THE IVCHER AFFAIR

By Carlos E. Loumiet
and David da Silva Cornell⁽¹⁾

Historians will tell you that approximately 100 years ago the French Third Republic was shaken by the infamous trial and conviction of Captain Alfred Dreyfus, a Jewish officer in the French armée who was convicted on ridiculously flimsy evidence of having betrayed French military secrets to the Germans. The Dreyfus Affair was attacked by Emile Zola in a famous open letter to the then-President of France entitled "J'Accuse," written exactly 100 years ago, then picked up by other leading French intellectuals and reformers. It became both a cause célèbre and a paradigm for anti-Semitism in France at the turn of the century, as well as for the misuse of the judicial power for political purposes. Eventually, the Dreyfus Affair contributed significantly to the downfall of the reigning French government, to the creation of a truly secular state in France and to the transformation of the French army from a monarchical institution to a republican army.

The philosopher Santayana warned us that those who do not remember history are doomed to repeat it. Now, 100 years later, in another predominantly Catholic country with (as was true of France 100 years ago) a numerically small but economically influential Jewish community, and with a powerful military, a new "Dreyfus Affair" has arisen. This time, however, the matter could also have extremely important ramifications not just for the particular country involved, but also for the numerous countries in this Hemisphere where democracy is still in the process of taking hold.

There is no question that the Founding Fathers of our country understood that democracy is in peril without freedom of speech and of the press. From Patrick Henry's remarkable speeches to the Virginia legislature years prior to the American Revolution ("I may not agree with what you say, but I will defend to the death your right to say it"), to the inclusion of freedom of speech in the very First Amendment to our Constitution, the role of these freedoms as a foundation stone for our democratic system of government was exalted. The Founding Fathers knew from firsthand experience that power corrupts, and that without fear of public criticism, government will frequently become oppressive and do whatever it can to entrench and perpetuate itself.

Similarly, our Founding Fathers understood fully well the importance for individual freedom of an independent Judiciary to act as a "check and balance" on the exercise of power by the Executive and Legislative branches of government, and designed our Constitution accordingly.

These last 10 years have witnessed a remarkable transformation of the political landscape in our Hemisphere. Whereas as recently as 15 or 20 years ago there existed numerous dictatorships, right wing or left wing, military or otherwise, in this Hemisphere, the Americas are now, with the sole exception of Cuba, a testament to participatory democracy. However, as history in this Hemisphere and elsewhere has shown again and again, democracy and the values which underpin it - including most of all freedom of speech and of the press - must be learned over time, and there will be many moments in that learning process where sliding back into old habits will be far easier for those in power than abiding the new ways. After several democratic governmental transitions have occurred, democratic principles may become so firmly embedded in the minds of the people of any given Latin American country and their leaders, that no alternative will be imaginable. However, at this point in time, democracy still has a tenuous hold on much of the Americas.

The country is Peru, and the man's name is Baruch Ivcher. Mr. Ivcher was born in Israel and immigrated to Peru (not speaking a word of Spanish) in the 1970's. He became a naturalized Peruvian citizen in 1984. Mr. Ivcher is a successful entrepreneur, not a saint. Along the way he has made his share of friends and enemies. Through hard work, persistence and good fortune, he became a successful, wealthy individual with two primary, wholly unrelated businesses in Peru. The first was a mattress company which eventually had a very high percentage of the country's sales. The second was the nation's leading TV channel, Channel 2, of which Mr. Ivcher ultimately owned 54%.

