Open Forum: Peru vs. Lori Berenson: The Case Continues

NACLA Report on the Americas -- March/April 2005

by Mark L. Berenson, Professor of Information & Decision Sciences, Montclair St. U.

On April 3, 2002, in a unanimous, 7-0 decision, the Inter-American Commission on Human Rights declared that U.S. citizen Lori Berenson's civilian trial in Peru was riddled with violations of due process; that her rights under the American Convention on Human Rights needed to be completely restored; that she receive moral, psychological and financial indemnification for her wrongful suffering; and that Peru must bring its anti-terrorism laws into compliance with international standards. Since the Inter-American Commission has no way to enforce its rulings, in July 2002, after Peru refused to comply, it brought the case before the Inter-American Court of Human Rights, whose decisions are binding for all members of the Organization of American States (OAS) that accept its jurisdiction. On December 2, 2004, the Inter-American Court announced it had reversed the Commission's earlier decision.

The surprising Inter-American Court decision came as a shock to Lori Berenson's supporters and even to the Peruvian people. Monroy Galvez, the ad hoc judge appointed to represent Peru in the Court's closed-door deliberations and vote, later told the Peruvian newspaper Peru21 that on November 10 he had received the Court's "working draft document" of its preliminary decision and that it was very favorable to the Inter-American Commission's position in the case, apparently calling for Lori's release.

The reversal of the Court's initial position may well have been the result of a clever political strategy designed by the Peruvian President Alejandro Toledo and his administration. On November 5, ten days before the Inter-American Court was to reconvene in Costa Rica, a projected lengthy mega-trial of Shining Path leader Abimaél Guzmán and 17 co-defendants was scheduled to begin, despite the fact that the Peruvian courts normally begin a long summer recess at the start of the holiday season. Reuters reported that many in Peru believed the trial was intended to demonstrate to the Inter-American Court that Peru was capable of holding public trials under its new anti-terrorism laws that it claims meet international standards.

On the mega-trial's first day, the chief judge "allowed" the press to encourage Guzman and his followers to ignore the court, raise their fists and chant, causing chaos in the courtroom and an immediate suspension of the trial. It is plausible that the Toledo Administration orchestrated the Guzman mega-trial's failure so it could immediately pull out its winning trump card - the stigma and fear of the "T" word.

On November 6, President Toledo raised the specter of "terrorism," voicing his determination to protect the Peruvian people from the return of terrorism and forcing his political opposition into espousing increasingly tougher stances against this threat. Allegedly "angered and embarrassed " by the Shining Path courtroom spectacle, an "irate" President Toledo ordered punishment for all prisoners convicted of terrorism-related offenses and declared that nobody "accused or convicted of terrorism will ever go free."

The Peruvian population, indeed, suffered through two decades of terrorism and political violence. Ex-President Alberto Fujimori, who conquered the subversive groups, frequently used his propaganda machine and his control of the media to frighten an already fearful population with fictitious accounts of terrorist activities. Polls have indicated that Peruvians supported him because he made them feel safe. So fearful are the Peruvian people of terrorism that a poll conducted in November indicated that 82% of the population in Lima believed terrorism was an "imminent threat," despite the fact there had not been serious terrorist activity in years.

Rumors linking a favorable decision for Lori Berenson to the freedom of hundreds of dangerous terrorists continued to circulate for more than two weeks. The impending verdict on Lori's case became first-page news and received widespread radio and television coverage. More than 160 articles appeared from November 10 through November 26. Self-selecting write-in, wire-service polls indicated overwhelming support from a frightened populace for Peru to ignore any decision favorable to Lori Berenson and, if necessary, to withdraw from the Inter-American Court system.

The Inter-American Commission had argued strongly that both Lori Berenson's military trial and her later civilian trial denied her the right to a fair trial guaranteed under the American Convention on Human Rights. At the Inter-American Court hearings in May, both the Inter-American Commission and Lori's defense team cited the tainted evidence used in both trials, the fact that Peruvian anti-terroism laws do not adequately define terrorism and to details of the way in which the civilian trial was conducted. Problems cited with the civilian trial included the lack of presumption of innocence, the bias of the chief judge, the failure of the Peruvian court to allow Lori's defense attorney proper access to records or time to be with her, and the failure of the Peruvian court to properly document its conclusions in reaching its verdict against Lori.

The Peruvian government's lawyers countered some of these arguments, but the bulk of their presentation focused on the changes the Peruvian justice system had made. They mainly tried to convince the Inter-American Court how serious the Toledo Administration was about bringing Peru's previously condemned laws into line with international standards. Similarly, the witnesses, both through submitted affidavits and in person, did not even comment on the Lori Berenson case itself but focused on the changes in Peruvian anti-terrorism legislation that went into effect in early 2003, long after Lori's trial was complete and her legal remedies in Peru were exhausted.

Final hearings, held on November 24 and 25 in Costa Rica, were closed to the public, and no lawyers from Lori's legal team, the Inter-American Commission or the Peruvian government were allowed to participate. Nevertheless, the Peruvian ad hoc judge was able to argue his government's position, as he told Peru21, point-by-point, with no one able to provide countering viewpoints. In the end, the Peruvian government's position won the day.

Although the Inter-American Court's decision ordered Peru to compensate Lori for her illegal military trial and the inhumane and degrading treatment she received during her incarceration at the infamous Yanamayo Prison by removing a $30,000 fine levied against her, and to compensate her family $30,000 for legal expenses unnecessarily incurred in that illegal military trial, it nevertheless declared that her civilian trial did not violate her rights. The vote was six to one.

Chilean Judge Cecilia Medina Quiroga, reportedly the writer of the original working draft that allegedly called for Lori's freedom, wrote a strong dissenting opinion. She said that Peru's laws did not comply with the American Convention on Human Rights and that the only fair remedy was Lori Berenson's immediate liberation. She argued that the Inter-American Court should not permit tainted evidence from an illegal military trial and that Peru must adequately define terrorism before it could convict her for collaboration with terrorism.

The Inter-American Court also unanimously ordered Peru to bring its anti-terrorism laws into compliance with the American Convention on Human Rights. This particular decision is very confusing. In the body of the report, the Court applauds the changes Peru made in its laws between January and March 2003, and yet in the summary it orders Peru to change its laws. If Peru's new anti-terrorism laws are still not acceptable, how could the Inter-American Court rule that the previous laws under which Lori was tried have met the standards of the American Convention on Human Rights?

The Inter-American Court's role is not to judge guilt or innocence, but to ascertain whether the accused has had a fair trial with full guarantees of due process under the American Convention on Human Rights. There may have been very good reasons for the judges to change their minds based on their closed-door deliberations in Costa Rica on November 24 and 25 - one simply doesn't know. But it appears that in an effort to support the changes in post-Fujimori Peru and to preserve tranquility among a population traumatized by terrorism in the past, the Inter-American Court chose to sacrifice Lori Berenson.

If it is true that pressure politics won out over truth and justice -- an opinion expressed independently both by former Peruvian Prime Minister Javier Valle-Riestra and by the Ombudsman of Bolivia, Waldo Albarracin Sanchez -- then there is little hope for individuals looking to the Inter-American Court to protect their rights. For if truth is ignored and justice denied, the integrity of this international legal system is destroyed and all the people of the Western Hemisphere are adversely affected.