Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (15 page)

The mandate, as approved by the Working Group and ratified, with some changes,
by President Paniagua in the decree that created the Commission,
[17]
was simple in form yet comprehensive and ambitious. The truth commission was charged with “clarifying the process, facts and responsibilities of the terrorist violence and human rights violations produced from May 1980 to November 2000, whether imputable to terrorist organizations or State agents, as well as proposing initiatives destined to affirm peace and harmony among Peruvians”.
[18]

The aim of clarification required the Commission to produce both an interpretation of the historical period and case‐specific fact‐finding. The Presidential decree specified that the “societal conditions and institutional behaviors” that constituted the breeding ground for violence had to be analyzed, and established that the Commission should also identify responsibilities for the crimes listed in the mandate.
[19]

Responsibilities would be identified “when appropriate” and “to the extent possible” and would feed into the legal functions that, according to the Constitution, are reserved to the MP and the courts. The decision as to the “appropriateness” of identifying criminal responsibilities was left to the Commission, with the proviso that, if such decisions were taken, any responsibilities so established would be only presumptive.

The subject‐matter jurisdiction of the Commission was defined as a list
[20]
of those crimes generally considered to violate non‐derogable rights, such as the rights to life, personal integrity and legal protection: murder, kidnappings, enforced disappearance of persons, and torture. The list, however, was not a
numerus clausus
: it left two possibilities open for the inclusion of crimes considered analogous in nature to those explicitly mentioned. After “torture” were the words “and other serious injuries.” These would be used by the Commission to include sexual crimes under the mandate; the Commission used another clause, at the end of
the list, to examine crimes committed against children, forced displacement of persons, and violations of due process and to analyze whether the agents of violence may have committed the crime of genocide.

The subject‐matter jurisdiction of the commission inevitably raised the question of the applicable law. At the time of the formation of the Working Group, the Ministry of Justice had explicitly mentioned international human rights law and international humanitarian law as forming the basis for the definition of the crimes committed by both sides of the conflict.
[21]
The Working Group, however, found it impossible to reach consensus on the inclusion of international humanitarian law. The representatives of the security forces resisted the inclusion of the laws of war, since, in their view, that would implicitly recognize that the confrontation with the “Shining Path” and the
MRTA had amounted to an internal armed conflict, and that groups that they considered “terrorists” would be endowed with belligerent status.

The Working Group dropped the reference to the laws of war, but resisted the characterization of anti‐state agents as “terrorists”. Both the Ministry of Justice's terms of reference for the group, and the proposal issued by the Working Group defined those organizations as “subversive,” a term that, although widely used in the media with a pejorative connotation, only described the position of the “Shining Path”
and the MRTA regarding the existing political order.
President Paniagua, however, dropped the term “subversive” and replaced it with “terrorist”,
[22]
therefore leaving in the mandate an ambiguous and inevitably politicized definition. In the end, the Commission agreed on a common definition of “terrorism” on the basis of a survey of international law and used it mainly to refer to the strategy of the Shining Path.

The decree specified that the Commission would examine conduct attributable to state agents, members of “terrorist organizations” and members of paramilitary organizations.
[23]
Later in the life of the Commission, the interpretation of the mandate included the investigation of the self‐defense groups that, in some areas, acted directly under the orders of the armed forces.

The question of what to do about the validity
of the amnesty laws
passed by Fujimori's Congress in 1995 in favor of the security forces was answered in April 2001, two months before the creation of the CVR, when the IACHR ruled in the
Barrios Altos
case that amnesty laws that impeded the investigation and punishment of serious human rights violations were void and contrary to the obligations accepted by states under the
American Convention of Human Rights.
[24]
The Court later clarified that the ruling applied in all other cases, not just in this massacre.
[25]
After this ruling, the
Supreme Court of Peru declared
the decision of the
IACHR to be binding on the Peruvian judicial system, making it unnecessary for Congress to vote on the issue and automatically reopening cases that had been closed in 1995.

The inclusion of insurgents raised another issue: the situation of those persons belonging to insurgent groups and sentenced for the crimes of terrorism and treason (
traición a la patria
), under draconian laws passed by Fujimori's government shortly after the 1992 coup. The laws, in the view of the IACHR in the
Castillo Petruzzi
case,
[26]
violated elementary rights to due process. Would the Commission pronounce itself on those violations of due process? And if so, would it recommend new trials? The expectation about this possibility resulted in specific policies by the members of the
“Shining Path” and the
MRTA in prison. Initially, they attempted a mixed policy of pressure and rapprochement before the Commission, giving testimony while demanding a general amnesty for former members of the insurgent organizations, who considered themselves “war prisoners” or “political prisoners”. However, when the Constitutional Court of Peru (
Tribunal Constitucional
), on the basis of the
IACHR's
Castillo Petruzzi
ruling, opened the way for new trials for persons accused of terrorism and treason, their attitude changed.
[27]
Members of the insurgent organizations now kept their testimonies in safe terrain, avoiding self‐incrimination and justifying the crimes as regrettable errors, for which few would accept responsibility.