All was well until the mid-1990's, when Channel 2 began broadcasting on Sundays an investigative news program (called Contrapunto, or Counterpoint) in the mold of our 60 Minutes, Dateline and 48 Hours. Contrapunto became enormously popular, attracting a large audience. Mr. Ivcher, who properly viewed himself as a businessman and not a journalist, left the content of Contrapunto to its producers and journalists. Over time, Contrapunto became more and more daring, running features which were highly critical of, and/or embarrassing to, the powerful Peruvian military, as well as important people within the Peruvian government. Among the more controversial episodes were episodes alleging widespread violations of human rights of prisoners by the military and its police and drug-trafficking by the military, as well as another program revealing that Vladimiro Montesinos Torres, a high-ranking and mysterious Peruvian government official who is a key advisor to President Alberto Fujimori, had declared 1,600,000 Nuevos Soles (equivalent to over U.S. $650,000) in income to the Peruvian tax authorities for 1996 - up from his 1993 declared income of only 20,430 Nuevos Soles.

Earlier, on August 16, 1996, when Contrapunto's exposé journalism was still relatively new, Mr. Ivcher had in fact been visited in his office by two officers of the National Intelligence Service (SIN), purported emissaries of Mr. Montesinos. The officers offered to Mr. Ivcher exclusive footage of the capture of a major drug trafficker in exchange for Channel 2's not airing the trafficker's allegations that he had paid protection money to the Peruvian armed forces and to Mr. Montesinos. When Channel 2 reported on this visit, the government denied the visit even occurred, but was forced to retract this denial when Channel 2 produced security log entries proving that the officers had indeed visited.

As the Contrapunto exposés continued and became increasingly daring, Mr. Ivcher began to receive anonymous telephone warnings that he must curb its producers and staff, or face the consequences. Believing strongly in the importance of freedom of speech and of the press, and also that it would be wholly inappropriate for him to impose his views on the program's producers and journalists, Mr. Ivcher declined to heed the anonymous warnings he had been receiving. However, when the Peruvian military ostensibly brought charges against the two SIN officers for allegedly having lied to the government about their visit to Channel 2 on August 16, 1996, and Mr. Ivcher was ordered to appear as a witness in the proceeding, Mr. Ivcher heard reports that the proceeding was a pretense to seize him and bring charges against him personally. With no guarantee of his personal safety, Mr. Ivcher felt he had no choice but to flee Peru, and left the country on May 13, 1997.

On May 23, 1997, the Peruvian armed forces issued a formal communiqué declaring that Mr. Ivcher was waging a campaign to discredit them, using Channel 2. That same day, legal proceedings were initiated against Mr. Ivcher for failing to appear at the proceeding for the two SIN officers. According to press reports, on May 28, 1997, the 46% minority shareholders of the TV channel, the Winter brothers, sent a letter to the commanders of the armed forces, with whom they had reportedly met the previous day. The letter reportedly affirmed that the Winters were not participating in the preparation or direction of news reports and opinions broadcast by Channel 2.

During the second week of July 1997, the promotions for the upcoming Sunday's Contrapunto informed the general public that the program would feature a story on the illegal tapping by the Peruvian government of the telephones of some 200 opposition leaders, journalists and other opinion makers in the country. That Friday afternoon, Mr. Ivcher, then outside Peru, received a final anonymous telephone warning that story must not run, and the same day the press in Peru reported the President of the Supreme Council of Military Justice as prophetically warning that Mr. Ivcher could lose his nationality "for having endangered the national security by allowing the broadcast of reports which embarrassed the armed forces". Nevertheless, the story ran as promised. Twenty minutes after Contrapunto ended that fateful Sunday afternoon, July 13, 1997, an official in the country's Immigration and Naturalization Department signed an order purporting to deprive Mr. Ivcher of the Peruvian nationality he had been granted 13 years earlier, alleging certain irregularities in the process by which he had been granted that citizenship. This allowed the government to claim that, under Peruvian law, Mr. Ivcher could no longer legally own a majority ownership in any television station. Even though Mr. Ivcher's wife remained a Peruvian citizen, and the shares were part of the marital community property, so that even if he were disqualified to own them, she was not, Mr. Ivcher's shares were "temporarily" awarded to the Winter brothers, who thus asserted complete control over the Channel.

As one would expect, the reporting at Contrapunto critical of the Peruvian military and government was promptly toned down, and all of Contrapunto's leading investigative journalists under the Ivcher management resigned.

