Doing Justice to History Symposium: Doing Justice Through History

[Alonso Gurmendi Dunkelberg is a Departmental Lecturer in International Relations at the University of Oxford, in association with Somerville College, as well as Visiting Professor at the University of Michigan, Ann Arbor.]

Doing Justice to History is an amazing book and a fascinating read, particularly for those of us who, like me, enjoy studying the connections between international law and history. Barrie Sander has done an excellent job in pondering the question of whether courts are the right place for history to take shape, especially in the context of contentious processes like armed conflict, gross human rights violations, war, etc.  

Through this book, Sander sheds light into what he describes as a “somewhat ironic picture: courts promoted as mechanisms to challenge denial have risked becoming forms of selective amnesia, instruments of legitimation that reflect and potentially reinforce patterns of domination in the existing international political order, displace attention from structural and slow forms of violence, marginalise the ambiguities and possibilities of individual agency in mass atrocity contexts, and understate the contributions of economic and international actors towards episodes of mass violence” (p. 312).

It is easy to write about what one disagrees with. It is much harder to write about what one not only agrees, but finds particularly engaging and innovative. I don’t think I have much in terms of criticism, but I would like to offer some thoughts that were inspired by reading the book. One thing that kept me thinking as I read was the idea of court-constructed history as the result of choices. Which prosecutorial targets are chosen, which crimes are prosecuted, how is culpability approached, unwittingly construct a historical narrative, produced not by historical but by legal method. The purposeful construction of overarching historical narratives is not something that is discussed at length in the book, which focuses instead in history as the unwitting result of legal choice. In the case of Sierra Leone, for instance, Sander explains how the Special Court for Sierra Leone omitted structural violence from its constructed narrative (p. 253). Sander therefore concludes that “the paradigm of individual criminal responsibility not only reduces the visibility of structural and slow violence, but also renders legally irrelevant questions concerning the relationship between structural and slow forms of violence and the outbreak of mass atrocities” (p. 256).

I find this particularly interesting, considering my own country of Peru and the role international courts and truth commissions have played in the construction of its history. Peru is in fact a country trapped by an internationally constructed history that quite purposefully chose to address it – with (at least in my opinion) less than stellar results. So, just as Doing Justice to History is a warning for the careless engagement with history, allow me to take this space to issue yet another warning: the pitfalls of trying to do justice through history. What happens when Courts don’t just construct history by omission, i.e. by the judicial and prosecutorial choices they make, but rather by embracing specific historical narratives?

Let me start by setting the scene of the Peruvian situation. Throughout the 1980s and 1990s, Peru experienced a wave of terrorist and insurgent violence at the hands of two groups: the Shining Path and the Tupac Amaru Revolutionary Movement (MRTA). After a decade of little counterinsurgent progress, as of 1992, the authoritarian government of Alberto Fujimori, in alliance with the military, managed to control the threat, but by also carrying out a policy of mass human rights violations and crimes against humanity, attacking the civilian population in order to defeat the enemy within. Almost 70,000 Peruvians died as a result of the Shining Path and MRTA’s violence and the government’s brutal crackdown. In the early 2000s, Peru created a Truth & Reconciliation Commission (TRC) to, inter alia, “analyse the cultural, social, and political conditions, as well as the behaviours, that, both from society and state institutions, contributed to the tragical situation of violence Peru went through”.

The TRC concluded that its mission involved a historical task. As the TRC noted in the introduction of its report, “after careful historical consideration, we must admit that a society cannot learn to peacefully and justly co-exist if it is not capable of recognising its wounds and its pain, if it does not return to look at its past in search of lessons” (p. 30). But it was also a legal task. It was, after all, tasked with “contributing to clarify the crimes and human rights violations” committed by all parties. The TRC had to “recur to the best contributions of international law, in light of the obligations freely and sovereignly assumed by Peru” (p. 23).

Aware of this historical and legal task, the TRC decided to address Peru’s post-conflict situation through two main perspectives: 1) it made the decision to classify the nation’s counter-terrorist strategy against the Shining Path and the MRTA armed groups as an armed conflict under international humanitarian law, and 2) it decided to study the history of the conflict in the context of Peru’s history of structural inequality. Thus, the TRC concluded that the Peruvian armed conflict had had a two-tiered explanation: the most immediate cause, it said, was the decision of the Shining Path (and only the Shining Path) to launch an assault on Peruvian democracy. At the more structural level, however, the Shining Path sought to “exploit old historical fault lines, that are transversal to the Peruvian state and society, taking advantage of the grave mistakes committed by the successive governments since 1980 and the armed forces and national police in trying to respond to the challenge” (p. 13).

