Berensons Counter Perú's Responses to Frequently Asked Questions
August 1999; revised October 2000
In the summer of 1999 the Peruvian government compiled a list of responses to FAQs (frequently asked questions) about Lori Berenson's case and the Peruvian Embassy sent this document to those who had written to Peruvian officials. Later, these FAQs were included on the Peruvian Embassy's web site www.peruemb.org and then, in October 2000 they were revised and updated.
Interestingly, the Peruvian government's past rhetoric has far exceeded its present claims. This was the first concrete statement of the charges against Lori Berenson, none of which are serious enough to warrant a life sentence, and none of which are true. In addition, as is typical of the propaganda used by the Peruvian government when discussing Lori Berenson, insinuating guilt by association, the document contains a prominent paragraph at the beginning about MRTA activities in Perú, although MRTA activities have nothing to do with Lori Berenson. Moreover, this document tries to justify Lori Berenson's trial by a military tribunal, outrageously claiming it was a "proper trial" that did not violate international law, and it also attempts to justify her inhumane treatment in Peruvian prisons.
The complete text of the Peruvian FAQs document is reprinted below. Following each response is a counter-response from Lori Berenson's parents, typed in blue. Other FAQs sent directly to the Committee to Free Lori Berenson can be found here.
The Lori Berenson case
Lori Berenson is an American citizen from the state of New York who was arrested in Lima on November 30, 1995, for her active involvement with the terrorist group known as MRTA (or "Tupac Amaru Revolutionary Movement.") The Embassy receives several letters from U.S. citizens asking to be informed about her arrest, trial, and current conditions. This FAQs document may help to answer some of those concerns and explain the reasons why the Peruvian justice convicted her to life in prison.
Lori Berenson is our daughter. She was arrested in Lima on November 30,1995 and served nearly five years of a life sentence for treason against Perú even though she is a U.S. citizen. On August 28, 2000, her conviction and sentence were nullified. She is currently being subjected to a civil trial that fails to meet international standards of due process. Lori has proclaimed her innocence at every opportunity since her arrest. In a letter to the human rights community in August 1998 she said, "I have never been a member of the MRTA." In a letter to the U.S. Congress in February 1998 she wrote "Soy totalemente inocente de los cargos que me imputan." ["I am totally innocent of the charges against me."]
In addition, the Peruvian Embassy web site includes a small picture of a list. If "clicked," the list is enlarged and the following text is viewed:
After the MRTA seized the Japanese Embassy in Lima, its leader, Nestor Cerpa, wanted to exchange the hostages for 465 members of the terrorist organization in prison. The Government rejected such demands. Over the next weeks and months, Cerpa was forced to reduce his demands to half, next to a third and so on. Still the Government rejected them. Almost at the end of the hostage crisis, Cerpa shrinked his list to only 20 prisoners. The list was presented to President Fujimori by Catholic Archbishop Luis Cipriani, who together with Canadian Ambassador Anthony Vincent and the Red Cross Representative Michael Minnig were the mediators in the crisis. This document, which was shown in CNN, is a copy of notes taken by President Fujimori from the list presented by Cerpa. It included Cerpa's wife Nancy Gilvonio, the Chilean members of the organization and Lori Berenson. If Ms. Berenson was innocent and had nothing to do with the MRTA, as some people argue, why then did Cerpa insisted on her release, putting her on the third place of his 20 choices, above his other 445 comrades?
When the MRTA first took hostages at the residence of the Japanese ambassador in Lima the leader Nestor Cerpa issued a communiqué that, among other demands, called for the release of "MRTA prisoners, as well as those prisoners falsely accused by the government of being MRTA militants." The MRTA wanted freedom for over four hundred prisoners, one of whom was Lori who they included in the group of falsely accused. Lori Berenson always has stated she was not a member let alone a leader of MRTA and the MRTA itself always has said Lori was a human rights activist and journalist and not a member of that organization [MRTA communiqué, March 1996; Washington Post, January 24, 1997; New York Newsday, January 26, 1997; Reuters, November 20, 1998].
