Alfonso Ramos (left) shows a newspaper reporting the death of his sister Celia in Piura due to forced sterilisation. Micaela Flores (centre) and Sabina Huillca are sterilisation victims from Cusco. All three have been waiting for justice for 17 years. Credit: Milagros Salazar/IPS

By Milagros Salazar
LIMA, Feb 3 2014 (IPS)

Shelving the case of the forced sterilisations of more than 2,000 women in Peru during the Alberto Fujimori regime was a surprise move by the prosecutor in charge. What happened? An IPS investigation found that legal avenues to pursue justice have not been exhausted.

On Jan. 24, prosecutor Marco Guzmán announced an end to the investigation of forced sterilisations carried out in Peru between 1996 and 2000. He said he would not pursue criminal charges against Fujimori (1990-2000), three former health ministers and other officials accused of being responsible for the crime."The doors were padlocked. They carried me off on a stretcher, tied my feet and cut me.” -- Micaela Flores

“They took us in trucks. We got in quite innocently and contentedly. But then we heard screams and I ran… The doors were padlocked. They carried me off on a stretcher, tied my feet and cut me,” Micaela Flores, then a mother of seven from Anta province in the southern region of Cusco, told IPS.

On that occasion about 30 women went to the health centre, duped by a campaign offering general check-ups, she said.

Guzmán has decided to prosecute only health personnel in the northern department of Cajamarca. The sterilisations were part of the Voluntary Surgical Contraception Programme (AQV – Anticoncepción Quirúrgica Voluntaria), created by Fujimori and his government to bring about a drastic reduction in the birth rate in the poorest parts of the country, especially among rural Quechua-speaking women.

Guzmán, as head of the second supraprovincial prosecutor’s office, took over the case in July 2013 after the investigation was reopened in November 2012.

There are currently 142 volumes of evidence in this longstanding case. In May 2009 the prosecution shelved the probe into the former ministers and other officials for the first time, in spite of repeated urging for its completion from the inter-American human rights system.

In 2003, the Peruvian state signed a friendly settlement agreement before the Inter-American Commission on Human Rights (IACHR) in the case of Mamérita Mestanza, who died in 1998 as a result of a poorly performed tubal ligation procedure done without her consent.

The government promised to pay an indemnity to her family and investigate and bring to trial the government officials who devised and implemented the forced sterilisation campaign.

After years of delays and foot-dragging, human rights organisations had their hopes raised when Guzmán showed interest in investigating Fujimori’s command responsibility for the generalised, systematic practice of sterilisations.

In late November the prosecutor said there were “indications of the alleged participation of Alberto Fujimori in the crimes,” and expanded the investigation into the cases of Mestanza and others.

Rossy Salazar, a lawyer with the women’s rights organisation DEMUS who is representing the victims, told IPS that this statement by the prosecutor appears on page 60277 of the file as part of a report on the case addressed to Víctor Cubas, the prosecutor who coordinates all human rights cases.

In an interview with IPS, Guzmán acknowledged having said “there were indications that Fujimori had participated.” At that point he had interviewed over 500 victims, mainly in the northwestern department of Piura and in Cusco, he said, although in his latest 131-page decision he states he only interviewed around one hundred.

Guzmán was also in possession of evidence that the programme had targets, incentives, and even sanctions for personnel who did not fulfill sterilisation quotas, according to documents obtained by government agencies that investigated the facts of the case.

DEMUS invoked these official documents in an appeal against the prosecutor’s decision to shelve the case, which it presented Jan. 28 before the Office of the Public Prosecutor.

The appeal refers to four letters from the former health minister, Marino Costa, to Fujimori in 1997. In one document the minister reports to the president on the increased numbers of AQV operations performed and says “by the end of 1997 our total production should be fairly close to the target.”

IPS asked Guzmán: “After determining in November that there were indications of Fujimori’s participation, why did you absolve him from responsibility so soon afterwards?”

