 Welcome to Latin American directions where we take a look at what's going on south of the border. My name is Nicholas Susan and we have the pleasure of having once again. Here Salvador, and it's a Carrasco from the University of Ottawa Human Rights Center. And we're going to discuss a very interesting topic today that is not that foreign to the US or the regions. There's a wide, traditional practice in the US of pardoning a turkey in Thanksgiving and also presidential partners are part of the of the. Well, political spectrum of the US and the political reality. And recently we've had a very recent experience in Peru with Alberto Fujimori, the former president now convicted former president. And a whole situation about a pardon that was granted then suspended then granted again, then suspended again. Well, just to start, maybe we could provide the audience with a bit of background of what happened with the phone for him or the case who granted the pardon at first why was it granted. And also why it matters for the region, not only for Peru, but for the US for Columbia or other countries experiencing transitional justice, or dealing with partners in the realities. Thank you, Nicholas. It's a first of all, it is a pleasure to be here with you. And thank you to all the people watching think tech Hawaii is an honor to be here with you once again. Well, I think that Peruvian political history in the last 30 years is closely associated to the Fukimori regime and the Fukimori and the legacy of his government to this day. Mr. Mr. Fukimori was elected president in 1990, and he was elected for he was elected for second turn in 95. And he tried to get a second relation reelection outside the Constitution in 2000. However, due to corruption videos that show the practice of how his party was corrupt in political political different political parties media. He resigned on via fax and fled to Japan. So this was in 2000. We are in 2022. In this past 22 years, the Mr. Fukimori has had investigations, prosecutions and convictions for human right violations and for corruption. So his story, his judicial story can be divided in three ways in three parts. The first part is how to actually get him to sit to be indicted and prosecuted by a Peruvian court. Third, secondly, once we once the government got him in Peru, how to convict him or how to prosecute him in accordance with all respect to do process and guarantees of fairness and judicial independence. And the third stage, which is the stage that we are now would be his political party and his political affiliates trying to get him out of jail, whatever means necessary. So to study this, to study Fukimori's influence in Peru, a person that has had a significant power politically and economically is to pretty much this story of conservative thought and conservative power over other issues and other values that are just as important like human rights and social justice. Right. And Salvador. This is, we could say, old story, we're talking about something that happened 20 years ago. And you would expect that once this person is convicted, it is done. Why was he pardoned? I believe it was in 2017. Why was he pardoned? Who pardoned him and what for? Okay, so actually just to take a little step back, Fukimori, he was extradited from Chile in 2007 and he was convicted to 25 years in prison for the killing and kidnap of civilians in what was called the killings of Barrios Altos and La Cantuta. Which these are cases that were brought to the Inter-American Court of Human Rights. This is very important because this is the key player in all of this process. So in 2009, he was convicted by the Supreme Court of Justice in Peru to 25 years in prison. But due to the influence of his political party and especially his family, his daughter has ran for the presidential election two times now and she has lost in the runoff in both times by a very narrow margin. In 2017, Peru was in a big political crisis. The Lavajato, the car wash scandal from Odebrecht had implicated politicians and business people from the country, including the sitting president. So as a man, as a way to negotiate for the former president Kuchinsky to stay in power, he negotiated with Fukimori's political party, a humanitarian party, where the procedure was completely fraud and did not fulfill the requirements established in Peruvian law because the purpose was a political allegiance to keep Mr. Kuchinsky in office. This case, because the conviction that he received in 2009 was based on two decisions of the Inter-American Court of Human Rights. The victims of these two cases, Barrio Saldos and La Cantuta, they submitted a complaint to the or a petition to the Inter-American Court of Human Rights saying that the pardon that was given, the politically motivated pardon that was given to Mr. Fukimori was not humanitarian and was a breach of the right to truth, justice and memory of victims. So the court, Inter-American Court in May of 2018 decided that the pardon that was granted to Mr. Fukimori was contrary to international human rights. In this case, the American Convention of Human Rights. Based on that decision, the Supreme Court of Peru unknown the pardon that was given by the executive and Mr. Fukimori returned to prison. This all happened in 2018. Between then