08 Aug The Problem with Peru’s Armed Conflict Debate: Some Comments On My Recently Published Book
A few weeks ago I presented my book on the Peruvian armed conflict at FIL, Lima’s International Book Fair. The book, “Conflicto Armado en el Perú: La Época del Terrorismo bajo el Derecho Internacional” (“Armed Conflict in Peru: The Times of Terrorism under International Law”), published by Universidad del Pacífico Press, explores how politicized misinformation on the conflict’s history has tarnished the concept of international humanitarian law both in Peru and the broader Latin American context.
Before I explain why, though, lets backtrack a little bit. What is the Times of Terrorism? And what happened in Peru in the 1980s and 1990s? On May 17, 1980, as Peru was preparing for its first democratic election in almost two decades, a group of hooded individuals irrupted into a polling station and destroyed all the ballots. At the time, the event barely made the news. Now, it is widely known in Peru as the first time anyone heard the name of the Shining Path.
According to this group’s terrorist ideology, Peru required periodical cultural revolutions that would lead it to a classless, moneyless society, ruled by an authoritarian and militarized “party”, under the banner of a “New Democracy”, meant to replace the old failed one. To accomplish this, Abimael Guzmán, the Shining Path’s leader, sought to take over large swathes of the food-producing Andes, subject its indigenous Quechua populations to survival farming, starve the cities, and collapse the country. According to Peru’s Truth & Reconciliation Commission, there are some 24,000 known cases of dead or disappeared persons, with the total number estimated at about 69,000, 46% of these caused by the Shining Path, and 30% by state forces. 75% of victims spoke Quechua as a native tongue, despite the fact that at the time the language was only spoken by 25% of the country.
The country, however, experienced this violence in different ways, depending on geographic location. In the impoverished Andes, violence followed a pattern: the Shining Path arrived at a small indigenous community, killed the mayor and city council, replaced it with five party-loyal “commissars” and proceeded to take over the lives of every single villager. Profits were banned, inter-communal travel was banned, fairs and marketplaces were banned, and the indigenous villagers were forced to abandon their ancestral ways to serve the political purposes of the “party” or face summary execution. At some point, an army patrol would show up, and demand information on the commissars, or else. In the words of infamous Peruvian General, Luis Cisneros, to be “successful” government forces had to “kill 60 people, and at best 3 of them would be Shining Path… and the police will say all 60 were Shining Path”.
Trapped in the crossfire, the Quechua indigenous communities took matters into their own hands, and set up what they called “rondas campesinas” – armed resistance groups that would protect the villages from Shining Path incursion, stopping the cycle of violence before it could start. It took the government 9 long years to realize it had to collaborate and support these indigenous defense groups – an alliance that ultimately led to the government’s military victory and the Shining Path’s defeat in the mid 90s.
Shining Path violence, however, was felt in a completely different way in Lima, the capital, where a third of the country lives. The Shining Path was never able to “starve the cities” and could never actually take over any large population centers. In Lima, the Shining Path expressed its violence through acts of terrorism and the selective assassination of political opponents. Limeños lived their lives under siege, not knowing where the next bomb would blow off or who would be assassinated next. Ask any Limeño over thirty (me included) and they will have at least one story of a bomb, a murder, a kidnapping close to their family and friends.
The differences between urban and rural experiences with the Shining Path created different versions of collective memory. The Andean campesino will remember forced displacement, military skirmishes and counter-insurgent strategies. The urban Limeño will remember urban terrorism and bombs. In a divided society, many times unaware of each other’s experience, this has created a problem of semantics, that has completely divided the country.
See, in 2003, the Truth & Reconciliation Commission published its Final Report concluding that the fight against the Shining Path could only be understood as a non-international armed conflict. The claim was particularly controversial. Since the beginning of the Shining Path’s campaign of violence, they had framed their actions in the language of a Maoist “popular war”. The Government, in turn, wary of legitimizing the Shining Path before the international community, refused to recognize the existence of an armed conflict from the start. In the war of narratives that ensued, the language of conflict was eschewed aside, while that of counter-terrorism took center stage.
In the minds of many (urban) Peruvians therefore, by using the language of conflict, the Truth & Reconciliation Commission’s report was committing anathema. Much worse, the report’s introduction included a fateful paragraph on the notion of terrorism stating that “the TRC is not convinced that this term [terrorism] manages to describe with precision the wide range of conducts undertaken by [the Shining Path], nor that there is wide international legal consensus on its content”. For urban Peru, this was nonsense. The Shining Path’s bombs and assassinations could only be described as terrorism, and by choosing to use the language of conflict instead, the TRC was whitewashing its crimes. The stage was set for what would become Peru’s most enduring political debate in the 21st century: what happened in the 80s and 90? Armed Conflict? Or Terrorism?
