Justice: a Victim in Peru

Peru's violent guerilla leader was denied a trial that satisfied international standards of fairness

By , Douglass W. Cassel Jr. is executive director of the International Human Rights Law Institute, DePaul University College of Law. Anthony D'Amato is a professor at Northwestern University School of Law, Chicago.PATHE WORLD, page

WORLD headlines greeted the capture last month of Abimael Guzman, leader of the Shining Path revolutionary movement in Peru. Yet a stunning silence surrounded his "trial" - which began Oct. 1 and raced to an Oct. 7 verdict of guilty and a sentence of life imprisonment (the maximum allowed). The trial was not only swift but secret, held in closed sessions before a naval court convened by the extra-constitutional regime of Peruvian President Alberto Fujimori.

In one sense this media inattention was understandable: The press was barred from Mr. Guzman's trial. And as we discovered through repeated inquiries during the trial to the State Department, to the United States Embassy in Lima, and to Peru's Embassy in Washington, information about the trial was exceedingly hard to obtain.

Yet this was no time for the press to walk away from a historic event. Guzman's trial challenges our collective commitment to the rule of law. The more heinous the alleged offenses, the greater the temptation for the Peruvian government to employ unfair and illegal trial procedures - and for the US government and media to look the other way.

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If we condemn the tactics of the Shining Path, we should not condone Peru's denial of the Sendero leader's basic rights. This is not merely a matter of reciprocal morality, but also of political practicality: Why should the world respect our professed faith in fundamental rights if we invoke it only for friends?

After World War II, for instance, President Truman rightly insisted upon an open, public trial of alleged war criminals, which in fact took place at Nuremberg.

Guzman's trial was anything but open. The day after it began, Peru's Embassy in Washington was unable to answer the basic question: What was the charge against Guzman? (The answer, we learned from other sources, was treason.) Even "experts" in Peru were unsure of the legal basis and the supposed procedures in the trial. Apparently it was conducted pursuant to a series of recent presidential decrees whose overlapping provisions are so confusing that the US Embassy in Lima has yet to sort them out.

Subject to this uncertainty, we have attempted to measure Guzman's trial against the basic standards set forth in the American Convention on Human Rights, a treaty to which Peru is legally bound as a party. (Shortly after the trial, President Fujimori announced Peru's intention to withdraw from all or part of this treaty. However, any such attempt could not retroactively exempt Peru's conduct of the Guzman trial from the convention.) Although the convention allows certain rights to be suspended in emerge ncies, judicial guarantees essential to fair criminal trials are not among the rights that may be suspended.

Here's a minimum list of apparent violations of fundamental rights to a fair trial:

1. The convention requires trial before a "competent, independent, and impartial tribunal." Guzman was tried before a military court, whose independence from military leaders in the armed conflict against the Shining Path - and from Peru's commander in chief, Fujimori - is questionable at best.

2. The convention requires adequate time and means to prepare a defense. Guzman was arrested Sept. 12. His trial for treason began Oct. 1 - immediately following a four-day period during which his counsel was not allowed to see or speak with him. No lawyer, even one with unrestricted access to his client, could properly prepare the defense of such a case in so short a time.

3. The convention guarantees rights of the defense to call, examine, and cross-examine witnesses. Under Peru's emergency decrees, it appears that Guzman had none of these rights. His one-week trial was followed by a one-week appeal, which was denied on Oct. 14 (conveniently before the November elections in Peru).

4. The convention requires that criminal proceedings be public, except insofar as necessary to protect the interests of justice. Yet Peru's emergency decrees permit secret military trials.

This secret procedure was apparently used in Guzman's case. On the first day of the trial, members of an international delegation, including the prominent American defense attorney Leonard Weinglass, were denied access to the courtroom.

Under international law, the right to a public trial may be suspended in emergencies, but only to the extent strictly necessary to preserve public order and security. It is difficult to fathom why it would be necessary to exclude peaceful international legal observers from the trial.

The emotions of the government of Peru are understandable. However, the people of Peru are disserved by a "trial" that mimics the alleged tactics of the Shining Path. Even to label such a charade a "trial" mocks the idea of the rule of law. Orderly procedures and fairness toward any accused person are the hallmarks of legitimate government.

Perhaps the Fujimori regime has cynically calculated that it can get away with such a travesty so long as it excludes the news media. But we wonder why the news media and democratic leaders around the world seem to be looking the other way.

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