“IMPUNITY” FOR GROSS HUMAN RIGHTS ABUSES? THE PARDON OF FUJIMORI

1. Introduction

On 24th December 2017, the Peruvian President Kuczynski granted a pardon to the former President Alberto Fujimori, convicted in 2009 as indirect perpetrator “by means of a criminal organised apparatus” for the aggravated kidnapping, aggravated murder and serious injuries, committed during the Barrios Altos and La Cantuta massacres.[1] Fujimori had already served 12 out of the 25 years of imprisonment to which he had been sentenced.

On 2nd February 2018, the Inter-American Court of Human Rights (IACtHR) held a hearing in the monitoring compliance proceedings relating to the Barrios Altos case: on that occasion, victims of the massacre argued that Kuczynski’s pardon of Fujimori amounts to an infringement of the duties imposed on Peru by the Barrios Altos judgment. The decision of the Court is due shortly.

Meanwhile, the pardon has been strongly criticized by the Peruvian civil society, and by human rights activists worldwide. Not only was it controversial as to the procedure, timing and the alleged underlying motives leading to its adoption, but it also reignited the debate surrounding the admissibility of amnesties, pardons and other waivers of punishment for people convicted of gross human rights violations.

2. Issues of legitimacy, hidden motives and reasoning

Kuczynski’s pardon of Fujimori has raised a lot of criticism in Peruvian society, not only because the memory of the human rights abuses committed during the dictatorship is still alive and sensitive, but also because of the circumstances in which the measure was adopted.

Firstly, the pardon was granted surprisingly fast, almost without any opportunity for a debate, just a few days after a parliamentary motion to remove the current President of Peru, Pedro Paulo Kuczinsky, from his post on the basis of allegations of corruption. According to public opinion, the pardon would be the result of a quid pro quo agreement between Kuczinsky and the Fujimorist party Fuerza Popular, in order to get support against the impeachment.

Secondly, the measure was formally grounded on humanitarian reasons, which apply to cases of terminal diseases or poor health, rendering imprisonment a threat to life, health or integrity. In this regard, commentators have pointed out that, besides the need for a more detailed reasoning, the medical diagnosis about Fujimori’s health is rather doubtful. The former President was indeed receiving special medical attention in jail and in hospital, whenever needed. Furthermore, his personal doctor also participated in the Board recommending the release, thereby raising issues as to the impartiality of the Board itself.

3. The big issue: can international crimes be pardoned?

3.1. Strict vs. flexible interpretation of the duty

The evolution of International Human Rights Law and International Criminal Law in the past decades has led to the emergence of a duty to prosecute and punish those allegedly responsible for those crimes.[2] The scope of this duty and its content are still debated in case law and in scholarly literature; in this regard, we can recall the existence of two opposite views, referred to as the “human righters” and the “peace makers” positions.[3] The former maintain a strict interpretation of the duty, entailing a full ban on amnesties and pardons for international crimes/gross human rights (HR) violations, irrespective of the democratic legitimacy of the measure and of the context in which it is issued.[4] The latter purport a more flexible interpretation, according to which there would be room for these kinds of measures, as long as an exceptional context of transition so requires and insofar as they meet some legitimacy requirements. Therefore, whilst self-amnesties, self-pardons or blanket amnesties can never be accepted, an amnesty or pardon issued by legitimate democratic institutions, and made conditional to certain limits and requirements, might be considered as compatible with international norms.[5]

Yet, when adopting this second, more flexible interpretation, one should bear in mind that this flexibility can seemingly be justified by the existence of a transitional context,[6] in which specific goals, priorities and limits legitimate a partial modification of the rules for prosecution and punishment of offenders. One might doubt that Peru is still living in a transitional context: after the collapse of Fujimori’s dictatorship in 2000, the country has experienced a progressive strengthening of the recovered democratic institutions. Although the spectre of the Fujimorism (brought about by the dictator’s daughter Keiko) is still very alive, this is due to the citizens’ free choice in democratic elections. Therefore, it is difficult to argue that Peru is currently living a transitional process in which the need for peace, consolidation of the new institutions and social reconciliation are priorities over the claim for punishment of perpetrators of human rights abuses.

