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Perpetual Injustice: the Twenty-Year Battle for Reparations in Peru

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Perpetual Injustice: the Twenty-Year Battle for Reparations in Peru Human Rights Brief Volume 20 | Issue 3 Article 4 2013 Perpetual Injustice: The weT nty-Year Battle for Reparations in Peru Aida Faverio American University Washington College of Law Anna Naimark American University Washington College of Law Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons Recommended Citation Faverio, Aida, and Anna Naimark. "Perpetual Injustice: The wT enty-Year Battle for Reparations in Peru." Human Rights Brief 20, no. 3 (2013): 32-36. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Faverio and Naimark: Perpetual Injustice: The Twenty-Year Battle for Reparations in Pe Perpetual Injustice: The 20 Year Battle for Reparations in Peru by Aida Faverio* and Anna Naimark** INTRODUCTION ore than twenty years since the Peruvian government responded to the threat of terrorism by arresting, Mdetaining, and torturing its own citizens, falsely accused as terrorists, many of those who were acquitted or pardoned have yet to receive moral or economic reparations.1 Despite the acknowledgement of the violations by the state, the conviction of then-President Alberto Fujimori for human rights violations, and the determination that victims are due repara- tions, the failure to provide these reparations, as required by international law, makes the violations ongoing, creating ripple effects and perpetuating the suffering of these individuals. BACKGROUND Photo courtesy of the authors Between 1980 and 2000, two domestic terrorist groups plagued Peru: Sendero Luminoso (Shining Path) and Movimiento choked off the big cities, with the main target being Lima, Revolucionario Túpac Amaru (the Túpac Amaru Revolutionary the capital.2 Movement, MRTA). The Shining Path was especially powerful As the internal conflict strengthened, the state consolidated and its leader, Abimael Guzmán, was a communist professor of its power, and mobilized military forces to begin fighting back. philosophy who was inspired by Mao Zedong and the Cultural In the 1990s, then-President Alberto Fujimori carried out an Revolution in China. Guzman based the Shining Path’s fighting auto-coup d’état by abolishing the Peruvian Congress with style on the strategies Mao employed in China’s “People’s War.” Decree Law 25418. Decree Law 25418 transferred the legislative The core of the strategy was to mobilize agrarian societies to powers to the Executive Branch of the government and also revolt and then encircle large cities, eventually toppling them. abolished much of the Constitution.3 Decree Laws 25422, Using this style, the Senderos (members of the Shining Path) 25423, and 25244 removed all the members of the Tribunal would expel government forces and create “liberated zones.” of Constitutional Guarantees, thirteen judges of the Supreme Because Guzmán’s strategy imitated Mao’s, the guerilla war Court of Justice, and all the members of the National Council was fought primarily in the Peruvian countryside and gradually of Judges and the District Councils of Judges from office.4 On April 23, 1992, the government removed an additional 120 judges and public prosecutors with Decree Law 25446.5 With * Aida Faverio has a Bachelor of Arts in International Affairs from the elimination of these foundations and the balance of power, the Florida State University and is a 2013 graduate of the American Fujimori was able to enact several reforms and apply drastic University Washington College of Law. She served as a Staff Editor punishments to those presumed to be members of designated for the Human Rights Brief and as a Student Attorney with the terrorist groups—the Shining Path and the MRTA. International Human Rights Law Clinic, where ARIL is one of her and Anna Naimark’s clients. The Truth and Reconciliation Commission (TRC), estab- lished on July 13, 2001, to investigate human rights violations ** Anna Naimark is a 2013 graduate of the American University attributable to the state, the Shining Path, and the MRTA Washington College of Law and an M.A. candidate at the American between 1980 and 2000, found that as a part of Fujimori’s anti- University School of International Service. She served as the Social terrorism campaign, unsuspecting and innocent civilians were Media Editor for the Human Rights Brief and worked as a student arrested and subjected to a variety of torturous acts to obtain attorney with the International Human Rights Law Clinic, where information regarding the terrorist groups without access to due ARIL is one of her and Aida Faverio’s