It appears that in all of Peru's prior independent history, no person had ever before had their nationality taken away. In addition, the legality of "temporarily" taking someone's property away, and awarding it to a third person, was, to be most charitable, highly dubious. Nevertheless, legality and precedent be damned, and Mr. Ivcher found himself embroiled in a total mess.

Clearly, the smart thing would have been to see which way the wind was blowing, eschew principle, go along and get along. However, Mr. Ivcher, stubbornly and valiantly - if somewhat naively - chose to fight. He and his wife commenced a series of legal proceedings in Peru to challenge the attempted withdrawal of his citizenship and to have his stock in the channel turned over to her as a Peruvian citizen. Fearing for his life after many threats, Mr. Ivcher remained outside the country, though his wife and daughters stayed behind. From abroad, he vehemently, publicly and repeatedly denounced what had been done to him, and commenced an action before the Inter-American Commission on Human Rights alleging that the Peruvian government had violated various of the fundamental human rights granted to him by the American Convention on Human Rights, to which both the United States and Peru are parties.

In Peru, the highly-regarded Foreign Minister, Francisco Tudela, resigned towards the end of July 1997 because he could not agree with what had been done to Mr. Ivcher. Much of the Peruvian press forcefully denounced the treatment of Mr. Ivcher. In addition, the U.S. Ambassador to Peru, Dennis Jett, openly criticized what had been done to Mr. Ivcher.

As to Peru's President, Alberto Fujimori, he remained silent, claiming that this was a matter for the Peruvian judiciary to handle. Mr. Fujimori even declined to answer a June 17, 1997 letter regarding Mr. Ivcher from Senator Jesse Helms and Representative Ben Gilman - respectively, the Chairman of the Senate Foreign Relations Committee and of the House International Relations Committee.

In October 1997, a court in Peru ruled that even if Mr. Ivcher no longer qualified to hold the majority stock ownership in Channel 2, that stock formed part of the marital community property and should have been turned over to Mrs. Ivcher, who unquestionably remained a Peruvian citizen. This decision became mired in subsequent judicial appeals brought by the Winters, and the stock even today remains in the Winters' control.

The Inter-American Commission on Human Rights in Washington scheduled a hearing on February 26, 1998, to address the Ivcher matter. However, about a month prior to that hearing, the Peruvian Government commenced a criminal proceeding against Mr. Ivcher, his brother Menahem, and a large number of the senior key staff at Mr. Ivcher's mattress factory, alleging "presumed" tax fraud at that factory from 1992 through January 1995. Allegedly, the mattress factory had deliberately overpaid for certain chemical products imported from abroad during those years, with the overpayments having been deposited in bank accounts in Miami belonging to Mr. Ivcher and his brother. After taking into consideration the excess tariffs that the factory had paid Peruvian customs as a result of the alleged overpayment, then assuming that those tariffs had actually been deducted by the factory for income tax purposes in Peru over those three years, the Peruvian government claimed the "presumed" illegal tax benefit over all three years aggregated approximately U.S. $220,000. Of course, it did not matter to those commencing the criminal action that this amount was relatively insignificant when one considered that Mr. Ivcher's mattress factory, for each of those years, had paid many millions of dollars in customs tariffs and taxes in Peru, and that the factory itself could easily have paid that amount, plus penalties, many times over if it had simply been asked to do so. Further, the factory had already reached final settlement with the Peruvian tax authorities as to at least two of the tax years involved before the investigation broke. Also noteworthy is that the criminal tax investigation was not brought by the country's tax or customs authorities, who logically should have been, but declined to be, involved, but instead, by its secret police.