Finally, the temporal jurisdiction of the Commission, encompassing events from the beginning of the Maoist insurgency in May 1980 to Fujimori's escape in November 2000, raised its own challenges. It was not always evident that the Commission would include the eighties. Although it was generally perceived that the conflict had raged under the administrations
of Fernando Belaúnde (1980–85) and Alan García (1985–90), some public opinion leaders believed that the Commission should not examine what had occurred under democratically elected governments, and should limit itself to the period after the 1992 coup d'etat, whose atrocities were fresh in the public's memory . Ultimately, the CVR would be tasked with the examination of the whole period; this meant that it had to work on two distinct phases of the violence: a growing internal conflict fought under democratically elected governments until the late eighties, and the establishment of a victorious authoritarian regime, focused on suppressing the political opposition, after the capture or killing of armed opponents. The test of political independence for the Commission would not be its attitude to investigating the universally condemned actions of the fallen regime, but those crimes committed under democratic governments whose leaders were back as members of the political mainstream.

These and other unresolved issues would plague the investigation of the Commission, especially when dealing with cases where it had to be decided whether the mandate applied. An interpretation of the mandate to limit it to the context of insurgency and counter‐insurgency was needed, but it would never be fully and explicitly asserted. The Commission was criticized for excluding cases of violations without relation to the conflict but under its temporal mandate, such as the apparent cooperation of the Peruvian military with the continent‐wide “Operación Cóndor” in June 1980 to kidnap Argentinian guerrillas present in Lima; the torture and execution of intelligence agents under the government of Fujimori; or the forced sterilization of women in the Andean highlands during population control campaigns in the late nineties. As a general policy was lacking, not every part of the Commission would interpret the mandate in a uniform way.

An additional complexity was the fact that after the end of the transitional government, new President Alejandro Toledo ratified the Commission but added the mandate of contributing to national reconciliation, without much clarity as to the meaning or the sense of this additional function. This would be a permanent source of political tensions between the Commission and different constituencies, since some feared that reconciliation would be the excuse for state impunity, while others suspected that the concept would be used to support an
amnesty for insurgent leaders.

The mandate of the CVR provided it modest powers in relation to the wide task assigned. The foundational Presidential Decree allowed the Commission to interview public officials, request information, carry out inspections, hold public and private hearings, and request measures of protection for witnesses.
[28]
The commission did not receive powers of subpoena or search and seizure. It had to rely on its own capacity of friendly persuasion to obtain the materials and testimonies it needed.

These weaknesses were attributed to the fact that the Commission was a special body created by decree rather than by legislation: this was probably the price to pay for a course of action that prioritized the prompt establishment of a commission in a process largely insulated from the kind of political horse‐trading that would have probably taken place in Congress in the fluid situation of the transition.

The Commission interpreted its powers in a bold and comprehensive way, allowing it to conduct proceedings that carried some political and institutional risk. For example, the Commission took the initiative to
propose to the Prosecutor General the carrying out of exhumations, to which the Commission brought independent experts. Similarly, the Commission obtained the permission of the Ministry of Justice to visit all the prisons that held persons sentenced for terrorism or treason and to conduct interviews and hearings, including lengthy interviews with the main leaders of the subversive groups.

Boldness of initiative contrasted with the diplomatic composure transmitted by the Commission's leadership. The Commission showed a deferential treatment toward state institutions and leaders and rarely used public pressure to achieve its objectives. Its notoriety and high levels of public support made it politically costly to oppose it or to appear to be obstructing its tasks. Upper‐echelon military leaders, including former chiefs of the “emergency zones” in charge of counter‐insurgent action appeared before the Commission; all the former presidents of the Republic gave testimony; substantial documentation was made available from the security forces and all the major imprisoned leaders of the insurgent organizations met the commission for long interviews.

The initial discussions in the CVR about the interpretation of its mandate revolved around the kind of truth that needed to be unveiled. Different commissioners and teams presented competing positions regarding the pre‐eminence of either an interpretive, “historical” focus, or a fact‐finding, “juridical” focus. The tension between explaining what happened and finding legal evidence of what happened was never adequately solved, and ended up with the creation of parallel investigative units in charge of studying the situations under the mandate from diverging perspectives based in law or the social sciences. Also, early in the life of the Commission, as it was decided to study specific cases an additional rift emerged within the legal researchers, between those lawyers that worked on the establishment of general “patterns” of human rights violations that should be investigated and those working on cases that would eventually be sent to the MP.

In practice, each investigative unit worked independently from the others and reported to a responsible commissioner, who would provide the only link to other investigations. The investigative units initially established at the CVR were the Legal Team (
Equipo Jurídico
), focused on establishing whether the human rights violations in the mandate had attained the character of a generalized or systematic pattern; the National Processes Team (
Proceso Nacional de la Violencia
) was in charge of historical reconstruction of the conflict and the strategies of its actors;
the In‐Depth Studies Area (
Area de Estudios a Profundidad
) examined specific scenarios, trying to reconstruct the social and cultural context prevalent during the conflict with a sociological and anthropological focus; the Regional Histories Area (
Historias Regionales
) reconstructed the history of the conflict as perceived by the regional actors; and the Reparations and Reconciliation Team (
Equipo de Secuelas, Reparaciones y Reconciliación
) investigated the consequences of the conflict in local communities, preparing a policy of reparations and reconciliation.

The absence of a central Research Directorship meant that there was significant overlap in several areas of the investigation that would be remedied partially through internal reorganizations at the last stage of the Commission's life, during the preparation of the Final Report. At that point, a newly created Editorial Committee was tasked with identifying internal inconsistencies in the work of the different investigative teams, catalyzing cooperation among them and commissioning additional research.