Peru Fights a Loser's Battle in the Notorious Berenson Case

Council on Hemispheric Affairs

8 August 2002

Toledo's presidency hits rock bottom as he approaches zero popularity, not so much for what he's done, but because he has done almost nothing

Peru's Former Minister of Justice, Fernando Olivera, acts like an unprincipled thug by joyfully insisting in as Washington that, for Berenson, there will be "no pardon, no commutation"

Toledo and his cheerless sycophants like Olivera, pave the way for the return of Fujimori, as the once disgraced and always corrupt ex-President watches from Japan as his popularity in Peru swells, when he is contrasted with Toledo and his ill-reputed political allies

Toledo has thrown away the moral high ground that could have provided his unraveling administration with a shot in the arm by having done the right thing by granting a wrongly imprisoned American citizen her freedom after the Inter-American Human Rights Commission (CIDH) issued a major ruling in her favor

Peru is now appealing the CIDH's decision rather than immediately restoring all of Berenson's rights, as called for in the ruling of the highly esteemed inter-American body

Perversely enough, embezzled funds recovered from the Fujimori era will be used to appeal the CIDH's finding that the Berenson conviction was illegal because it resulted from Fujimori's illegal terrorism laws and that Berenson's trials were, thus, a miscarriage of justice

The dismissal of trial Judges Izabeta and Araujo Sanchez further undermines the case against Berenson. It also serves to further discredit the reputation of Peru's anti-terrorism court and the judiciary now serving under Toledo, adding further support to the merit of the U.S. citizen's case. If the National Council of Magistrates now feels that the two judges are not fit to be on the bench, why were they allowed to preside over the so-called impartial re-trial of Berenson?

Washington apparently feels it needs Peru's commitment in the fight against drugs and terrorism badly enough to sacrifice Berenson. But how valuable are good relations with the mortally wounded Toledo regime and its rapidly evaporating constituency?

Toledo: A Pitiful President Sustaining a Pathetic Cause

Lori Berenson continues to rot under harsh conditions while Peruvian officials frantically struggle to keep the young American locked up in one of Peru's notorious dungeons in an all-out effort to save face after a recent Inter-American Commission on Human Rights (CIDH) ruling was made in her favor. The CIDH found that neither her military trial nor civilian trial was fair or provided due process and that the terrorism laws under which she was tried twice and imprisoned for nearly seven years were illegal. Ordinarily, a Latin American government in good standing would have complied with the ruling in a timely fashion and Berenson would have been released and compensation would have been paid to her for her unjust travails, as called for in the CIDH decision.

But Toledo, whose presidency is now coming apart, with its popularity all but disappearing and his reputation for laziness and lack of vision, has done the unimaginable by making it possible for the disgraced former president Alberto Fujimori to have grounds to dream about a return to power. The one area where he has displayed an almost sadistic sense of purpose in his wayward presidency is when it comes to the Berenson case. Here he is utterly determined to prove to his nation that he is not as worthless as the vast majority of Peruvians now see him as being, but a macho political strongman who will not permit Uncle Sam to push him or Peru around on the Berenson issue. It was undoubtedly this unstable fury which prompted him, at the moment that his presidency was collapsing, to send one of Peru's least respected public personalities- Minister of Justice Olivera - to Washington where he appeared before a press conference at the Peruvian embassy to take questions on only one issue - that the CIDH decision on freeing Berenson would be appealed to the Inter-American Court of Human Rights in San Jose, Costa Rica.

However, this strategy is bound to backfire because the Human Rights Court historically has followed the CIDH's lead on its decisions. Therefore, Lima's insistence on pursuing the case will only prolong its resolution for up to an additional two years or more, after which time the Human Rights Court will undoubtedly reach the same conclusion as the CIDH. Unfortunately, neither Berenson nor Peru can afford such a passage of precious time. In the case of Peru, it also means a further waste of resources, which could be better used to remedy its poverty, joblessness, record crime rate, sharp drop in public health and education, resurgence of guerrilla activity, rise in human rights violations and its reputation for a lack of probity and honesty.

