Perception and Punishment in Post-Conflict Contexts: The Example of Peru

Between 1980 and 2000, Peru went through what Peruvians call “La Época del Terrorismo”, or “The Era of Terrorism”. In those years, the Shining Path, a Maoist-inspired terrorist group, launched an attack on Peruvian democracy seeking to establish a Khmer-Rouge-like dictatorship. According to Peru’s Truth & Reconciliation Commission, its Supreme Court, and The Inter-American Court of Human Rights, the “Era of Terrorism” was a non-international armed conflict, taking the lives of an estimated 69,000 Peruvians.

Since the very first moments of the armed conflict, however, the Peruvian government sought to limit international law’s influence in hostilities. In 1983, not long after the army was initially deployed, President Fernando Belaunde allegedly threw an unread Amnesty International letter to the trash, dismissing accusations of torture by the armed forces. In this context, military leaders saw international humanitarian law as a threat that risked legitimising the Shining Path and other groups like the Tupac Amaru Revolutionary Movement (MRTA for its Spanish acronym) in the eyes of the international community. They (wrongly!) believed the application of international humanitarian law would require treating them as “belligerent groups”, shielding their members from state prosecution. In order to avoid this, they purposefully refrained from using the rules of armed conflict to regulate their counter-terrorism efforts (to dismal humanitarian consequences). This policy stuck, and today, 16 years after the last Shining Path car-bomb, Peruvians are still intensely divided over the terminologies of collective memory.

For vast sectors of the population, calling this period a “non-international armed conflict” implies legitimising the Shining Path and MRTA and underestimating their inherent terrorist nature. This mistaken view is continuously pushed forward and promoted by opinion leaders, including congressmen, former law enforcement officers, former ministers, political commentators, etc. After nearly four decades of misinformation, only 16% of Peruvians share the Truth Commission’s legal classification. What the law says and what people feel, are in clear disagreement, causing serious harm to Peru’s post-conflict rule of law, making people distrust the very institutions that are meant to protect them from governmental abuse.

A very visible area for this mismatch is the matter of criminal prosecutions and punishment of conflict-related offenses. Given its resistance to the international, Peru has had very little reception of international criminal law into its domestic legislation. Shining Path and MRTA crimes have always been prosecuted under domestic statutes sanctioning various terrorism- related crimes (mostly, Law Decree 25475). Government crimes, in turn, are prosecuted under the domestic criminal code, whether as enforced disappearances, murder, or other similar felonies. There is no war crimes or crimes against humanity statute applicable to armed conflict. Only domestic criminal law.

What Peru does have is a long history with the Inter-American Human Rights System. International supervision has had a profound effect in the way cases involving State crimes have been prosecuted through time, setting them aside from the rest (including, importantly, the crimes of the Shining Path and MRTA).

Take, for example, the case of Alberto Fujimori, one of the most paradigmatic cases of post-conflict Peru. Fujimori ruled Peru from 1990 to 2000, i.e. half of the period corresponding to the Era of Terrorism. His government was undemocratic and marred by human rights violations; particularly those of his infamous death squad Grupo Colina. One of Colina’s targeted assassinations eventually found its way to the Inter-American Court of Human Rights and was decided in 2006. In a key passage, the Court stated:

“[T]he acts committed in La Cantuta to the detriment of the victims of extra-legal execution or forced disappearance, are crimes against humanity that cannot go unpunished, are non-extinguishable and cannot be the subject-matter of amnesty” (emphasis added, ⁋225).

This determination was ground-breaking. It authoritatively bound the Peruvian State to consider this crime an international crime and subject to special treatment, such as the inapplicability of amnesties and an obligation to ensure a proportionate and effective punishment, filling the gaps in domestic law. Three years later, when Fujimori was sentenced to 25 years in prison for – among other crimes – his participation as indirect author of La Cantuta, he was declared guilty of (the domestic crime of) murder. But because of the Inter-American Court’s findings in La Cantuta, Peru’s Supreme Court was emboldened, and added a short section to its 700+ page-long judgment, stating as follows:

“Given what has been mentioned above, it is evident that the acts of murder and assault under consideration transcend their strictly individual or common scope, by fully meeting the requirements that identify crimes against humanity. The murders and assaults of Barrios Altos and La Cantuta are also crimes against humanity. Fundamentally, because they were committed in the context of a state policy of selectively, yet systematically, eliminating presumed members of subversive groups. (…) With this, we are simply matching – through the evidence already analysed – the decisions of the IACHR and the Constitutional Tribunal, that have also classified these acts as crimes against humanity, in accordance with International Criminal Law” (all translations are my own, see ⁋717).

