By Jo-Marie Burt
The Peruvian Supreme Court has handed down a highly controversial sentence in a case involving the members of the Colina Group death squad. According to human rights defenders and the victims in the relevant cases, the sentence is a major step backward in Peru’s tortured quest for truth and justice in cases of egregious human rights violations.The sentence refers to three crimes committed by the notorious Colina Group, a military unit responsible for a series of human rights violations between 1991 and 1992: the 1991 massacre of Barrios Altos, in which 15 people, including an eight-year-old child, were murdered and four others gravely wounded as well as the forced disappearance in 1992 of journalist Pedro Yauri and nine peasant leaders from the community of Santa.
The verdict not only reduces the sentences of renowned criminals, including former security chief Vladimiro Montesinos, but also turns on its head established jurisprudence of previous Supreme Court decisions, decisions by Peru’s Constitutional Tribunal, and rulings of the Inter-American Court of Human Rights.
The Minister of Justice Juan Jiménez Mayor, who recently became prime minister, criticized the sentence as “shameful.” Eduardo Vega, Peru’s ombudsman, stated that the verdict represented a “serious setback” in Peru’s efforts to achieve accountability for grave human rights violations and called for its rectification. President Ollanta Humala also noted his surprise at the verdict. Human rights groups have criticized the sentence and have stated that they will pursue actions domestically and internationally to challenge it.
The initial investigation into the Barrios Altos massacre was closed in 1995 after the Fujimori government passed two amnesty laws that granted impunity to state agents accused of human rights violations during the internal armed conflict (1980-1995). The victims and their legal representatives took the case to the Inter-American system. In 2001, the Inter-American Court for Human Rights issued a verdict in the case, determining the responsibility of the Peruvian state for the massacre and ordering the investigation, prosecution, and punishment of those responsible. The same verdict determined that that 1995 amnesty laws violated international law and lacked legal standing.
As a result, the Barrios Altos case was reopened. The case is a complex one, involving 15 victims and 31 defendants. Later the cases of Pedro Yauri and Santa were incorporated into the legal proceedings as part of a “mega-trial” against the Colina Group members. The process was plagued by delays, however. The investigation lasted five years before the public trial started in 2005. Then, due to a number of factors, but especially the delay tactics of the defendants’ lawyers, the public trial lasted another five years. Finally, in October 2010, the court found 19 of the 31 members of the Colina Group responsible for the crimes.
The most severe sentences, the maximum of 25 years, were reserved for the intellectual authors of the crime —Vladimiro Montesinos, the de facto head of the National Intelligence Service (SIN), Gen. Julio Salazar Monroe, actual head of the SIN, and Gen. Nicolás Hermoza Ríos, former army chief, and Gen. Juan Rivero Lazo, former head of Army Intelligence— as well as for the chief operational heads of the Colina Group, former Army Major Santiago Martin Rivas and Carlos Pichilingue. The majority of defendants appealed the ruling.
The Supreme Court announced its sentence in the case on July 20, 2012. The most controversial measures include a reduction in the sentences of virtually all those convicted, including Montesinos and Hermoza Ríos, which Supreme Court justice Javier Villa Stein said was in “compensation” for the lengthy legal process.
But rights advocates say that the most questionable measures are related to a number of legal arguments that overturn the original sentence’s determination that the the Barrios Altos massacre and the forced disappearances of Pedro Yauri and the peasants of Santa constituted crimes against humanity; that these crimes were committed by an organized apparatus of the state that constituted an unlawful association created for the purpose of committing criminal acts; and that Montesinos, Hermoza Ríos, Rivero Lazo and Salazar Monroe were responsible as autores mediatos of the crime, the same legal concept used to prosecute Alberto Fujimori for the Barrios Altos massacre, the La Cantuta murders, and two kidnappings. Of special concern, say human rights advocates, the sentence states that the Barrios Altos massacre does not constitute a crime against humanity. Although acknowledging that the crimes committed by the Colina Group were part of official state policy, the court concluded that the policy was not directed against the civilian population but rather against terrorists.