CIDH's Case Against Peru

The CIDH ruled that Berenson originally had been charged under the flawed provisions of Fujimori's illegal and repressive anti-terrorism laws, which, despite being flagrantly without merit and rejected by the Commission, are still defended by Toledo, even though he revoked many of Fujimori's other tainted provisions. In April, Lima received a decision from the CIDH holding the Peruvian State responsible for violating Berenson's "right to judicial guarantees" in its military court's judgment. The CIDH also found the state responsible for "submitting [Berenson] to inhumane and degrading conditions of detention, starting a new trial conforming to the illegal Decree 25475 (antiterrorist law), and permitting the [use of] evidence collected during the first [military] process with a value of proof in said [second] trial." CIDH also recommended that Peru make monetary compensation for its violations of Berenson's rights and reform its anti-terrorism laws.

After Peru's highest military court overturned Berenson's original conviction for "treason" (even though she is a U.S. national) and nullified her life sentence, she was accorded a civilian trial in 2001 that found her guilty of "collaborating with terrorists." While this was a far lesser charge and couched in much more vague terms, it still carried a heavy-handed sentence, requiring 20 years incarceration and a fine of US $28,000 for civil damages. The Peruvian Supreme Court denied Berenson's appeal in February 2002. In the meantime, Berenson had a petition pending with the Human Rights Commission (CIDH), alleging that the military and civilian trials had violated due process guarantees. Berenson's only other hope for release has been a presidential pardon, which would be very unpopular amongst the Peruvian officials. In addition, sensationalized media reports in that country's notoriously biased press, where yellow journalism is the rule, have portrayed Berenson as an enemy of Peru. As of now, the Inter-American Human Rights Court will address the case and either uphold or overturn the CIDH's rulings, ultimately resulting in Berenson's release, a new trial or a confirmation of the sentence against her. The Human Rights Court will not determine her guilt or innocence, but Peru will be legally bound to accept its ruling.

Peru Seals Its Own Fate

On July 16, at a Washington press conference, then Peruvian Minister of Justice Fernando Olivera announced that his country would take an unprecedented move. He stated that Peru intended to challenge the CIDH's ruling by taking it to the Human Rights Court, which was done on July 22. In doing so, he indicated Peru's rejection of the CIDH's ruling, thus banking on the possibility, albeit slight, that the Human Rights Court would not uphold it's sister organization's original finding. Peru's move was a major role reversal in the court's civil procedures, as it marked the first time an American state has taken the CIDH before the Human Rights Court; the usual procedure is that the CIDH files a lawsuit against a government that refuses to conform to its recommendations and, in fact, on July 19, the CIDH did just that. However, Peru's right to file its own petition to the court is apparently backed by Article 61 of the American Convention on Human Rights.

In 1999, Fujimori decided to remove Peru from respecting the jurisdiction of the Inter-American Human Rights Court in order to avoid having to comply with rulings he did not like, such as a future verdict in Berenson's favor. Under Toledo, Peru reversed its position and again placed itself under the court's jurisdiction. Olivera had hoped that the CIDH would reconsider its decision, but he stated that Peru would now take its decision to the Human Rights Court and would accept the ruling on Berenson and release her if this was what the court ordered.

Low and Getting Lower

Both Toledo, and the Fujimori administration before it, have passed up a number of opportunities to free Berenson in an atmosphere of dignity and judicial probity; they chose instead to take a tough stance on "terrorism" in the face of growing international support for Berenson's innocence and calls upon Lima's authorities for her immediate release, if for no other reason, than on humanitarian grounds. President Toledo has disappointed even his rapidly dwindling rank of Washington admirers with his indifferent and ineffectual governance of Peru, reflected by his current dismal popularity ratings of below 20 percent. Toledo's increasingly erratic behavior is reminiscent of Fujimori's heavy-handedness and totalitarian methods. On the Berenson case, Toledo has turned to political bravura: rather than resorting to sound diplomacy and moderate policy in leading the country out of its economic crisis and political bedlam, he has chosen theatrics and self-serving indecencies. He has decided to target the defenseless Berenson out of his aimless rage and personal frustration over the fact that his presidency is turning into an unqualified disaster and that he has been revealed as a powerless leader.

