Pérez-León Acevedo final - Oxford Transitional Justice Research

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Pérez-León Acevedo final - Oxford Transitional Justice Research

Reparations and Prosecutions after Serious Human Rights Violations:Two Pending Issues in Peru’s Transitional Justice AgendaJuan Pablo Pérez-León Acevedo22 March 2010Peru’s internal armed conflict lasted twenty years (1980-2000). The Truth andReconciliation Commission (TRC) 1 found that 69,280 people were killed in hostilitiesbetween, on the one hand, the Maoist movement, the Shining Path, and the leftist TúpacAmaru Revolutionary Movement, and, on the other, the armed forces and self-defencecommittees. The rural population was the most severely affected as rural inhabitantsaccounted for 79% of the fatalities, of whom 75% spoke Quechua or another indigenouslanguage, and 56% came from areas with economies oriented towards agriculture. TheTRC attributed 55.5% of crimes to non-State actors, especially the Shining Path. Theremaining 44.5% fell under actions conducted by State armed forces and self-defencecommittees.This essay will provide an overview of the Peruvian process of reparations andprosecutions after serious human rights violations, focusing on aspects yet to beimplemented. I argue that the current legislative framework, along with practicalresource conditions, are either undermining or even blocking the potential ofprosecutions and reparations – in the form of accountability and redress respectively -to consolidate transitional justice in Peru.I have focused on reparations and prosecutions since they were extensivelyrecommended and perceived by the TRC as being crucial to fulfil the transitional justiceand reconciliation efforts that the TRC initiated. Additionally, many Peruvians considerthe fight against impunity as crucial; indeed reparations and prosecutions are understoodas intertwined in the struggle for transitional justice in Peru.ReparationsThe TRC, in the recommendations section of its Final Report (2003), 2 suggested theimplementation of what was called a ‘Full Plan of Reparations’, designed to help to healthe injuries inflicted by the violence, prevent a repetition of the past and foster thenecessary conditions for reconciliation. 3 Even though an important share of therecommendations on reparations – modalities, beneficiaries, mechanisms, etc. - made bythe TRC have been implemented by the Peruvian State, there have been some setbacksin this implementation that have greatly affected the transitional justice process in Peru.Moreover, as the TRC warned, 4 the success of reparations policies depends on theexistence of strong political will, especially from the government, which is preciselywhat has been lacking in recent years.1 The TRC’s Final Report is available in Spanish at:http://www.cverdad.org.pe/ingles/ifinal/index.php. Last visit, 1 August 20092 TRC. Informe Final, Tome IX, Recommendations of the TRC towards reconciliation, Lima, 2003, pp.146-209.3 Ibid., p. 146.4 Ibid., p. 147.Oxford Transitional Justice Working Papers Series