Lori's name appeared on the "short list" that Nestor Cerpa submitted days before the end of the crisis. As was stated by Archbishop Cipriani, a conservative supporter of President Fujimori who led the negotiations seeking a peaceful resolution to the siege, an analysis of the names on the list reveals that Nestor Cerpa was looking to end the crisis peacefully by listing only those whom he felt President Fujimori would be willing to release - prisoners that even President Fujimori could agree were nonviolent or innocent. The list includes the elderly, the infirm, and foreigners. It also includes Nestor Cerpa's wife Nancy Gilvonio about whom Archbishop Cipriani specifically said, "[Peruvian] national security was not in danger from Nancy Gilvonio."
As reported in newspapers and wire services [for example, Reuters, April 27, 1997] soon after the crisis ended, a released hostage stated that the MRTA leadership told him that they "called for [Lori's] release as a way of winning over American public opinion to the MRTA."
What about MRTA and terrorism in Peru?
Sendero Luminoso (Shining Path) and MRTA are two active terrorist groups that were involved in an extremely violent terrorist escalation over the past decade. Both groups were designated "Foreign Terrorist Organizations" by the U.S. Secretary of State in October 1997, under 1996 anti-terrorism legislation. Their terrorist activities caused the death of 30,000 Peruvians, left hundred of thousands orphaned or homeless and destroyed public and private property estimated at US$ 25 billion. The subversive group MRTA was responsible for continual assassinations, bombings, kidnappings, extortion, robberies and attacks, such as the assault on the American Embassy in Lima. In December 1996, the MRTA seized the Japanese Ambassador's residence in Lima, taking 72 hostages for 126 days. It has also been involved with drug traffickers in the Huallaga Valley and other coca-growing regions in Perú. Neither of these nihilistic groups can he seen as romantic revolutionaries seeking social justice. They have fought against three consecutive democratically-elected civilian Governments in an attempt to impose their radical Marxist policies by force of arms.
This is typical of the propaganda, insinuating guilt by association, used by the Peruvian government when discussing Lori Berenson. But the acts of the MRTA have nothing to do with Lori Berenson. In fact Lori has said "I have never participated in the planning of a violent act, neither with the MRTA nor anybody else; neither have I ever promoted violence and, what is more, I do not believe in violence and it would not be possible for me to participate in violence." Please click the dialogue box, "Frequently Asked Questions," for more information on Lori's position on the MRTA.
Of what was Ms. Berenson accused?
She was charged by the prosecution of belonging to the leadership of the MRTA and of being involved in the preparations for an attack on the Peruvian Congress with the intention of kidnapping some of its members. The group sought to obtain hostages in order to exchange them for imprisoned members of the MRTA. After the conspirators were captured, the MRTA waited one more year to perpetrate a similar offensive.
She was accused of treason, a charge that was politically motivated. This charge placed Lori's case in a secret military tribunal rather than in an open, civilian court so that the Peruvian government could conceal the absence of evidence while claiming serious crimes.
In July 1998, U.S. Ambassador to Perú Dennis Jett said, "Lori Berenson is obviously not a leader of the MRTA." The depiction of Lori as an MRTA leader must be obviously preposterous to any thinking person. Lori has repeatedly denied membership, let alone leadership, in this organization. Moreover, Lori has denied any knowledge of plans this organization may have had and has declared that she does not believe in violence.
On August 28, 2000, the Supreme Council of Military Justice admitted its error in finding Lori guilty of treason and nullified her conviction and sentence. Ignoring guarantees in Peruvian and international law against "double jeopardy," Perú remanded her case to the civilian terrorism courts.
What is the evidence?
