Fujimori on Trial :: Fujimori procesado

Accountability in Action :: Rindiendo cuentas

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Home grown justice: The benefits of local prosecution

Sara B. Greenberg, law student with the International Human Rights Clinic at The George Washington University Law School, Washington, D.C., USA

Since the Nuremberg trials, there has been a proliferation of international criminal tribunals, which have contributed significantly to the development of legal norms.  Yet the ad hoc tribunals, including the International Criminal Tribunal for the Former Yugoslavia and Rwanda, have not escaped criticism.  While international criminal tribunals can, among other contributions, fill a void left by domestic systems where there is a dearth of political will and resources, domestic criminal prosecution can offer incomparable transparency by virtue of the fact that they are more accessible to the populations for whom justice is purportedly being served.  While observing the Fujimori trial in March 2008, a novel domestic prosecution of a democratically elected former head of state, I was struck by the trial’s power to serve the Peruvian population arguably more effectively than an international prosecution by virtue of its transparency.

The ad hoc tribunals have been criticized for communication failures, for operating far from the location of atrocities and ineffectively transmitting information back to local populations.  In contrast, the Fujimori trial proceedings are simultaneously broadcast on television and radio in Peru.  As Peru moves beyond the Fujimori legacy, local prosecution and its accessibility by Peruvian citizens can play an enormously helpful role in helping a culture of human rights and accountability take root in Peru.  Local perception matters; “[a]ny post-conflict transitional mechanism’s impact on the ground hinges on its ability to effect some change in the hearts and minds of local populations.”[1]  It is significant not only that Fujimori is being tried in Peru; it is significant that Peruvians are fully aware of how the judicial process is progressing and that it is on their behalf.

International and domestic prosecution need not be seen as in competition with one another; international criminal trials have had a trickle down effect on domestic prosecution, producing a “justice cascade,” particularly in Latin America.[2]  Though prosecution by an international tribunal can serve as an acknowledgement by the international community of the gravity of atrocities, domestic prosecution has a powerful role in that it not only implements justice, but is perceived as doing so as well.  In refuting a preference for international venues over domestic venues, Professor Jose Alvarez has encouraged emphasis on, “restoring the rule of law where it matters most . . . within communities and nations devastated by mass atrocities.”[3]  National ownership, Alvarez urges, is an essential part of national reconciliation.[4]

Skeptics surmise that Fujimori was prejudged.  Writing in the British newspaper, The Guardian, John Laughland accused human rights organizations and the media of seeming “uninterested in the presumption of innocence” in the case of Fujimori, challenging the claim by human rights advocates that his trial is unprecedented.[5]  In referring to  “the world’s main human rights organizations” that have “declared [Fujimori] guilty,” Laughland misguidedly grouped the Inter-American Commission on Human Rights with Human Rights Watch and Amnesty International, overlooking the Commission’s status not as an NGO, but as an international body.  It is unclear what pronouncement of guilt Laughland was referring to in reference to the Commission.  However, it merits mention that the work of the Inter-American human rights bodies in cases implicating Fujimori were not part of an advocacy campaign, but rather were based on factual and legal judgments. The Inter-American Court of Human Rights held that atrocities under the Fujimori regime implicated Peru and Fujimori specifically in failing to uphold its human rights obligations under international law.  For example, based on its consideration of facts elucidated by the Peru’s Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación), the Court held in the case of La Cantuta: 

Suffice it to mention here that the Court considers it acknowledged and proven that the planning and execution of detention and subsequent cruel, inhumane and degrading treatment, extra-legal execution and forced disappearance of alleged victims, carried out in a coordinated and concealed way by the members of military forces and the Colina Group, could not have passed unnoticed to or have occurred without the orders of the superior ranks of the Executive Power and the then military forces and intelligence bodies, especially the chiefs of intelligence and the same President of the Republic himself.[6]

As proceedings progress in Peru, the transparency of the process – its accessibility to Peruvians and international observers – counterbalances the suggestion that the process has prejudged Fujimori. The openness of the process provides procedural safeguards that counter Laughland’s (and others’) assertion of prejudgment.

The Fujimori trial is held under the auspices of the Permanent Criminal Chamber, a three-judge chamber of the Supreme Court of Peru; Fujimori will have the right to appeal to a five-judge chamber.  The proceedings, which commenced on Human Rights Day, are a stark contrast with the anti-terrorism “faceless courts” that existed under the Fujimori regime, where judges dispensed justice from behind one way mirrors, prosecutors were often hooded to prevent their identification, and the right to a defense was limited or non-existent. Fujimori, on the other hand, enjoys the representation of not only a top-notch private defense team, but also a team of public defense attorneys provided by the State who are always present at the trial, whether or not they participate in examination of witnesses. As regards publicity, the proceedings are broadcast live everyday over two national TV channels. Moreover, the judges who preside over the trial have allowed international observers to participate, as well as any Peruvian observer who can claim an interest in the proceedings, such as victims and their families; Fujimori supporters; national and international press; academics and even university students. Such procedural safeguards and emphasis on transparency contribute to the legitimacy of the process.

Peruvians who laud Fujimori as a hero for his economic reforms and counterterrorism policies may never be swayed from their undying support for the fallen leader, however the fact that they can sit inches away from Fujimori during his trial while seated next to mothers of victims speaks volumes.  Time will tell how Fujimori’s domestic prosecution is judged both at home and abroad; this observer, however, is positively encouraged by the transparency and legitimacy of the process, regardless of the outcome.


 

[1] Etelle R. Higonner, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l & Comp. L. 347, 360 (2006).

[2] See Ellen Lutz & Kathryn Sikking, The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America, 2 Chi. J. Int’l L. 1 (2001).

[3] Jose E. Alvarez, Lessons from the Akayesu Judgment, 5 ILSA J. Int’l & Comp. L. 359, 366 (1999).

[4] Id.

[5] John Laughland, Fujimori’s Trial Could Be Truly Historic – If He is Acquitted, The Guardian (Oct. 9, 2007), available at http://www.guardian.co.uk/commentisfree/2007/oct/09/comment.world.

[6] La Cantuta v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 152,  96 (Nov. 29, 2006).