Human Rights Developments
Peru now ranks as one of the most tormented countries of Latin America. Official statistics show that some 24,000 citizens _ most of them civilians _ have died in political violence since 1980. As many as 200,000 people have been displaced by the conflict, half of them children. Both official forces and the principal insurgents, Sendero Luminoso (Shining Path), murder and torture noncombatants and forcibly involve civilians in the conflict, while the lesser rebel group, the Túpac Amaru Revolutionary Movement (MRTA), also carries out selective executions and bombings. For four straight years, from 1987 to 1990, Peru led the world in new disappearances, according to the specialized U.N. working group. Although there was some reduction in new disappearances during 1991, the practice continues at a high rate. Victims of political execution, disappearance, torture and harassment by official forces during 1991 included peasants, labor unionists, university students and journalists; the elderly and children were not exempted. Sendero victims cover the same gamut, with the addition of politicians and local officials as murder targets, and young boys as forced recruits.
In June 1990, Peruvians elected a new president, Alberto Fujimori, who promised a fresh approach to the counterinsurgency campaign and an end to human rights violations. During his first year, the counterinsurgency plan remained the same; as before, the government responded to rebel initiatives by expanding the territory under a state of emergency and, in emergency zones, establishing Political Military Commands to supersede civilian authority. Nearly half the national territory, and more than half the population of twenty-two million, remained or was placed under a state of emergency _ that is, effective military governance _ during 1991.
The new government's sole innovation, if it could be called that, was to put special emphasis on the creation of village civil-defense patrols, a tactic initiated under the government of Fernando Belaúnde (1980-1985) and continued off and on under that of Alan García (1985-90). The local civil patrols are in some places a genuinely volunteer force, created at the demand of villagers who are terrified of guerrilla violence. But in many cases the patrols were imposed by the official forces as a form of unpaid, unwelcome reserve duty _ dangerous and, very often, aggressive rather than purely defensive. The patrols are frequently guilty of killing noncombatants, and for the first time in 1991 carried out disappearances as well. Because patrols include women and young boys, these normally civilian sectors of the rural population were brought into the conflict.
Predictably, human rights violations, continued during President Fujimori's first year. Indeed, the reduction in disappearances appeared to be balanced by an increase in the number of acknowledged dead, who once more were principally civilian noncombatants. Several massacres in rural areas drew attention to the army's brutality. In some egregious abuses the civil defense patrols participated. Officially tolerated paramilitary violence, including assassinations, persisted, although the death squads appeared to be local phenomena rather than centrally coordinated. Torture took place in both military and police detention centers. On November 3, human rights violations took a new and grisly turn in Peru with the murder of sixteen persons in a barbecue eatery in downtown Lima, perpetrated by a paramilitary group.
These abuses did not appear to correspond to the intentions of the civilian government. However, President Fujimori made gestures of confidence in several officials linked with human rights abuses or responsible for covering them up. In December 1990, the president decreed that crimes committed by military personnel in the emergency zones must be defined as acts of duty and adjudicated in military courts _ a guarantee that the crimes would remain unpunished. This decree was repealed by Congress in February 1991, but congressional reformers were unsuccessful in stopping the presidential promotion, also in December 1990, of two army generals linked to major massacres of the 1980s. On separate occasions during 1991, Fujimori's defense and interior ministers were involved in attempted cover-ups of human rights abuses which called their integrity into question, but neither official was asked to resign.
Both Sendero and the MRTA committed violations of the laws of war, specifically, common Article 3 of the 1949 Geneva Conventions, which applies to rebel groups and forbids murder or mistreatment of noncombatants. Sendero in particular used terror to control civilian communities. Through a network of clandestine and semi-clandestine front organizations, Sendero typically seeks to infiltrate authentic popular organizations and provoke divisions within them. If organizations prove resistant, Sendero executes their elected leadership. Similarly, when peasants do not support Sendero or object to its use of violence, the guerrillas exact bloody reprisals. Favorite targets are the civil patrols, which in Sendero's view represent a village's collaboration with the army and navy, whether or not they are voluntary. Sendero has carried out indiscriminate mass murders in villages as punishment for the creation of a patrol. On November 3, Sendero killed thirty-seven persons in Santo Tomás de Pata, Angaraes, Ayacucho, ostensibly because they had formed a civil patrol.
During 1991, Sendero continued to be active in most of Peru, increasing its attacks in and around Lima and in the strategically important central states. It is not possible to speak of firm control of population or territory, but Sendero, has by now established itself in the central area of Peru _ principally the department of Junín _ as firmly as it has been established in the highland regions of Ayacucho, Apurímac and Huancavelica since the early 1980s. It has also become a consistent presence, and important factor, in the Upper Huallaga River Valley, which comprises parts of two northeastern states and is the area where small growers produce most of Peru's coca.