clients. She is currently a 2013 process through a legitimate court system. Presidential Management Fellow Finalist. The campaign to fight terrorism began with arbitrary The authors would like to thank their family, friends, and the detentions of mainly campesinos, or people from rural areas, International Human Rights Law Clinic team for their unconditional on the outskirts of the city. Many civilians were accused of guidance and support, and the Human Rights Brief staff for the being terrorists or materially supporting terrorists. Raids on opportunity to work together. Most of all, they would like to thank the small villages often ended in deaths and/or violent attacks. The partners and members of ARIL, whose tireless work for justice is a Colina Group, an extrajudicial “anti-communist death squad” constant source of inspiration. Published by Digital Commons @ American University Washington College32 of Law, 2013 1 118568_AU_HRB.indd 32 7/17/13 9:05 AM Human Rights Brief, Vol. 20, Iss. 3 [2013], Art. 4 carried out the most infamous of these raids—the La Cantuta Once imprisoned, the alleged terrorists were subjected to massacre and the Barrios Altos massacre—under Fujimori’s torture, some over the course of years. Many were held incom- orders. The La Cantuta massacre involved the kidnapping, municado, cut off from family, friends, and any semblance of disappearance, and assassination of nine students and a professor human contact. The treatment that they received was undisputedly from La Cantuta University on July 18, 1992.6 The Barrios cruel, inhuman, and degrading. Altos massacre involved the execution of fourteen adults and an eight-year-old boy in Lima’s Barrios Altos neighborhood on INADEQUATE REPARATIONS AND THE FORMATION OF ARIL November 3, 1991. The TRC found that between 1980 and 2000, more than 69,280 persons were killed or forcibly disappeared.7 After nearly a decade of international pressure, Peru created This number reflects not only those killed by the government, an Ad Hoc Commission on August 17, 1996, pursuant to Decree but also those killed by the Shining Path and the MRTA. Those Law 26655, to grant judicial pardons to those who had been killed in the conflict comprise a greater number of human unjustly convicted or processed for the crimes of terrorism 16 losses suffered by Peru than all of or treason. President Fujimori, the Ombudsman, and the the wars that have occurred in its 182 Minister of Justice all supported the years of independence. It is also more Commission. than double the combined estimated In its early jurisprudence, In order to adjudicate the pardons, totals of those killed in the dirty war the Inter-American Court of the Commission would have to receive in Argentina (30,000) and during a request for a pardon and then would the dictatorship of General Augusto Human Rights established gather information and evidence 8 Pinochet in Chile (3,000). that the states’ duty to prevent regarding the cases, and then evaluate Even when judicial processes were the cases. If the cases qualified, the utilized, they were grossly defective. future violations of human Commission would then send the A commission of international lawyers rights is essential for fulfilling requests to the President to grant the charged with evaluating the Peruvian pardon. According to the IDL, Fujimori judiciary during the Fujimori regime the requirements to respect pardoned 515 persons falsely convicted 17 called the judicial system’s treatment of and ensure the exercise of terrorism and treason. those charged with treason or terrorism Despite government efforts to “seriously flawed and at odds in many of fundamental rights as address the imprisonment of innocent key respects with Peru’s international civilians, many of the affected individu- 9 established in the American legal obligations.” An investigation als did not ultimately receive or benefit conducted by the Instituto de Defensa Convention on Human Rights. from the pardons. Others who were Legal (Institute of Legal Defense, IDL), unjustly incarcerated or accused were a prominent human rights organization then either acquitted or never officially in Peru, found that the judiciary issued 51,684 warrants for convicted of either terrorism or treason. Both those whom 10 12,858 people. Moreover, because Peru has many common Fujimori pardoned and those whom the courts acquitted continue names, warrants require additional identifiers such as parents’ to have the charges or convictions on their permanent criminal names, a physical description, and the age of the person, records. Because these are incomplete pardons and acquit- 11 otherwise they are unlawful. In
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