Another Pervision of Justice by the Inter-American Court
LaRazon (Lima, Perú) -- 14 December 2004
by Javier Valle-Riestra (former Prime Minister of Perú)
On November 25, 2004, the Inter-American Court of Human Rights issued a capitulating ruling in the Lori Berenson case. It was a political sentence to accommodate the Peruvian extreme right and a reaction which threatened to withdraw Peru from the Inter-American Court's contentious jurisdiction. This ruling had the strategic virtue of keeping Peru within the nucleus of the OAS system. I am happy for this. But, it was also harmful because it contains a very grave injustice: it endorsed the 20-year sentence of imprisonment for this U.S. citizen.
What did Lori Berenson do? She was a dilettante, an adventurer. She wanted to imitate 'Che' Guevara or Regis Debray. Criminal law speaks of an iter criminis: the thought, the conspiracy, the preparatory acts, the intent or frustration, and the perpetration. Perhaps Berenson was in preparatory acts. She visited the totalitarian Fujimori Congress, which was no expression of democracy. She allegedly surveyed the scene. It is hypothesized that she wanted to take it over. But she didn't. She was arrested in a bus. She had no weapons. She did not have documents with a fake identity. She was not a part of any death squad. She did not kill or order others to kill. She lived with a Panamanian man named Castrellon, supposedly tied to the MRTA, who had no record of such.
The Inter-American Court also forgot the events the said foreigner [Lori Berenson] endured. Her trial, finalized with a March 12, 1996 sentence to life imprisonment for treason to the fatherland (sic), was conducted by an inquisitorial and unknown military court based on iniquitous laws that our Constitutional Court declared unacceptable [seven] years later. She suffered through two years, eight months and twenty days of incarceration in Yanamayo prison, located at almost four thousand meters above sea level, in torturous prison conditions (isolation in a small cell lacking ventilation and natural light, without a bed on which to rest or adequate hygiene facilities, with undue restrictions on receiving visits, with deficient medical attention and diet -- all of which led to her visual and circulatory problems and Reynaud's syndrome, a hypertrophic swelling of her hands). This was cruel and inhuman treatment which the American Convention condemns.
Nonetheless, on August 12, 2000, during the Fujimori dictatorship, the full body of the Supreme Council for Military Justice decided to annul the decision and disqualify themselves from the competency of the case. Declaring themselves relieved of their duty in the sentence that condemned her as author of the crime of treason against the Fatherland, they handed the case over to the [jurisdiction of the] civlian courts.
The ad hoc Provincial Prosecutor for common justice accused her of banalities -- having introduced herself as Pacifico Castrellon's wife, having rented an apartment on La Tecnica Avenue, having indoctrinated members, having collaborated in acquiring communication instruments [such as a cell phone and beeper], and having obtained credentials from the National Association of Journalists. At the moment of her sentencing on June 20, 2001, the National Court for Terrorism, presided over by Marcos Ibazeta Marino, condemned her for providing information about Congress but recognized that she had not participated in indoctrination or financing activities. But most of all the Ibazeta court concluded "there was no evidence that the accused had joined and become a member of the MRTA." The court ruled:
"CONDEMNING: [Mrs.]LORI HELENE BERENSON MEJIA, as author of the crime of Terrorism in the form of collaboration (foreseen and sanctioned in subsection (a) and (b) of article four of Legal Decree 25475) in injury to the State, to the PENALITY OF TWENTY YEARS PRIVATION OF FREEDOM [...] ESTABLISH[ING]: the amount of 100,000 soles for civil reparation that the sentenced woman should pay to the Peruvian State; at the same time ACQUITING [Mrs.] LORI HELENE BERENSON MEJIA, of the prosecutor's accusation of author of the crime of Terrorism in the form of the acts of collaboration (referred to in subsections (d) and (f) of article four of Legal Decree 25475) and the concept of terrorist association (contemplated within the fifth article of the mentioned Legal Decree)."
On February 13, 2002, the Supreme Court of Justice, analyzing her degree of participation, pointed out that the defendant did not have functional co-control of the action. Since this is an element that defines the co-authors' conduct, it is one reason that it only is possible to attribute the quality of secondary or accessory accomplice to the defendant, and by which her collaboration consisted in an innocuous support that without which the configuration of the unjust character still would have been possible, which is extenuating. Nonetheless, the Supreme Court of Justice declared the decision not annulled.
