This commentary was written by Laura Cabrera, a litigation fellow at the Open Society Justice Initiative. The commentary was written in her personal capacity and the views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
On December 24, 2017, then incumbent Peruvian President Pedro Pablo Kuczynski granted a humanitarian pardon to former Peruvian President Alberto Fujimori, who at the time was serving a 25-year sentence for crimes against humanity. Met with public outcry, the pardon was far more criticised for its moral implications than it was for its legal significance.This piece seeks to re-focus the debate following a recent ruling of the Inter-American Court of Human Rights which revisited the issue.
Fujimori’s Legacy and the Aftermath of the Peruvian Armed Conflict
Alberto Fujimori remains a controversial figure in Peruvian politics and international human rights law. His decade-long presidency between 1990-2000 is remembered for the internal armed conflict between government forces and the Shining Path, a Maoist terrorist group. The conflict resulted in the death of over 69,000 people. In its final report, the Peruvian Truth and Reconciliation Commission declared that the Peruvian armed forces had been involved in systematic or widespread human rights abuses, bolstered by a strategic alliance between ex-President Fujimori and a sector of the armed forces which shrouded perpetrators in impunity.
The full extent of the Peruvian government’s complicity in systematic violence against civilians was laid bare ten years after the conflict. In its 2009 landmark ruling, the Peruvian Supreme Court found Fujimori guilty of crimes against humanity committed by paramilitary soldiers (the “Grupo Colina”) during the Cantuta and Barrios Altos massacres.
Fujimori was convicted on the basis of command responsibility. The Supreme Court was not only satisfied that Fujimori had ordered the “Grupo Colina” to eliminate alleged terrorists operating in the Peruvian capital and urban areas, but that Fujimori – owing to his role as Commander-in-Chief of the Armed Forces and intricate knowledge of the system – had exercised control over the entirety of the state apparatus through his intermediaries. He was sentenced to twenty-five years in prison.
Circumventing Regional and International Human Rights Precedent
In December 2017, a mere eight years into Fujimori’s sentence and pursuant to the recommendation of the Presidential Pardon Commission, Peruvian president Pedro Pablo Kuczynski granted Fujimori’s request for a pardon on account of “humanitarian reasons,” namely that he was suffering from serious non-terminal illnesses which endangered his life.
A pardon, as opposed to a commutation of sentence, which also exists in Peruvian law, has the legal effect of eliminating criminal liability for the crimes committed. Upon assessing the issue as part of its monitoring compliance process following its previous rulings in the Cantuta and Barrios Altos cases, the Inter-American Court ordered the Peruvian government to judicially review the presidential pardon. The judicial review is ongoing.
Speculations as to the motives behind the pardon and doubts about the legitimacy of the medical reports attesting to Fujimori’s frailty aside, his pardon raises a crucial legal issue – whether it is possible to reconcile the increasing international repudiation of amnesty laws and pardons for perpetrators of crimes against humanity with the lawfulness of a “humanitarian” pardon.
Latin-America’s legal heritage, reflected in the jurisprudence of the Inter-American Human Rights system and in particular the Inter-American Court of Human Rights, has not only pioneered international law jurisprudence on amnesties and pardons, but has repeatedly found them to be inconsistent with international human rights law. Upon considering the lawfulness of amnesty laws adopted by the Peruvian congress, the Inter-American Court ruled in 2001 that all amnesty provisions and measures designed to eliminate responsibility for serious human rights violations – a category comprising crimes against humanity – were inadmissible and incompatible with the American Convention. The court’s reasoning, then and now, is that such measures are fundamentally at odds with a state’s obligation to investigate, prosecute, and punish human rights violations; and more importantly, that substituting a discretionary measure for a judicial decision constitutes a violation of victims’ right to justice.
Despite the Inter-American Court’s stance on this issue, the question of the lawfulness of amnesties and pardons continues to divide nations and courts. There is, however, a growing body of international human rights jurisprudence and comparative law attesting to a global trend in favour of outlawing discretionary measures where a court has previously issued a conviction with due consideration of the gravity and the harm caused. The UN Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity clearly state that those found guilty of crimes against humanity shall be subject to punishment and that states may not take any measures which may be prejudicial to their international obligation to punish such crimes. Peru’s own Constitutional Tribunal has explicitly ruled that individuals convicted of crimes against humanity are ineligible for a presidential pardon on the basis that such crimes violate human dignity.
The Practical and Theoretical Limits of a Humanitarian Pardon
Interestingly, the concept of a “humanitarian pardon” as stipulated by Peruvian law is unprecedented in international law. The insertion of the “humanitarian” label would seemingly serve to highlight the particular and exceptional character of the pardon, warranted by uniquely compelling circumstances. But it is difficult to conceive how this novel qualification could amount to a necessary or even helpful innovation, particularly when assessed in light of existing processes, such as a sentence reduction.
Indeed, humanitarian considerations are well within the remit of enforcement of international criminal law once a conviction has been made. The Rome Statute of the International Criminal Court (ICC) allows for the reduction of the sentence of a person convicted for crimes against humanity when they have completed two-thirds of their sentence. Specifically, the ICC’s Rules of Procedure and Evidence foresee the worsening state of physical or mental health or advanced age among the legitimate criteria for review and commutation of the sentence. While founded on humanitarian reasons and achieving equally humanitarian outcomes, none of these measures erode the substance of the conviction, i.e. the judicial attribution of responsibility to the individual for the crimes committed. A humanitarian pardon therefore is, at the very least, more costly than it is advantageous.
Another pressing concern is that the implications of such a humanitarian pardon potentially contradict international legal standards. There is currently no evidence in international human rights law or international criminal law that a pardon of crimes against humanity, even if granted for humanitarian reasons, could be considered lawful.
Given the potential interference with the internationally protected human rights of victims of crimes against humanity, it is unlikely that such a conclusion would be reached. Declaring a humanitarian pardon prior to comprehensively assessing any resulting human rights risks and impacts implicitly subordinates victims’ rights to those of the perpetrator. Moreover, even if it were concluded that a humanitarian pardon did not interfere with victims’ rights, in the international criminal law context such pardons could cripple the steadfast condemnation of crimes against humanity. With the potential for the pardon to violate victims’ human rights or detract from the deterrent effect of punishing crimes against humanity, the risks involved in allowing the humanitarian pardon to persist are considerable.
The Inter-American Court has requested to be notified of the progress of the judicial review no later than October 2018. Whether or not the Peruvian judiciary will err on the side of caution remains to be seen.
Laura Lázaro Cabrera is a Litigation Fellow at the Open Society Justice Initiative. She holds an LL.B and LL.M from King’s College London, where she was a Dickson Poon scholar. She has previously held positions at the Refugee Council, REDRESS and the Inter-American Court of Human Rights.