The MRTA plot was discovered by the National Office Against Terrorism (DINCOTE), a Police Intelligence Division that has captured important terrorist leaders such as Abimael Guzman, leader of the Shining Path. A patient surveillance mission enabled DINCOTE to capture the entire MRTA military command responsible for the planned assault. Among them was MRTA's number 3, Miguel Rincón, arrested with his men in a suburban Lima home whose owners, an elderly woman, her daughter, and her 8 year grandson, had previously been taken hostage.
At the same time as the "military arm" of the plot was captured, DINCOTE discovered the conspirators' safe house. Inside, the police found weapons, ammunition and maps of the Congress building. Police investigations determined that Ms. Berenson was the tenant of the safe house and was involved in the preparation of the failed attack. It was determined that she had drawn some of the maps of Congress after posing as a reporter with fake ID's to gain access to the building, in order to draft the sketches. Ms. Berenson was arrested in the company of Nancy Gilvonio, wife of MRTA leader Nestor Cerpa Cartollini, who was to lead the take-over of the Lima residence of the Japanese Ambassador in December 1996.
Three and a half years after her conviction, Perú has finally made definitive claims about Lori's conduct. The three claims -- that she was the tenant of a safe house, that she posed as a reporter with fake ID, and that she made drawings of the Peruvian Congress -- neither support the above accusations of treason, nor are they true.
Lori Berenson rented a room in a large house that later housed MRTA members. She did not know that three people she met there were MRTA members and had moved to another part of town a few months before her arrest. Her lawyer has seen the lease for the house and her name is not on it. She had legitimate press credentials, approved by the Peruvian government, and was writing articles on the effect of poverty on women in Perú for two New York publications, Modern Times and Third World Viewpoint. The editors of these magazines verified, in writing, to the investigating officials, that Lori Berenson was writing articles for them. Lori never drew any maps of the Peruvian Congress and she made no sketches of the Congress. Lori knew Nancy Gilvonio as a Bolivian citizen by another name and did not know about her relationship with members of the MRTA.
Lori has said, "I am completely innocent of the horrendous charges made against me, and there could not be real evidence that shows such crimes."
Why was she tried by a military instead of a civilian tribunal?
In the 1980's, when terrorism started in Perú. terrorists were tried by civilian courts in open trials. Perú's Civil Code did not even contemplate a crime of terrorism. Terrorists took full advantage of the mild legislation. They began to threaten judges and their families. As a result, judges became afraid to impose harsh sentences on convicted terrorists. Several were released, others were sent to prison for 6 or 10 years at most, and released after serving half their sentence. Some terrorists gained absolute control of the prisons in which they were being held. This situation encouraged terrorist leaders and cadres to pursue their activities without fear and with impunity, further contributing to the growth of both subversive movements. In 1992, in order to confront this very critical situation, the Government adopted a set of emergency measures and within this framework enacted strict anti-terrorist legislation based upon the legal systems prevalent in Western democracies that had had to combat terrorism. In other words, the legal provisions applied in Germany, Britain and Italy to try the Baden Meinhoff gang, the IRA and the Red Brigades. Of a provisional and emergency nature, Perú's anti-terrorist legislation provided that persons charged with crimes of aggravated terrorism or treason (defined in terms of belonging to the terrorist leadership or participating in terrorist attacks) were to be tried by military tribunals. Those found guilty could face sentences ranging from 25 years to life imprisonment. Article 173 of the 1993 Constitution indicates that military courts and the Code of Military Justice does not apply to civilians, with the sole exception of those who have committed treason or aggravated terrorism determined by law.
She was tried by a military instead of civilian tribunal because the Peruvian government wished to avoid a public trial, where it would have been clear that it lacked any evidence of any crimes, let alone evidence to demonstrate the serious crimes that it was asserting.
Did Ms. Berenson have a proper trial?
On the basis of the evidence, Ms Berenson was charged with treason (the legal term is aggravated terrorism). She was tried and sentenced according to legislation approved by the Peruvian Congress. Ms. Berenson had the benefit of legal counsel and her lawyer was empowered to enter appropriate pleas in her defense and to argue the case from the viewpoint of the accused. Accordingly, in keeping with the legal order outlined above, she did benefit from due process.
