On September 1, President Alan García issued four executive decrees, ultimately impacting the trials of military and police officials for crimes against humanity. Twelve days later, famed Peruvian novelist Mario Vargas Llosa resigned in protest from his post as chair of the commission in charge of the Lugar de Memoria (Memorial Place), a museum to be built to honor victims of Peru’s 1980-2000 internal conflict. Hours after Vargas Llosa stepped down, President García sent a bill to Congress to repeal the controversial executive decree 1097. As a result of the 20-year period of intense violence between Maoist Shining Path militants and the military, specifically the military intelligence unit Grupo Colina, in which 70,000 people were killed, the Peruvian government passed several laws that would grant amnesty in some form to military and police officials charged or convicted of human rights abuses. Ex-president Alberto Fujimori enacted a blanket amnesty law in 1995, which was later ruled unconstitutional by the Inter-American Court of Human Rights. On April 7, 2009, president Fujimori was convicted on four counts of crimes against humanity and was subsequently sentenced to 25 years in prison for his role in the killings and kidnappings by the Grupo Colina death squad during his administration’s campaign against left-wing rebels in the 1990s.

Although the repeal of executive decree 1097 is a victory for human rights advocates, there is still the issue of decree 1095. While amnesty laws can be beneficial to post-conflict societies when they are specifically defined and are put in place to help society move forward, those enacted in Peru’s recent history tend to be wide sweeping with no repercussions for those who are accused of committing crimes in the past.

How did President García receive the authority to make executive decrees and why was decree 1097 the most controversial? How did international and local human rights advocates influence President García to initiate a repeal of decree 1097? How can the pattern of controversial amnesty laws be prevented in Peru in light of recent accomplishments by the human rights community?

Reactions to human rights crimes

President García has less than a year left in his presidential term. On March 12, he requested executive decree powers to address the military code of justice. On July 3, the Peruvian Congress granted President García the power to make executive decrees for a period of 60 days. Jo-Marie Burt, professor of political science at George Mason University, told Just the Facts that Congressman Rolando Sousa, head of the Commission of Justice, was the primary writer of a series of requests to Congress, one of which extended his requested powers to the issue of human rights crimes. Congressman Sousa is closely aligned with former president Fujimori and is a member of the law firm that represented him and most of the military officials and police in their trials.

Decree 1097 was the most controversial of four decrees issued on September 1. The new rules amended the law so that suspects on trial for crimes against humanity could only be tried if the crime occurred during 2003 or after. The Peruvian government argued that although it is a signatory of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, the rules in that agreement are only applicable to crimes that occurred after it ratified the Convention on March 23, 2003. Additionally, all investigations must occur within the already lawful timeline, and if they exceed that deadline the investigations must end. The suspect cannot be tried for the crime again, although other people may be tried for the same crime. Decree 1097 would enforce Peru’s existing law that investigations only last up to 18 to 36 months, depending on the severity and complexity of the case. However, the court system in Peru has on several occasions extended that time frame to 72 months for complex crimes involving human rights violations.

Experts believe that although President García signed the decrees into law, Defense Minister Rafael Rey actual wrote them. At a press conference after the decrees had been issued, Defense Minister Ray insisted that the point of the law was not to protect members of the Grupo Colina on trial for the 1991 Barrios Altos and the 1992 La Cantuta massacres, during which a combined total of 25 people were killed. Instead, he explained that decree 1097 was meant for the benefit of military and police officials “who fought selflessly against terrorism” and “who are persecuted and investigated for years, and have not been sentenced.”

Dr. Louise Mallinder of the Transitional Justice Institute at the University of Ulster asserts in her report Global Comparison of Amnesty Laws that amnesty laws can be helpful to a post-conflict society when they are focused on achieving a higher goal, as opposed to simply avoiding punishment. “Conditional amnesty” is one in which the accused only receives amnesty if they comply with certain conditions. Mallinder writes that, “In such cases, offenders are exempted from penal sanction in exchange for testimony, either uniquely or in conjunction with other conditions, such as demonstrating remorse, contributing towards reparations, or performing community service. Where the amnesty is linked to truth-recovery mechanisms… amnesty becomes a tool to facilitate greater truth recovery.” Therefore, while those benefiting from the amnesty rules avoid trial, they must still admit their part in the conflict. The amnesty can also contribute to improving society by engaging in community service instead of serving a jail sentence. Under Peru’s previous blanket amnesty laws, officials granted amnesty are simply allowed to go free. As a result, many of them end up in the U.S. and are never held accountable for their actions, according to Professor Burt.

Decree 1097 repealed

After a visit to Peru, during which he spoke with Defense Minister Rey directly, Martin Scheinin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, spoke to the Inter Press Service (IPS) explaining that decree 1097 produced “the perception of a climate of impunity.” Human Rights Watch, Amnesty International, the Inter-American Commission on Human Rights, and several other international and Peruvian human rights organizations all expressed similar concerns and called for a repeal of decree 1097. On September 10, IDL-Reporteros, an independent organization of investigative journalists, reported that Defense Minster Rey met with Vice President Luis Giampietri’s lawyer Sergio Tapia on August 24 to review a draft of the law before it was presented to the President on August 25. (Vice President Giampietri is facing trial on criminal corruption charges for his role as vice admiral in the 1986 El Frontón prison massacre, during which naval forces killed at least 118 prisoners while trying to subdue a riot.) According to IDL-Reporteros, president Fujimori’s lawyer César Nakasaki, who also represents most of the military officials on trial, also influenced the content of decree 1097. IPS claims that the formation of the decrees began well before Congress had granted President García any executive decree power. As early as September 6, three cases involving members of the Grupo Colina requested that their cases be dropped in light of executive decree 1097.