This paragraph stirred controversy, as it meant Fujimori – 71 at the time – would have to serve all 25 years of his sentence, without access to pardons or amnesties. Fujimori litigated this, arguing he could not be condemned of a crime that was not incorporated into Peruvian law and that the phrase crime against humanity could therefore have no binding effects on his punishment. The Constitutional Tribunal disagreed:

“[T]hese classifications – originating in international criminal law and international human rights law – (…) do not sustain the establishment of criminal responsibility or the application of a punishment distinct from those recognized in domestic law. They were, above all, recollections of the international obligations undertaken by the Peruvian State and that have been set out by the Inter-American Court of Human Rights; not a determinant factor of the punishment” (⁋57).

This affirmation of Peru’s international obligations vis-a-vis international crimes has played a key role in the subsequent litigation of these massacres. In 2012, when the Peruvian Supreme Court tried to reduce Colina members’ 25-year sentences by between 3 to 7 years, the Inter-American Court ordered the State to review the decision, which was annulled soon after. Similarly, in 2017, when then President, Pedro Pablo Kuczinsky, decided to pardon Fujimori, arguing highly contested humanitarian motivations, a domestic judge declared Fujimori’s pardon null, specifically stating that pardons cannot be granted in cases involving crimes against humanity (⁋287). In short, international rules have significantly contributed to effectively combating impunity, creating a strict and overall successful legal framework.

As mentioned above, though, international law is wholly excluded from cases involving the Shining Path and MRTA. All Shining Path and MRTA crimes are punished solely under the domestic counter-terrorism statute mentioned above, with no international anti-impunity system in place. No international tribunal has ever issued a judgment similar to La Cantuta for the Shining Path’s massacres of Luccanamarca, Tarata, Soras, etc. Similarly, no domestic court has appended anything even remotely similar to paragraph 717 of the Fujimori judgment in any of the cases condemning Shining Path criminals. These terrorist acts are not perceived by legal operators as either war crimes or crimes against humanity; something that – I argue – has been a fundamental factor in the construction of a completely different (and damaging) public perception regarding the role of international rules, when applicable to Shining Path and MRTA crimes.

Take, for example, the case of Jaime Francisco Castillo Petruzzi, a Chilean national and high-ranking member of the MRTA. According to the Peruvian Truth Commission, Castillo Petruzzi was in charge of MRTA kidnappings, proving particularly gruesome and cruel. He would frequently torture his victims with taser guns and sleep deprivation, keeping them in inhumane conditions for long periods of time, sometimes killing them even after receiving a ransom. His so-called “people’s jails” still outrage Peruvian society as an example of the shocking and gratuitous brutality of the MRTA.

In 1993, Castillo Petruzzi was detained by Peruvian authorities. Under the existing counter-terrorism legislation implemented by the Fujimori government, Castillo Petruzzi had no right to habeas corpus, extremely limited time to confer with his lawyer, almost no access to evidence produced against him, and was tried summarily by an anonymous military judge who found him guilty of the crime of “treason against the motherland” (despite his Chilean nationality) and sentenced him to life imprisonment. In response, Castillo Petruzzi filed a petition against the Peruvian State before the Inter-American System.

In 1999, the Inter-American Court decided the case of Castillo Petruzzi v. Peru. Unsurprisingly, the Court held that Castillo Petruzzi’s trial was contrary to the judicial protections enshrined in the American Convention on Human Rights, and ordered the Peruvian State to retry him, this time, affording him all judicial guarantees. In 2003, a Peruvian judge revoked Castillo Petruzzi’s life sentence and condemned him to 23 years in jail. He was released in 2016, after serving his full sentence, and expelled to Chile, where he now resides.

Many everyday Peruvians draw a parallel between the Fujimori and Castillo Petruzzi tales. In the former, human rights law “prevented” Fujimori – the President who oversaw the end of terrorism – from receiving an early release; in the latter, it “allowed” Castillo Petruzzi – a well-known and very much detested terrorist – to avoid life in prison. This has generated a perception of imbalance between how international human rights law, and international law more generally, treats agents of the state and how it treats Shining Path and MRTA members, severely damaging its image in the eyes of many citizens, who now distrust Inter-American institutions. The numbers are worrisome: 1 in 3 Peruvians believe Peru should denounce the American Convention on Human Rights; 55% think Peru should either contest or ignore the Court’s ruling on Fujimori’s pardon; 60% support the death penalty for terrorists; and 41.9% believe human rights are an obstacle to fighting crime.