and now with the small hiatus or not so small hiatus caused by the pandemic, his lawyers and different legal teams have always found tried ways to get him out of prison. And in 2022, the Constitutional Court of the country ruled by a conservative majority determined that the habeas corpus, I'm sorry, the amnesty pardon that he received in 2017 and that was announced by a Supreme Court was still valid. This was in March 17 of this year. In March 30, the Inter-American Court established or told the state or asked the state not to set Mr. Fukimori free because they needed to assess if the decision of the court was in accordance with international human rights law. Once again, the American Convention of Human Rights. And last, just last week on April 7, the Inter-American Court of Human Rights decided that the state could not set him free because the pardon that was used as the legal basis was contrary to Inter-American Human Rights law. Right. And Salvador, in Latin American directions, we go beyond the law, right? So the question is, is there any political background, any political strategy to get him out of jail at this moment considering what we discussed in our last show about the situation of Pedro Castillo? What is just a matter that it happened because of the judicial terms just ended up occurring in this way and brought him up to this moment? Well, I think that in the case of Peru, Fukimori's party holds a steady 22%, 24% of the popular vote. So that is a solid group of people that support him, his policies and his potential legacy through his children. Not only his daughter, but also he has other younger children that are in Peruvian politics. So the name Fukimori has is embedded in Peruvian politics of the past 30, 35 years. And so with that power to have one of the most popular presidents in Peru and which is something that cannot be denied in prison because he was found responsible for committing crimes against humanity, it's hard for them to understand. It's hard for them to accept. And so what we have seen and how it has been painted in the political debate in the public discourse is that these people that want to see Mr. Fukimori in jail are all communists. They're all enemies of the country. They are pro terrorist organizations and a lot of lies and a lot of labeling that can only damages. They can only damage a constructive discourse and debate about the impact that this regime had with the needs for us as a country to move forward. Right. Right. And now let's talk a bit about pardons right pardons and impunity is something that runs very deeply in the people's sense of justice right. Pardons are white ranging and they're very important in some in some conditions and sensational justice right for example in my country. We are seeing pardons for former rebel members, trying to get back into society after the signature of the peace agreement conditional pardons, but we've also seen in the US the use of presidential pardons for many things right and the rationale behind this pardons is quite varied right we saw a very strategic personally strategic use of pardons with in the last months of President Trump we also saw it when the Nixon scandal broke out. It has also been granted immediate case to remedy some things that seem legal but could be unfair. And now in this case we're seeing something related perhaps to personal benefits in the Peruvian case but also had a transitional justice process. So tell us a bit pardons their international regulation but also their international acceptance, how forbidden they are, when they are allowed with with for which reasons, and why the, the Fujimori is pardon is not in one of that allowed cases right. Is this show run for two hours. No, but I trust your skills and you know it. No, but okay so in a very, I mean, the issue of pardons and amnesties. It's a fascinating topic in international law international law. It goes from animals to two persons and anything in between. But if you think about in the context of Latin America. And this is our transitional justice model bring comes from the Spanish model. So when Franco passes away. And there is a new constitution. Part of the democratization of this pain involved in agreement to let forget about the past and let's move forward to the present. So this transitional justice model of a clean sheet for everybody was in a way we're talking about late 70s, early 80s was the model to be so as you can, as you see the democratization processes in the mid 80s in Latin America, Brazil, Argentina, Chile, among others, that is pretty much the measure we want democracy. But let's move all together and let's forget about what happened. But in this case, in the Latin American context. The Inter-American Court of Human Rights that was adopted under the American Convention of Human Rights, which is a human rights regional tribunal. They started their cases. They start in 1988. So all of these issues about crimes perpetrated in the past. We're talking about 70s, early 80s. We're talking about forced disappearances, torture, political persecution of opponents. What is how to address these issues? And while this model of impunity was the standing normal in Latin America. These cases within the Inter-American Human Rights System and Inter-American Court were actually