These considerations may cast doubts as to the grounds for granting this pardon, if not on the legitimacy of the pardon itself. However, it is this Author’s belief that some criticisms to the measure should be more carefully addressed.

3.2. The legal qualification of the facts

Fujimori was not formally convicted of crimes against humanity, but for ordinary crimes (kidnapping, murder and injuries). At one point the judgment qualified the facts as crimes against humanity.[7] However, the Supreme Court did not derive from this qualification any other consequence, such as the non-application of amnesties or of statutory limitations,[8] and it did apply the sentencing framework provided for by the Peruvian Criminal Code for the ordinary crimes of aggravated kidnapping and murder. The goal possibly pursued by the Court in qualifying the facts as crimes against humanity was to impose the maximum sentence and to send a strong message to society as to the gravity and blameworthiness of the offences.[9]

However, the offences for which Fujimori was sentenced, according to the judgment, were ordinary crimes. Therefore, they would not fall within the scope of the prohibition on amnesties and pardons that International Law sets out for international crimes. The IACtHR has argued that the duty extends to the wider category of gross HR violations.[10] But, whereas the agreement on the ban on (at least self and blanket) amnesties and pardons for international crimes is almost unanimous, its expansion beyond this category is much more controversial.[11]

3.3. Does a partial pardon entail impunity?

An issue deserving further consideration is whether the pardon granted to Fujimori actually entails a form of impunity (which is exactly what the international norm aims to avoid).

Leaving aside specific features of different legal systems, pardons, in contrast with amnesties, do not eliminate the criminal conviction, nor the assessment of facts contained in the judgment.[12] They exonerate only from serving the sentence, or, as in this case, a part of it. Actually, this measure does not deny Fujimori’s criminal responsibility, nor eliminate the part of the sentence that he has already served (which is half of the whole sentence imposed on him).

Consequently, one might wonder whether the international norm requires, besides criminal prosecution, the full serving of the sentence. On which grounds is the latter necessary? Does it really grant some kind of satisfaction to victims? And, despite the due respect and concern for the victims and their claims, should not the State take into consideration also other interests?

4. Conclusion

The pardon of former President Fujimori raised protests in Peru because of its allegedly political (and not humanitarian) nature and has fuelled the debate about the admissibility of amnesties and pardons for those held responsible for international crimes.

In fact, the pardon has highlighted the lack of clarity and consensus about the international duty to prosecute and punish international crimes, i.e. about its limits (the possibility of a flexible application in transitional contexts), its scope (its applicability beyond the category of international crimes) and its content (the requirement for a full serving of the sentence).

It will be interesting to see how the decision of the IACtHR, in the framework of the monitoring compliance proceeding in the Barrios Altos case, evaluates the compatibility of the measure with the duties imposed on the Peruvian State by the Barrios Altos judgment.

[1] Peruvian Supreme Court, Sala Penal Especial, Fujimori Fujimori, Alberto, exp. nº A.V. 19-2001, 7 April 2009. The judgment also qualifies the facts as crimes against humanity, but it does not formally use that label for the conviction: for more detail, see section 3.2 of this post. For a commentary on the judgment, see: K. Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 Journal of International Criminal Justice, 137; J.M. Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations’, (2009) 3(3) International Journal of Transitional Justice, 384.

[2] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 393-45.

[3] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007) 280.

[4] Ibidem, 437; M. C. Bassiouni, ‘The Need for International Accountability’, in M. C. Bassiouni (ed.), International Criminal Law, vol. III (New York, 1999), 6; N. Roht-Arriaza, L. Gibson, ‘The Developing Jurisprudence on Amnesty’, (1998) 20(4) Human Rights Quarterly, 843; C. Edelenbos, ‘Human rights violations: a Duty to Prosecute? ’, (1994) Leiden Journal of International Law, 5.