The issue of prison benefits follows a similar pattern. In 2003, the first democratically elected post-Fujimori government in Peru, passed Legislative Decree 927, regulating the execution of penalties in matters related to terrorism. According to the decree, any person serving time for terrorism could reduce his or her sentence by one day per every seven days of study or work, or be released on parole for good conduct after serving ¾ of his or her time. These rules allowed Nancy Gilvonio, a high-ranking MRTA member believed to have been in charge of administering the ransoms obtained by Castillo Petruzzi’s kidnappings, to secure an early release. She had been detained while plotting a take-over of Congress in 1995 and sentenced to 25 years in jail. She was released, 5 years early, in 2010. This system continued until 2009, when it was entirely repealed by Law 29423.

Even if repealed, however, dissatisfied Peruvians see another unfair parallel between the law in force to deal with Fujimori and Colina, and the law in force to deal with the Shining Path and MRTA. Consider, after all, that the entire international apparatus of the Inter-American System worked in unison with domestic judges to make sure that Colina members did not see their judgments reduced, even by 3 years; Gilvonio, in turn, was granted a 5-year reduction, without any effective reaction by the legal system or claim of impunity. In the eyes of people victimised by Shining Path and MRTA, human rights simply favoured one side over the other.

This is, of course, a perception. The vast majority of high-ranking members of the Shining Path and MRTA are currently serving life imprisonment and most of those who have been released did not benefit from any reduction of punishment (including Castillo Petruzzi); they simply did their time. Gilvonio, in turn, was not imprisoned for any specific act, but rather charged with membership in a terrorist organization, which made the evaluation of her case different from other inmates imprisoned for specific violent crimes and who did not receive early releases. In the age of social media, fake news, and post-truth, however, these select but highly noticeable cases are fertile ground for conspiracy theories and misinformation. Peruvian internet is now buzzing with people – including visible and influential members of mainstream Peruvian society – openly attacking international human rights law, the Inter-American System and the institutions of post-conflict transition, such as the Truth Commission and the Museum of Memory, as being “pro-terrorist”. When in the minds of so many people domestic law becomes synonymous for counter-terrorism, and human rights law, for pro-terrorism, then one must admit that, by any realistic account, Peruvian post-conflict reconciliation has been, at best, incomplete, and, at worst, a failure.

The Peruvian experience can serve as an important reminder for other post-conflict societies, both in the Latin American region and beyond, that perception – how people feel about the law – matters, especially in times after social turmoil. It is difficult to say, however, what could have been done differently. The decision to reject international humanitarian law and international criminal law was made at the highest echelons of government. In many ways, it was also the product of its time. The beginning of the conflict coincided with a period when humanitarian and human rights law still held very little real power (something that would change in the late 90s and early 2000, right in time for Peru’s post-conflict era).

One can imagine, however, how things could have been different had these decisions not been made. There is no real legal reason why the crimes of groups like the Shining Path or MRTA could not be deemed crimes against humanity in the same way as La Cantuta. After all, crimes against humanity may be committed by State and non-state entities alike. Shining Path and MRTA murders of civilians could also have been considered war crimes. Had this been done, I believe the perception of imbalance I described above would have had a much harder time settling in in the minds of average Peruvians, as international institutions – including the language of anti-impunity – would have been a constituent component of ensuring proportional and effective punishment for Shining Path and MRTA crimes as well. More than a body of laws applicable “to state actors” – unavoidably pitting it against domestic law, applicable against terrorists – international law would have been the law that regulated the conflict on an equal footing, ensuring proportionate and effective punishment for all crimes.

For all its shortcomings, this is actually the biggest advantage of the Colombian Peace Agreement with the FARC: the ICC and Inter-American System have to be concerned not just with government crimes, but also FARC crimes. It is thus extremely frustrating, as a Peruvian, to see the recurring efforts by the Colombian Congress to destroy this equality of treatment; this time producing a perception that the agreement may end up shielding members of the armed forces and falling short on land reform and other areas of key interest to coca-growing communities. Perception matters, and yet misguided short term political considerations keep making governments ignore it.