Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (17 page)

Confronted with growing signs of hostility from the MP, the Commission was left with the task of devising tactics to prod the MP into action. It turned to conducting a public strategy that would mobilize the support of different segments of civil society in favor of prosecution.

The public hearings held by the CVR starting in April 2002 successfully focused public attention on the work of the Commission. The enormity of the crimes that were aired, and the opportunity to hear for the first time victims of violence speaking in their own terms about the experience they had suffered, built support for prosecution. By September, after nine highly publicized hearings in the main cities of the country and the exhumation conducted in Chuschi, a public opinion poll in Lima discovered that 60.1 percent of those interviewed thought that “punishing the criminals” was the policy that would most contribute to national reconciliation.
[34]

The Commission must have understood that public support for prosecutions was one of the most valuable assets it had to persuade the MP to act. As early as June, during an institutional retreat, some Commissioners were comparing the public hearings with “advance releases” of the Final Report that were successfully gaining public support for truth‐seeking,
and wondered whether other “advance releases” could obtain similar support for reparations and justice. “Advance announcements” or any kind of rapprochement to the Ministry of Economy on reparations were considered premature. Advance work on prosecution, however, was considered possible: the Commission could work on one of its cases and develop a full‐fledged investigation that it would later publicly hand over to the MP with such an array of supporting material that it would not be possible for the MP to excuse itself from investigation.

In December 2002, the CVR handed over the case of the
Chuschi executions to the MP and issued a press release to let the public know the details of the case, including the pseudonym of the Army captain allegedly responsible for the massacre. The CVR chose to present the MP with a report (
informe
) and not with an accusation (
denuncia
), since it was unclear in the mandate whether the CVR could act as an accusing party in a criminal complaint. The Chuschi Report reconstructed the case, based on evidence gathered at the exhumation and the testimony of eyewitnesses. The report identified the name and whereabouts of the alleged perpetrators, and recommended that the MP issue indictments and provide protection to witnesses.

The Chuschi Report was an attempt to test the system and measure the reaction of the MP in what appeared to be a relatively simple case, entirely manageable within the limits of
domestic law, involving crimes characterized as aggravated kidnapping (
secuestro agravado
) and murder with cruelty (
asesinato con crueldad
). Some international human rights experts
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suggested alternative tactics, such as prioritizing larger, more complex cases, showing the functioning of a criminal chain of command and pointing at high‐level perpetrators. The Commission, however, maintained course, hoping that a successful case against mid‐level perpetrators could be the beginning of a thread leading to the higher‐ups. However, the Chuschi case proved that the MP would not be easily prodded into action. The MP cast doubt on the information submitted by the Commission and announced that it would conduct its own investigations. No warrants for the arrest of the alleged perpetrators were issued immediately, in spite of journalistic investigations that uncovered the identity of the killers. The MP only issued a formal indictment in the last months of the
life of the CVR.

The Huanta case, a more complex one, was similarly forwarded to the MP as the Report of a completed investigation. It detailed the operations of the detention center run by the Navy in the Sports Stadium of the city, the apparent responsibility of General (retired) Clemente Noel as former commander of the emergency zone, and three especially gruesome cases committed by forces based in the Stadium: the execution of a group of
members of a local church, the disappearance of a local journalist, and the discovery of a mass grave with remnants of people last seen alive in detention. Sections of the report were read in public in March 2003 by the President of the Commission, Dr. Salomon Lerner, after a visit to the Huanta Stadium.
[36]
In his speech, he gave details of the three cases and recommended the indictment of some Navy officers and General Noel. As with the Chuschi case, the MP did not act immediately and the case remains to date under investigation. The Chuschi and Huanta cases showed that publicity did not necessarily provide an impetus for proactive prosecutorial action. If the MP was not prepared to expeditiously issue an arrest warrant for a mid‐level perpetrator, it was even less prepared to do so against former generals. After the Huanta case, the Commission concentrated
on completion of the Final Report.

The Final Report would be the ultimate test for the CVR. The MP was presented with 43 cases demanding immediate action. However, some issues dented the ability of this tool to prompt the MP to act. In the first place, the Commissioners decided that the Special Investigations Unit would have to prepare, in addition to the cases under its responsibility, additional cases “only for purposes of the Report,” that is, not the kind of casework leading to a Report to the MP but short summaries of cases to provide symbolic acknowledgment to the victims. The Commissioners may have felt that the public would react adversely to the Final Report if it presented only cases technically ready for prosecution, since these usually involved the security forces, while ignoring other high‐profile cases provoked by the subversive groups that proved to be notoriously more difficult to clarify.
[37]

However, this decision would prove to be a diversion of energies at a crucial time, since cases had to be identified, prepared and approved. Although 43 cases were on the original list of the Special Unit,
[38]
73 were finally included in volume VII of the Final Report and a smaller number appeared as specific illustrations of crimes after chapters contained in other sections. Confusion resulted, since the press assumed that the Commission had given 73 cases to the MP, ready for immediate action. Speakers for the MP were eager to declare disingenuously that a good number of the cases presented by the CVR were not at all material for serious investigation. This was certainly true for the cases as published in the Final Report, since the report featured either summaries of the dossiers prepared by the Special Unit, or short narratives compiled from secondary sources.