Immediately upon commencement of the investigation, and in what can only be described as record time for Peruvian criminal procedure in cases of this nature, Mr. Ivcher, his brother Menahem, and 8 of the senior mattress factory employees were ordered arrested, and the mattress factory was intervened by the government. Mr. Ivcher was abroad, and most of his affected employees were able to hide. However, the employee who had first been Mr. Ivcher's personal secretary for years, then responsible at the factory for presenting completed invoices to Peruvian Customs, Rosario Lam Torres, a mother of two minor children still at home, had the misfortune of being arrested. Although Ms. Lam Torres suffers from a grave congenital skin disorder which puts her life at risk when she is placed in traumatic situations, she has spent the last 9 months in detention. Held initially in a Peruvian jail, her health declined to the point of collapse, and only after an intense legal battle was she finally transferred in April of this year to custody in a Lima clinic. Throughout this entire time she has been denied bail, even though, according to recent press reports, she has never been allowed by the police or the prosecutors to present them with her responses to the charges against her.

On March 9, 1998, the Inter-American Commission on Human Rights took the extraordinary step of ordering the Peruvian Government to discontinue the criminal proceeding and to take no further actions against Mr. Ivcher or those associated with him pending the Commission's final decision. Nevertheless, the criminal investigation, then being conducted by an inquisitorial judge, continued unabated in Peru.

On March 17, 1998, the Interamerican Press Society adopted a resolution denouncing the treatment by Peru of Mr. Ivcher at its annual meeting in San Juan, Puerto Rico.

Also in March 1998, the World Bank, apparently concerned in light of the Ivcher Affair and other developments that "Peruvian justice" had become an oxymoron, suspended a loan to the Peruvian government of approximately $22 million for reform of the country's judiciary. In September 1998 the Bank canceled the loan altogether, and Bank officials later made clear that the cancellation was due to the Peruvian government's failure to comply with the commitments it had made related to the judicial reform project. Peru announced that it would fund that project from its own resources, and Economy Minister Jorge Baca Campodónico asserted that Peru would not be "made subject to the opinion of an international organization to continue judicial reform."

A second hearing before the Inter-American Commission on Human Rights was scheduled for October 8, 1998. Suddenly, in September of this year, the Peruvian government announced that the criminal trial of Mr. Ivcher and his associates (the total number of codefendants having been expanded to 15) for tax fraud would begin immediately, though now in the hands of a new judge and new prosecuting attorneys. The trial began on September 14 and ended on September 22 - exactly 9 days. To conclude the trial in time for the hearings before the Inter-American Commission, the court worked 12-hour days until late each night, and even on the intervening Saturday and Sunday, something unheard of in Peru (and in the United States, for that matter).

It would take many pages to detail the due process abuses of this court proceeding. Suffice it to say for now that one of the leading witnesses against Mr. Ivcher and his codefendants, for the first time in a Peruvian civil court proceeding, was identified only by number and not by name, making it impossible to challenge his testimony; that another key witness was a former employee of Mr. Ivcher, who had left years earlier on terrible terms and had since become a competitor, and coincidentally was himself "under investigation" by Peruvian tax authorities; that no evidence was introduced showing that the actual invoices which allegedly involved overpayments, in fact involved overpayments; that it is undisputed that, for the imports of chemical products for which the mattress factory allegedly "overpaid," the factory paid a lower price then any of its competitors were paying at that time; that certifications by such reputable international corporations as Bayer, vouching for the validity of the import prices, were ignored; that also ignored was the fact that Société Générale de Surveillance (SGS) and Specialty Services International (SSI), irreproachable outside contractors entrusted under Peruvian law with combating customs fraud, had approved all the imports in question; that Mr. Ivcher's and his codefendants' lawyers were warned by the court not to be too ardent in their defense, and were not allowed to present all of the witnesses they sought to have testify; that the principal testimony against Mr. Ivcher and his codefendants was accepted from five mattress distributors, all of which coincidentally were themselves "under investigation" by Peruvian tax authorities; and that no evidence as to the actual tax returns of the mattress factory for the three years involved, or as to any deductions claimed in those returns, was introduced.

