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The Legacy of Truth Criminal Justice in the Peruvian Transition Lisa Magarrell and Leonardo Filippini / Editors In memory of Father Hubert Lanssiers and of all the victims to whom he dedicated his life and work Translated from Spanish by Catherine Jagoe Table of Contents Preface Introduction Lisa Magarrell and Leonardo Filippini Criminal Justice and Truth in the Transition to Democracy Gloria Cano and Karim Ninaquispe The Role of Civil Society in Demanding and Promoting Justice Javier Ciurlizza and Eduardo González Truth and Justice From the Perspective of the Truth and Reconciliation Commission Eduardo Vega Luna Criminal Responsibility of State Agents Luis E. Francia Sánchez Criminal Trials of Terrorist Organizations Katya Salazar Luzula Gender, Sexual Violence and Criminal Law in Post-Conflict Peru Ronald Gamarra Human Rights, Justice and the Transition to Democracy: Institutional Review Contributors Preface The publication of these essays on truth and criminal justice in Peru is a significant contribution to the much-needed analysis of how to strengthen democracy in our country. The goal of a strong democracy is worthy and feasible but it is not altogether certain at this point, due to the negligence and hostility that still confront the rigorous enforcement of the law that is essential to the democratic life we desire. There is a tendency to fall back on a simplification that has yielded very bad results for us in the past: the belief that to have a democracy, all one need do is hold elections periodically, which neglects the fact that democracy exists only to the extent that the citizens of a country experience it on a daily basis as something meaningful in their lives. Access to justice remains, for the majority of the population, an unpaid debt of Peru’s institutional history. A glaring part of that debt is what remains to be done legally about the massive and atrocious crimes committed during the decades of violence. Extrajudicial executions, massacres, forced disappearance, sexual violence and many other acts prohibited by various international law treaties have gone unpunished or insufficiently investigated, and thus continue to pose one of the most serious obstacles to the advancement of democracy. There has, however, been some progress in terms of these events and acts. Although justice may not yet have been done, there has been some movement towards finding out what actually happened. The work of the Truth and Reconciliation Commission between 2001 and 2003 —assisted by the International Center for Transitional Justice, among other organizations— brought us one step closer to the truth. I use the phrase “one step closer” instead of the whole way, because the factual truth discovered by the Commission is still in the process of becoming a truth shared by society with practical impact on the actions of the State. Nevertheless, Peruvian society now knows a lot more about evils caused by the inhumane campaign of the PCP-Sendero Luminoso, Communist Party of Peru-Shining Path, and the often-brutal response of the State to that organization. The statistics on the violence are part of the truth that is now accessible. Although numbers and statistics can never accurately convey human suffering, they are relevant nonetheless, because they reveal the magnitude of the collective tragedy and provide useful information for the justice system. Indeed, one of the Commission’s most pertinent contributions to the cause of justice is its conclusion that the abuses committed by both State and non-State combatants constituted patterns of crimes and human rights violations. This disproves the familiar partisan argument that denies the gravity of the crimes by referring to them as excesses or isolated acts. On the contrary, the credible demonstration of the widespread or systematic nature of the crimes committed by various agents, at different locales and times, means that the Peruvian State has a set of very precise obligations. For the legal system, there is the still-unfulfilled task of trying these serious crimes with the rigor they demand, and which is demanded of Peru by virtue of being a sovereign signatory to international human rights conventions. For the executive and legislative branches, acknowledging the gravity of the criminal conduct implies a responsibility to actively prevent its recurrence. This includes carrying out indispensable institutional reforms and making the historical record public, so as to immunize the country against falling once again into violence and to rid society of the habits of discrimination that paved the way for large-scale violence. Needless to say, accomplishing these tasks, particularly in regard to criminal justice, requires many essential elements besides acknowledging the truth. It requires institutional will, a legal system designed to prosecute human rights cases, changes in legal culture to facilitate that mission, a thorough understanding of international human rights norms, and a willingness to use them. Naturally, it also requires constant research on the limitations, possibilities and needs of our justice system in order to deal with the complicated legacy of the violence. Only through vigilance, analysis and committed but objective debate on these topics will we come up with the necessary strategies for advancing justice in Peru. This publication is an excellent contribution to that task, thanks to the initiative of the International Center for Transitional Justice and in particular its editors, Lisa Magarrell and Leonardo Filippini. It is due to their interest in and commitment to the process of transition in Peru that we now have this enlightening contribution to a debate that must be continued and expanded. Salomón Lerner Febres President of IDEHPCUP Lima, February 2006 Introduction* 1. Introduction This book is intended as the latest in a series of contributions by the International Center for Transitional Justice to Peru’s struggle to consolidate democracy. For some years, our Center has actively collaborated in promoting different tools for transitional justice in Peru. In particular, we have helped support the work of the Comisión de la Verdad y Reconciliación, Truth and Reconciliation Commission (CVR), and we have contributed in various ways to promoting policies aimed at truth, reparations for the victims and trials for those responsible for human rights violations. This anthology is a continuation of those efforts and is inspired by the same goals as our previous work. The work of the CVR represented a crucial moment in Peru’s institutional development and this anthology stems, in both form and substance, from the same principles that engendered the Commission’s creation. Truth and justice are two key elements in a robust transition to democracy and this conviction underlies all the essays in this volume, which analyzes the CVR’s contributions to criminal justice. The result is a detailed examination of the role that transitional institutions can play in ensuring truth and justice. Our interest in the CVR’s work reaffirms our confidence in the value of democratic dialogue and institutions as a way forward. It also reflects our conviction that truth is indispensable to the foundation of a democratic state and the rule of law. Truth-telling about the violent past must, moreover, be combined with a search for justice, and therefore our Center supports prosecuting perpetrators of violations of human rights and international humanitarian law as an essential task in the transition to democracy. This book’s conception and format also represent the values of the Center. The victims of the abuses feature prominently in all the analyses and we have included a chapter specifically about the criminal prosecution of gender violence in Peru. This focus is not a methodological accident, but rather the consequence of our —and the authors’— conviction that it is necessary to deepen understanding of individual situations using sophisticated conceptual tools. When analyzing large-scale, complex situations, there is a risk of focusing attention on State institutions at the cost of sidelining the effect of the problem on individuals. The authors of the essays in this volume avoid that trap and pay special attention to the interests of the victims. Thus, the essays devote a fair amount of attention to victims’ organizations. They highlight the admirable work of many human rights organizations in Peru, not just in terms of their activism, but also in terms of their ability to analyze their own role. Civil society as a vehicle for individual interests is essential to democracy and the strength of these organizations in Peru augurs well for the future of democracy there. At the same time, we should also pay tribute to the interest and professionalism of State agencies such as * With the collaboration of Lisa Magarrell and Leonardo Filippini. the Defensoría del Pueblo, Ombudsman’s Office, which has carried out vital work of monitoring, advocacy and analysis on legal issues in the wake of the CVR. This is not a complete list of acknowledgments. Many other parties have and still do contribute actively to protecting the rights of victims of the conflict in Peru. International law also plays a central role in this collection. We at the Center believe that the international community can make valuable contributions to the processes of transition and that universally recognized values require universal support. The first essay, therefore, contextualizes Peru’s experience by describing the current debate about transitional institutions in other countries. Several subsequent essays analyze the role of international law and particularly the roles of the Inter-American Commission on Human Rights and the regional human rights Court and their impact on various important questions in Peru. We believe in the value of comparing experiences and in standards of international law as opportunities for horizontal collaboration and local reflection on internal conflict, rather than as uniform models to be imposed without examination. Those beliefs are reflected in this work.
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