Of course, the premise of the debate itself are mistaken. Armed conflict is a legal term that determines the application of IHL. Terrorism is a crime that can be committed both in times of armed conflict or in times of peace. Sources are absolutely clear on this. One does not need to choose between terrorism or armed conflict, one can have terrorism during armed conflict. After decades of politicized misinformation by apologists of Peru’s human rights violations, however, Peruvians are trapped in a senseless debate, unable to move forward and heal the wounds of their past.
The object of my book is to shed light into this debate by introducing key aspects of international humanitarian law into the mix. It explains why the Peruvian experience meets the Tadic standard and what that means in practice, dealing with notions of direct participation in hostilities, detention, and lex specialis. It notes just exactly how little we know in Peru about our own armed conflict because of the pointless terrorism vs conflict debate and tries to de-mystify the absurd notion that using IHL is somehow “pro-terrorist”; that applying it would somehow grant Shining Path members PoW status or grant them recognition of belligerence.
This lack of knowledge, after all, has very real consequences. Take for example the duration of the conflict. There simply has never been any attempt to delineate the Peruvian armed conflict across time. Most Peruvians, including the Truth & Reconciliation Commission, simply state that it lasted between 1980 and 2000. Why 1980? Because the first time anyone ever heard of the Shining Path was on May 17th, 1980, when, as I said above, Shining Path members burned electoral ballot boxes in the town of Chuschi, in the Peruvian Andes. And why 2000? Because that is the year that the autocratic government of Alberto Fujimori collapsed, initiating an interim government that produced Peru’s post-conflict transitional justice mechanisms, including its Truth Commission. Neither of these two claims, however, is grounded on any kind of sound legal analysis. The armed conflict could only begin whenever the organization of the parties and the intensity of hostilities crossed the Tadic standard. In the book, I argue, this did not happen in 1980, but rather 1983, when the army was deployed in the Andes. Something similar happens with the end date of the conflict. The Shining Path’s organization and the intensity of hostilities decreased considerably after the capture of its leader, Abimael Guzmán, in 1992. By 1996, many analysists already considered the Shining Path strategically defeated, with little chance of a resurgence. This means that while the historical period known to Peruvians as the Times of Terrorism may extend from 1980 to 2000, the armed conflict contained within it does not. This one would be limited to the period between 1983 and 1996/97.
This is, of course, not an insignificant piece of information, and yet it is one that is generally omitted by legal actors, including at the international level. In 2015, for instance, the Inter-American Court of Human Rights decided the case of Cruz Sanchez v. Peru. The case involved a hostage rescue operation in April 1997, after 600 members of Peru’s political class were kidnapped by members of the Tupac Amaru Revolutionary Movement (MRTA), another terrorist group, distinct from the Shining Path, active at the time.
One of the arguments by the petitioners was that some of the MRTA deaths during the operation had been carried out arbitrarily. The Inter-American Court decided the case by applying international humanitarian law. However, as discussed above, was it really an operation carried out in the context of an armed conflict? The Court never even cites to the Tadic Interlocutory Appeals decision. Instead, it merely quotes the Peruvian Truth Commission: “since the beginning of the 1980s and until late in the year 2000, there was an armed conflict in said country between armed groups and agents of the police and military” (¶267).
We know already that these dates are likely wrong and that, by 1997, it is equally likely that the conflict had already ended. The Inter-American Court, though, never conducts an analysis of its own, fully trusting the conclusions of the Truth Commission, to the detriment of its case-law.
Another problem is that of the parties to the armed conflict. The vast majority of the Truth Commission’s report deals with the Shining Path, not the MRTA. The Court however once again simply repeats the Truth Commissions argument that it was one of the “armed actors” of the conflict. While definitely an armed actor, though, it is entirely different to claim that the MRTA was a party to the conflict between the Shining Path and the Peruvian State. Considering that the Shining Path and MRTA despised one another, the Court would have had to conduct its own Tadic determination to see if the state was involved in a separate conflict with the MRTA, not just lump it into the mix. If the answer was (as I believe) no, then it would have had to examine whether the MRTA could be directly participating in hostilities, or whether the proper legal regime was human rights law, not humanitarian law. The Court, of course, blinded by Peru’s hamstrung and uninformed debate, did none of this. It simply applied IHL, without further examination.
Cruz Sánchez is not the only example where Peru’s politicized debate has affected the application of IHL in the region. I may comment more on this in future posts. For now though, I think a valuable conclusion from all of this is that domestic context matters, and that in Peru, there is a powerful distorting view of IHL that is harming its dissemination and development. I hope my book can serve as a first step to changing this and setting the record straight.