Rosario Lam Torres was not tried with the other codefendants, since her health had seriously deteriorated over the 8 months she had been held in custody. Predictably, all of the defendants tried were found guilty by the judge immediately upon conclusion of the trial. Although his actual sentencing was suspended until his future return to Peru, Mr. Ivcher was found to be liable for 12 years in prison, plus an additional 10 years for having fled the country rather than returning to stand trial.

The tax investigations into several of the witnesses against Mr. Ivcher and his codefendants - the former employee turned competitor and the mattress distributors - have, however, been dismissed, apparently in return for their testimony.

On the last night of the trial, after all of the defendants had been convicted, the Peruvian TV press taped the judge and the prosecuting attorneys at an apparent celebration dinner in a Chinese restaurant in Lima. When confronted by the press, the judge and the prosecutors fled out the back door. The TV cameras then taped the judge getting into and fleeing in the back seat of a car waiting for her outside, with no license plates and with reflecting windows.

Virtually all of the mainstream press in Peru has vehemently denounced the Ivcher trial, using the strongest language imaginable. Asked earlier this year about the pending criminal proceeding for Mr. Ivcher and his mattress factory, U.S. Ambassador Jett is reported to have commented to the Peruvian press that all he knew was that, if Mr. Ivcher had been willing to muzzle the producers and journalists on his channel's investigative program, he would still be in Peru running that channel and his mattress factory.

The Peruvian government, apparently realizing full well that INTERPOL is prohibited by its own charter from issuing a "red" arrest order under circumstances where the individual involved is believed to be the victim of political persecution, on its own issued a "diffusion" notice to all 177 member countries of INTERPOL in late September 1998. The notice notifies the member countries that an arrest order is outstanding for Mr. Ivcher in Peru, requests that the member countries notify Peru if Mr. Ivcher enters their borders, and asks that Mr. Ivcher be detained pending contact with the Peruvian government.

As scheduled, the Inter-American Commission on Human Rights held a second hearing on the Ivcher matter on October 8, 1998. Mr. Ivcher's speedy trial and conviction allowed the Peruvian government to denounce him as a convicted felon at that hearing. That same day, the Commission heard three other matters pertaining to alleged human rights abuses by the Peruvian government. Among those making presentations was Delia Revoredo, President of the Lima Bar (the most prominent bar association in Peru) and a former judge who, before being removed from the country's Constitutional Tribunal, had questioned the constitutionality of President Fujimori's running for reelection in the year 2000, as he seemingly intends to do. Shortly after, Ms. Revoredo's husband, a prominent, successful Peruvian businessman by the name of Jaime Mur, was charged criminally in Peru for failing to pay customs duties on a car he had imported into the country some years earlier. Like Mr. Ivcher, Mr. Mur also fled Peru to avoid arrest. However, Mr. Mur's case, thus far, has a happier ending. The Peruvian government, apparently having decided that to prosecute both Mr. Ivcher and Mr. Mur on customs-related matters at the same time would appear more than a bit coincidental, recently announced it would not prosecute Mr. Mur.

After the day of hearings in October 1998 before the Inter-American Commission on Human Rights, Peru's Justice Minister, Alfredo Quispe Correa, emerged to say that Peru was thinking of limiting the authority of that Commission under the American Convention on Human Rights to investigate alleged human rights abuses in Peru. This from a country whose human rights record in the recent past, as evidenced by numerous reports by our own State Department and by the Organization of American States (OAS), has left a great deal to be desired.

Senator Helms and Representative Gilman, not discouraged by the fact that their prior letter to President Fujimori had gone unanswered, sent him a more strongly worded letter expressing their concern about the Ivcher Affair on October 9, 1998. Growing concern and indignation in the U.S. Congress over the Ivcher Affair and other reported Peruvian human rights abuses has also led Representatives Gilman, Hamilton and Lantos to introduce in October House Resolution 609, which urges an independent investigation by the Inter-American Commission on Human Rights into threats to press freedom and judicial independence in Peru. It remains to be seen whether President Fujimori will respond to the newest Helms-Gilman letter or to any other expressions of concern by the U.S. Congress.

