State of grace versus rule of law

March 29, 2018

Latin America, Article, Good governance, Democracy, Human rights, Fight against impunity, International organisations, Peru, Reconciliation

On December 24, 2017, Peruvian President Pedro Pablo Kuczynski granted a humanitarian pardon to former President Alberto Fujimori sentenced to 25 years in prison for crimes against humanity. This decision, taken against the backdrop of a political crisis, provoked a wave of protests across the world and represents a new attack on the rule of law, which is too often abused in Peru.

Back in time President of Peru from 1990 to 2000, Alberto Fujimori began his mandate with the application of neoliberal economic measures aimed at restoring stability in the country in a situation of hyperinflation. However, this “fujichoc » gives rise to a precariousness of the labor market, a decline in purchasing power and a sharp rise in informal work. Throughout his years in power, he installed an increasingly authoritarian regime based on the search for economic efficiency. The President nevertheless benefits from broad popular support thanks to a populist policy . Fujimori relies in particular on the media to maintain his popularity. These are subject to his authority and serve his interests. They allow him to glorify his victory against the Shining Path , a Maoist-Leninist terrorist group. Fujimori succeeded in putting an end to 20 years of internal armed conflict (1980-2000). But this success is achieved at the cost of blind violence. This conflict caused nearly 69,000 victims, dead or missing, through the action of “subversive” organizations. » and state agents. In 2009, Alberto Fujimori was tried and convicted for having, as an “intellectual author”, ordered the assassination of 15 people, including a child, in the Barrios Altos district of Lima, then that of 9 students and a professor at the University of Cantuta in 1992, by the military of “Colina Group” . Fujimori is convicted of crimes against humanity. A Truth and Reconciliation Commission was set up in 2001 and tasked with drawing up a report on the conflict. The measures presented by this Commission such as the structural reform of the armed forces, the police and the judicial system, the granting of individual and collective reparations and the implementation of a national plan of forensic investigations with a view to locate and identify victims and the cause of their death have still only been partially implemented. Fewer than 20% of the cases examined by the Ombudsman's office between the years 2003 and 2013 concluded with a court decision . The almost systematic refusal of the military to cooperate as well as the support they received during the government of Ollanta Humala (former soldier) slowed down the mission of justice. A decision strongly criticized... It is this trauma in Peruvian history that President Kuczynski's decision has reactivated, while tens of thousands of victims are still waiting for justice, truth and reparations. In response, numerous demonstrations took place in the capital. Several political figures also resigned to mark their disagreement. The Inter-American Commission on Human Rights (IACHR) directly condemned the decision, deeming it contrary to international law and questioning the validity of its reasons. . The reason given by Alberto Fujimori was the existence of a serious illness putting his life in danger. The mandated medical team confirmed the existence of a serious, degenerative and incurable illness, providing the basis for the final decision. A slight downside is that Fujimori's attending physician was part of the medical team, violating the team's requirement for independence and objectivity. The IACHR also considered that the sentence did not respect the principle of proportionality . The detainee's state of health could have justified the temporary transfer to suitable medical centers. While the pardon granted presupposes the lifting of sentences and therefore prevents the continuation of any criminal process against the ex-president. Thus, the restoration of the rights of the victims of Barrios Altos and Cantuta can only be obtained if the pardon is revoked. The Peruvian State thus contravenes its international obligations to investigate, judge and duly punish the crimes committed and to offer reparations to the victims. Furthermore, according to international human rights law, perpetrators of crimes against humanity cannot benefit from pardon or amnesty. This is why the Inter-American Court of Human Rights convened an extraordinary hearing on February 2, 2018 to listen to the parties involved in connection with the pardon granted to Fujimori. Families of the murdered victims and state officials were present. This session will result in a mandatory resolution in the coming weeks that could revoke the humanitarian pardon decision. The IACHR is not the only international organization to have reacted. The UN also publicly rejected the humanitarian pardon. On the side of the European Union, only 21 parliamentarians deplored the decision of the Peruvian President in an open letter. Not a word from the Member States, the European External Action Service, nor the Commission. …against a backdrop of political crisis The troubled political context provides elements to clarify this rapid decision-making. President Kuzcynski had been in a very bad position for several weeks and was running the risk of being dismissed. His name had in fact appeared in the Odebrecht scandal, this Brazilian construction giant which admitted to having paid bribes to numerous political figures in Latin America. Among them, the two former presidents Ollanta Humala and Alejandro Toledo as well as the current president Kuzcynski. The first is in pre-trial detention, the second lives in the United States and is the subject of an arrest warrant and an extradition request. While his dismissal seemed assured, Kuczynski was narrowly saved during the vote by the Fujimorist ranks of which Keiko and Kenji Fujimori are part (the daughter and son of Alberto Fujimori). A few days later, Father Fujimori was released. The political arrangement was thinly veiled…. At the beginning of March, a second impeachment procedure was launched against Kuzcynski who preferred to resign, overwhelmed by new evidence of corruption. The culture of impunity? Pedro Pablo Kuczynski declared, by way of justification, that if Fujimori had committed “significant breaches of the law, respect for democracy and human rights, his government had also contributed to national progress”. This declaration clearly reflects the hierarchy of values of the current government which places progress above respect for human rights. The political and economic choices of the Peruvian government have reflected this trend for years. Peru pursues an ideal of economic development based mainly on the exploitation of mining and petroleum resources. But these extraction projects have devastating consequences on the health of populations and the environment. Thousands of people living near mining sites have levels of heavy metals in their blood that exceed the limits allowed by the World Trade Organization (WTO). There are dozens of oil leaks in the Amazon due to dilapidated installations that have polluted many communities. At this level too, the judicial system is lacking and does not sufficiently protect the populations. These offenses are not systematically punished. And when sanctions fall, the state lacks the authority to enforce them. Thousands of people are thus living while waiting for a response from the State. More broadly, the Peruvian state is often singled out for systematic non-compliance with sentences emanating from both its national jurisdiction and the Inter-American Court of Human Rights. These different elements compromise confidence and quality in the country's democratic institutions. and weaken the rule of law. Peru is the country on the American continent with the lowest rate of public confidence in its justice system . The humanitarian pardon granted to Alberto Fujimori once again confirms the Peruvian government's contempt for fundamental rights and institutions. The absence of official condemnation from the institutions of the European Union also calls into question their sense of priorities. Between the preservation of diplomatic relations and the affirmation of the primacy of human rights, the EU seems to have (once again) made a tacit choice which we condemn. Geraldine Duquenne