In order to follow up and implement the recommendations of the TRC, the PeruvianCouncil on Reparations was established in 2005 to register individual victims andcollective beneficiaries on the Unique Victims Registry. 5 While the registry is growing,there are nevertheless pending tasks including the strengthening of the reparationsprograms and allocation of resources towards it. 6Thus, the Registry has endured budgetary cuts, which have partially been compensatedfor by civil society. 7 Subsequently, the process of determining beneficiaries who can beadded to the registry of victims has slowed down. These factors and others have led to agrowing distrust, particularly among victims and human rights organizations, in thegovernment’s commitment to paying compensations for human rights abuses.The TRC also called for collective reparations. The government has interpreted these asinitiatives related to the restoration of communities’ basic services and productivecommunal infrastructure. These initiatives have been entirely oriented towardscommunity development, 8 and have been used to compensate for the lack of basicservices. This distorts the nature of reparations as there is no direct link between thedamages caused by armed violence and the projects undertaken as collectivereparations, especially when one bears in mind that the communities have not had thechance to identify community needs nor to chose the most appropriate reparationsprojects. 9In terms of the legal framework that lays out Peru’s reparations plan, the exclusion ofmembers of subversive organizations such as the Shining Path from the possibility ofreceiving reparations 10 is controversial. 11 Indeed, the Inter-American Court of HumanRights (IACHR) has obliged states to provide reparations to redress state wrongdoingsregardless of victim’s participation in subversive movements. 12 Peru’s legislation hastherefore unfairly distinguished victims who ‘deserve’ to see redress from others fromthose who do not. Some sectors within the Peruvian government consider it unthinkable5 See, Act No. 28592, which established the Full Reparations Plan of 28 July 2005 available in Spanish at:http://www.planintegraldereparaciones.gob.pe/pdf/ley28592.pdf. (Accessed 15 October 2009).As of 23 September 2009 there are 55 959 persons signed up in the registry. Statistics obtained from:Presidencia del Consejo de Ministros / Consejo de Reparaciones, Información sobre el Registro Único deVíctimas, Official Letter No. 832-2009-PCM-CR/ST, Lima, 14 October 2009. On file with the author.6 Office of the Ombudsman, A cinco años de los procesos de reparación y justicia en el Perú, Lima,2009, p. 303.7 For further information see: Coordinadora Nacional de Derechos Humanos, Informe Anual, Lima, 2008,pp. 209-212.8 Sonia Paredes, Julie Guillerot and Cristian Correa, Escuchando las voces de las comunidades. Unestudio sobre la implementación de las Reparaciones Colectivas en el Perú, Lima: APRODEH /International Center for Transitional Justice, 2009, p. 30. For example, in polls conducted by the PeruvianNGO APRODEH in four departments –Apurímac, Ayacucho, Huánuco and Junín- during the secondtrimester of 2008, only 23% of those polled identified the aforementioned projects as reparations.9 Ibid., p. 29.10 Act No. 28592 setting up the Full Reparations Plan, article 4.Law complemented by Rules passed on 6 July 2006 (as modified by Supreme Decree No. 003-2008passed on 2 February 2008), article 52.a.11 The TRC considered that the members of subversive organizations killed or injured as a directconsequence of the hostilities were outside the scope of reparations beneficiaries unless the damages wereinflicted in violation of their human rights. TRC. ob.cit , Tome IX, p. 161.12 The Inter-American Court of Human Rights has ordered reparations for victims convicted ofparticipation in subversive or guerilla movements. See, Neira Alegría et al. v. Peru Case, Judgment of 19September 1996, series C No. 29, para. 5.Oxford Transitional Justice Working Papers Series

extent, these necessary steps have not been adopted due to a lack of political will by thecurrent administration to implement a timely and effective judicial policy.In order to more realistically handle the overwhelming backload of cases related to the1980- 2000 conflict, a selective approach to justice should not be dismissed. If such anapproach were taken, cases to be dealt with first could be selected according to criteriaincluding the dimension of atrocities, the impact on the communities and elapsed timesince the crime. This does not entail excluding victims from the processes of justice.Instead, it requires the creation of a feasible and progressive timetable for prosecution.The current alternative, the simultaneous handling of all the cases suggested by theTRC, could weaken the transitional justice process, particularly given the multitude ofobstacles, including serious lack of political will, currently facing prosecution forhuman rights violations during Peru’s conflict.ConclusionWhen it comes to reparations and prosecutions after serious human rights violations inPeru, inconsistencies in the legal framework and lack of resources have greatlycomplicated the transitional justice process since the TRC. This becomes more complexas new cases related to Peru’s armed conflict have recently been uncovered.Accordingly, certain legislative changes grounded in international law along with thenecessary state funding are cornerstones to get Peru’s transitional justice back on track.These changes logically demand strong political will from the government, which hasregrettably been lacking from the current administration.Juan Pablo Pérez-León Acevedo is an attorney and a legal adviser at the NGONational Human Rights Coordinator (Peru) and a lecturer in internationalcriminal law and international human rights law at the Institute for Human Rightsof Abo Academy University (Finland):pe.le.ace@gmail.comOxford Transitional Justice Working Papers Series

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