Similarly, Peruvian authorities have been unrelenting in their insistence on Berenson's guilt in spite of the fact that they have presented very little evidence in making their case and that the decree law on which her conviction was based has now been ruled as void. Former Prime Minister Valle Riestra, the last top Peruvian government official with a sense of public rectitude, had the courage to openly support Berenson's claims and called for her release, for which he became an immediate target of Fujimori's wrath. In June 1998, Valle Riestra had declared Berenson's military trial legally flawed, claiming that it was the product of a "repressive" judicial system. He urged that her conviction be annulled and that she should be released and expelled from the country. An infuriated Fujimori refused to accept Valle Riestra's recommendation. The prime minister resigned after having been on the job only two-months and after Fujimori had scowled at his former colleague when Valle Riestra vowed to continue his fight for Berenson's freedom and the strengthening of human rights observance in the country. Once again, just a few days ago, Valle Riestra had the fortitude to repeat his recommendation that Berenson be released.

The government has retained some of the country's most politically well-connected lawyers to defend itself against the CIDH's decision, at a very high fee. In an ironic twist of events, the $182,900 set aside by Peruvian authorities to cover anticipated legal costs are funds that were recovered from corrupt practices carried on under Fujimori and his close deputy, Vladimiro Montesinos. Despite Toledo's refortified efforts to keep Berenson locked up, some Peruvian authorities expressed reservations over denouncing the CIDH's recommendation. The president of the congressional Justice Commission, Daniel Estrada, believes that Peru will not receive an "optimal result" from a ruling by the Human Rights Court. Radio and Internet polls showed that of the thousands of respondents, 80% were opposed to Peru's action at the Human Rights Court.

Dismissal of Civil Trial Judges

When Fujimori allowed for a new trial to be held after being denounced for the star chamber procedure used against Berenson in the military trial that originally convicted her, he begrudgingly acknowledged that there was no evidence for convicting Berenson on the military court's charges and that was why the case was being turned over to a civilian court. However, justice was hardly served by Fujimori's biased civilian judges who presided over Berenson's civil trial. Indeed, on July 19 it was announced that the positions of two of the three civil trial judges who presided at the Berenson trial would not be renewed. The National Council of Magistrates, Peru's putatively independent juridical body that appoints judges, did not specify why it dismissed either Judge Marcos Izabeta, the former head of the anti-terrorism court who served as chief judge in Berenson's 2001 trial, or Judge Eliana Araujo Sanchez, who also presided at Berenson's civil trial. Izabeta maintained that Peru's national interests were being harmed by the failure to ratify his and Araujo Sanchez's positions, because the action helped to support Berenson's claims that her trial was not impartial.

Indeed, soon after the 2001 civil trial had commenced, Berenson's Lima lawyer, Jose Sandoval, had asked Izabeta to recuse himself from the trial based on the release of widely noted videotapes implicating Ibazeta with the Fujimori-Montesinos mafia. In the footage of one of these tapes, convicted spy chief Vladimiro Montesinos refers to the judge as "part of the team." The question is, did these words refer to a possible fiscal relationship between the barrister and Montesinos, a notorious dispenser of payoffs and bribes to judges, civil servants and members of the military, or simply that the judge was in Montesinos' pocket due to compromising information that Fujimori's notorious spy chief possessed on him.