“In order to examine him I had to interrogate him. I went to interrogate Fujimori and he answered some questions, but not others. For some he invoked the right to silence. Then his defence lawyer gave me a number of documents. This was important because Fujimori had never been questioned about this case before,” he said.

Fujimori’s interrogation on Jan. 15 in the Barbadillo prison, where he is serving a 25-year sentence for human rights abuses, lasted less than three hours. One week later, Guzmán closed the case against the ex-president.

“Was your interview with Fujimori decisive for determining whether he participated in the crimes?” persisted IPS.

“It was taken into consideration, but it was not decisive. The decisive thing is the legal package I have to apply… There is no legal support for imputing guilt,” Guzmán said.

The prosecutor argued that Peruvian law does not provide for the crime of forced sterilisation, and therefore there is no legal support. In his decision he said the victims’ complaints would not be classed as crimes against humanity, which refer to generalised or systematic attacks on a civilian population and have no statute of limitation.

In international terms, the Rome Statute, which established the International Criminal Court, does recognise the crime of forced sterilisation. The statute entered into force in Peru in July 2002, after the sterilisations were carried out and denunciations were initiated, but “the international community has regarded forced sterilisation as a crime since the early 1990s,” Salazar said.

In its appeal, DEMUS argues that the prosecutor’s decision “should not halt the criminal investigation.” It is “only the first step in the search for truth” and does not end the evidence collection phase. DEMUS asks for a higher level prosecutor to bring charges so that the case can continue. Another means of re-opening the case would be for another victim to bring a new complaint.

DEMUS also plans to bring the case to the attention of the IACHR in March.

On Jan. 31, an article by Guzmán was published in the newspaper El Comercio, saying that “the only way Fujimori could be held responsible is by demonstrating command responsibility, and according to the Constitutional Court the requirements for this are not fulfilled, because there is no rigid vertical structure involved, and doctors cannot be obliged to operate against their will.”

“They are isolated cases,” he told IPS.

According to the Health ministry, 346,219 sterilisations were performed on females and 24,535 on males between 1993 and 2000, 55.2 percent of them in the period 1996-1997 alone. During that period an average of 262 tubal ligations were carried out a day.

More than 2,000 persons were documented to have been deceived or threatened into undergoing sterilisation. Women in Cusco were among the worst affected, because on average nearly five operations a day were performed there, according to Health ministry figures and the testimony of victims.

Sabina Hillca, from Huayapacha in the Cusco region, told IPS that she set out for the health centre in Anta when she was due to give birth to her daughter, Soledad, but the birth happened on the way.

The nurses told her she should stay to be “cleansed” and avoid infection. The next day she woke up crying, with sharp pain, an incision close to her navel, and tied to the bed. Afterwards she fled to her village, cleaned the wound with soap and water, removed the stitches as best as she could, and went to her mother for herbal treatments.

“Now I have cancer because dry blood collected in my ovaries,” she said, showing the dark scar on her abdomen.

In 1996, Maria Mamerita Mestanza Chavez, a 33-year-old Peruvian mother of seven, was threatened with imprisonment if she did not comply with the government policy of undergoing sterilisation. After suffering post-operative complications for which she was refused treatment, Chavez died nine days later.

After years of legal proceedings in the Inter-American Commission on Human Rights (IACHR), in 2003 the Peruvian government finally acknowledged international legal responsibility for its actions.

Chavez’s story is not the only case in which national law has forced women to undergo involuntary sterilisation. Although many women’s and disability rights organisations and other human rights bodies have condemned coercive sterilisation, thousands of women and girls worldwide are still denied the right to make decisions about their own reproduction.

Participants on the first day of the Fifth Session on the Conference of States Parties to the Convention of the Rights of Persons with Disabilities, hosted by the U.N. Sep. 12-14, 2012. Credit: UN Photo/Rick Bajornas

Involuntary sterilisation, an operation which, without an individual’s consent, permanently ends his or her ability to reproduce, has occurred in regions with many different cultural backgrounds, ranging from the United States and Switzerland to Japan, China, Puerto Rico, Brazil and others.

