The Human Rights Paradox: Universality and Its Discontents

6. The Paradoxes of Accountability: Transitional Justice in Peru

In April 2009 a special chamber of the Peruvian Supreme Court found former president Alberto Fujimori guilty of crimes against humanity and sentenced him to twenty-five years in prison, the maximum sentence allowed by law (Burt 2009). Another Supreme Court tribunal upheld the conviction later that year. The Fujimori trial and conviction were widely viewed as a watershed in domestic efforts to obtain truth and justice for state-sponsored crimes committed in the context of Peru’s internal armed conflict (1980–2000). Prior to the Fujimori conviction a specially constituted court, the Sala Penal Nacional (Special Criminal Court), had handed down a number of convictions in other emblematic cases of human rights violations from this period, including convictions for the 1990 disappearance of the university student Ernesto Castillo Paez, the 1988 assassination of the journalist Hugo Bustíos Saavedra, and the forced disappearances of several municipal authorities from the Andean community of Chuschi in 1991. The Fujimori conviction appeared to consolidate this emerging system to investigate and prosecute human rights crimes. The transparency of the process, the affirmation of the rule of law that it entailed, and the visibility and impact 6 The Paradoxes of Accountability Transitional Justice in Peru jo-marie burt  148 of the guilty verdict were seen by human rights activists, victims, and judicial operators alike as a major precedent that would validate and strengthen their efforts to promote accountability for other grave violations of human rights committed during Peru’s internal conflict. Indeed, Peru’s successful prosecution of a former head of state for grave violations of human rights has come to represent an important precedent in global justice efforts. The “justice cascade” notwithstanding, it is still rare to see criminal prosecutions of former government officials for human rights violations , and it is even rarer for such prosecutions to be conducted by domestic tribunals.1 (More commonly such prosecutions are conducted by international tribunals, such as the international criminal tribunals for the former Yugoslavia and Rwanda, the International Criminal Court [ICC], or by hybrid tribunals, such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia.) In a 2012 New York Times op-ed piece, Jim Goldston, the president of the Open Society Justice Initiative and a former ICC prosecutor, argued that greater efforts should be expended to strengthen domestic justice systems rather than international justice mechanisms . Prosecution of human rights violations and crimes against humanity in local courts with local judges was far more effective, he argued, than international tribunals could ever be. His first example of a successful domestic prosecution was the Fujimori trial (Goldston 2012). Three years after the conclusion of the Fujimori trial, however, empirical research into Peru’s domestic human rights prosecutions reveals a dramatic inversion of past successes in its transitional justice process. Indeed, in recent years, high-ranking government officials, retired military officers, and conservative politicians have launched vicious campaigns against human rights lawyers, NGOs, and judicial operators involved in human rights prosecutions, accusing them of “persecuting” the armed forces, politicizing justice, and manipulating victims for political or financial ends. There have been renewed efforts to impose amnesty laws and shut down criminal prosecutions. Beyond this vociferous campaign against the judicialization process, this chapter documents concrete backsliding in Peru’s human rights prosecutions efforts, measured in closed cases, investigations that have yet to come to fruition after more than a decade, a minuscule number of cases brought to open trial, and high rates of acquittal of former state agents charged with human rights crimes based on what human rights lawyers charge are legally suspect arguments. This chapter also identifies and interrogates the paradox at the heart of Peru’s transitional justice process. It explores the factors that allowed for the successful and watershed prosecution of a former head of state for grave violations of human rights—the “Peruvian precedent”—while at the same time 149 T h e P a r a d o x e s o f A c c o u n t a b i l i t y problematizing Peru’s transitional justice process in recent years as conservative forces and other factors have regrouped, in large part in response to these very successes, and have sought to undermine the accountability agenda. The backtracking has been so dramatic, it is argued here, that rather than speak of the “Peruvian precedent” it is more accurate to...