Pardon of Former Peruvian President Fujimori Raises Legal Questions
The Inter-American Commission on Human Rights (IACHR), two United Nations special rapporteurs, and one UN working group recently condemned Peruvian President Pedro Pablo Kuczynski’s decision to issue a humanitarian pardon on December 24, 2017 to former President Alberto Fujimori, who was convicted and sentenced in 2009 to 25 years in prison for murder, kidnapping, and crimes against humanity during his presidency; the IACHR and the UN human rights experts question whether the decision meets international human rights legal requirements, and asserts that it undermines the efforts of victims and witnesses who brought Fujimori to justice. [IACHR Press Release; OHCHR Press Release; HRW: Pardon] See Resolución Suprema No. 281-2017-JUS (2017) [Spanish Only]. The pardon, issued officially for humanitarian reasons due to Fujimori’s health, absolves Fujimori of his convictions and releases him from his sentence. [IACHR Press Release] Peru is obligated under international human rights law to investigate alleged rights violations and punish perpetrators, and not to implement pardons or amnesty laws that undermine the rights to a fair trial and to judicial protection. [IACHR Press Release; OHCHR Press Release]
Some Peruvians and UN experts believe that the pardon was politically motivated because of a potential connection between Fujimori’s pardon and the cancelled impeachment proceedings against President Kuczynski; the impeachment proceedings were dropped just three days after the impeachment hearing of President Kuczynski, who survived a removal vote with the help of a 10-person coalition that crossed party lines to abstain from the removal vote, led by Fujimori’s son Kenji Fujimori. Seven of the 10 lawmakers communicated with Fujimori leading up to the vote. [Reuters; HRW: Pardon; OHCHR Press Release] President Kuczynski’s decision triggered street protests and unrest in Peru. [OHCHR Press Release; Guardian: Pardon]
Statements From the IACHR and UN Experts
The Inter-American Commission and several UN independent experts assert that while the president has discretion in applying the pardon power, the exercise of a pardon must be guided by international human rights standards as well as Peru’s constitution. [IACHR Press Release; OHCHR Press Release] The IACHR in its statement reminds Peru that under international human rights law, it is obligated to investigate human rights violations and punish those responsible. Additionally, human rights law, the IACHR finds, prohibits States from granting pardons that exempt individuals from liability for crimes against humanity; further, a group of UN experts consisting of the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on extrajudicial, summary or arbitrary executions; and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence find that the use of pardons are restricted in cases of serious human rights violations. [IACHR Press Release; OHCHR Press Release]
Fujimori was convicted of crimes against humanity and received a fair trial; by pardoning Fujimori, the UN experts stated, Fujimori received impunity for the crimes he committed during his presidency and President Kuczynski set back the rule of law in Peru by ignoring the outcome of a fair trial. Further, the pardon, the IACHR states, ignores the right to justice of the victims and family members. [IACHR Press Release; OHCHR Press Release] As to the official reasoning for the pardon – that it was medically necessary – the IACHR believes that Fujimori did not need to receive a pardon in order to get medical treatment, and instead could have been transferred to a hospital while continuing to serve his sentence. [IACHR Press Release]
President Kuczynski also granted Fujimori a presidential grace that prevents courts from trying Fujimori in any criminal case against him in Peru, which, according to the IACHR, violates Peru’s obligations to investigate rights violations, punish perpetrators, and provide reparations for victims. [IACHR Press Release] The IACHR plans to act with the Inter-American Court of Human Rights (IACtHR) to hold public follow-up hearings on two previous IACtHR cases in which Peru was held responsible for rights violations, including killings and forced disappearances, that occurred when Fujimori had “command responsibility,” and the IACHR is also considering holding ex officio a related thematic hearing during the IACHR’s next scheduled session in February. [IACHR Press Release]
The Pardon of Fujimori
President Kuczynski issued the humanitarian pardon of Fujimori on December 24, 2017 after Fujimori requested a pardon for humanitarian reasons on December 11. See Resolución Suprema No. 281-2017-JUS (2017) [Spanish Only]. Fujimori’s pardon happened unusually quickly, only taking 13 days, suggesting that it was politically, rather than humanitarianly, motivated. [Reuters] A medical board examined Fujimori and found that he suffered from several serious non-terminal illnesses, and on December 17 the medical board recommended that President Kuczynski pardon Fujimori on humanitarian reasons, due in part to his advanced age and that the conditions of the prison do not have the necessary services for medical attention. President Kuczynski’s declaration pardoned Fujimori and provided a presidential grace for humanitarian reasons. See Resolución Suprema No. 281-2017-JUS (2017) [Spanish Only].