However, the Peruvian government continued to defend its actions until Mario Vargas Llosa resigned in protest on September 13. Vargas Llosa is one of Latin America’s more celebrated and central writers, as well as a staunch social activist. In his resignation letter to President García, Vargas Llosa wrote that decree 1097 “in all forms, constitutes an amnesty barely disguised to benefit a good number of people… convicted or prosecuted for human rights crimes” and that “there is, in my opinion, an essential incompatibility between, on the one hand, promoting a monument to pay homage to the victims of violence that the Shining Path unleashed in 1980 and, on the other, opening through a judicial ruse the prison door for those, who in the framework of this disastrous rebellion of fanatics, also committed horrendous crimes and contributed to sow anger, blood and suffering in Peruvian society.”

On the same day, President García sent a bill to Congress to repeal the decree. On the afternoon of September 14, Congress voted 90-1 in favor to repeal the decree after a three-hour vote. According to IPS, the only congressperson to vote against the repeal was Vice President Giampietri. Congressman Yonhy Lescano, who introduced the bill to repeal decree 1097, told IPS that in addition to the concerns of human rights advocates, “there was an obvious conflict of interests. People outside of the State cannot be allowed to quietly draft laws in coordination with the defense minister.” Defense Minister Rey resigned on September 14 in light of the controversy.

Pattern of amnesty

The president of the International Center for Transitional Justice (ICTJ) David Tolbert points out in their September press release that, “The Peruvian Congress’s ability to recognize and rectify an evident transgression of victims’ rights is a sign of a healthy, democratic institution. However, other legislative decrees are still disconcerting and, generally, the delay of pending cases for serious human rights-related crimes is worrying.” Decree 1095 grants jurisdiction solely to the military courts for the investigations of crimes committed by a member of the military. Many human rights groups have continuously maintained that any violence committed against civilians should be tried in civilian courts because the military often protects its own members. Additionally, decree 1095 approves the use of force by the military and police against “hostile groups,” which according to the Peruvian Times on September 6 has a definition “so broad that it could be used to criminalize certain social protests, and more specifically protests by indigenous communities.”

Eighty-five per cent of the victims of Peru’s internal conflict were poor indigenous peasants. The Peruvian Truth and Reconciliation Commission, a temporary group formed in 2001 to investigate the internal conflict, reported that this statistic revealed the ongoing persecution of indigenous communities in Peru. Recently, the indigenous population has held multiple protests to protect their land in the Amazon from companies drilling for oil, mining, or timber collecting under the U.S.-Peru Free Trade Agreement. On June 25, 2009, what has become known as the Bagua Massacre resulted in at least 34 people dead, when President García authorized the use of force to quell the protestors.

The fact that the other controversial decrees, especially 1095, remain in place while only 1097 was repealed reveals that the human rights battle in Peru is not yet over despite recent steps forward. Just as trials are individually held for each accused official, every amnesty law is addressed individually. President García is not the only Peruvian president to pass amnesty laws. President Fujimori signed two amnesty bills in 1994 and 1995, which were very similar to the recent decrees by President García. The 1994 Cantuta Law placed a trial regarding the La Cantuta Massacre in the jurisdiction of the military court instead of the civil court. The 1995 law is commonly referred to as a “blanket amnesty law,” allowing any government, military and police accused or convicted of crimes during the war between 1982 through 1992 to be set free. As of yet, there appears to be no system in Peru to prevent more amnesty laws that, intentionally or not, slow down and interfere with the ongoing human rights investigations for crimes committed up to 20 years ago.

Aside from repealing amnesty laws, the Peruvian government could instead amend the decrees to make them more specific, as Dr. Mallinder recommends for successful and useful amnesty laws. Peru’s Supreme Court could also rule that the decrees are unconstitutional and refuse to apply them to current trials. If it fails to rule the decrees unconstitutional, a case could be brought to the Inter-American Commission on Human Rights (IACHR), which overturned president Fujimori’s 1995 amnesty law as unconstitutional. However, the IACHR takes years to issue its decisions—it took until October 2001 to overturn president Fujimori’s law. According to Professor Burt, these are the only options so far for battling laws that inhibit justice for human rights violations. However, she also believes that international pressure from other countries would show the Peruvian government that the international community is continually monitoring the protection of human rights. As it is, the U.S., according to Burt, is “notoriously quiet” on the issue of human rights in Peru because it is “a stable, reliable ally in a region that is increasingly hostile to U.S. interests.” Burt states that, “If the United States believes in the rule of law and human rights, the Ambassador should say that this is unacceptable.” Adam Isacson of Just the Facts points to the notion that if the international community does not monitor the situation in Peru, it “gives Peru a lot of room to operate on the fringes of human rights.”