The aforementioned verbal exchange convinced Sandoval of Izabeta's bias. In addition, two July 1999 Peruvian newspaper reports also testified to Izabeta's prejudicial attitude toward Berenson. In these accounts, the judge referred to possible retrials of Berenson and several guerrilla leaders as "irrational." But in spite of such compelling evidence of a conflict of interest, Izabeta was allowed to preside over the case.

Lack of Support From Washington

During the previously mentioned July 16 press conference in Peru's Washington embassy, the Berenson case was the only issue on the agenda. Minister Olivera stated that Peru has shown solidarity with the U.S. in its fight against terrorism, implying that he expected the same courtesy from Washington in not making an issue of the Berenson case. Clearly a point was meant to be made because Olivera blatantly ignored possibly embarrassing questions from the floor or simply fudged his answers. Among some of the questions that could have been asked were, what were his credentials to be Peru's Minister of Justice when it was know that he was not even a lawyer, why did he bother coming to Washington to speak on Berenson when he reportedly was leaving office at the end of July, and whether his original appointment was an acknowledgment of his talent or because his party was a member of Toledo's ruling coalition and he had claim to a seat?

Throughout the Clinton and Bush administrations, Washington has been warm and cold when it came to the Berenson case, but it never made her fate a matter of extreme urgency. Certainly, it would not be too much to say that the French or British foreign office would have been much more aggressive in representing the interests of one of their citizens than was the case with the State Department. The White House has shown some support for her -if at arms-length. With Congress, it was another matter. A 1997 letter in which 175 Representatives and 52 Senators called for a retrial of her case was an extremely impressive show of concern by the nation's legislature. In 1999, other congressional letters urged then Secretary of State Madeline Albright and President Clinton, to press for Berenson's release. These were signed by 176 Representatives and 33 Senators, respectively, and by year's end the majority of the House expressed support for release. On July 26, Representative Maxine Waters voiced her outrage at Berenson's continuing imprisonment and urged the Peruvian government to set her free. Even President Bush displayed a stirring of support for Berenson during his March 2002 visit to Lima by raising the question of her status. In a previous June 2001 meeting, President Bush also had urged a humanitarian resolution to the Berenson's case. In accordance with Washington's history of reluctance to aggressively mobilize interest in the fate of a U.S. national, the White House recently has turned its back on the Berenson case in light of its other regional priorities. Nevertheless, the case will not go away. The issue remains an embarrassment for the White House, and that embarrassment can grow until it reaches major proportions.

Today, near anarchy exists in Peru and the country remains caught up in a web of corruption together with Toledo's almost indescribable incompetence. When the Peruvian court reaffirmed Berenson's conviction, there was major focus on the case on the "Today Show" and "Oprah," and its potential for even greater exposure is obvious. The White House is zealously courting Peru's cooperation in a regional strategy against drugs and counterinsurgency. Apparently, the sacrifice of one American citizen, however scandalous, appears to be her fate. However indifferent the White House has been in pressing her case to Peru, it is a matter that won't go away, and the de facto bargain that Washington apparently is willing to entertain in the name of advancing U.S.-Peruvian ties, brings no reason for feelings of pride in how this country obsequiously defers to an ill-deserving parody of democracy in Lima.

Lori Berenson traveled to Peru in November 1994 to work as a freelance journalist and was working on assignments from two U.S. publications, Modern Times and Third World Viewpoint, when she was arrested in November 1995. A military court featuring hooded judges convicted her of "treason" against the Peruvian state for allegedly being a leader of the Tupac Amaru Revolutionary Movement (MRTA). In 1996, she appealed to the secret military court, which ruled against her. In 2000, her sentence was nullified and her case was moved from a military court for a retrial in civilian court. In the 2001 retrial, she was convicted of terrorism in respect of collaboration against the state and sentenced to 20 years in prison. In 2002, the Peruvian Supreme Court upheld the civil trial verdict.

This analysis was prepared by Susanna E. Clark and Jessica Garcia of the COHA research group.

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