The TRC concluded that the Shining Path failed in this mission; that it “was never able to win the support of important sectors of Peruvians, particularly those poor and rural” (p. 13). But, the TRC also emphasised, if the Shining Path was able to convince hundreds of people to join its ranks, it was only because it “offered its followers a narrative that produced the illusion of covering all reality and the possibility of making themselves heard and being able to silence others” (p. 21). This was a controversial conclusion. It led some to ponder whether the TRC was saying that poverty and structural inequality justified (or at least explained) the Shining Path’s insurgency – something that contradicted its original claim (and the academic consensus) that the Shining Path had not been a “peasant rebellion”, but rather an urban, university-bred, Spanish-speaking, Leninist-Maoist party. In other words, impoverished peasants had not risen up against inequality, a small group of insurgents, some but not most impoverished peasants, had taken over impoverished communities, and ruled them with an iron fist, leading to tens of thousands of dead Quechua Indigenous people.

The controversy surrounding this structural historical argument eventually polluted the (correct) legal claim that Peru’s situation had to be understood as an armed conflict under international law. In Peru, many (wrongly) feel that speaking of an “armed conflict” legitimises the Shining Path and MRTA’s actions, by granting them “belligerent status” and excepting them from domestic criminal law. For the majority of Peruvians (69% according to a 2018 poll), the fight against the Shining Path and MRTA should not be described as an “armed conflict”, but rather as a “war against terrorism” or a “counter-subversive struggle”. Only 16% accepted the Truth Commission’s classification, with many associating (again, wrongly) that “armed conflict” is exclusive of “terrorism”. “Peru did not have an armed conflict, it had terrorism” has since become a common chant.  

By the time this debate started, however, the Inter-American Court of Human Rights had already decided many cases finding Peru’s counter-terrorist policies to be in violation of the American Convention on Human Rights. Many of these judgments even led to the prosecution and sanction of high-ranking government officials, including former President Alberto Fujimori.

How the Court narrated the history of Peru’s policies, however, varied significantly, pre- and post-TRC. In 1999, for example, before the fall of the Fujimori regime and the publication of the TRC Report, the Court decided the case of Castillo Petruzzi v. Peru. Castillo Petruzzi was a high-ranking member of the MRTA who had organised the kidnapping and assassination of several civilians. In this case, the Inter-American Commission was arguing that his trial, before a faceless military judge, contravened due process rights.

In its judgment, the Court described Peru’s situation as follows: “From 1980 to 1994, Peru experienced a terrible social upheaval caused by terrorist violence” (para. 86). In this context, one of peace, not of armed conflict, the Court concluded that Castillo Petruzzi’s trial by a military court had therefore been anticonventional and contrary to human rights, specifically because he was a civilian: “Transferring jurisdiction from civilian to military courts, thus allowing military courts to try civilians accused of treason, means that the competent, independent and impartial tribunal previously established by law is precluded from hearing these cases”. The Court, in fact, was very detailed about this: “In effect”, it said, “military tribunals are not the tribunals previously established by law for civilians”, because “[h]aving no military functions or duties, civilians cannot engage in behaviours that violate military duties”. It is this reason, the Court argued, that creates a violation of due process rights (para. 128). The Court therefore annulled his sentence to life imprisonment and ordered a new trial, where his punishment was reduced to 23 years. He is now free, living in Chile.

But then 1999 became 2003 and the TRC issued its report describing the situation not as a “social upheaval caused by terrorist violence”, but as a “non-international armed conflict”. In 2015, the Court decided another case involving members of the MRTA. This time, in Cruz Sanchez v. Peru, the Commission petitioned the Court to find that Peru’s military operation to free hostages held against their will by the MRTA in the Japanese Ambassador’s residence in Lima had violated the right to life. While the Court did find that in two cases, Peruvian armed personnel arbitrarily killed MRTA members who had already surrendered, the Court approved most of the operation, particularly refusing to condemn killings of MRTA members that happened during the rescue operation itself.  

The reason for this, the Court explicitly said, was because it decided to use the TRC’s report to contextualise Peru’s history as an armed conflict. The Court thus “turned repeatedly” to the TRC as a “key point of reference, as it offers a comprehensive view of the armed conflict in Peru” (para. 139). But the Court never actually conducted its own historical and/or legal evaluation of what it had previously described as a “social upheaval caused by terrorist violence”. It instead “recognized” that “in the early 1980s and until the end of 2000, Peru experienced a conflict between armed groups and members of the police and the military forces”, in the exact terms of the TRC (para. 140).