The guerrilla groups do not engage directly in coca trafficking, but both receive "protection" money from drug traffickers in the areas where they operate _ Sendero in the Upper Huallaga, and the MRTA further north, in the Central Huallaga _ and so indirectly derive millions of dollars a year from the traffic in narcotics. The competition between the two groups, already intense, is likely to become more so given the financial stakes. Sendero was reported to be making advances on MRTA territory in the Central Huallaga toward the end of 1991.
The drug trade has stimulated corruption in a society where bribery of officials was already common. Crime and corruption linked to drug trafficking, added to the desperate poverty in which most Peruvians live and the spiral of political violence that grips the country, make Peru a place where solutions are both hard to develop and nearly impossible to administer effectively. In large areas of the country, political violence has driven out judges, mayors and other representatives of legitimate authority. In the Huallaga region, drug traffickers suborn local prosecutors, police and military officers. The central government, too, is riddled with corruption, of which recent accusations against former President García provide only one sensational example.
Nonetheless, there have been some admirable efforts to document human rights abuses and explore possible solutions to the problem of political violence. A special Senate commission on political violence gathers monthly statistics and makes yearly recommendations. Politically mixed commissions in both the Chamber of Deputies and the Senate pursue investigations of major human rights cases. During 1991, in an investigation of a 1990 massacre later covered up by President Fujimori's defense minister, the investigating senators recommended that the minister be tried as an accessory.
The Public Ministry, Peru's public defender, contains an office that investigates human rights complaints. Although the government's support for that office has been inadequate, the prosecutors in charge of human rights cases in the central office in Lima and in some regional offices as well have evidently attempted to do their job. On November 8, the prosecutor for Ayacucho, José Macera Tito, was murdered in the streets of Huamanga, the department capital, in front of his children, by two young men presumed to belong to Sendero. Moreover, Peruvian human rights organizations have developed a credible national profile despite the difficulties of investigating complaints in conflict zones. These groups maintain conservative statistics, assist victims, analyze the trends in political violence and make policy recommendations.
In addition, as described below, President Fujimori during the latter half of 1991 instituted reforms demanded by the U.S. Congress which, if seriously implemented, may have a positive effect on human rights conditions.
The Right to Monitor
Each "side" finds fault with Peruvian human rights organizations, because the organizations criticize violations of basic rights by both sides. During 1991, human rights monitors were physically attacked by both Sendero and official forces. Porfirio Suni Quispe, an elected peasant leader in Puno department, a regional parliamentarian and president of the regional congress's human rights commission _ a man with a long history of advocacy for human rights _ was dragged from his home in May by two men in civilian clothes who were believed to be Sendero members and shot to death immediately. The following month, the Sendero newspaper, El Diario, contained an editorial indirectly threatening human rights activists by calling human rights a "bourgeois" idea created "to deny class struggle."
From the government's side, the victim was Augusto Zúñiga Paz, staff lawyer for the nongovernmental Human Rights Commission (COMISEDH). Zúñiga had been pursuing a disappearance case, and had told colleagues that he knew the identity of the perpetrator _ a police officer and explosives expert. The case had been stalled by the Supreme Court but Zúñiga planned to reopen it. In March, Zúñiga received at COMISEDH a hand-delivered envelope which, when he opened it, blew off his left forearm. Zúñiga has left the country for medical treatment. The police investigation has been wholly ineffective, although the Senate has created a special commission to look into the attack.
Harassment has extended to judicial personnel. The victim was Moisés Ochoa Girón, the investigating judge in charge of the case of Hugo Bustíos, a journalist murdered in 1988 after passing through an army roadblock in Ayacucho. In June 1991, shortly after the judge had formally charged two army officers despite the army's failure to cooperate with the investigation, his house was searched by an army patrol, supposedly on suspicion that he harbored subversives, but evidently as a form of intimidation. A secret army document dated in March, signed by General José Valdivia, head of the army for the region including Lima, was made public in July. In it, Valdivia was urged to initiate a military court proceeding so as to stave off the progress of Judge Ochoa's investigation. Later in the year, the military courts exonerated the two officers implicated, and challenged Ochoa's jurisdiction. The Superior Court of Ayacucho ruled in favor of the civilian court, but the defendants have appealed to the Supreme Court, and a final ruling is still pending.
