Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (14 page)

Eduardo González Cueva

International Center for Transitional Justice

The
Peruvian Truth and Reconciliation Commission (
Comisión de la Verdad y Reconciliación
– CVR), which released its Final Report in August 2003, has laid a strong claim to be remembered as one of the most notable among similar experiences of accountability and historical clarification. The CVR produced a large final report as complex and ambitious as those issued by previous commissions, including those of South Africa and Guatemala. With a budget above 13 million dollars,
[1]
and a staff of over 500 professionals who processed the testimonies of almost 17,000 victims,
[2]
the magnitude of the CVR operations was second only to the South African Truth and Reconciliation Commission (TRC).

Like the South African TRC, the CVR steered an eminently public process. Not only did it organize public hearings
[3]
where the victims of violence had an opportunity to share their experiences with the population, but it also conducted a highly visible set of activities aimed at winning public support for the prosecution of those persons who allegedly perpetrated the worst crimes under the Commission's mandate.

The CVR raised expectations on a wide range of issues, including:
the clarification of the whereabouts of the disappeared, whose number was established at over 8,500;
[4]
the exhumation of clandestine burial sites, of which over 4,600 were identified;
[5]
comprehensive reparations to individual victims;
[6]
and the prosecution of perpetrators, many of whom were named in the Final Report. However, in line with the experience of other commissions, the distance between those social expectations raised high by the truth, and what the state authorities were ready to grant, has left frustration in its wake, especially in the field of criminal justice.

Unlike other commissions, the CVR saw part of its job as helping to advance criminal prosecutions. At the end of its work, the CVR handed over the dossiers of 43 cases
[7]
to the Office of the Prosecutor General (
Ministerio Público
– MP), in addition to the dossiers of four cases it had previously delivered. The CVR made several specific
recommendations
on subjects including indictments, exhumations, measures to ensure the appearance of the defendants (
medidas cautelares
), witness protection and the request of further information from the security forces. However, progress has been slow in the MP and most of the cases have been remanded to local prosecutors for further investigation.

The MP – and more generally, the Peruvian judicial system – has the undistinguished record of being too pliable in the face of political pressure. Its lack of diligence follows an historical pattern of unresponsiveness and inefficiency. However, even recognizing that systemic limitation, common to most transitional countries, the options chosen by the commission need to be carefully examined to ascertain whether they were the best possible. This chapter posits that the relationship between the CVR and the MP suffered from the lack of a commonly agreed‐upon prosecutorial strategy that would address the complexities of massive, systematic crimes. The CVR did not have a prosecution strategy at the beginning of its work, but a vague set of criteria built upon the anxiety not to let some cases be forgotten. Only by the end of its work did the CVR build a strategy focused on larger patterns of violations and going beyond isolated cases, but by then it had limited time to build support around it and faced a series of tensions with the MP that have made a sustainable prosecution strategy more difficult.

This chapter situates the choices made by the CVR in the political context in which the Commission was created. It reviews the legal developments in the struggle against impunity and the changes in the political climate as the Commission neared the end of its mandate. It also examines the work of the legal teams within the CVR before and after the presentation of its Final Report and it summarizes the advantages and disadvantages of the CVR strategy and highlights possible lessons to be learned.

Two violent evils, fanatical insurgence and authoritarianism, painfully branded the last two decades of the Peruvian twentieth century. A fragile democracy was challenged in the cradle by the armed insurgence led by two groups: the Maoist
“Shining Path” (
Partido Comunista del Perú – “Sendero Luminoso”
), that began its actions in 1980, and the smaller
Tupac Amaru Revolutionary Movement (
Movimiento Revolucionario Túpac Amaru
– MRTA), launched in 1984.

Insurgent actions caught by surprise the civilian elites that, in 1983, gave carte blanche to the armed forces for a massive military response that escalated the conflict and eventually put most of the country under a
prolonged state of emergency. The combined action of guerrilla organizations, military units and local self‐defense groups acting under the command, or with the acquiescence of the state, between 1983 and 1993 caused the bulk of the 69,000 deaths that the CVR would estimate for the whole twenty‐year period.

The government
of Alberto Fujimori, elected in 1990, decided to meet the challenge of armed insurgency with a strategy predicated upon the suppression of civil liberties and a fundamental erosion of political accountability. Faced with the resistance of the civilian opposition in congress, Fujimori opted for a coup d'etat. In April 1992, in alliance with the military and with the assent of most of the population, Fujimori illegally dissolved the National Congress and declared the judiciary in reorganization. He quickly assuaged international concerns by organizing new elections that established a new parliament with constitutional drafting powers. A new, strongly presidential constitution was approved in a referendum in 1993, but international acceptance and political normalization did not translate into respect for the rule of law. Peru's political life experienced a steady decline towards a corrupt autocracy, whose legitimacy was maintained by economic stability and the success of the security forces.

Fujimori benefited from the effects of a new counter‐insurgency strategy that the armed forces had implemented since the late eighties: it combined draconian counter‐insurgency laws that transformed the judicial system into a machine to produce convictions, leniency toward insurgent deserters and – most critically – renewed alliances with peasant and indigenous communities. Abimael Guzmán, leader of the “Shining Path”, was captured in September of 1992 and capitulated later, declaring the armed insurgency over and calling for peace negotiations.
[8]
The survival of maverick insurgent units or the general threat of a terrorist revival was constantly used to justify the continuity of emergency measures and the growing powers
of the intelligence services (
Servicio Nacional de Inteligencia
– SNI), during most of the period of government.