A serious additional problem was that the Commission had mostly overlooked the central problem of whether to name perpetrators in the Final Report. In general, the commissioners had assumed that they were
under an obligation to name names if they obtained them, since the foundational mandate made clear that the CVR would identify “as far as possible, presumptive responsibilities.”
[39]
No policy on this issue had been prepared, however. Due process emerged as a concern during the public hearings, since in some cases the victims decided to accuse perpetrators by name. The hearings' rules of procedure clearly provided a mechanism for those persons accused to respond if they wanted to challenge the testimony of the victims, and the CVR held special
in camera
hearings to receive those responses. In preparing the Final Report, the CVR understood that it would suffice to notify those about to be accused of serious crimes that the CVR had been convinced of their alleged culpability, and it would provide them an opportunity to respond to the charges.
[40]

The commissioners, however, after receiving specific pleas from the Armed Forces, decided to further consider the issue. The argument that they had to consider was that naming somebody in the Final Report – even as an “alleged” perpetrator – would amount to a sentence in the court of public opinion. In addition, if a mistake were made, the work of the Commission would be discredited. The Commission had to balance the right of the victims to know the truth to the utmost extent possible and the propriety of disclosing all the truth even above the alleged perpetrators' rights to their personal reputation.

Although a decision was reached, it had elements of ambiguity and formalism that made it moot. The CVR decided that it would present the cases to the best of its knowledge and conviction, but it would not publish an accusation of specific crimes. Therefore, the cases published in volume VII included the names of the doers and provided all the details of the crimes committed, but they avoided language that would sound like an indictment. In reality, the new guidelines were only partially incorporated in the Final Report and several sometimes inconsistent formulations appear in the final text. As far as the CVR was concerned, it had not given the names of doers
as perpetrators
, so that remained a pending task that the MP would have to discharge in formal indictments. Consequently, the CVR included a proviso in volume VII of the Final Report stating that the Commission expected diligent action by the MP but that, if after a prudential lapse of thirty days no evidence of action existed, it would ask the
Ombudsman's office to make use of its constitutional right to formulate an accusation against the perpetrators of the cases investigated for prosecution.
[41]

The result of this decision was ambiguous: the press immediately seized the opportunity to read the cases and draw obvious conclusions, making lists of perpetrators on the basis of what was already said in the Report.
The objective of protecting the reputation of the alleged perpetrators from the court of public opinion was thus soundly defeated, but this was only some kind of societal, symbolic justice. The main objective, to obtain the indictment of perpetrators, was not achieved: the MP sternly reminded the press that no deadlines existed for prosecutorial action and that, therefore, the CVR's proviso was ineffective. The Ombudsman's office, in turn, did not act on the Commission's recommendation.

Two years after the Final Report of the CVR was issued, at the time this chapter is written, progress has been mixed. On the positive side, all branches of the state have taken significant strides to implement the CVR recommendations: Congress passed a policy of collective reparations; the Constitutional Court has consistently upheld the right to truth in a number of cases and struck down as unconstitutional aspects of a 2004 bill on military justice; the Executive has accepted responsiblity in a number of cases before the Inter‐American system of human rights and pursued friendly settlements; a path‐breaking National Human Rights Plan was approved in 2005, and 22 of the 47 cases forwarded by the CVR to the MP are already in the trial phase. Significantly, the MP established a specific prosecutor for human rights cases and the judiciary established a court for human rights cases by widening the mandate of a pre‐existing Anti‐Terrorism Court.
[42]

However, much remains to be done, while political tensions and institutional sclerosis continue to bedevil accountability efforts. Strenuous opposition by the armed forces to the report and to the prospect of having members of the military on trial has weakened the resolve of the institutions in charge of prosecutions. Of 252 arrest warrants for indicted persons, 209 were never complied with due to the permanent presence of procedural errors that provided the excuse not to go ahead with the orders. Of over 1500 victims included in the cases
sent by the CVR to the MP less than 25 percent have legal representation, mostly by human rights NGOs, while all defendants in the security forces have lawyers paid by the government. Witness protection remains weak and inefficient and there have been numerous cases of intimidation. The most worrisome development, however, remains the continuous attempts by the military to assert the jurisdiction of the military justice system over human rights cases through legislative proposals that have garnered the support of significant sectors of the political elite.

Not every truth commission is mandated to cooperate with criminal justice. When they are, the situation raises complex challenges that
include the question of the appropriateness of conducting specific case investigations, the question of primacy of jurisdiction, the timing, conditions and forms of information‐sharing, and the like.

A truth commission, however, is an ad hoc body with a limited life span and resources operating after a prolonged period of judicial weakness. It would be unreasonable to expect a commission to fully tackle multiple needs, such as the building of technical capacities in prosecutorial authorities or the building of a comprehensive consensus to act against impunity.

However, a commission has the advantage of initiative and visibility. Even in the absence of special investigative powers (normally in the hands of prosecutorial authorities) a commission can make a difference by setting priorities and establishing criteria to develop prosecutions in close consultations with stakeholders.

The Peruvian Truth and Reconciliation Commission had several strategic advantages, such as favorable public opinion, the mobilization of groups of victims, the support of civil society organizations and the availability of resources. It decided to work in an exemplary manner, to set the standards for subsequent action by the
Ministerio Público
once its mandate was over. The Commission utilized public hearings, exhumations and criminal investigations to mobilize public support and prod the MP into action.

The major weakness of the Commission, however, was its inability to design in time a comprehensive prosecutorial strategy that could be the object of consensus among the different stakeholders. During the life of the Commission, only the outlines of such a strategy were built, by trial and error and successive approximations. The master guidelines remained the same: the identification of paradigmatic cases that would be acted upon by the MP and would eventually encourage the judicial authorities to continue on their own the struggle against impunity. Significant resources were assigned to this task, but the Commission could have used better coordination of its investigative teams in order to shorten the learning curve and identify potentially productive strategies.