February 20, 2009

What are the charges against Former President Alberto Fujimori of Peru?

On September 20, 2007, the Chilean Supreme Court authorized the extradition of Fujimori to Peru to face prosecution on a number of charges relating to serious violations of human rights, abuse of power and corruption. The charges fall into three sets of offenses, to be prosecuted in three separate trials.

The current trial involves charges of human rights abuses related to four events: the Barrios Altos massacre in November 1991, in which 15 people, including one child, were killed; the disappearance and later killing of nine students and a professor from Cantuta University in July 1992; and the kidnappings of  Gustavo Gorriti, a journalist,  and  Samuel Dyer, a businessman. The two killings, Barrios Altos and Cantuta, were carried out by a secret Army intelligence unit known as the "Colina unit." Fujimori is alleged to be responsible for the killings committed by the unit.

The prosecutors closed their final arguments on January 28, 2009. A panel of judges from the Criminal Chamber of Peru's Supreme Court is expected to issue a decision in upcoming weeks.

What kind of public evidence exists to support the charges?

There is considerable documentation available in the public sphere that supports the charges against Fujimori-both the factual events surrounding the crimes and the alleged links to Fujimori.

The existence of the "Colina unit" and its link to atrocities including the killings at Barrios Altos and Cantuta have been extensively documented by human rights organizations and Peru's Truth and Reconciliation Commission (TRC), which investigated the violence in Peru between  1980 and 2000 and published its report in August 2003. The Inter-American Court of Human Rights also examined the Cantuta killings (La Cantuta v. Peru) and accepted in its judgment of November 26, 2006 that there had been systematic and generalized practices of illegal and arbitrary detentions, torture, extra-legal executions and enforced disappearances during the relevant period of the Cantuta killings in 1992 and that the Colina unit was responsible for the killings.

With respect to Fujimori's links to Colina, as Human Rights Watch explained in its 2005 report, "Probable Cause: Evidence Implicating Fujimori," the available evidence indicates that the Colina unit was set up intentionally within the military and intelligence systems to conduct operations for "elimination" of suspected members of the Shining Path armed group, with the knowledge and approval of senior officials. The evidence includes statements by members of the Colina unit itself. It also includes numerous official documents from army intelligence records referring to the Colina unit and treating it as an integral part of the army intelligence structure, the members of which were assigned, transferred, tasked, and disciplined on the orders of top military intelligence officials. 

The Colina unit operated at a time when Fujimori exerted strong control over the Armed Forces, and even carried out a "self-coup," closing Congress and taking complete control of government with the backing of the Armed Forces. In this context, Human Rights Watch concluded that it would have been very difficult for Fujimori not to have known about the Colina unit's existence (particularly after the Barrios Altos killings, which were widely reported), and it is clear that Fujimori had the authority to stop its operations had he wanted to.  

In addition, there are numerous pieces of evidence, including statements by Colina unit members and other members of the military, supporting the allegation that Fujimori knew of and authorized the operations of the unit and helped its members avoid real accountability through an Amnesty Law that permitted their release a year after they were first convicted. 

Beyond the specific evidence that Fujimori knew of the Colina unit's operations and did not stop them, there is also extensive evidence, presented during the trial, that Fujimori was deeply involved in the design, development, and implementation of counterterrorism strategy in Peru. There is evidence that Fujimori gave the National Intelligence Service (Servicio de Inteligencia Nacional, or SIN) a key role in implementing that strategy, ordering that funds from the military be transferred to the SIN and installing his close adviser Vladimiro Montesinos as the de facto head of the SIN and as Fujimori's representative when dealing with the Armed Forces. In this manner, the evidence indicates, the SIN began to control the state's intelligence apparatus, providing for the creation of teams and units of the army. The Colina unit, while composed of members of the Army Intelligence Service, in fact operated closely with the SIN, according to another court ruling in the trial of the former SIN director, Gen. Julio Salazar Monroe, who was held responsible for some of the Colina unit's crimes. That court also found that the Colina unit was an operational unit that was tasked with "eliminating" suspected subversives. 

Years before, for similar reasons, the TRC reached similar conclusions, stating that it "has reasonable grounds to affirm that President Alberto Fujimori, his adviser Vladimiro Montesinos, and high level officials of the National Intelligence Service are criminally responsible for the assassinations, forced disappearances and massacres perpetrated by the ‘Colina' death squad." 

What is the alleged scope of Fujimori's responsibility?

Prosecutors have argued not only that Fujimori knew of and authorized the Cantuta and Barrios Altos killings, but also that these killings were part of a broader systematic policy of human rights abuse ordered by Fujimori. While such a policy was not public or formally written into law, prosecutors argue that it was the de facto policy that the state applied in its counterterrorism strategy and that this fact is evident from the many abuses by the military documented by the TRC and multiple other public studies and reports. Prosecutors argue that because Fujimori ordered the implementation of this policy, he bears criminal responsibility for the killings of Barrios Altos and La Cantuta (homicides) as an "autor mediato" through an organized apparatus of the state. The concept of autoría mediata refers to criminal responsibility for those who commit a crime through an intermediary. A related concept, dominio del hecho, refers to control over a criminal act through an organized apparatus of the state. 