The government of Perú is alone in the world in its insistence that Lori Berenson had a proper trial. Peruvian secret military trials have been condemned by the U.S. Department of State, Amnesty International, The Carter Center for Human Rights, and Human Rights Watch: Americas. In December 1998, the United Nations Commission on Human Rights stated that Lori Berenson has been deprived of her liberty arbitrarily and that the government of Perú must take all necessary steps to remedy her wrongful incarceration. In August of 2000 the Peruvian government admitted that Lori was wrongfully convicted, nullified her life sentence and remanded her case to the civil courts.
Why was her trial not like proceedings int the U.S.?
Each country has its own set of rules, laws and procedures. The fact that Ms. Berenson's trial was not similar to those held in the United States does not mean it was invalid. Perú's legal system is based upon Roman-Germanic Law, while the American system is based on common law. The conditions under which Ms. Berenson's trial was held were exceptional, because special legislation was and remains in effect against criminals convicted of acts of terrorism. Penalties and legal systems change from country to country. For instance, death penalty is not applied in Perú.
There is absolutely no reason to compare the Peruvian justice system with that of the U.S. But all nations must conform to international law. As pointed out in a letter to Secretary of State Albright, signed by 55 U.S. Senators, "She was denied a fair public trial by a competent, independent and impartial tribunal, as required by Article 14 of the International Covenant on Civil and Political Rights, ratified by Perú on April 28, 1978."
Can a foreigner be charged with treason?
The argument has been made that the charge of treason is not applicable, but it is not correct for two reasons. Firstly, as noted above, this is a matter of legal terminology. Secondly, Perú is not the only country in the world to use that term. For example, the Constitution of the United States specifically recognizes the crime of treason. The U.S. Supreme Court stated that foreigners could be charged and sentenced in the United States for treason because they must obey the laws of the country in which they find themselves (Carlisle Vs United States, December 1872).
As noted above, Lori Berenson was charged with treason so that the Peruvian government could conceal the absence of any evidence while making serious accusations.
Has Peru violated international law in this case?
Perú has not acted in contravention of International Law. If this assertion is based on the fact that the trial was not open to the public, it must be pointed out that the International Covenant on Civil and Political Rights contains an exception to the right to a public hearing when it provides for the possibility that "The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security". In addition, Article IV of the Covenant contemplates the possibility that, in an exceptional situation that threatens the life of the nation, the existence of which is officially proclaimed, States Parties may adopt measures derogating from their obligations under the Covenant, to the extent strictly required by the exigencies of the situation. The American Convention on Human Rights enshrines the same concept in Article XXVII. Therefore, the trial of Lori Berenson has taken place within the limits and exceptions clearly stipulated in contemporary international law in this field.
Has Perú violated international law in this case? Absolutely! As is well-documented by major human rights groups, the U.S. State Department and the United Nations Commission on Human Rights, Lori Berenson did not have a trial that met international standards of due process. She was never notified of the charges against her. She was denied the right to meet with or consult with her defense attorney prior to being required to make statements. Neither she nor her attorney was ever given the opportunity to confront and cross-examine any witness against her. Lori Berenson was never shown any evidence against her nor was she permitted to present evidence on her own behalf. She was sentenced by a hooded military officer while a loaded gun was held to her head by a hooded soldier.
Perú has violated Articles 9 and 14 of the International Covenant on Civil and Political Rights which ensures a fair public trial by a competent, independent and impartial tribunal. Perú signed and ratified this covenant. The United Nations Commission on Human Rights, in its Opinion No. 26/1998, stated that "[t]he deprivation of Lori Berenson's liberty is arbitrary as it contravenes Articles 8, 9 and 10 of the Universal Declaration of Human Rights." In addition, the Peruvian government has violated The American Declaration on the Rights and Duties of Man and the American Convention on Human Rights.