On October 11, 1998, Alberto Andrade Carmona, the Mayor of Lima and a political opponent of President Fujimori, was re-elected by an overwhelming margin, receiving over 60 percent of the vote. He thus became a leading alternative for President of Peru to President Fujimori should the President decide to seek reelection in the year 2000. In fact, Mayor Andrade currently leads Mr. Fujimori in published head-to-head polls. One of Mayor Andrade's first comments to the Peruvian press after his re-election was to denounce the Ivcher Affair.

In early October 1998 an appellate court in Peru also affirmed the decision of the lower court to the effect that, even if Mr. Ivcher was disqualified from owning the 54% of Channel 2's voting stock, his wife was not. The lower court promptly set a date for early November for a new stockholders' meeting at Channel 2, at which Mrs. Ivcher would take control of Channel 2. The Peruvian press shortly afterwards reported that the Winter brothers, the minority shareholders, had criminally denounced Mr. Ivcher for having allegedly transferred, in the past, shares of stock in Channel 2 to his four daughters in contravention of a right of first refusal which the Winters claim to enjoy. The actual facts are that the 54% of Channel 2's voting stock owned by Mr. Ivcher comprises approximately 15,600,000 shares. Beginning in 1994 Mr. Ivcher, as each of his four daughters reached adulthood, gave each of them 5 shares so that they, too, could be "owners" of Channel 2. Thus, the total number of shares that Mr. Ivcher transferred to his daughters altogether was 20, out of approximately 15,600,000 he owned, and representing a correspondingly miniscule monetary value. There appears to be significant doubt as to whether this type of gift of stock to the Ivcher daughters by their father would, under any circumstances, trigger a right of first refusal. Nevertheless, on the basis of this reported denunciation by the Winters, the Peruvian government has now begun a new criminal investigation against Mr. Ivcher, Mrs. Ivcher, their four daughters, Mr. and Mrs. Ivcher's civil attorneys (who had aggressively and successfully fought for Mr. Ivcher and for Mrs. Ivcher's right to the majority stock in Channel 2), and others linked to the Ivchers and their administration of Channel 2. As of this writing, Mr. and Mrs. Ivcher and their oldest daughter, Michal, have been declared fugitives and subject to immediate arrest for not presenting themselves for the new criminal investigation. The Peruvian press reported on December 5, 1998, that the government of Peru has requested that INTERPOL seize Mr. and Mrs. Ivcher and Michal, and on December 16 that the Ivchers' three other daughters - Dafna, Hadaz and Tal - have also been ordered to appear before the court in the new criminal investigation, the same step which immediately preceded their parents and older sister being declared fugitives subject to immediate arrest. In addition, the judge handling the new criminal investigation has denied Mr. Ivcher legal counsel (which he has also been denied for further litigation over the alleged customs and tax violations). All of this over 20 shares of stock, representing approximately 0.00007% of the total 29,000,000 shares of Channel 2 stock issued and outstanding!

The Winter brothers have also filed various further appellate actions seeking to prevent and/or delay the return to Mrs. Ivcher of the 54% of the stock of Channel 2 that formed part of her and her husband's marital community property. Noticeably absent from any of those appeals has been any convincing explanation why they, as minority shareholders, should be entitled to assert any rights over stock belonging to someone else, for which they have never paid anything, and to which they have no discernible legal rights.

As part of its investigation into the Ivcher Affair and other human rights complaints lodged against the Peruvian government, an Inter-American Commission fact-finding delegation was scheduled to arrive in Peru on November 9, 1998. The press in Peru openly speculated that Mr. Ivcher's and his associates' convictions would be confirmed by the appellate courts prior to the arrival of the Commission. In fact, working at what can only be described as an unprecedented pace, the Peruvian Supreme Court of Justice on November 2 affirmed the criminal conviction of Mr. Ivcher and his fellow co-workers, as well as the international order issued for Mr. Ivcher's capture and arrest.

