Q.What are the charges against Fujimori, and on what incidents are they based?
On September 5, Peruvian Attorney General Nelly Calderón formally accused former president Alberto K. Fujimori of murder, causing grave injuries, and "disappearances." The criminal charges against Fujimori were filed in the wake of the unanimous August 27 decision of the Peruvian Congress to lift his immunity as former head of state. On September 13, Supreme Court Justice José Luis Lecaros issued an international warrant to Interpol for the arrest of Fujimori, who is now residing in Japan.
Fujimori is accused of responsibility in the extrajudicial execution in 1991 of fifteen people, including a child, at a fund-raising party in a poor tenement in Lima's Barrios Altos district, and the "disappearance" in 1992 of nine students and a professor from La Cantuta University. Members of the Colina Group, a paramilitary death squad, were directly responsible for both crimes, acting in the Cantuta case with the support of regular army units. The Colina Group answered to Vladimiro Montesinos, presidential advisor and de facto head of the National Intelligence Service (SIN), who is currently detained and facing trial on corruption and human rights charges. Montesinos was Fujimori's closest confidante throughout his government.
Enforced disappearance has been a crime in Peru since 1991. Law No. 26926 of February 21, 1998 incorporated it into the Criminal Code as a crime against humanity. The criminal code's definition of crime against humanity differs, however, from the international law definition of crimes against humanity.
The accusation cites evidence that Fujimori, acting in concert with Montesinos, exercised command control over the Colina Group. The charges allege that the group could not have committed crimes of this magnitude without Fujimori's express orders or consent. The charges also state that the formation and functioning of the Colina group was part of an overall counter-insurgency policy that involved systematic violations of human rights.
Testimonies showing Fujimori's command responsibility include those of several members of the Colina group currently facing trial, relatives of former members of the group, two former commanders of the Peruvian army and a top former army general.
Since the La Cantuta operation involved the deployment of regular army units as well as the clandestine action of the death squad, only Fujimori as Supreme Commander of the armed forces, as well as legal head of the SIN, had the power of command to authorize it, the accusation claims. It also alleges that Fujimori covered up the crimes by promising to grant members of the death squad protection from prosecution, and that he rewarded them afterwards.
Indeed, Fujimori refused to allow Colina members to testify before a congressional committee investigating the crimes, and further protected them by having a law passed to ensure that a military court retained jurisdiction over the case. Finally, under pressure from the executive branch, Congress approved a comprehensive amnesty in 1995. Those of the group in detention at that time were immediately released, and the charges against them were dropped.
This past March, the Inter-American Court of Human Rights ruled that the application of the amnesty in the Barrios Altos case was incompatible with the American Convention on Human Rights, and without legal effect. In response to the ruling, the Peruvian government asked the Court to clarify whether it was applicable to other cases. In September, the Court ruled that the application of the amnesty to any of the grave human rights crimes committed during Peru's counter-insurgency effort would violate the American Convention. In October, the Supreme Council of Military Justice, the Peru's highest military court, annulled its 1995 decision applying the amnesty laws to the Barrios Altos and La Cantuta cases, removing the last legal obstacle to Fujimori's trial in Peru.
Under Peruvian law, accusations against the president, ministers, members of congress and Supreme Court justices must be adjudicated by the Supreme Court. Although Fujimori is no longer president, he was head of state when the crimes were committed, and therefore he is covered by this rule. The court's most junior member, Justice José Luis Lecaros, is leading the investigation of the Fujimori case. If the Japanese authorities agree to take Fujimori into custody, Justice Lecaros would have thirty days in which to request his extradition.
Peru's legal system does not allow trials in absentia. If he is not extradited, Fujimori will almost certainly escape prosecution, unless he is tried in Japan. Moreover, there may not be any provision under Japanese law for trying a person for human rights crimes committed on another country's territory.
If Japan decides neither to extradite nor try Fujimori, he will enjoy complete impunity while he remains in Japan.
After attending a summit in Brunei in November 2000, Fujimori went to Japan and resigned from the Peruvian presidency. The Japanese authorities recognized his claim to Japanese nationality and he is currently living in Tokyo as a Japanese citizen. When the Peruvian government pressed charges against Fujimori for abandoning his office, Japan declared that it would not extradite him.
Japanese law prohibits the extradition of Japanese nationals. Moreover, Japan and Peru do not have an extradition treaty.
To obtain Fujimori's extradition on the charges approved by the Peruvian Congress on August 27, Peru could claim that Fujimori's Peruvian nationality, on the basis of which he held office as head of state, has preeminence over his Japanese nationality. Eventually, with the consent of Japan, this issue could be settled by the arbitration of an international court.
Feelings against Fujimori undoubtedly run high in Peru. This does not disqualify a trial, however, provided that the charges against him are well founded and the court trying him is independent and impartial in its decisions.
There are sufficient grounds for former President Fujimori to be required to answer in court regarding the Barrios Altos and La Cantuta crimes. If extradited to Peru, Fujimori would be tried by the Permanent Criminal Chamber (Sala Permanente Penal) of the Supreme Court, composed of three judges meeting in oral session. The question of his criminal responsibility is a matter for the court to decide after a careful consideration of the evidence. Fujimori could name his legal representation and would enjoy rights to appeal to a separate court, in this case another chamber of the Supreme Court, with different judges.