[5] K. Mcevoy, L. Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’, (2012) 39(3) Journal of Law and Society, 410; K. Ambos, ‘The Legal Framework of Transitional Justice’, in K. Ambos, J. Large, M. Wierda (eds.), Building a future on peace and justice: studies on transitional justice, conflict resolution and development (Berlin, 2009), 19; L. Mallinder, ‘Amnesties’, in M. C. Bassiouni (ed.), The Pursuit of International Criminal Justice: A world Study on conflicts, Victimization, and Post-Conflict Justice, vol. I (Intersentia, 2010), 900; D. Orentlicher, ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’, (2007) 1(1) International Journal of Transitional Justice, 10.

[6] D. Orentlicher, “Settling Accounts Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional Justice, vol. 1, n. 1, 2007, 10, at 14 et seq.

[7] Point II and para. 710 of the reasoning.

[8] It has been argued that this interpretive strategy was unnecessary in this case, since no amnesty law was in force and the time for statutory limitations had not passed yet: see E. Maculan, ‘La respuesta a las graves violaciones de derechos humanos entre derecho penal e internacional. Observaciones sobre el caso Fujimori’, (2012) 14(5) Revista Electrónica de Ciencia Penal y Criminología, 1.

[9] Ibidem.

[10] IACtHR, Barrios Altos v. Peru, 14 March 2001, IACHR, Serie C No. 75, paras. 41 et seq.; Albán Cornejo y otros v. Ecuador, 22 November 2007, IACHR, Serie C No. 171, para. 111; in Bulacio v. Argentina, 18 September 2003, IACHR, Serie C. No. 100, paras. 116 et seq., the Court refers to the even wider category of “human rights violations” (with no gravity threshold required). For a critical overview of this case law, see: E. Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights’, (2012) 12 International Criminal Law Review, 665.

[11] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 394-5; A. Seibert- Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 et seq.

[12] A. Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’, in A. Gil Gil, E. Maculan, S. Ferreira (eds.), Colombia como nuevo modelo para la justicia de transición (IUGM, 2017), 40.

 

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3 Comments

Filed under Human Rights, International Criminal Law, Public International Law

3 responses to ““IMPUNITY” FOR GROSS HUMAN RIGHTS ABUSES? THE PARDON OF FUJIMORI

  1. El roam

    Thanks for that useful and well organized post , however , I am afraid , that the right terminology , is not : ” International crimes / gross human rights ” as stated , but rather : ” jus cogens ” . The difference is pretty clear and even overwhelming :

    When dealing with jus cogens crimes , we deal with absolute compelling liability ( like : genocide or severe crimes against humanity ) . That is to say , that whatsoever : no order , no mistake , surly not recklessness , no tort , nothing can and could justify such acts , and universally accepted so . One can illustrate it , by the reading of Article 33(2) to the Rome statute , here :

    Superior orders and prescription of law
    1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
    (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
    (b) The person did not know that the order was unlawful; and
    (c) The order was not manifestly unlawful.
    2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

    End of quotation :

    We read clearly ,while manifestly , an order , effectively to commit war crimes , may appear to be manifestly prima facie lawful , by contrast , an order to commit genocide , or crimes against humanity , can’t on the face of it , never ever , manifestly be lawful . That is a hell of difference :

    For one may conduct a war , and commit war crimes for the very conduct of it , but , there is no way , the commission of crimes against humanity , or genocide , could serve other legitimate per se purpose ( like political or military purpose , like raping women for example during war , has nothing to do with legitimate military goal ) .

    Thanks

    Like

  2. El roam

    Just clarifying further :

    As such , transitional purpose or justice , can’t be then an excused for pardoning jus cogens crimes , for at first place , hadn’t served any political or military purpose , but crazy instincts typically or the perpetrators . So , pardon or amnesty then , can’t be considered in no way as serving transitional justice .

    Thanks

    Like

  3. El roam

    Corrections :
    An excuse , and not ” an excused ” of course .
    Of the perpetrators of course , not : ” or the perpetrators” .

    Thanks

    Like

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