On November 9 of last year, as scheduled, the Inter-American Commission delegation arrived in Peru. Its arrival, however, took place after a week in which repeated anonymous death threats against Mr. Ivcher, journalists, and the delegation itself were delivered by telephone. The anonymous callers identified themselves as the "April 5^th Command." Press reports in Peru linked that group to elements of the Peruvian military and secret police.

On November 12, 1998, the Peruvian press reported that the trial of Ms. Lam Torres would begin on November 16, although she remained gravely ill at a clinic, and the doctors of the Peruvian Institute of Legal Medicine had determined that she continued to require emergency medical equipment which could not be moved to the courthouse. In fact, Ms. Lam was "tried" at her hospital bedside, promptly found guilty and sentenced to a suspended sentence of four years.

Also on November 12, it was reported that prosecutors had requested the reinstatement of charges against Mr. Ivcher - charges which had previously been dismissed on two separate occasions by the National Police and the Peruvian national prosecutors and which were most recently dismissed by a provincial court in Lima - in a prosecution of him for "presumed" fraud against a former business partner.

On November 13, 1998, the Inter-American Commission delegation concluded its visit to Peru. Although its full findings will not be issued until after the next regular Commission meeting this February, the Commission did issue a communiqué upon its departure, specifically noting its continuing concern over the cases of Baruch Ivcher, Neomy Even de Ivcher and Rosario Lam Torres, the perceived lack of independence of the Peruvian judiciary, as well as the fact that the delegation itself had been threatened.

Subsequently, the Inter-American Commission also swiftly reviewed the Peruvian government's recent expansion of its campaign of persecution to include Mrs. Ivcher and Michal Ivcher, and on December 9, 1998, ordered the government to withdraw its request to INTERPOL for their capture. In addition, on December 15, Santiago Cantón, the Special Rapporteur for Freedom of Expression of the Organization of American States (OAS), demanded that the Peruvian government cease its persecution and harassment of Mr. Ivcher, his family, and his businesses.

Rather than comply with this latest order from the Commission or with the OAS Special Rapporteur's appeal, the Peruvian government obtained a higher court's affirmation of the order for the capture of Mr. and Mrs. Ivcher and Michal. Together with the formal inclusion of the Ivchers' three younger daughters in the stock transfer case, this action clearly indicated that the persecution would only be escalated in reaction against the actions by the Inter-American Commission and Mr. Cantón.

Meanwhile, deep concern over the Ivcher Affair has continued to spread within Peru. Last December, in response to the Peruvian government's request that INTERPOL seize Mr. and Mrs. Ivcher and their daughter, His Eminence Augusto Vargas Alzamora, the Roman Catholic Primate of Peru and the Cardinal Archbishop of Lima, immediately pronounced the government's persecution of the Ivchers to be "a barbarity and an outrage." In December, the representatives of the Peruvian Jewish community also unanimously condemned the persecution of the Ivchers, then in January reiterated their demand that Mr. Ivcher's Peruvian citizenship be restored to him. The new year also brought a new appeal for the restoration of Mr. Ivcher's citizenship from former U.N. Secretary General Javier Pérez de Cuellar.

In January 1999, the Peruvian government finally demonstrated that, gearing up for the planned reelection of President Fujimori and encountering rebuffs from such international organizations as the World Bank, it has apparently become sufficiently sensitized to the strong domestic and international criticism of its persecution of the Ivchers that, after initially refusing to do so, the Peruvian Consulate in Tel Aviv renewed Mr. Ivcher's Peruvian passport. Although this action was widely held by the Peruvian press and legal experts - and even the Peruvian government's own independent ombudsman ("Defensor del Pueblo") - to constitute a tacit recognition of Mr. Ivcher's continued Peruvian citizenship, and although the government has attempted to portray the mere issuance of the new passport as now closing the matter of Mr. Ivcher, his and his associates' "convictions" still remain in effect, as do the orders for his and his family's capture; he remains dispossessed of his rights and position as the majority shareholder of Frecuencia Latina; and the actions revoking his Peruvian citizenship have not themselves been revoked and disavowed. Notwithstanding some perhaps wishful thinking on the part of the Peruvian government, the matter of the persecution of Mr. Ivcher remains far from closed.