Both theories have already been applied by another Peruvian court in the related trial of Gen. Salazar Monroe, the former SIN director. 

What is required under international law to establish that there has been systematic and generalized practice of human rights violations?

Various international tribunals, including regional human rights courts that reach conclusions on state responsibility (such as the Inter-American Court of Human Rights and the European Court of Human Rights) as well as war crimes tribunals that determine individual criminal liability (such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda), have examined a wide range of situations in which they determined that there was a practice or policy of widespread human rights abuses.

While in some cases there has been evidence of a written legal basis to the plan such as a legislative provision, an administrative decision, or official guidelines, such written legal basis is not necessary. The European Court of Human Rights has held that one can also identify "an administrative practice, [through] a repetition of acts incompatible with [human rights] and official tolerance by the State authorities". In these cases, it is inconceivable that those in authority did not know of the violations, and so bear liability for them.

In Ireland v. UK (judgment of 18 January 1978), the European Court defined a practice as consisting of "an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system."

The court also explicitly adopted the standard of proof needed to establish an administrative practice as "beyond reasonable doubt" but noted that such proof may follow from the coexistence of sufficiently strong, clear, and concordant inferences or of similar unrefuted presumptions of fact.

The notion of "official tolerance" used by the European Court refers to a situation in which superiors, though aware of violations, refuse to take action to punish those responsible or to prevent their repetition, or in which a higher authority manifests indifference by refusing any adequate investigation of the truth or falsity of alleged violations. (See early cases, France, Norway, Denmark, Sweden and the Netherlands v. Turkey, decision of 6 December 1983, Decisions and Reports 35, pp. 163-64; the Greek case, Yearbook 12, pp. 195-96; and later cases against Turkey, such as Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, and Cyprus v. Turkey, Application No. 25781/94 [2001] ECHR 331 [10 May 2001]).

The question of whether a state has a systematic practice of violations of human rights has also come up in international criminal law, in the context of evaluating individual criminal responsibility for crimes against humanity. Therefore, it is useful to draw from these standards, even though the question of whether the abuses committed in Peru amount to crimes against humanity is not itself an issue in Fujimori's trial. 

As a matter of international criminal law, a crime against humanity is committed when a prohibited act is carried out as part of a widespread or systematic attack directed against any civilian population. However, in order to establish that an offense amounts to a crime against humanity, the international criminal tribunals have held that it is not necessary to provide evidence of a formally adopted state policy-just that there is de facto a widespread or systematic attack.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) has on more than one occasion emphasized that the issue is not the existence of a formal policy-although such a policy would be strong evidence to support the systematic nature of attacks-but  the reality on the ground (see the cases of Blaskic, Kunarac, Kordic and Cerkez). As the ICTY has pointed out, "if the acts occur on a widespread or systematic basis, that demonstrates a policy to commit those acts, whether formalized or not." In Limaj, the ICTY noted that it stands to reason that "the presence of a state policy [will most often be in evidence] when the acts in question are preformed against the backdrop of significant state action and where formal channels of command can be discerned."

According to the ICTY, a "systematic" attack refers to the organized nature of the acts of violence; the improbability of their random occurrence "in the sense of non-accidental repetition of similar criminal conduct" (see the cases of Kordic and Cerkez; Blaskic and others).

In the trial of Goran Jelisic, who was charged with genocide, grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, and crimes against humanity committed in 1992 in the northeastern part of Bosnia and Herzegovina, the ICTY held that factors to consider  in determining whether there had been a widespread or systematic attack included: the existence of an acknowledged policy targeting a particular community; the establishment of parallel institutions meant to implement this policy; the involvement of high-level political or military authorities; the employment of considerable financial, military or other resources; and the scale or the repeated, unchanged, and continuous nature of the violence committed against a particular civilian population.

How relevant will the findings of the Truth and Reconciliation Commission and nongovernmental organizations be regarding the existence of systematic practices? 

International tribunals have regularly considered reports from different types of investigative bodies, intergovernmental organizations, and respected human rights organizations, or documents such as declassified government documents as admissible evidence. What weight is to be given to any such admissible evidence is a matter for the fact-finding body and the rules of evidence applicable in a jurisdiction.

There are no strict international rules on hearsay, though due process standards require that a defendant must have a meaningful opportunity to challenge the credibility of any evidence. For reports, one way this may be done is through testimony from a witness familiar with how the report was compiled. In the case of documents, there is usually a requirement that the documents be authenticated with respect to their origin and chain of custody, so that the court can be satisfied as to the reliability of the documents.

