Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (16 page)

There was not, at the beginning, a specific group working on cases with the aim of submitting them for criminal prosecution, and the Legal Team sought to establish general patterns not cases. The CVR created a Legal Team charged with the investigation of specific cases only after the first public hearings, held in April 2002, seven months into the life of the CVR, which had made obvious that criminal justice was one of the top priorities of the victims. But how would any team deal with the mass of possible cases that the Commission would receive in thousands of public and private testimonies?

Well before a team of researchers was assembled, the Commission sketched the guidelines of an investigative strategy. It was impossible to prosecute all cases; in most situations, the available information would be scant. In that situation, the cases would be dealt with in a statistical manner, constituting the bulk of the “patterns” being researched by the existing Legal Team. In the minority of situations where information was abundant, the Commission could exercise its discretion to identify cases that appeared to be particularly suitable for prosecution due to the availability of evidence and testimony.

The next important issue was the selection criteria among the available cases. In general, the CVR decided that the cases to be investigated would be those “explanatory” of the patterns of violations observable in the conflict.
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In practice, however, the CVR would often confuse “explanatory,” that is, an exemplary case that sheds light on a larger situation, with “representative,” that is, a case that, taken together with others, constituted a mini‐universe of the situations examined by the Commission in a catalog‐like fashion. This would have consequences
later, as the commission presented “a list” of cases for prosecution to the MP and Peruvian public opinion was left with a collection of seemingly disparate cases but no clarity about the consistent nature of the brutal strategies implemented by the state and the insurgents.

A true “explanatory” approach would have required the selection of cases capable of showing how the specific crime being unveiled constituted part of a well‐thought‐out strategy applied with knowledge and intent. Given the fact that the CVR dealt with systemic crimes, the approach would have required, for example, the joint preparation of cases that took place in a given period and place, consistent with a statistically demonstrable pattern to show how a veritable criminal organization was in place deciding from above. This would have allowed a focus on leaders and organizations more than on seemingly isolated events.

Instead, the approach was to assemble a number of cases that represented different types of violations, committed at different moments of the conflict, in different places and by different actors, trying to be as inclusive and comprehensive as possible. As cases were selected not for their capacity to unveil a larger strategy but for their own intrinsic merits, it soon became evident that the impact that the cases had had in the national life would emerge as an additional criterion for inclusion.

A Special Investigations Unit (
Unidad de Investigaciones Especiales
) was created in mid‐2002 to investigate a list of potential cases forwarded by the Commissioners. As the Unit would have to gather sensitive information and deal with witnesses, it was designed to work separately from the rest of the Commission. That decision would make the Special Investigations Unit run parallel to the rest of the Commission and deepen the gap between different approaches. The Unit would have no substantive contact with the existing Legal Team or with the social science teams.

The isolation of the Special Unit facilitated its investigative work in some ways: it obtained access to key witnesses and valuable evidence and identified the whereabouts of alleged perpetrators without the risk of leakage, and it enjoyed considerable leeway to build its cases in the way it considered fit. However, the Unit's isolation also created problems: the most complex one would be the apparent inconsistency with the work of the pre‐existing Legal Team. When the work on the Final Report started the editorial committee identified the apparent inconsistency between the chapters produced by the Legal Team – focused on examining whether the number and extension of the violations reached the threshold of international crimes – and the cases prepared by the Special Unit, built solely on the basis of national law.

An implicit challenge for the Commission was to select cases providing leads to the role of higher‐ups in the organizations participating in
the armed conflict. It was intuitive, although not explicitly affirmed, that justice would not be served by forwarding to the MP cases leading to the prosecution of low‐level perpetrators. It was not clear, however, how to establish the responsibility of chiefs and commanders. Without substantive contact with the Legal Team to select cases that would fit into patterns, the Special Unit had to work alone to craft theories on how to identify responsibilities that went beyond the direct perpetrators. In practice, the Unit found itself grouping the individual cases it had received from the commissioners into small patterns and making connections in order to identify a chain of command. In this way it put together, for example, the main cases attributed to the first military commander of the emergency zone, General Clemente Noel in 1983, or to the “Grupo Colina” in the early 1990s. Had the Special Unit and the Legal Team identified synergies, their task would have been easier; at the very least, the Unit would not have been forced to repeat the work of identification of patterns already undertaken by the Legal Team.

The Unit used the theory of “indirect authorship through an organized power apparatus” disseminated in continental criminal law by the German jurist Claus Roxin.
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According to the argument, crimes executed through organizations are distinguishable from others because the objective elements of the crime take place as a result of the commands of a hierarchical leader, with the power to use different and in essence interchangeable subordinates to implement the orders. The structure in question must be a criminal organization, have a rigid hierarchy, the direct author has to be interchangeable and operate under the automatic control of a superior.
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Proving this set of facts placed stringent requirements on the shoulders of the Special Unit and led to a very complex and protracted process of case approval by the Commission.

An additional complication emerged when deciding how to apply this theory to situations that took place in different moments of the conflict. While it was useful to deal with the cases of the insurgent organizations and the clandestine death squads organized under the authoritarian regime led by President Fujimori, there were doubts about its applicability to the actions of the state security forces under democratic regimes in the 1980s. In order to use its theory, the Commission had to interpret the situation of the eighties as one in which entire sections of the legally constituted security forces slipped into illegality, therefore constituting criminal apparatuses of power. However, while that characterization could apply to the security forces “at some places and moments of the conflict,”
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it would not affect the whole of the State. The Commission, therefore, while being able to investigate the responsibility of military commanders, found it extremely difficult to point to the personal
responsibility of political superiors, such as elected authorities, and in particular the presidents of the Republic during the 1980s.