In time, growing corruption and a lack of accountability eroded the government's legitimacy. In addition, human rights organizations worked to engage international institutions to protect the rights of victims. The government had invested serious efforts to reassure international partners and local public opinion that counter‐insurgent war was being waged without the brutal tactics employed by the security forces under the administrations of both President
Fernando Belaúnde (1980–85) and Alan García (1985–90). However, in 1995, in response to judicial investigations of atrocities committed by death
squads operating under
army control, the government passed legislation enacting a blanket amnesty to security forces personnel involved in violations of human rights.
[9]
Human rights organizations exposed the systematic character of state abuse in Peru and cited notorious cases that led to rulings against the Peruvian state in the
Inter‐American Court of Human Rights (IACHR),
[10]
which severely damaged the government's image. Even state institutions established by governmental initiative would prove to be fiercely independent, such as a human
rights ombudsman's office
[11]
and an independent office that reviewed the trials of those sentenced for terrorism, and recommended that hundreds receive presidential pardons.
[12]

Public outrage against human rights abuses was not mobilized around a general sense of widespread abuse, but around specific cases that became
causes célèbres
: the execution by a death squad of nineteen people at a party held a few blocks from the National Congress, in the working‐class neighborhood of
Barrios Altos; the disappearance of nine students and a professor from La Cantuta, the campus of a state university, during a military‐enforced curfew; the torture and execution of SIN agents, suspected of having leaked information of abuses to the press.

In contrast to what had happened during the worst moments of the conflict during the eighties, when observers lacked access to areas of conflict, the cases of
Barrios Altos
and
La Cantuta
had massive visibility: they took place in Lima, in areas or institutions completely under the control of the security forces. A sustained stream of leaks to the press, presumably from alienated members of the military, exposed the work of a shadowy death squad, the “
Grupo Colina
” under the direct control of the government.

The government's 1999 decision to unilaterally withdraw from the jurisdiction of the
IACHR after an adverse decision condemned Peru's anti‐insurgent criminal framework
[13]
became one of the main issues of concern for the national opposition and for international observers.
[14]
Peru's return to the jurisdiction of the IACHR would be one of the key pressure points against the Fujimori government, providing a rallying point for a political opposition that had been deeply divided during the initial years after the coup.

In the end, Peru's transition would not be the result of a negotiated arrangement, like the Spanish or the Chilean transitions that were the paradigm for many Peruvian democratic politicians.
[15]
The scandal created by the release, in September of 2000, of videos with evidence of high‐level corruption led to the announcement that Fujimori would cut his mandate short and that new elections would be organized in a year's time. After a few weeks of uncertainty, not even that appearance of
an orderly retreat could be maintained.
Fujimori left the country in November, under the pretense of attending to international commitments, and resigned from the presidency after arriving in Japan. There, he would eventually claim Japanese citizenship, in an attempt to shield himself from the possibility of extradition.

Fujimori's escape, that of his intelligence advisor Vladimiro
Montesinos and many other leaders of the government, combined with a wave of arrests against generals, businessmen and politicians involved in the corruption network unveiled by the videos, left the democratic opposition in an apparently unbeatable situation from the standpoint of comparable transitions. The authoritarian regime had entirely collapsed without any capacity to leave in place institutional safeguards against the prosecution of its members: the military was too weakened and divided by extensive corruption to protect the fallen leaders; no real political movement sustained the disgraced
caudillo
; a challenge to the amnesty laws left by Fujimori was due to be considered at the
IACHR.

In addition, the Peruvian transition did not have to deal with any serious armed challenge against the state. No peace process was part of the agenda and the international community did not pressure Peru for talks with the rebels. The conflict was largely over;
the “Shining Path” had imploded since the capture of its leader and the
MRTA's last active cell had been destroyed in a failed attempt to take high‐level hostages in 1997.

Demoralized members of Fujimori's party in Congress abandoned their posts or defected to the opposition. The collapse of
fujimorismo
permitted the creation of a new pro‐democracy majority and the appointment of an opposition leader as the new President of Congress and also of Peru until new elections were held, in accordance with constitutional procedure.

In these extraordinarily favorable circumstances, the new President,
Valentín Paniagua announced that his government would not be just a low‐profile caretaker administration. He called a non‐partisan cabinet of notables presided over by former United Nations Secretary‐General Javier Pérez de Cuéllar and joined by respected experts. One of the cabinet's first actions was to announce that Peru would radically change Fujimori's human rights policies, recognize again the jurisdiction
of the IACHR, and join newly created international institutions like the International Criminal Court. The new Ministry of Justice, led by prominent jurist and human rights advocate Diego García Sayán, created a Working Group, with the participation of ministries, members of the security forces and civil society, to study the creation of a truth commission and recommend a mandate.
[16]

The Working Group was insulated from pressures, since the cabinet was non‐partisan and parties in congress were actually discussing a parallel truth commission project that would not go too far. This factor, in addition to the political irrelevance of the supporters of the fallen regime or the old insurgency, enabled the commission's mandate to be supportive of prosecutions and resulted in a commission composed without representatives of party lines. Moreover, the composition of the commission was not the object of comprehensive negotations to include members of all shades of the political spectrum and, as a result, the commission did not have to carry the burden of political compromises.