Saturday, September 22, 2007

Fujimori in Perú: The Rule of Law and Trials of Fallen Leaders

A recent Argentine newspaper article described the extradition of Alberto Fujimori, former President of Perú back to his homeland after a long period of exile in Japan following the collapse of his Presidency amidst charges of corruption and human right abuses. Fujimoi regresó a Perú, La Nación, (Argentina) Sept. 21, 2007. The Peruvian state has promised the world (and its people) a trail in which the state will seek expiation of its sins in ridding the nation of the horrible violence of the period of the revolt by the Sendero Luminoso (Shining Path) guerrillas, whose European web site may be accessed here. I have suggested the political realities behind the urge to bring the veil of rule of law notions into the arena of criminal trials in which highly placed individuals are chosen to bear the responsibility for the acts of state that in hindsight suggest conduct at variance with some interpretations of international political behavior standards but for which collective punishment would appear to be imprudent.

In the context of the trial and execution of Sadam Hussein of Iraq, I suggested:

I don’t write about the trial or the verdict, other than to say that Saddam Hussein has joined a long list of monarchs condemned to death after public proceedings in the form of a trial—Charles I of England, Louis XVI of France, and the defeated leaders of Nazi Germany and militarist Japan, and the political enemies of Marxist Leninist Regimes (especially under Stalin in the 1930s and Mao Zedong in the 1960s). In each case, the trails were meant as theatre. They served to discredit the ancien regime and legitimate the process of regime change. They also served to strip authority from the body of the representative of the prior political order. Then, with that representative reduced to mere man, the man—and not the state—is condemned as mere criminal; he suffers the same penalties as other bandits and outlaws. The state is preserved and punishment for its sins inflicted on the body of its proxy. The state is now reborn.
On the Conviction of Saddam Hussein, Law at the End of the Day, Nov. 6, 2006. This reductionism--the Peruvian government assured the Chileans holding the ex President that Fujimori will be tried as an ordinary criminal in accordance with the rule of law applicable to actions tied to his own conduct, was siad to have been decivive in convincing th Chileans to permit the extradition of Fujimori to Perú. See Alberto Fujimori: "Me voy a Perú, pero con un blindaje legal," El Mercurio (Santiago de Chile) Sept. 22, 2007 ( Gobierno peruano aseguró que su estrategia de no politizar este caso fue decisiva para conseguir que se aprobara la extradición). But the Peruvian people seem to understand another reality. Maria Pastora Sandoval, Blogs peruanos celebran extradición de Fujimori, El Mercurio Online, Sept. 21, 2007 (reporting on sentiments that Fujimori returns to face punishment for the crimes committed during his administration while the world watches).

Still, Fujimori understands the theatre of the trial to which he will be subjected. To meet the performative elements of the state case against him, Fujimori has threatened to produce his own theatre. Fujimori has promised to increase the political spectacle in judicial form by bringing his supporters. Fujimoi regresó a Perú, La Nación, supra ("Fujimori, de 69 años, y que debería llegar a Perú cerca del mediodía, aseguró además que cuando arribe el fujimorismo va a movilizarse."). Thus, we will once again be treated to the spectacle of the state cleansing itself by proxy, and of the utility of the body of past leaders as the tangible place upon which the past sins of the state will be recognized and punished. The state can then continue, freed from its past, now reduced to the "criminal" activity of the leader chosen to bear the collective sins of the people. For an elaboration see Larry Catá Backer, The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State Int’l L. Rev. 509 (2003).

Perú, the state, its apparatus and people, are to a greater or lesser extent, complicit in the revolutionary actions of the Sendero Luminoso wing of the Communist Party's actions in Perú, the causes of that revolutionary activity, and the consequences of reactions thereto. The world will be treated to the spectacle of a very thin slice of that large and violent history of Perú as an exercise in performative reductionism. On the one hand, this performative reductionism--condensing all of the ills of a certain period of Peruvian history into a small set of events drawn therefrom and tied, by ordinary principles of criminal law to the person of the accused in his individual capacity as representative of the state apparatus. But the formal elements of the proceedings will mask the political realities at issue. Fujimori stands accused of tolerating corruption and the murder of individuals in the context of a large scale class war in Perú , which has reached (again) a stalemate of sorts. That stalemate requires tending. Adherence to the forms of the rule of law against an individual may serve that purpose, even as rule of law forms in this case give pause to those who might worry about the perverse effects of this movement towards a strict formalism that might ultimately discredit rule of law regimes.

And yet, the state requires a confrontation with its past. Perú cannot move forward without understanding and accepting their past. But that confrontation, where limited to the person of Fujimori, provides too easy an excuse for the actions of the nation. It absolves those who profit from systemic corruption, or the arrogance of violence in the name of proletariat dictatorship produced from aggregations of intellectual elitists who embraced a praxis of blood with significant ethnic rather than class overtones. But confronting these issues is hard. Falling back on the rule of law to engage in elaborate acts of symbolic punishment is easier. But law and nation suffer.

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