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State of grace versus rule of law

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Notes
↑1	“Fujichoc” refers to the ultraliberal economic reform implemented by Fujimori (economic opening of borders, privatizations, etc.).
↑2	Alberto Fujimori, for example, maintained a direct and almost emotional relationship with the most disadvantaged sections of the population through clientelist practices.
↑3	The Shining Path is a far-left political group in the Ayacucho region led by Abimael Guzmán. In 1980, the group chose to enter into armed struggle against the Peruvian state, recruited among peasants and committed numerous criminal acts.
↑4	In addition to the Shining Path, the Tupac Amaru Revolutionary Movement is estimated to be responsible for 1.5% of conflict victims.
↑5	The Colina Group was an anti-communist military group led by Vladimiro Montesinos and commissioned by Alberto Fujimori. A veritable death squad, he was guilty of numerous crimes.
↑6	Amnesty International public statement of August 30, 2013.
↑7	Ollanta Humala was President of Peru from 2011 to 2016.
↑8	See the press release published on December 27, 2017
↑9	Principle of adequacy of means to a desired end.
↑10	The Fujimorist party dominates Parliament.
↑11	FIDH and Perú EQUIDAD, “Justicia fallida, la obstinada incapacidad estatal para guaranteear la propiedad, los derechos fundamentales y la seguridad jurídica en el Perú”, Lima/Paris, October 2017.
↑12	Estimates from the Americas Barometer by LAPOP (2014), included in the report cited above.