That the persecution of Mr. Ivcher is still very much unresolved was evident when the OAS's Special Rapporteur for Freedom of Expression recently stated that it constitutes one of the principal preoccupations of the OAS regarding Peru. The Interamerican Press Society too has recently reiterated its concern, and has announced that it will be sending a delegation to Peru sometime between February 16 and 24 specifically to engage the Peruvian government directly on Mr. Ivcher's case. Likewise, Joel Simon, the Americas coordinator of the Committee to Protect Journalists, recently termed the Channel 2 case a "clear example of legal and shameful manipulation (on the part of the government) in order to achieve certain objectives," and there are plans in the U.S. Congress to introduce during the current session another resolution criticizing the Peruvian government for the Ivcher persecution and other human rights abuses.

Of course, the use by any government of its vast resources to crush its critics is repugnant to all who believe in democratic government. (One need only recall the uproar in this country when the mere existence of former President Nixon's "enemies" list was revealed some 25 years ago.) Nevertheless, the reader who has little to do with Peru may well ask, aside from feeling sorrow and outrage for Mr. Ivcher and his family, why should I care? The answer lies in the reasoning which may well have prompted expressions of concern on this matter from the U.S. Ambassador to Peru and from Senator Helms and Representatives Gilman, Hamilton and Lantos. The United States is avowedly determined to see democratic rule throughout this Hemisphere, as are, supposedly, the OAS and the Inter-American Development Bank (IDB). The Ivcher Affair may effectively be a test of the steadfastness of the relatively young democratic regimes throughout this Hemisphere, and not only Peru, to continue to abide by democratic rules, including freedom of speech and of the press, when the press, fairly or unfairly, publishes highly critical and embarrassing revelations. It is also a direct test of the resolve of the U.S. government, the OAS and the IDB. If the Peruvian government can use its administrative and judicial power to stifle press reporting it does not like, and to eliminate nuisances like Mr. Ivcher, then why should other governments facing similar annoyances not do likewise? And if the United States, the OAS and/or the IDB are not prepared to stand up for freedom of speech and of the press in Peru, and in so doing, for true democracy, then why would they be prepared to do so elsewhere in this Hemisphere?

In the meanwhile, the next round of Presidential elections in Peru is only 1½ years away. The Ivcher Affair, like the Dreyfus Affair some 100 years ago, promises to become a major political issue in that campaign. Mr. Fujimori and his government - and the Peruvian military - would do well to remember the consequences of the Dreyfus Affair for the then-extant French government and French military, lest they be doomed to relive them. Prior to those elections, it is likely that relations between Peru and the U.S., and between Peru and the World Bank, the IDB and OAS, will be somewhat strained as a result of the Ivcher Affair.

And what, you may ask, finally happened to Captain Dreyfus? A few years after his conviction, he was pardoned by a new French President whose election had been significantly aided by the scandal surrounding the Dreyfus Affair. Years later, he was cleared by the French courts of the prior conviction, and returned to his post in the French military, whose reform had also been prompted by the injustice visited on Captain Dreyfus.

And what of Emile Zola, Captain Dreyfus' ardent defender? He was convicted by the French courts of libel on the basis of his impassioned letter, and sentenced to serve a year in prison. He fled to London, where he remained until a new French government took power, he was vindicated and pardoned, and was able to return to France.

1. ^*Messrs. Loumiet and Cornell are two of the attorneys representing Mr. Ivcher in the United States.

This document is published online by Derechos Human Rights