By Yurica Ramos Monte.
Julio Salazar Monroe, ex-chief of the National Intelligence Service, was sentenced after his trial to 35 years in prison, for having command responsibility of the crimes against nine students and a professor at La Cantuta University, having had control from the organized power machinery of which he was part (Paragraph 150 of the La Cantuta judgment, hereinafter referred to with just the paragraph number).
Ex-President Alberto Fujimori Fujimori is being tried for these same acts and crimes. He is accused of having been at the highest level of this hierarchical structure, which planned an anti-subversive policy that devised and decided upon a strategy that contemplated the physical elimination of persons. As a result, the sentence against Salazar Monroe permits the continued construction of the chain of command responsibility that was part of this hierarchical structure (Paragraph 151).
I. Proven Facts
The judgment of the Special Penal Hall proved that Fujimori, upon being elected, had as his fundamental objective the fight against subversion, for which he surrounded himself with persons of confidence and counted on the support of the SIN and the Joint Command of the Armed Forces. (Paragraph 49)
Said circumstances permitted Fujimori to dominate all the state apparatus, and thus he created two methods or strategies to complement said dominance; one was official or visible and the other was secret or clandestine, which was at the margin of the legal regulations. This facilitated the creation of an annihilation group called the “Colina detachment”, whose mission was to eliminate presumed terrorists (Paragraph 86).
The development of the mission of said detachment always counted on the approval of those located at the high spheres of government and the military, who had control over the detachment (Paragraph 87).
Regarding the existence of said detachment, the Interamerican Court of Human Rights said in its Findings (80.1): that this was a group attached to the National Intelligence Service (SIN), that it operated with the knowledge of the presidency of the republic and the Army Command, they had a hierarchy, and their personnel received, in addition to their salary as officials and sub-officials, money for operating expenses and improvements. Likewise, in order to consider the validity of said affirmations, the Constitutional Court, in Exp. 679-2005/PA/TC Lima, Martin Rivas (Finding 56), established that national courts should recognize the legal value of facts that have been put forward, analyzed, and proved before international courts.
The opinion of both tribunals (Paragraphs 50 and 51) serve as basis for forming the judges’ conviction (Paragraph 74H) about the existence of a special team that was commanded by Lieutenant Colonel Rodriguez Zabalbeascoa and that Salazar ordered moved to the SIN headquarters.
This permits the clear deduction that, once the existence and mission of the Colina Group is recognized, said group not only was attached to the SIN command, but also obeyed orders of the President, since the SIN was directly dependent on him. Furthermore, the court proved that Fujimori named the chief of the SIN (Paragraph 49B) and other persons of great confidence, under the influence of Vladimiro Montesinos Torres, in order to move forward their strategy of pacification.
II. Fujimori’s command responsibility for control of the organization.
The Prosecution accused the ex-President of having command responsibility through control of organized apparatuses of power, understanding “command responsibility” to mean the person who takes advantage of the conduct of an intermediary (material executor) in order to achieve a criminal purpose. (Accusation, point 7)
A) The existence of a hierarchically structured apparatus of power:
In order to define the responsibility of the ex-President we must analyze the existence of a relation of subordination between Fujimori and the other high military officers, inside an organized apparatus of power. Thanks to information, power of command, knowledge about functioning, capacity of administrative direction, regarding the organized apparatus of power (Colina Group), Fujimori was part of said apparatus, placing himself at the highest level, with command responsibility.
In addition to the command responsibility by coercion or error, the postulate of command responsibility by control of the organization is set up, suggested by Claus Roxin (paragraphs 138-140), a position that permits developing the responsibility of the men behind in the setting of an organized apparatus of power, that without being executors, as claims Ivan Maini, they use the organized apparatus of power (as instrument) for the realization of the plan (paragraph 142).
On the other hand, Castillo Alba says (paragraph 143): “…in this form of command responsibility, the control of fact rests in the control of the organization, in the control of its structures, of its functioning, and of the hierarchical scale corresponding to the decision that is taken.” In this evolution of concepts, the court established (Paragraph 144) that under this theory the criminality incited and organized by the state is given in the form of command responsibility based on the control of the organization, thanks to the structured form of acting of the state apparatus.
Said arguments permitted the court to confirm the existence of an organized apparatus of power, with distribution of roles according to a hierarchical structure, with levels of command and execution, in which the so-called Colina Detachment, composed of members of the Peruvian Army, constituted the level of direct executions (Paragraph 146).
Fujimori’s command responsibility is clear then, as being part of the hierarchical structure, in which levels of command and execution existed, especially when the chief of the SIN depended directly on him, and in the present judgment it is proved that Salazar had full knowledge and authorized the carrying out of the criminal acts through this organized apparatus of power.
B) The predisposition of the executors:
This predisposition can only be appreciated from the point of view of an unjust organization, in which the person with command responsibility is convinced that his orders will be carried out, independently of the identity of the subject (Accusation, Point 7).
For Roxin, “…the objection, justified when one treats of an isolated relation between two persons in the sense that a hypothetical causal course would be used in a prohibited manner, is resolved when it is observed that the security of the result is augmented enormously by the fact that the organization counts on many available henchmen and that, then, the absence of one of them – for whatever reason – cannot put at risk the execution of the order….” The general interchangeability and the great availability toward the fact of the potential immediate authors are elements that, through stringing them together, form the basis for the control of the act of the man behind (Paragraph 140).
Kai ambos [sic] mentions that the distinction between authorship and participation is replaced by three levels of participation: at the lowest level, the third, are the mere executing authors . . . who appear only as auxiliaries of the global criminal business (paragraph 141).
For Ivan Meini, “…the executors can be considered also as a tool or instrument, the same as the financial or material resources, since all are equally used for a plan . . . .” Likewise, the possibility of substituting executors is a factual datum whose absence doesn’t have any reason to distort the control that one man behind can have over the subordinated executors, nor whose presence has any reason to condition the existence of such control. This control will be able to be consolidated over the hierarchical relation, the greater knowledge and information that the directive organ has in comparison with its subordinated person, but fundamentally over the availability of the executor to carry out the illegal act (paragraph 142).
These arguments serve as the basis for the court to establish that the Colina Detachment constitutes the level of direct executions inside the organized apparatus of power (paragraph 146).
All this allows us to conclude that the La Cantuta judgment is important in order to continue constructing the hierarchy of responsibility in the organized apparatus of power. This time it was Julio Salazar, we expect that the tribunal will continue escalating until arriving at the end of this chain of command responsibility, that because of its vertical structure, in order to make decisions before taking action it could not have acted without the consent of an immediate superior.