Even though the challenges were many, the Special Unit experienced an accelerated learning process during its existence. While the first cases under analysis focused on specific incidents where it was possible to identify the immediate author, subsequent endeavors included more complex situations. For example, one of the first cases fully documented by the Special Unit was the January 2002 identification of the Army captain responsible for the massacre of eight peasants in
Chuschi. The case, forwarded to the MP as soon as it was finished, was a relatively simple one. Soon enough, the Special Unit dealt with the more complex case of hundreds of disappearances in the
Huanta Stadium, a sports complex transformed by the Navy into a detention center run by an especially vicious commander. The case, also transferred to the MP before the end of the Commission's mandate, pointed to the responsibility of the Army general in charge of the Emergency Zone during the year when most of the disappearances
took place.

The Commission had achieved early in its mandate a written agreement with the MP in order to establish general forms of cooperation: information sharing, exhumations and witness protection. At the time of the establishment of this agreement, however, little attention was given to the issue of when to share information, or the criteria for sharing it, particularly in those investigations considered confidential by the CVR.

The CVR understood that it would develop its investigation and gather evidence to the point where a robust case was built, so that it could be forwarded to the MP ready for prosecutorial action. This arrangement in effect gave the initiative to the Commission, and it could have worked assuming that both institutions shared a common purpose and previously agreed strategy; however, no real process of consultation existed to establish principles and priorities, distribute tasks or allocate resources within state and civil society stakeholders.

It was only realistic to expect that there would be friction between the CVR and the MP. Some investigations overlapped since the 1995 amnesty laws had been voided and cases were being investigated by local prosecutors at the time when the Commission was pursuing its own work. As the media found out that high profile cases were under investigation, prosecutors would demand access to the evidence, creating confusion and no little confrontation, since the Commission preferred
to control its investigative process and not to share information in the middle of a still unfinished case.

Conflicts over access to information characterized the investigation of the massacre of over one hundred persons accused or sentenced for terrorism in the prison island of
El Frontón in 1986. Former members of the Navy who had participated in the massacre approached the CVR in the hope of exchanging information for protection in the form of material benefits or foreign travel. The prosecutor in charge of the case discovered this and issued a subpoena against the Commission. However, a judge ruled that the CVR, as an Executive branch agency, had confidentiality privileges and it should finish its work before sharing information with the MP. So, in this case, the Commission prevailed in the short term but at the cost of an inopportune affirmation of the principle of executive privilege against prosecutorial interests.

An additional factor in the poisoning of the relations between prosecutors and commissioners was the imbalance of capacities and resources. Since it was a unique institution benefiting from the extraordinary circumstances of its creation, the CVR had been able to obtain significant resources and secure expertise for specialized investigative tasks, such as exhumations. This would result, in some cases, in institutional jealousy from typically understaffed and under‐budgeted local prosecutors who would perceive the Commission as competition. For example, the first exhumation conducted by the MP under initiative of the CVR and the
Ombudsman's
office took place in the community of
Chuschi, in the department of Ayacucho. The CVR's experts, members of the Peruvian Forensic Anthropology Team (
Equipo Peruano de Antropología Forense – EPAF
), would in fact conduct most of the work, while the experts of the MP would find themselves confined to the backseat, due to the technical complexity of a task for which they had received no training. Although the exhumation concluded in the successful identification of all the remains found, serious confrontations emerged between the MP and the EPAF and by extension the CVR. Eventually the tensions derived from this hostility led to a costly rupture between the EPAF and the Commission.

After the exhumation at
Chuschi, the Commission proposed a
mechanism to reach specific agreements on which exhumations to conduct. The CVR, the MP, the
Ombudsman's office and the
Coordinadora
created an ad hoc group, the Exhumations Platform (
Plataforma de Exhumaciones
), to put together views and make suggestions to the MP. However, although the group would manage to organize two additional exhumations, those continued to be hindered by confrontation and hostility. More substantively, as important as they may be, agreements
on technical proceedings like exhumations did not substitute for the lack of a general prosecutorial strategy. In the absence of a common will and strategy, the agreement signed by the CVR and the MP was simply too generic to address the problems raised by the existence of the Commission and – although the primacy and constitutional authority of the MP was never challenged – in practice the Commission was successful in imposing its criteria on access to information and witnesses.

Another source of estrangement between the CVR and the MP was the question of the validity of the testimonies and evidence gathered by the Commission for further prosecutorial work. The Commission, although conscious of its mandate to contribute to prosecutions, did not apply standards that matched the stringent demands of judicial evidence. So, for example, even in cases where no direct corroboration of a testimony was possible, the Commission would examine it against the mass of similar testimonies existing in the database or surrounding circumstances and conclude, on a balance of probabilities, about its truthfulness.
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The MP would, after the demise of the CVR, argue against the validity of the Commission's evidence, although it did so in a probably unhelpful way, pointing to the fact that the testimony had not been obtained in the presence of a prosecutor.