As noted, the Inter-American Court has previously accepted the Truth Commission's evidence in La Cantuta v. Peru - Series C No. 162 [2006] IACHR 6 (29 November 2006). International criminal tribunals have accepted as admissible human rights reports from intergovernmental and nongovernmental organizations, as has the European Court of Human Rights.

What international theories of liability have been applied to other senior civilian officials or heads of state in similar cases?

Under international law, as a former head of state Fujimori could be alleged to be responsible either through the theory of joint criminal enterprise, in which a suspect participates in a common plan that entails certain criminal acts, or under the doctrine of command responsibility, whereby a commander or official is responsible for crimes committed by someone under his or her control, if the commander knew (or should have known) that crimes were being committed and did nothing to stop them.

The first theory, that of joint criminal enterprise (JCE), has been repeatedly and consistently used in the prosecution of serious crimes such as war crimes and crimes against humanity. The ICTY has held that JCE is a form of liability that forms part of customary international law (Tadic, Appeals Chamber, July 15, 1999, para. 220). JCE has three categories of collective criminality-"basic," in which all the co-perpetrators share the same criminal intention (see for example, Tadic, AC, para. 196; Kvocka et al., Appeals Chamber, February 28, 2005, para. 82); "systemic," which stems from, but is not limited to, the jurisprudence from World War II prosecutions in concentration camp cases, in which the accused is liable if  the person has knowledge of the system of repression, participates in its enforcement, and has the intent to further the system; and "extended," which entails responsibility for crimes that are committed beyond the common purpose but that  are nevertheless a natural and foreseeable consequence of the common purpose (Tadic, AC, para. 204; Kvocka et al., AC, para. 83; Vasiljevic, Appeals Chamber, February 25, 2004, para. 99). The prosecution needs to establish that the accused had the intent to participate in and contribute to the common criminal purpose and that the accused knew that the crime might occur as a result, and was nevertheless willing to take the risk and participate. 

To establish a JCE, the prosecution must prove:

  • A plurality of persons was involved.
  • There was a common plan, design, or purpose to commit a crime. It can be inferred from circumstantial evidence that there was a plan if it is the only reasonable inference (Brdjanin, Trial Chamber, September 1, 2004, para. 109), or the plan may materialize extemporaneously (Kvocka et al., AC, para. 117).
  • The accused participated in the common plan, design or purpose. Participation does not mean that the accused had to commit or participate in any crimes physically, or be physically present, nor does the level of participation have to be substantive. However, the participant must have performed acts directed at furthering the common plan (Kvocka et al., AC, paras. 97, 112-113, 187, 263, 289, 421; Brdjanin, TC, para. 263).

The second basis of liability is that of command responsibility, which applies when a commander-whether military or civilian-fails to exercise control over forces under his or her effective command and control, and when he or she knew or should have known that the forces were committing or about to commit such crimes, and failed to prevent the crimes or to punish them. Command responsibility, however, is not a form of strict liability, i.e. it is not enough to prove that a crime was committed and that the defendant was a superior to, or exercised effective control over, the direct perpetrators of the crime.

As command responsibility is not a form of strict liability, a prosecutor does have to prove the defendant's guilt. The prosecutor has to prove that the defendant knew or had reason to know that a crime was about to be committed but failed to take necessary and reasonable measures to prevent the crime; or that the superior knew or had reason to know that the crime had been committed, but failed to take necessary and reasonable measures to punish the perpetrators.

This reasoning has been expressed in a number of the ICTY's judgments, including the judgment in the Kordic and Cerkez case (2001): "It should be emphasized that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or had reason to know' of the offenses and failed to act to prevent or punish their occurrence. Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability" (para. 369).

Whether the superior officer "knew or had reason to know" of the offenses, can be proven through direct or circumstantial evidence. Circumstantial evidence of a superior's actual  knowledge includes "the number, type and scope of illegal acts, time during which the illegal acts occurred, number and types of troops involved, geographical location, whether the occurrence was widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers and staff involved, and location of the commander at the time."

Knowledge may be presumed if a superior had means to obtain information of a crime and deliberately refrained from doing so. If the superior had information available that would have put him or her on notice, then the superior had reason to know. General information in the superior's possession would be sufficient for that purpose (see the cases of Celebici, Krnojelac, and Delalic). The information need not be explicit or specific, and may be written or oral. The key issue is whether the superior was in possession of the information, not whether he or she acquainted himself or herself with it (Delalic, Galic). The war crimes tribunals have held that the standard of proof for civilian leaders holding positions of authority is higher than that of military commanders.

If a defendant is accused of being liable on the basis of "command responsibility" for the crime, he or she must be given notice of the following material facts that will be proved against him or her:

  • what command position he or she is alleged to have held;
  • the identities of the subordinates over whom he or she exercised effective control and for whose acts he or she is alleged to be responsible;
  • the conduct of the defendant that shows that he or she knew that a crime was being committed, or was about to be committed, by those identified subordinates; and
  • the conduct of the defendant that shows that he or she failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them (Blaskic, Appeals Chamber, July 29, 2004, para. 218).