challenging this idea. Because this clean sheet meant impunity. It meant I did not know where my family members are. Why did they kill my family? Why did they took away my dad? My mom? What happened to my children? I want to know. All of this for any human rights lawyer or practitioner listening to us resonates in the right to truth. And that's how we go back. We go back again to the Barrios Altos case. The Barrios Altos case is the landmark decision of the Inter-American Court, in my opinion, to this day. And the Inter-American Court states in this case that amnesty laws are contrary to the American Convention of Human Rights. So what does this mean in practice? It means that laws, whether you call it amnesties, whether you call it violence, with the purpose of minimizing or excluding the possibility for the judiciary to investigate what happened in your country, what type of crimes happened, are contrary to international human rights law. A significant trademark of the Inter-American Human Rights System in Latin American countries is that international human rights law is part of our Constitution. In the case of international treaties, like the American Convention of Human Rights, like international covenant on civil and political rights, we consider that they are part of our Constitution itself. So you can actually use those treaties to enforce human rights, regardless of one national legislation of the state. So with Barrios Altos in this ruling opens up a whole array of possibilities of prosecutions of cases that were pretty much archived and fostering impunity in Uruguay, Argentina, Brazil, Chile, Colombia, Mexico. So to study Barrios Altos, it is not only about Fujimori, but Fujimori is the key that opens the door to secret archives. The possibility to investigate members of military or the creation of paramilitary groups that were persecuting and killing civilians. In the Inter-American context, not all partners are prohibited under international human rights law, and the Colombian transitional justice model is an example. But under the Inter-American Human Rights System and standards, clearly torture, forced disappearance and other grave violations of human rights are not subject to partners or amnesty. In the case of Mr. Fujimori, that's what actually fostered this persecution, because it was not just kidnapped or murdered. It was this murder in the context of crimes against humanity. Right. I think that line is very clear, and that is why I think the court last week was so decisive in telling the Peruvian government you cannot get this guy out of jail, despite what the Cristuchan court decided, right? And now I would like to get a bit into the complexities of pardon, right? Not before this case, but I think one discussion that is at the core of pardon, right? And many other executive powers that the presidents or presidents in our region have, right? So this is a discussion between convenience and how the executive power can decide over those convenience issues and the legal issues that are in the hands of the courts, right? And where do we draw the line between what's convenience for the country and what's convenience for the president, right? And that is the, I think the criticism with this pardons, right? Because I think crimes against humanity and human rights violations are clear-cut cases where pardons are not acceptable, and even less, there's discretionary pardons where the president just says, you know, this guy gets out of jail and there's nothing about it. I don't have to motivate the decision. I just think they should be forgiven. But going to other cases, how do you see this situation? And where do you lean in this controversy between judicial powers and executive powers on the side of convenience regarding pardons? In the case of Peru, I think that one of the lessons that we have, and it was not just because of Kimori, but it was due to a pardons given to another entity, was that no executive measure can be exempt from judicial review. And that is, if you think about weights and counterweights in the system, in the democratic system, that is a good rule for us to understand. And I know that in certain legal traditions, this might be complicated, right? Because there are some executive declaration of wars in some countries. You don't need any authorization. It depends on different situations in different contexts. But in this case, the fact that legislation that in Peru, we came to the conclusion that no executive discretionary activity can be exempt from judicial review allowed us to be in this situation where there was a political motivation to set a person free, not based on humanitarian grounds. And this, I would like to be clear for those that know a bit more about the situation in Peru. If Mr. Fujimori is or was indeed ill and needed to leave prison so that he could spend his final days with his family, so be it. Human rights is not about punishment. Human rights is not about, you know, seeing people die in jail. This is at least not in the conception. You're not going to put words in your mouth, Nicolas, but it's not the conception that you and I work on human rights issues. But what this was, was a political negotiation. And who pays the prices? Victims. And who are the victims of usually human rights violations, at