The irreproachable single vote of magistrate Guillermo Cabala Rossand- fascist in other actions- should be recognized here; he considered that the conduct [of Lori Berenson] was not terrorist, rather it was a crime against public peace and of illicit association to commit a crime, and he proposed a 15-year punishment. Although I dislike this magistrate, I reiterate that his vote was correct. Lori Berenson was not a terrorist. She had a vocation as a guerrilla. Not all violence is terrorism. Constitutional violence of the right to insurgence against the usurpations of Power exists. The Geneva Protocols allow for legitimate violence. If there is a responsible commander, if weapons are publicly displayed, if a uniform or a distinctive sign is used, if the rules of war are respected, if there is no taking of civilian hostages, if kidnapping is not committed, then one is a guerrilla. One can even reach the status of a belligerent community, practically becoming a quasi State, as were the guerrillas of Fidel Castro, of El Salvador, of Nicaragua, and of 'Che' Guevara.
Taking over the Congress in itself is not terrorism. The Peruvian Congress has been taken over and dissolved in 1930, 1948, 1968, and 1992 and these acts were censurable political crimes. No one accused Sanchez Cerro, Odria, Velasco, or Fujimori of being terrorists. On February 1982, the Spanish courts -- specifically, the Congress of Deputies -- was taken over by the Francoist Lieutenant Colonel Tejero and a patrol of Civil Guards who obliged socialists and communists to crouch under their seats. The only courageous man was the right-wing Prime Minister Adolfo Suarez. A military court then condemned Tejero and his men for the crime of rebellion, not as terrorists.
A more traditional example: At 9:30 a.m. on Tuesday, August 2, 1978, the guerrilla commander 'Zero,' leading 23 uniformed boys, divided into squadrons of four, and disguising themselves as the Somoza National Guard, in an armed attack on the headquarters of Parliament took over the Nicaraguan National Palace. All of the deputies and were present and, as Gabriel Garcia Marquez would say, two of them were worth their weight in gold for the Sandinista Front for National Liberation: Luis Pallais Debayle, Anastasio Somoza's first cousin, and the dictator's half-brother General José Somoza Abrego's son, José Somoza. After two days, on Thursday, August 4th, 25 Sandinistas, five negotiators and four court hostages (Pallais, José Somoza, Mora, and Chamorro) abandoned the Parliament building and took two planes that had arrived from Torrijos' Panama where they later received asylum alongside 60 political prisoners who had been freed throughout the country. On the road to the airport, the young guerrillas were greeted with expressions of popular jubilation. Commander 'One' said to Somoza Deputy Chamorro: "You see this is the only thing that money can't buy." Was that terrorism? Obviously it was not. Next to this achievement, Lori Berenson is a poor empirical child still drinking milk, a small-scale guerrilla.
For this reason, Judge Medina Quiroga's vote is the only responsible vote in the Inter-American Court's ruling. She sustains that there were deficiencies in the definition of the characteristics of terrorism and that it was unsustainable for the Peruvian court presided over by [Marcos] Ibazeta to affirm that "Criminal Law's imperfections can change when the times and situations change and when the norms have lost their reasonability." This reflection is close to the Nazi legal doctrine that the judge should be the interpreter of the Nation's sentiments. Judge Medina Quiroga also affirmed that if the evidence presented in the military court lacked validity, it was incongruent to invoke it in the sentence. She concluded by stating that "the suffering of cruel or degrading treatment, during almost three years of detention, should be repaired and a quantity of money does not seem to be sufficient reparation." This reparation should be, she added, a significant reduction of the sentence; for example, counting two days of prison for each day detained in inhuman conditions.
Fearing the cave-like primitivism of a demagogic press and politicians that do not educate but rather appeal to the ancestral feelings of the collective, the Inter-American Court has perverted the course of justice. My solution proposed in the days of my ephemeral democratizing Prime Ministry would have been better: expel her to the United States as a non grata in Peru. It now would have been [nearly] seven years since and this issue would have been forgotten.
NOTE: *After receiving a letter of thanks for expressing his opinion, on December 24th Mr. Valle-Riestra responded to Ramsey Clark that "The Inter-American Court of Human Rights has betrayed the Americas. The Berenson case ... is a crime against human rights and has discredited this institution."