Berenson’s Rights in Peru Fall to a Ruling by the Human Rights Court

December 3, 2004 COHA

The Inter-American Court of Human Rights was scheduled to formally announce its ruling on Friday, denying the petition of Lori Berenson, a political prisoner in Peru convicted of abetting the rebel terrorist Tupac Amaru Revolutionary Movement.
Peruvian President Alejandro Toledo saw fit to prematurely announce the news the day before.
According to President Toledo, Peru was informed that the Court will uphold Berenson’s twenty-year sentence. This shocking decision by the highly respected Human Rights Court represents a dramatic blow to Berenson’s future appellate prospects. Yet Toledo is not out of the woods. It must be recalled that the Toledo administration had made it perfectly plain that, when it came to Berenson, it was not prepared to relent on its past refusal to uphold international law and humanitarian norms, or to give up his trophy prisoner: a young, articulate and idealistic woman.
Toledo’s apparent praise of the Court strikingly contradicts with the view that his administration held of the judicial body in the weeks leading up to the ruling, as two of his top officials adamantly cast doubt upon the Court’s very validity when they announced that Peru had no intentions to act on the Court’s ruling if, in fact, it favored releasing Berenson.
The time has now come for President Toledo to act as a compassionate human being and fulfill the pledge he made upon taking office to promote international standards of human rights by extending to Lori Berenson an administrative pardon. After all, his popularity with his own people already is at rock bottom over his multiple delinquencies, including fathering a once unacknowledged child and an indolent and self-indulgent lifestyle that does nothing for his people.

The unexpected decision of the Inter-American Court of Human Rights (CIDH), based in San José, Costa Rica, to uphold the severe prison sentence of American journalist Lori Berenson, who has been detained in dingy prison facilities in Peru for the last nine years, must be seen as a profound blow to standards of human rights and justice within the hemispheric community. In some ways, the Court’s decision was merely an academic exercise, as Peruvian authorities have consistently made clear that they would renege on their previously firm assurances to comply with the CIDH’s findings had the Court ruled otherwise, by vehemently insisting that they did not intend under any circumstances to release a “proven” terrorist. Toledo’s surprise announcement leaves many questions to be answered, as the Court has not yet shared the details of its official decision.

Peru’s Flawed Judicial System
Berenson’s 1995 arrest and subsequent trial by a “star chamber court” comprised of hooded military judges, usually with scant or no legal training and being granted no right of habeas corpus, resulted in her being sentenced to life imprisonment on charges of holding a leadership role in the rebel Tupac Amaru Revolutionary Movement (MRTA), which, at that time, purportedly was involved in plotting to abduct members of the Peruvian Congress. That the trial was rife with judicial malfeasance and that due process of law was blatantly denied is irrefutable. In fact, not only was Berenson’s defense team prevented proper access to evidence, it was not able to cross-examine witnesses. Only due to heavy international pressure was a public retrial held in 2001 that reduced her sentence to twenty years on charges of abetting a terrorist organization, which in themselves was a violation of outdated and unconstitutional anti-terrorism laws implemented under former political strongman Alberto Fujimori (1990-2000). These laws provided the basis for many of the later trial’s flaws.

An Appeal to Human Rights
In response to this second tainted conviction, Berenson appealed to the Inter-American Commission on Human Rights (IACHR) for judicial review. The 2002 issuance by that body stated that Berenson’s trials were clearly unfair, arguing that the state did not provide her with due process. Maurice Paprin, the Council on Hemispheric Affairs’ (COHA) chief investigator of the Berenson case noted, “The report also found that she originally had been charged under flawed provisions of Fujimori’s illegal and repressive anti-terrorism laws, which even Peru’s Supreme Court later declared unconstitutional in early 2003.” In fact, the report found that Peru must restore full rights to Berenson, provide monetary compensation for damages incurred while in prison and enact a detailed overhaul of the nation’s anti-terrorism policies. To this day, Toledo has failed to fully repeal these antiquated laws or consider any restitution for Berenson.

Peru instead rejected the Commission’s recommendation and decided to take the case to the CIDH. In the course of a July 16, 2002 press conference at the Peruvian Embassy in Washington, D.C., then-Minister of Justice Fernando Olivera challenged the finding of the IACHR, announcing his country’s plan to take the case to the Inter-American Human Rights Court. In responding to a question posed by a representative of COHA, and with the hopeful expectations that the Court would reject the findings of the Commission, Olivera responded by insisting that Peru is a civilized country “and would accept the [Court’s] ruling on the Berenson case and release her if this is what the Court ordered.”

Toledo’s Cronies Carry Out His Dirty Work
In spite of this former high official’s comment at the time, two of Toledo’s senior officials recently rejected the possibility that Peru would have abided by the Court’s decision if it had ruled in Berenson’s favor. Astonishingly enough, Peru’s foreign minister, Manuel Rodriguez, told reporters on November 20 that regardless of the CIDH’s final ruling, Lima would not release Berenson: “In no case would any ruling be observed that recommends freedom of people accused of terrorism.” Eliminating any possibility of a misinterpretation of Rodriguez’s statements are the words echoed by another top Peruvian official, Carlos Ferrero, Toledo’s head of Cabinet. On November 25, Ferrero reinforced the government’s plan to ignore the ruling of the Human Rights Court, stating that he “cannot guess what resolution the Inter-American Human Rights Court will make, but [is] sure that whatever it is, Peru will not accept in any way the possibility that it will signify [Berenson’s] release.” Such an irresponsible disavowal of Peru’s solemn responsibilities to uphold international standards of human rights completely nullifies Toledo’s claim that he has taken a strong and principled stand against the bloody violations perpetrated during the Fujimori dictatorship.

A Human Rights Court that Fails to Protect Human Rights
COHA’s Maurice Paprin observed that, “The Inter-American Court of Human Rights has, for the quarter-century of its existence, been vigilant in its efforts to protect and guarantee human rights in this hemisphere. The Court’s ruling here is a bewildering repudiation of its well-earned reputation for securing justice.” The Toledo government’s emphatic broadcasting of its intent to not comply with the Court, if it had ruled the other way, is a striking counterpoint from the usual practice of states to voicelessly honor the Court’s decisions. Such actions raise the question as to whether the Toledo government’s recent statements may have in some small way served to pre-empt the Court’s jurisdiction and swayed it to sustain rather than reverse the previous rulings of the Peruvian judicial system.

Toledo’s eagerness to trumpet the Court’s decision demonstrates his willingness to use the Berenson case as a wedge issue to play to Peru’s sense of nationalism, even as his policies have alienated the mass of impoverished Peruvians who had hoped he would improve their plight and repair the damage done by the corrupt Fujimori regime. Toledo’s satisfaction with the decision will only bolster the complacency and tone-deafness of his disappointing and error-prone administration that has now become infamous for its scandals, lack of veracity, indolence and incompetence.

The time has come for President Toledo to fulfill the promise he gave to the Peruvian people to support his country’s basic human rights, a main point of his presidential campaign. The most effective way for him to show the people of his country and the nations of this hemisphere that he is seriously dedicated to respecting these basic freedoms and the need for reconciliation is to extend an administrative pardon to Lori Berenson in light of the CIDH’s recent ruling. Few courts in the world would have handed down such a harsh penalty in the first place, and the nine years that Berenson has already served is ample punishment for any crimes that the Peruvian authorities think she may have committed. Berenson’s release would demonstrate that the Toledo administration is at last willing to grant an act of mercy and comply with the expectations of thousands of U.S. legislators, church leaders and eminent deans and professors of law who have signed petitions calling for Lori Berenson’s release.