Similarly, according to the United States Department of State (February 2000 human rights report on Perú) trials in civilian courts for terrorism-related cases do not meet international standards of openness, fairness, and due process.
How was Ms. Berenson's regime in prison?
The regime under which she was in prison is similar to the regime in maximum security prisons in the United States, to wit one hour a day in the courtyard, one visit a month in a screened parlor, the right to work in her personal cell and access to penitentiary facilities such as legal assistance, psychological and medical attention and social services. She had access to visits from Consular Officers and relatives.
For almost three years Lori was held in Yanamayo Prison at an altitude of 12,700 ft. At Yanamayo there is no heat and hot water, and the high windows let in little sunlight but, because there is no glass, allow the cold wind to lash through the all-concrete cell. In August 1998, after visiting Yanamayo Prison. Antonio Donate of the Paris-based International Federation for Human Rights said, "I was in the prison in the middle of the day and I had to rub my hands vigorously to keep them from freezing. ...Since the conditions fall below any minimum standard for human treatment, we have asked for it to be closed." The high altitude, severe cold and poor diet seriously affected Lori's health, causing circuIatory problems, arthritis, chronic throat and bronchial infections and severe digestive difficulties. In October 1998, the Peruvian government moved Lori to Socabaya Prison at a height of 7,600 ft.
At Socabaya, Lori was again placed in an all-concrete unheated cell. But unlike Yanamayo, where she shared a cell with another prisoner and shared yard time with several prisoners, in Socabaya Lori was totally isolated in a separate wing of the prison, not permitted to interact with or even see other prisoners. After four months, during which time Amnesty International issued two Urgent Action Alerts pointing out that Lori Berenson's solitary confinement amounts to cruel, inhuman and degrading punishment, the Peruvian government moved other political prisoners onto her wing. But Lori was still left in solitude 22 hours each day.
On August 31, 2000 Lori was moved to Santa Monica Women's Prison in Chorrillos, Lima for the duration of her trial.
Has she been charged just because she is an American?
Absolutely not. Peruvian law applies to everyone regardless of origin, nationality, race, gender or creed. The United States enjoys friendly relations with Perú. Both countries currently cooperate in several fields, including efforts to interdict the flow of narcotics to the United States. The Peruvian Air Force has successfully interdicted narcotics-trafficking aircraft, and has significantly curbed the flow of narcotics through Peruvian air space. Bilateral assistance to Perú, including food aid and disaster relief and rehabilitation during the 1990-97 period totaled several million dollars. The Agency for International Development's largest South American program is in Perú. The United States also supports Perú's efforts to become more integrated with the international financial community. Those efforts, together with increased economic and social stability, have resulted in a substantial increase in U.S. investment and tourism in Perú in recent years. The USA is the second largest investor in Perú after Spain. In 1997, approximately 140,000 U.S. citizens visited Perú for business, tourism, and study. That number increased in 1998. Currently about 10,000 Americans reside in Perú within a friendly and safe environment, several hundred U.S. social and religious volunteers work peacefully in the country and over 200 U.S. companies are represented there.
Has she been charged just because she is an American? Absolutely! The Peruvian government and, particularly, President Fujimori have clearly sought political advantage from the arrest and imprisonment of a U.S. citizen. Mr. Fujimori has repeatedly made an issue of her nationality, literally waving her passport and making Lori's case a political one. In July 1998, U.S. Ambassador Dennis Jett told the Associated Press that Lori Berenson's nationality had worked against her, saying Peruvian authorities have treated her usually harshly because of her nationality. He noted that typically only rebel leaders or those who commit violent acts are tried by military judges. He said "Lori Berenson is obviously not a leader of the MRTA." A Japanese woman (in 1996) and an Italian woman (in 1994) who were arrested in Perú and accused of "terrorism" were each returned to their home countries. Many Peruvians charged with terrorism have been released in recognition that they, like Lori Berenson, are innocent.