Relations between the government and Peru's human rights organizations were mixed during 1991, becoming more tense toward the end of the year. After experiencing the disapproval of the U.S. Congress, the Fujimori government blamed human rights organizations for Peru's poor reputation. In speeches to military officers in September and October, he attacked what he called "pseudo-human rights organizations," falsely accusing them of not criticizing the deeds of the insurgencies. He repeated these wrong-headed and false accusations in statements to the press in Spain in October and again in an October 31 open letter to the Inter-American Commission on Human Rights of the Organization of American States (OAS), which was then visiting Peru. Such declarations are a sign of polarization and defensiveness. They also might be taken by some extremists to represent tolerance of reprisals against human rights monitors.
In November, during a visit to San Francisco, California, President Fujimori in public speeches renewed his criticism, this time naming Americas Watch and Amnesty International, and alleging that those organizations do not criticize Sendero. Americas Watch responded in letters to the Peruvian press, and articles in Peruvian magazines also demonstrated, that Americas Watch has criticized Sendero in all of the reports we have published since 1984. Despite this, Fujimori insisted on his accusation: in late November, at a military ceremony in the Las Palmas Air Force Base, he spent a long part of his speech delivering a blistering attack on both Americas Watch and Amnesty International, and ignoring the evidence that his charges of lack of impartiality are plainly false.
In a clear contradiction of that false charge, the Peruvian government issued an "official communique" on November 16, attacking Americas Watch for releasing an open letter to the head of Sendero Luminoso holding the insurgent leader responsible for a war crime committed by his followers: the murder of Peruvian soldiers who had been placed hors de combat by their wounds. The official communique not only contradicted Fujimori's repeated charges that Americas Watch failed to address Sendero abuses, but it also flew in the face of clear international law that the application of the laws of war to a rebel group does not confer it any legal recognition.
On November 12 and 15, the president issued 126 "legislative decrees," promulgated in exercise of powers delegated to him by Congress, to address economic and political emergencies. Many of these decrees concern counterinsurgency problems. One of them establishes long prison terms for whoever reveals information that the army considers secret. This provision has been widely seen as a threat to both the press and human rights organizations; publication of a human rights violation by security forces, or of documents that refer to such a violation, could result in prosecution. Other decrees allow intelligence agents to seize property and conduct warrantless searches, whether or not a state of emergency is in effect in the area. Another decree subordinates civil defense patrols to the authority of the army, and allows draftees to serve their military duty in a civil patrol. An amendment to the law that regulates the state of emergency expands the powers of the "political-military chiefs" to control all aspects of government in their region, to the detriment of civilian authorities. Military and police forces are authorized to enter universities, schools and hospitals without seeking authorization from any civilian official. In case of disturbances, military forces are allowed to take over prisons; the last time they did this, in June 1986, under dubious authority, they murdered scores of inmates after they had surrendered.
Leaders of a wide spectrum of opposition parties have made public their disagreement with the content of the decrees, as well as with Fujimori's act of promulgating them without any form of consultation. In mid-December, the Peruvian Congress was working on repealing at least some of the most controversial provisions. Regardless of what parts of these decrees survive congressional action, they clearly show a disposition on Fujimori's part to provide the military with an even freer rein to commit abuses than it has enjoyed so far in counterinsurgency operations.
In May, President Fujimori signed a bilateral anti-narcotics agreement with the United States. The agreement, the subject of considerable controversy in Peru, had been under negotiation for over a year. It had been rejected by former President García and, once, by President Fujimori himself, for failing to include credible assistance for economic development. The new agreement was written vaguely; its particulars were to be spelled out in various appendices on military and economic aid. Not surprisingly, the military appendix was the first to appear. Signed in July, it projected some $95 million in anti-narcotics assistance for fiscal year 1991, of which $35 million was to be direct military aid.
The U.S. aid plan for Peru involved funding both the police and the military _ principally the army _ to fight narcotics and, inasmuch as the rebels have links to the drug traffickers, to fight the insurgency as well. Human rights conditions in the International Narcotics Control Act (INCA) of 1990 stipulate that to receive U.S. counter-narcotics aid a country's security forces must not practice torture, arbitrary detention, disappearance, or other flagrant human rights abuses; that appropriate international human rights organizations must have unimpeded access to places of detention; and that the government must exercise effective control over all counter-narcotics and counterinsurgency activities. Peru could not meet these conditions in 1991. Nonetheless, on July 30, just two days before Congress adjourned for its August recess, the Bush Administration issued a "determination" justifying aid to Peru, as required under INCA. The determination misrepresented human rights conditions and, in the process, contradicted the State Department's own annual human rights report on Peru, issued most recently in February 1991. The determination also falsely portrayed national human rights groups as supporting military aid, forcing those organizations to issue a public letter of clarification.
