The fate of Lori Berenson enters international arena

Digital Freedom Network -- 26 July 2002

by Lauren Etter

The ongoing legal battle between the Peruvian government and Lori Berenson, an American charged with collaborating with a radical leftist Peruvian revolutionary group, has at last entered the international arena and reached unprecedented levels of legal haranguing.

In a never before seen move, Peru has challenged Latin America's foremost human rights organization, the Inter-American Commission on Human Rights (IACHR). This dispute between Peru and the Commission is further complicating an already complex situation.

On July 22, when Peru attempted to bring suit against the IACHR in the Inter-American Court of Human Rights, it learned that the IACHR had already filed a suit against them on July 19. The IACHR originally brought suit against Peru for failure to comply with the rulings and recommendations it made concerning the judicial handling of Lori's case. In turn, Peru decided to file against the IACHR for its rulings and recommendations, which Peru considered outrageous and unacceptable.

This dual litigation stumped all parties involved, including the Court and the IACHR as Peru is the first country-member of the Organization of American States (OAS) to ever bring suit against the IACHR before the Court.

About the IAHCR

The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are arms of the Organization of American States (OAS), which is an international organization created by the North and Latin American states in order to cooperate on issues relating to peace, security, democracy, and the economy. In 1948, the OAS created the IACHR and the Court to form an inter-American system that would more specifically promote and protect human rights in North and Latin America.

After exhausting all legal opportunities in a state belonging to the OAS, one may petition the IACHR. If the IACHR accepts the petition--only a small percentage of cases submitted to the IACHR are actually admissible--it then investigates alleged human rights violations, conducts field research, and issues a report based on its findings. The reports include non-binding conclusions and recommendations to the state under investigation. If the state complies with the IACHR's recommendations, then the petition is considered a successful "friendly settlement." However, if the state fails to comply with the IACHR's recommendations, the petition can be taken to the Inter-American Court on Human Rights, where its decisions can legally bind an OAS member state to comply with its ruling.

Just months ago, on February 18, Lori exhausted her final domestic legal avenue when the Peruvian Supreme Court upheld the conviction and 20 year sentence imposed on her June 20, 2001. That is when she turned to the IACHR for assistance.

A last resort

Lori was arrested in Lima on November 30, 1995, for allegedly collaborating with the MRTA (Tupac Amaru Revolutionary Movement), a radical leftist Peruvian revolutionary group. At the time of her arrest, she was 26 years old.

In her first trial, she was sentenced to life before a Fujimori dictatorship military tribunal, which included a panel of hooded judges. However, on August 28, 2001, Lori's sentence was nullified and the following year, she received a retrial before a public civilian court, which convicted and sentenced her to twenty years for collaboration.

Following the Supreme Court's February ruling, Lori turned to the Inter-American Commission on Human Rights in a final attempt for justice. The IACHR took over the case and filed a petition on behalf of Lori. This petition recently ended up in the more forceful Inter-American Court on Human Rights due to Peru's failure to comply. The Court remains her final legal avenue aside of a presidential pardon, which Peru is very unlikely to do.

The IACHR originally confirmed the widely believed allegation that Lori has been wrongfully imprisoned and that she never received a trial that respected her rights or met international standards of fairness and due process. According to the Peruvian newspaper, Correo, "the commission concluded that the Peruvian State is responsible for the violation of the right to judicial guarantees, of personal integrity, and of the right concerning the principle of legality to the detriment of Berenson." Furthermore, it "suggested the adoption of necessary measures to make amends for the violations of Ms. Berenson's human rights, as well as to reform the antiterrorist laws."

In accordance with Inter-American law, the IACHR sent the report to Peru that included its conclusions and recommendations. Peru received this report on April 22 and failed to comply. Due to Peru's inaction, the case ended up before the San Jose based Inter-American Court on Human Rights on July 19. This action on behalf of the IACHR preempted Peru's decision to sue the IACHR in the Court on July 22.

This unprecedented move by the Peruvian Justice Minister Fernando Olivera to sue the IACHR has some wondering what is the next step. "We don't know what happens next administratively because this is the first time this has ever happened in the history of the Inter-American System." Mark Berenson, Lori's father, told the Digital Freedom Network in an interview.

Strained optimism

But the Berensons remain confident that the Court will rule in Lori's favor. There are other cases that serve as precedent, such as the case of Maria Elena Loayza, who was convicted and sentenced to twenty years in prison for the crime of terrorism against the state. In that case, the Inter-American Court ruled in Loayza's favor.

Nevertheless, the Berensons continue to express their concern that in the time it takes for a court decision to be made, some time between two and six years, Lori's health and livelihood will continue to deteriorate.

Peru, however, remains steadfast in its defense of the draconian antiterrorism laws implemented under former President Fujimori and of Lori's conviction. "There is no way Lori Berenson will be freed early or pardoned," said Peruvian Justice Minister Fernando Olivera to the New York Times.

Despite Peru's stern position on Lori's conviction and the Inter-American legal quandary, a recent factor emerged which may be able to support a ruling in Lori's favor. On July 19, Marcos Ibazeta, the chief judge who convicted Lori, and a state prosecutor, were removed from their positions by the National Council of the Judiciary, the country's judicial regulatory body.

This ruling affirms the speculation that the court that upheld Lori's conviction indeed lacked competence. It will most likely be detrimental to Peru's recent lawsuit, but beneficial for Lori, especially if the Inter-American Court orders a retrial.

"Definitively, if they haven't ratified the prosecutor, or me or another judge who took part in Berenson's trial," Izabeta told Reuters, "then this is giving support to Ms. Berenson's defense that...the trial was not impartial." He added, "This harms Peru's interests."

Placing the ball in Bush's court

Lori's fate is now in limbo, in the hands of the international justice system, unless President Bush can convince President Toledo to grant a humanitarian release.

During his visit to Peru in March, President Bush reportedly raised the issue of Lori's case and "forcefully expressed his compassionate concerns." However, the Berensons are not satisfied with the level of U.S. involvement.

Mr. and Mrs. Berenson would like to see the United States, which provides millions of dollars in aid annually to Peru, offer more assistance to their daughter. They believe that because Peru is an ally in the "War on Terrorism," the administration has its hands tied. It may be concerned that it would look bad to help secure the release of an American that is condemned in Peru as a terrorist, especially in light of the arrest of John Walker Lindh, the American Taliban member.

Despite the negative picture painted of Lori Berenson in Peru, her guilt has never been proven in a legitimate court of law, and therefore, Mr. Berenson believes that the U.S. needs to "be more forceful." In the meantime, Lori Berenson and her family wait anxiously for the international system to work out its imperfections and remain hopeful that the next verdict will free Lori.

Both Mr. and Mrs. Berenson have dedicated their lives to working on Lori's freedom and in a display of passion, resolve and fortitude, Mr. Berenson remarked, "Lori is the antithesis of what terrorism is. To my dying breath, I will not let any government bury my daughter."