In simply adopting the TRC’s narrative, the Court arguably repeated some of its same mistakes. Particularly, it is questionable that the MRTA was a party to the armed conflict, considering that it was never able to set up a stable guerrilla front and rather engaged in more isolated crimes like kidnapping and targeted assassinations. Similarly, in uncritically assuming the TRC’s historical retelling, the Court did not take into consideration its effects on its own prior caselaw. Take the Court’s views on the legal status of MRTA members at the time of the hostage rescue operation in the Japanese Ambassador’s residence. Given that the Court now “recognized” that Peru was fighting an armed conflict against the MRTA (a highly debatable conclusion, as I mentioned), it argued that “unlike the situation in earlier cases, the alleged victims were not civilians, but members of the MRTA who had taken an active part in the hostilities” (para. 266).

In fact, the Court specifically cited the ICRC’s Interpretive Guidance on the Notion of Direct Participation of Hostilities of 2009 as the basis for this conclusion. Famously, this Guidance proposed the concept of the “continuous combat function” as a tool to differentiate between combatants and civilians in non-international armed conflicts. Thus, the ICRC argued, “members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members by virtue of their continuous combat function” (p. 71).

This rationale, however, would necessarily also apply to Castillo Petruzzi, who was also a member of the MRTA with a continuous combat function, meaning that one of the fundamental rationales for the Court annulling his initial sentence (that he was a civilian, not triable by military court) was wrong. He was, in the Court’s post-TRC view, a combatant. And the question of whether he could have been tried by military court as a non-civilian, but also not a member of the Peruvian armed forces, was never explored.   

These kinds of inconsistencies, produced by the Court so carefully omitting mention to its prior assessment of Peru’s history, have had dire consequences for its legitimacy in Peru. After all, even if unwittingly, the Court intervened in Peru’s own domestic debate about how it should tell its own recent history and essentially “took a side”. In so doing, it cemented the idea in public discourse that the TRC’s view of Peruvian history is the “official” version of what happened and that disagreement with it is essentially a sign of authoritarianism or being anti-human-rights.

Ideally, the Court should have looked at the Peruvian situation de novo, relying on, but not blindly accepting, the TRC’s findings. This would have allowed it to avoid some of the mistakes noted above. It could have, for instance, clarified that the MRTA was not a party to the conflict and therefore could not be tried in military court but also could be lethally targeted during a hostage rescue operation within a human-rights, self-defence standard. It could have also engaged with the TRC’s treatment of systemic inequality critically or, in any case, avoided it; not making it its own by giving the TRC special status in Peru’s history. Not trying to incorporate the entirety of the TRC’s report into its appreciation of the conflict would have allowed the Court to carve its own legal and historical narrative of Peruvian history. As per Sander’s findings, it would have probably been a problematic one, but arguably one constituting a more constructive intervention in Peru’s national debate than the alternative. Instead of being viewed by average Peruvians as siding with the TRC, it would have been able to offer a nuanced take, both legally and historically, that contributed to the construction of Peru’s own historical narrative.

Thus, perhaps the Inter-American Court’s most serous mistake was treating the TRC report as the final word on matters related to the Peruvian armed conflict, instead of as the starting point for a wider, nuanced, difficult and much longer national conversation. In trying to strengthen a comprehensive report, thousands of pages long, that specifically addressed structural causes and inequality for an armed conflict, the Court weakened it. It turned it into Peru’s “official history” instead of one of many possible retellings of history – a history capable of being constructed, moulded and perfected as the years and decades passed. Instead, now Peru is divided into two: those in favour and against this “official” history.     

In other words, what I am saying is I agree with Sander’s core take that judicial and prosecutorial choices can be problematic for the construction of historical narratives, and that my solution to this would be to stress the fact that history is not singular, but plural. There is, nor can there be, an “ultimate” or “official” history. There are many histories, even those that agree on the importance of international law and human rights. The TRC’s, the Inter-American Court’s, popular history, etc. The version of history that courts construct, therefore, will be less harmful if it is assumed by everyone to be just that: one of many versions; versions that can change and accommodate new discoveries and evolving norms and rules. In post-conflict settings, where battles over memory and human rights are so important, this may be the only way of doing justice through history.