Fujimori’s Presidency and Trial in Peru
Reports from human rights organizations and facts that arose during Fujimori’s trial indicate that Peru engaged in a number of illicit acts and human rights abuses throughout Fujimori’s presidency from July 1990 through November 2000. [HRW: Conviction; Living in Peru; OHCHR Press Release; NY Times] At that time, the Peruvian government engaged in bribery and extortion, as well as acts that meet the standard of crimes against humanity. [HRW: Conviction] Fujimori’s administration was notorious for its forced sterilization of indigenous women and men, extrajudicial killings, forced disappearances, and kidnapping. [OHCHR Press Release; Guardian: Sterilization] Fujimori, despite personal knowledge of the existence and operations of two killings that resulted in the deaths of 25 people, failed to stop the killings or punish the crimes after the fact. [HRW: Conviction] See Human Rights Watch, Probable Cause: Evidence implicating Fujimori (2005), 8-12.
Fujimori fled Peru for Japan in 2000 and remained in Japan for 5 years. In 2005, Fujimori travelled to Chile, and in 2007, the Chilean Supreme Court authorized Fujimori’s extradition to Peru. [HRW: Conviction] Fujimori was then brought to trial and convicted in 2009 of murder, aggravated kidnapping and battery, and crimes against humanity. [NY Times] Fujimori’s conviction marked the first time a democratically elected Latin American leader was tried and convicted in his own country for human rights abuses. [BBC]
Previous Inter-American Court Cases
The IACtHR decided two cases involving Fujimori’s human rights abuses during his presidency – the Barrios Altos case and the case of La Cantuta. See I/A Court H.R., Case of Barrios Altos v. Peru. Merits. Judgment of 14 March 2001. Series C No. 75; I/A Court H.R., Case of La Cantuta v. Perú. Merits, Reparations and Costs. Judgment of 29 November 2006. Series C No 162.
The Barrios Altos case concerned the extrajudicial killings of 15 people by masked men at No. 840 Jirón Huanta in Barrios Altos on November 3, 1991. See Barrios Altos Case. Judgment of 14 March 2001. at para. 2(a). The assailants arrived at the location in cars with police lights and sirens, and forced the victims to lie on the ground while the assailants fired at them. See id. at paras. 2(a)-(b). Even though those involved were found to work for military intelligence in the Peruvian army and to be acting on behalf of the Colina group, the “death squadron,” judicial authorities failed to commence a serious investigation into the killings at Barrios Altos. Members of the military and military courts thwarted later attempts to investigate the incident, and amnesty laws exonerated several individuals and prevented the continuation of investigations and prosecutions. See id. at paras. 2(d), (g)-(j). The IACtHR found that Peru had prevented the surviving victims and the deceased victims’ family from knowing the truth of the events at Barrios Altos in violation of articles 8 and 25 of the American Convention on Human Rights (right to a fair trial and right to judicial protection, respectively). See id. at paras. 47-49.
The La Cantuta case concerned the alleged violations of the human rights of the victims of kidnapping from the Universidad Nacional de Educación “Enrique Guzmán y Valle” on July 18, 1992. See Case of La Cantuta v. Perú. Judgment of 29 November 2006. at para. 2. Members of the Peruvian army kidnapped victims, some of whom were allegedly then forcibly disappeared and summarily executed. See id. The IACtHR found Peru violated articles 4, 5, 7, 8, and 25 of the American Convention (rights to life, humane treatment, personal liberty, fair trial, and judicial protection, respectively). See id. at paras. 116, 129, and 161.
Peru’s Obligations Under International Human Rights Law
Peru has obligations under international human rights law due to being a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; and the Convention for the Protection of All Persons from Enforced Disappearance, as well as the American Convention. Among other obligations, Peru may not engage in any acts of torture or cruel, inhuman, or degrading treatment; must ensure that victims of torture or cruel, inhuman, or degrading treatment have access to an impartial tribunal; and must prosecute perpetrators of torture and inhumane acts. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987), 1465 UNTS 85 (Convention against Torture), arts. 2, 7, 13, 16. Peru is also prohibited from forcibly disappearing individuals. See International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010), 2716 UNTS 13, art. 2.
Further, as decided by the IACtHR, Peru must ensure the rights to judicial protection and to recourse under articles 8 and 25 of the American Convention, which includes not adopting amnesty laws that prevent the exercise of those rights. See Barrios Altos Case. Judgment of 14 March 2001. at para. 43.
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