The operation “has historically targeted…marginalised groups of women such as women with disabilities, women from ethnic minorities, indigenous women, low-income women and women living with HIV”, said Luisa Cabal, vice president of the New York-based Centre for Reproductive Rights, at a side event organised by the World Health Organisation (WHO) at the U.N. headquarters Sep. 13.

WHO estimates that over a billion people in the world, or approximately 15 percent of the global population, have disabilities.  According to a WHO report, disabled women are particularly vulnerable to involuntary sterilisation.

Forced sterilisations on disabled women are often performed under the auspices of medical legal services or with the consent of court-appointed guardians, who have the authority to decide on behalf of the patient. Various justifications are offered for the procedure, including disabled women’s inability to parent, protection from sexual exploitation and abuse, population control, or so-called menstrual management.

An international approach

The United Nations Convention on the Rights of People with Disabilities (CRPD), adopted in 2006 and ratified so far by 119 countries, recognises that disabled individuals have the right to make decisions freely and responsibly regarding their reproductive lives.

These rights and others were discussed at the Fifth Session of the Conference of States Parties to the CRPD, which concluded at U.N. headquarters Sep. 14. This year’s conference focused on women and children.

Strongly advocating the rights of women with disabilities at the conference was Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s ambassador and permanent representative to the United Nations.

In his remarks at the opening session, Hussein outlined the role Jordan’s Higher Council for Affairs of Persons with Disabilities (HCD) has played in raising awareness of and advocating for the rights of Jordanian women with disabilities who are subject to sterilisation, which he called a “misconceived and shameful practise”.

“The committee targeted parents, doctors and gynecologists, legal experts and judges as well as religious leaders to address this issue,” Hussein explained.

Despite the existence of the CRPD, disability is not even explicitly mentioned in the U.N.’s Millennium Development Goals (MDGs), pointed out Ahmed Abul Kheir, Egypt’s ambassador and advisor to the Minister of Social Affairs. He urged the U.N. to tackle the issue at a high-level meeting of the General Assembly on disability and development in September 2013.

Government accountability

In 2011 five women with mental disabilities brought their case before the European Court of Human Rights. Each had involuntary undergone the process of tubal ligation without their informed consent. This case, Gauer and Others vs. France, remains open but is considered best example of how involuntary sterilisation can be effectively tackled by international institutions.

“A positive decision from the court in this important case would have a tremendous impact on reinforcing the autonomy of women with disabilities with respect to their reproductive health,” said Yannis Vardakastanis, president of the Brussels-based European Disability Forum, in a press release.

“States are under an obligation to take measures to prevent such violations and to investigate and prosecute them to the fullest extent when they do occur,” he added.

Nevertheless, preventive measures and support services are often limited and insufficient, according to Cabal, the Centre for Reproductive Rights vice president.

“Governments and health institutions have weak or inadequately implemented informed consent policies, guidelines, procedures to protect patient rights,” she said. “There is very little accountability for the ethical and human rights violations.”

“The human rights obligations of each state requires the adoption of all necessary measures – legislative, budgetary, judicial and administrative – to ensure women with disabilities access to reproductive health services,” Cabal told IPS. States must also establish accountability mechanisms to ensure laws and policies are fully implemented.

Moreover, victims of forced sterilisation must have access to the court system to vindicate their rights, Cabal said.

According to Erszébet Földesi, the vice president of the European Disability Forum, one of the main challenges preventing forced sterilisations is providing women with disabilities with appropriate information about their sexual and reproductive health care options. Another challenge is obtaining their free, full and informed consent to such procedures.

Health professionals ought to be “trained to deal with and assist women with disabilities in the area of sexuality and reproductive health and motherhood”, she added.

Asked what support must be delivered to the victims of forced sterilisation, Földesi told IPS that victims must have access to “recovery, rehabilitation and social integration”.

Highlighting the issue through social media networks or elsewhere online could help raise the awareness of the general public and policymakers about forced sterilisations, Földesi added.