverse points of view.  I hope the success of this seminar will serve as momentum for similar events providing the opportunity for continued exploration of the themes discussed as the enthusiastic participation and the numerous unresolved issues both suggest that Peruvian civil society is thirsty for this sort of dialogue.  As the trial winds down with the last few witnesses taking the stand in the weeks to come, there is much to discuss and it is time for the human rights community to take action to ensure that this historic opportunity is not wasted in silence.  In many ways, a brutally honest evaluation of the trial’s progression is just as important as anything that happens in the courtroom, as it is the only means by which true transparency and consequently legitimacy can be achieved.