Human rights groups have challenged each of these arguments point by point. The Peruvian Truth and Reconciliation Commission has documented the systematic nature of the Colina Group’s crimes, which has been recognized in the verdicts issued by the Inter-American Court of Human Rights in the Barrios Altos case as well as in the case of La Cantuta. The sentence handed down by the Special Criminal Court for the Fujimori case, which was ratified in December 2009 by the Supreme Court, recognized Barrios Altos and La Cantuta as crimes against humanity not only because they were directed at civilians but because they were a planned operation that was part of an official state policy of systematic violations of human rights. Additionally, the Peruvian Constitutional Tribunal recognized in 2005 that the crimes committed by the Colina Group —including the Barrios Altos massacre— constituted “crimes against humanity.”
The Supreme Court sentence has been sharply and widely criticized. The Vice Minister of Justice and Human Rights Daniel Figallo presented a writ of amparo before the Constitutional Tribunal, the only legal remedy available within Peru to challenge a verdict of the Supreme Court and protect individuals from state abuses. Several parliamentarians have said that they would present a constitutional challenge against the Supreme Court judges who issued the verdict. Diverse civil society groups, from labor organizations to human rights groups, said that they would petition the Inter-American Court to nullify the sentence.
Gloria Cano, head lawyer for APRODEH, one of the organizations representing the victims in the criminal proceedings, sharply questioned the ruling for its clear intent to favor not only those convicted in this legal process but ultimately former president Alberto Fujimori, who was sentenced in 2009 to 25 years in prison in the Barrios Altos and La Cantuta cases. “The Villa Stein court has provided a magnificent political tool [to Alberto Fujimori] to challenge his guilty verdict,” concludes Carlos Rivera, head lawyer for the Instituto de Defensa Legal, another NGO representing the victims in this case.
International law prevents pardons for crimes against humanity. By removing the status of “crime against humanity” in the Barrios Altos massacre, the Villa Stein sentence could provide new arguments for Fujimori’s supporters to propose if not a challenge to his guilty verdict, then at least a pardon for Fujimori. However, according to Peruvian law, those sentenced for the crime of aggravated kidnapping, as is the case for former President Fujimori, cannot receive a pardon.
Also of concern has been the attitude of Supreme Court Justice Javier Villa Stein, widely seen as the architect of the sentence. In the wake of the criticisms of the Barrios Altos-Yauri-Santa sentence, Villa Stein assumed a combative tone, accusing Minister of Justice Jiménez Mayor of “stoking the fire” and being a “polarizing figure” for his comments criticizing the verdict. He stated that he would welcome a challenge to his sentence before the Inter-American Court, which rights advocates have said they will pursue. Most shockingly, Villa Stein mocked human rights groups, saying they should not continue to “whine” (“lloriquear”) about the sentence.
Previously, APRODEH sought to have Villa Stein recused from this and other legal processes involving human rights cases due to his political positions. According to APRODEH, with regard to the Chavín de Huántar case, another highly controversial legal process involving the accusation that Montesinos and others carried out at least one extrajudicial execution in the aftermath of the hostage rescue operation at the Japanese ambassador’s residence in 1997, Villa Stein asserted that NGOs defending victims in human rights cases were motivated by a desire to undermine the prestige of the Peruvian armed forces. The Constitutional Tribunal rejected APRODEH’s petition, saying that Villa Stein had a right to voice his personal political views and that these would not prejudice the legal proceedings. However, in the wake of the sentence and Villa Stein’s dismissive comments, broad sectors of civil society are calling for his removal as a Supreme Court justice.
The victims of political violence in Peru have fought long and hard to overcome diverse forms of institutionalized impunity, including two amnesty laws, that prevented them from knowing the fate of their missing loved ones and seeing those responsible for these crimes prosecuted and punished. After the Peruvian Truth and Reconciliation Commission released its 2003 report, recommending the criminal prosecution of several cases of grave human rights violations, special bodies were set up in the public ministry and the judiciary to investigate and prosecute these crimes and facilitate the rights of the victims to truth and justice. A number of important sentences, including the Fujimori verdict, were passed down beginning in 2005.
In recent years, however, numerous obstacles have emerged that have undermined these special human rights courts and the broader process of justice for victims of state-sponsored human rights violations in Peru. The Villa Stein sentence is one more factor contributing to new forms of impunity in Peru today.
Foreign Policy In Focus contributor Jo-Marie Burt is director of Latin American Studies at George Mason University and a senior fellow at the Washington Office on Latin America.