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HUMAN RIGHTS: Peru’s Past to Serve as Evidence in Spanish Judge’s Trial

Ángel Páez

LIMA , Jul 2 2010 (IPS) - Human rights crimes committed in Peru in the 1990s — initially amnestied but later tried in court — will be presented in the trial of Spanish magistrate Baltasar Garzón as evidence that crimes against humanity cannot be legally pardoned.

The Spanish Supreme Court charged Garzón with overreaching his judicial powers in his attempts to investigate crimes committed during Spain’s 1936- 1939 Civil War and the early years of the 1939-1975 dictatorship of Gen. Francisco Franco — crimes that were amnestied in 1977, two years after the dictator’s death.

Garzón rose to international fame in 1998 when he issued the warrant that resulted in former Chilean dictator Augusto Pinochet’s (1973-1990) arrest in London, where he was held under house arrest for 16 months for crimes against humanity.

That move gained a foothold for the concept of “universal jurisdiction”: every state has an interest in bringing perpetrators of the worst crimes against humanity to justice, regardless of where the crime was committed, or of the nationalities of the perpetrators or victims.

The Spanish magistrate is credited for breaking ground for establishing the legal principles that have led to trials for crimes against humanity committed during past dictatorships in Argentina, Chile, Guatemala, Peru and Uruguay.

Now Garzón has requested that attorney Ronald Gamarra present the Peruvian case at his trial, which is expected to take place later this year. Gamarra represented the families of the 15 victims of the 1991 massacre in Barrios Altos, a neighbourhood in central Lima, committed by a “death squad” of the Army Intelligence Service.

For authorising the massacre and the 1992 assassination of nine students and a professor at La Cantuta University, Peru’s former president Alberto Fujimori (1990-2000) was sentenced to 25 years in prison.

The perpetrators of both crimes benefitted from an amnesty that the Fujimori government issued in 1995 for human rights crimes committed by civilian or military agents dating back to May 1980.

That year is considered the beginning of the armed conflict between Peru’s security forces and leftist guerrillas, and which lasted for two decades in this Andean nation.

Jo-Marie Burt, a visiting professor at Pontificate Catholic University of Peru, and associate professor at George Mason University in the U.S. state of Virginia, is an expert on the Fujimori case. She told IPS, “Gamarra played a fundamental role in the fight against impunity in Peru, and that is why Garzón has asked him to testify at the unfortunate trial being brought against him.”

In a letter that Garzón sent to Gamarra on Jun. 10, to which IPS had access, the Spanish judge suggests that Gamarra’s testimony focus on his experience in the trials for crimes against humanity that had previously been amnestied.

Gamarra would serve “as witness that a current of legal interpretation exists, based on the expansion of International Criminal Law, which favours the persecution of those crimes committed in the context of crimes against humanity, despite the time passed since they were perpetrated and above the so-called laws of pardon,” states the missive.

“Such testimony would have to be supported by the concrete cases you know,” the letter says.

Gamarra has spent several years representing victims of the state-led repression during Peru’s internal conflict.

He was head of the human rights unit at the Ad Hoc Prosecution Office created in 2000 to investigate charges against Fujimori and his intelligence advisor, fellow convict Vladimiro Montesinos. Gamarra also participated in the process of extraditing the former president back to Peru from Chile.

He now serves as secretary general of the National Human Rights Coordinator, a collective of more than 50 Peruvian non-governmental organisations.

“It is an honour to serve as a witness in a case that is transcendent for those of us fighting against impunity, and is more relevant still because the accused is an iconic magistrate,” Gamarra said in an IPS interview.

He said that Garzón had rightly pursued the trials of Latin American dictators, like Chile’s Pinochet “establishing that crimes against humanity are unpardonable and that no ‘full stop,’ ‘forgive and forget,’ or ‘amnesty for all’ laws are above the jurisprudence that penalises authors of violations of human rights.”

As a judge for the Audiencia Nacional — Spain’s highest criminal court — Garzón had filed the initial papers to investigate the fate of more than 113,000 Spaniards who were victims of forced disappearance during the Civil War and the early years of the Franco regime.

On May 14, the Spanish General Council of the Judiciary suspended him from court, 48 hours after the Supreme Court judge Luciano Varela indicted him for the crime of knowingly issuing an unlawful ruling.

The legal actions taken against Garzón were promoted by far-right Spanish groups, including Manos Limpias (Clean Hands), Libertad e Identidad (Liberty and Identity), and the Spanish Falange.

“The defence that my attorney proposes to develop will be based on the fact that the decisions I took are protected by the rules of International Criminal Law commonly accepted by civilised nations and collected in the various treaties Spain has signed,” Garzón explained in his letter to Gamarra.

“They are the rules that require us to give protection at all times to the victims of forced disappearance, that consider crimes against humanity unpardonable, and that proscribe the laws of pardon to the extent that they impede persecution of crimes against humanity or genocide,” he wrote.

According to Gamarra, in the Fujimori trial, the defence also argued that the crimes in question had been pardoned by law. “We demonstrated that international jurisprudence expressly states that crimes against humanity cannot be prescribed in that way,” he said.

“The international laws protect judge Garzón to investigate the crimes of the Franco era,” he insisted.