Emergency Legislation and the Military Code of Justice
Special provisions included in the "state of emergency" legislation protect rapists in uniform and create conditions under which rape occurs with impunity. The legislation, which was first invoked in December 1982, lasts for a renewable period of three months for each defined region. Therefore, the amount of the country covered by the legislation fluctuates. As of the end of 1994, about one-quarter of the country and just under 50 percent of the population lived under emergency legislation.
Although the legislation allegedly was designed to facilitate the government's fight against guerrillas, in practice many of its provision institutionalize impunity for human rights abuses. Independent human rights groups like Amnesty International have estimated that up to 85 percent of the human rights violations that occur in the areas declared emergency zones are the work of the armed forces, particularly the army.142
Under the emergency legislation, the military is given control of a defined region, and is the ultimate authority over the civilian elected andappointed officials. Certain rights, like freedom of assembly and movement, the inviolability of the home, freedom from arrest without a judicial warrant and bans on incommunicado detention, have been suspended. Anyone living in an emergency zone can be arrested without warrant and kept fifteen days in incommunicado detention; typically this is when torture, including rape, disappearances and extrajudicial executions occur. Although any detention must be reported to civilian authorities, formal charges made and the detainees notified of them within twenty-four hours, in practice the military routinely ignores these fundamental protections.
Our 1992 investigation found that while in the "emergency zone," police and soldiers were ordered to assume war names to hide their identities. On patrol, officers purposefully avoided using uniforms that displayed rank. Frequently, arrests or patrols are carried out while personnel are masked. Thus, women who had been raped often said they could not identify their attackers by name or rank, a legally required first step to prosecution.
Finally, emergency legislation also mandates that offenses committed in the line of duty be placed under military jurisdiction, subject to the Code of Military Justice. Thus, in the few cases where an accused rapist has been identified, he has not been put at the disposition of civilian courts for investigation and trial. The impartiality of military courts is highly suspect. Military judges are not legal professionals but officers drawn from the ranks to serve set terms. According to Peru's military code, they are responsible for hearing only cases involving soldiers accused of military-specific crimes. Prior to 1991, military courts judged those accused of human rights-related offenses on only two grounds: negligence and abuse of authority. Sessions of the military court are held in secret. Even the victims or surviving family members are not allowed to participate and are not informed of the verdicts.
Human Rights Watch is aware of only two cases in which an officer has been found guilty of human rights abuse. One involved a massacre of sixty-nine peasants in Accomarca, Ayacucho, on August 14, 1985, by members of four army patrols. It remains the largest single massacre of civilians in Peru's emergency zone. Witnesses asserted that soldiers raped numerous women before killing them. Despite the evidence and eyewitness testimony linking five officers to murder, torture and rape, a military court in 1987 sentenced only one man, Second Lt. Telmo Hurtado, to four years in prison and immediate dismissal on the charge of "abuse of authority with disobedience."
But Hurtado was never confined. Indeed, he was never even dismissed from active duty and was promoted during his supposed sentence. In a rare move, the general prosecutor of the Military Supreme Court, Gen. Luis Carnero Deernardi, questioned the leniency and irregularities involved in the case and filed an appeal. A subsequent army investigation, later leaked to the Lima daily La República, found that all five officers and their men engaged in rape, the burning alive of captured peasants, on-the-spot executions, the murder of witnesses and the wanton destruction of houses.
Again, in 1988, only the most junior officer involved, Hurtado, was found guilty on the same charges—abuse of authority—as in 1987. The others were absolved for only following higher orders. Although the sentence against Hurtado was confirmed and increased to six years in March 1992, he has yet to be dismissed and holds the rank of captain.
The military court made a significant change in the adjudication of human rights cases in 1991, when it adopted part of the civilian penal code to try officers accused of theft, rape and murder in the department of Huancavelica. According to witnesses, on July 4 a combined civil defense-army patrol from the Pampas, Huancavelica military base beat and detained villagers in Rodeopampa, Pallccapamba, Huaraccapta and Miguelpata. About fifteen villagers were taken to the Farallón mine near Rodeopampa and killed, their bodies blown up with grenades. The case, which is known as the Santa Barbara massacre, resulted in formal charges against six officers. For the first time, the military adopted sections from the penal code to convict military men. According to the army, Second Sgt. Carlos Prado Chinchay was charged with aggravated murder, theft and the rape of two women in his custody. Second Sgt. Dennis Pacheco Zambrano was charged with cattle theft and rape. This case was one of nine that were monitored by the U.S. Congress in fiscal year 1991 as a condition for the release of military aid to Peru.
Unfortunately, only one woman, Isabel Quispe Hilario, was willing to testify to a public prosecutor about her rape. Other witnesses who originally agreed to testify, relatives of the victims, and government officials attempting to investigate were subsequently harassed by the security forces and some government officials. Although civil authorities attempted to wrest the case from the military courts, their efforts were unsuccessful.
A dramatic blow against human rights was struck on April 5, 1992, when President Alberto Fujimori violated Peru's constitution by dissolving Congress, suspending the judiciary, jailing members of the opposition and assuming dictatorial powers. These conditions have continued to the present. President Fujimori defended his actions as being necessary to pursue government reforms, combat widespread corruption and bolster the war against the Shining Path. The combined effect of these laws is that anyone can bearrested at any time, on charges that no one has a responsibility to make public, and held indefinitely. Women accused of terrorism or treason and who say they have been raped are now held in circumstances that violate their rights and severely handicap any attempt to obtain justice.
President Fujimori was reelected in April 1995. This vote represented a show of support for Fujimori's economic policies and his government's success in reducing violence, especially from the Shining Path. President Fujimori has retained his emergency powers since his reelection.
142 Amnesty International, Peru: Human Rights During the Government of President Alberto Fujimori (London: May 1992).
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