This FAQ document is correct in indicating that the U.S. has provided aid and invested heavily in Perú in the past. But the U.S. and its people should never support a repressive government. The U.S. Congress, in 22 USC Section 1732, directs the U.S. President to do all in his power, short of going to war, to gain the release of a U.S. citizen wrongfully held by a foreign government. We know that Lori believes (and we agree) that Perú should be helped in its efforts to overcome problems of massive poverty and unemployment. We want economic aid and investment In Perú to continue -- but not at the expense of human rights of the Peruvian people and others. In July 1999, the U.S. House of Representatives expressed serious concerns about the Peruvian justice system, disdain for democratic principles and human rights violations in Perú, and the treatment of Lori Berenson, threatening to withhold funds if remedies aren't forthcoming. In addition, an August 2000 letter from 221 members of the House of Representatives that urged President Clinton to secure the release of Lori Berenson, also pointed out that without a resolution of her case there is concern that the legal rights of all U.S. citizens who work and travel in Perú are in danger.
But she is a U.S. citizen in a foreign land!
Nationality does not confer the privilege of immunity nor impunity. Currently there are dozens of Peruvian nationals serving prison terms in the U.S., one of them in death row. There are also about 12 American citizens arrested in Perú for attempting to smuggle drugs into the United States. U.S. citizens are subject to the laws of the countries that they visit, just as foreigners who visit the United States must obey local laws.
All people, including U.S. citizens, are entitled to due process and a fair trial in any country when charged with a crime. Lori Berenson has been denied due process and a fair trial in Perú.
The Supreme Council of Military Justice of Perú announced on August 28, 2000, through press release, its decision to accept the appeal based on new evidence, for a review of the sentence of the military court that condemned Ms. Lori Berenson to life imprisonment for the crime of aggravated terrorism and treason against the nation. Consequently, the aforementioned sentence has been annulled and the case has been passed to the civilian courts for judgment within the framework of their competence and jurisdictional autonomy. (See attached press release below.)
On August 31, 2000, Ms. Berenson was transferred to Santa Monica Women's Prison in Chorrillos, Lima.BERENSON CASE UPDATE
Press Release - September 25, 2000
Supreme Council of Military Justice
The Supreme Council of Military Justice announces the following to the public:
- As of December 7, 1999, Lori Helene Berenson Mejia, who had been sentenced, appealed for the extraordinary review of the sentence that had condemned her to life imprisonment as author of the crime of treason against the nation.
- On August 18, 2000, the Full Court of the Supreme Council of Military Justice resolved to accept the legality of the aforementioned extraordinary appeal thereby nullifying the Supreme executive order that condemned the person in reference.
- For its part, the Military Court charged with judging the crime of treason against the nation, in observance of legal standards in effect, resolved on August 24, 2000, to refrain from hearing the case with respect to Lori Helene Berenson Mejia in favor to the civil courts; As a consequence, the Military Court has sent certified copies of the procedural documents to the Public Prosecutor so that they may proceed in accordance with their attributes. Lima, August 28, 2000
Office of Public Relations of the Supreme Council of Military Justice
- Will the new civilian trial finally afford Lori due process?
- How is the civil trial conducted?
- What is the status of the civil trial?
- Has Lori admitted guilt?
- Why doesn't Lori denounce the MRTA as terrorists?
- To what extent did Lori know MRTA members?
- Did Lori ask to be transferred to the MRTA prison wing in Lima?
- What is the current political situation in Perú?
- What was Lori doing in Perú?
- Why did Lori seem so angry in her January 1996 press presentation?
- Why does the U.S. government continue to support Perú?
- What has the U.S. government done on Lori's behalf?
- Why doesn't Lori apply to transfer to a U.S. prison?
These recent events have led to a whole new set of questions.
Responses to these, along with responses to the following other "Frequently Asked Questions," are provided here.