least in Latin America, any other places in North America and Canada, and in the U.S. as well. Disenfranchised people. Okay, we're talking about Afro-descendant indigenous peoples, rural communities. This is the profile of victims. So when you put this in the scheme of political negotiation, who cares about these people? So that is why it is so important for us that victims who are at the lowest level of the socioeconomic scale of pretty much any country at least have the international court of human rights and an international field to address this. This is almost like a Samsung versus Goliath struggle. You're fighting about an establishment and economic political establishment with people that don't have much other than the trust that if they are not going to find justice at home, they can try on international courts. And that's, that's right. Thank you so much for that. And now let's speak about, I think you've mentioned it a bit, but let's speak about the impact that these has on the region, right, on Latin America and other transitional processes. I think this you've mentioned it already, but I just want to be very clear also and let's not forget that the U.S. even if it has a strange legal relationship to international law is also part of the inter-American human rights system to some country. How do these standards affect how presidential partners are granted or what's the impact you consider this has for the region? I think that the impact of the Fujimori case, it has set the way, it has set paved the way for Latin American countries that partners cannot be synonym to impunity. And perhaps that is for a country like Peru, my country, there was never supposed to be a Fujimori case. He fled to Japan. And this is one of the most corrupt governments in Latin American history. I mean, Fujimori was never supposed to sit in or to be prosecutor for crimes against humanity, human rights violations. But for some reason, basically due to political shortcomings from their end, he ended up being going to Chile and he went to Chile because he wanted to run again for president. But then the Chilean authorities arrested him and extradited him to Peru, something that was never feasible for them in their political calculations. So the fact that in Peru, we only have a handful of state officials that have been actually prosecuted and convicted for human rights violations. So for us, that is why the Fujimori case is important and why it is important for many countries in Latin America. And when we talk about possible human rights violations perpetrated by a head of state, it is under the Fujimori threshold that he or she might be measured. So that's why this is not just one case of a Latin American country, but this is a case of a sitting head of state who used to be a head of state prosecuted and convicted in his own country with the direct implication of international human rights law. We've seen in the past three months, Nikolas and other people watching at home, that international law has been put to test in this past three months, right, in the Ukrainian-Russian conflict in Peru and many other places. But what we can see here is that if given the chance, international human rights law and international law can make a difference. That's that's very true, Sarvala, I couldn't agree more. And just to close, I know Peru is getting or is commemorating this year a significant anniversary of its transitional justice process of its truth and reconciliation commission and we can still see how this issues remain very relevant. So we would just like to offer this final minute for you to make a reflection in this to speak about transitional justice for the region and any other reflection you consider it's relevant for the audience to understand better the reality and how deep it runs in the Peruvian population and its sense of justice. Well, just because we're almost out of time, I'll just say that transitional justice is much more than judicial than the role of courts. It has social political implications. But and if we just focus on judicial prosecutions, we are bound to commit the same mistakes. And this is, in a way, the problem that has happened in my country, and I would not like countries like Colombia that is about to release its truth or truth or report of an office truth commission in the next few months happen to them. What has been happening to us. I couldn't agree more. I think justice should go beyond punishment, but just a final reflection on on pardons pardons are meant maybe to fix the rungs of the judicial system that is not saved from committing mistakes or to sacrifice justice in the name of poverty, but going the other way around and runging justice runging victims around being the judicial system is the know the point that presidential pardons cannot cross. Thank you for being us again. Always time is too short for this conflict discussions. And I believe with the updates of the of the region will have you again here or any of your of your colleagues from Peru to provide insights from the region. Thank you very much, everyone, and we'll see each other in two weeks with more reflections in Latin American directions. Thank you so much for watching think tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at think tech Hawaii.com. Mahalo.