U.S. legislators, irritated at the Administration's attempt to rush through a controversial aid package without providing enough time for congressional oversight, and outraged by the spurious claims of human rights achievements, promptly placed a "hold" on the aid for six weeks. A group of ten senators, ranging from Senator Jesse Helms (the ranking Republican on the Senate Foreign Relations Committee) to Senator Chris Dodd (chair of the Senate's Western Hemisphere Subcommittee) wrote a letter to the State Department requesting that the human rights determination be withdrawn. Leaders of the House Foreign Affairs Committee and both Senate and House Appropriations Committees also issued formal demands for a suspension of the aid package.
The determination was deserving of congressional scorn. The Administration ducked the legal requirement that military and law enforcement agencies not be engaging in gross abuses of human rights by insisting that President Fujimori was not engaging in such abuses. And the State Department claimed that the International Committee of the Red Cross (ICRC) had access to all police detention facilities, while in fact at the time of the determination the ICRC was not visiting all such facilities, and was barred altogether from secret military detention facilities, where the bulk of disappearances occur in Peru. The determination was flawed in other particulars, too: ignoring dozens of massacres and hundreds of disappearances at the hands of the armed forces, the State Department dismissed abuses as the isolated acts of rogue soldiers. To bolster a tenuous claim of civilian control over the military, the Department cited three human rights cases allegedly being prosecuted, but failed to mention that in each of the three cases the military had interfered significantly with the civilian authorities' efforts. Death squads were said to be "virtually eliminated," notwithstanding reports by Peruvian human rights monitors that abuses by paramilitary groups had actually increased.
One aspect of the determination that particularly outraged Congress was the claim that Peruvian human rights groups supported the Administration's contention that the government was not engaged in gross abuses of human rights.52 Peruvian human rights organizations furiously disputed the notion, which was later retracted by Assistant Secretary of State for Human Rights and Humanitarian Affairs Richard Schifter. Nonetheless, Secretary Schifter continued to misrepresent the position of Peruvian human rights groups by insisting that they supported U.S. military assistance to Peru; this contention, too, the Peruvian human rights organizations formally disputed.
The issue was addressed at congressional hearings on September 12, where Assistant Secretary of State for Inter-American Affairs Bernard Aronson, Assistant Secretary of State for International Narcotics Matters Melvyn Levitsky, and Secretary Schifter testified in support of the U.S. military aid package. The most disappointing aspect of the hearing was Secretary Schifter's strong defense of the Peruvian Government's human rights record and his minimization of human rights problems. He dismissed concerns about political killings in Peru by comparing the country favorably with Argentina and Chile in the 1970s and El Salvador in the early 1980s, and claimed (erroneously) that Peru suffered "only a few hundred" such killings in the past year. He insisted that disappearances in Peru had been reduced by two-thirds in the past year, based on cases brought before the United Nations Working Group on Disappearances. But as Schifter well knew but did not tell the committees, the U.N. figures reflect only those cases brought before the Geneva-based working group by Peruvian organizations and bear no resemblance to the reality in Peru, where disappearances ran at about the same rate as in previous years for the first half of 1991, and only declined in the second half because of strong international pressure.
The Human Rights Bureau became engaged in other aspects of the Peru determination battle with Congress. Secretary Schifter himself led a group of congressional aides to Peru, and the Human Rights Bureau developed a human rights training package to sanitize the military-aid proposal. By the end of 1991, however, these efforts had failed to convince congressional leaders that the Peruvian armed forces were deserving recipients of U.S. aid. Congress permitted the economic component of the aid to go forward in several tranches, but eliminated $10 million in assistance which had been allocated to the Peruvian army. Some $25 million was provided for training and equipment to the Peruvian navy, air force and police and for the army's civic action program.
Thanks to Congress's willingness to exercise the leverage of foreign assistance, the Peruvian authorities were persuaded to take the first steps toward instituting a series of reforms, including broader access to detainees by the ICRC, and more latitude for prosecutors investigating human rights cases. But a promised public registry of detainees is still far from functional, and little action has been seen to date on the nine test cases of human rights abuse upon which Congress has conditioned the release of aid.53
The Bush Administration's performance on Peru in 1991 was abysmal, but thanks to the language of U.S. human rights law and Congress's vigor in insisting upon compliance with it, the executive branch's eagerness to make an open-ended military commitment to Peru has been stalled. There is some sign that the Administration has been chastened by its grueling human rights policy battle with Congress, and State Department officials appeared to be working more cooperatively with Congress at year's end.
The Work of Americas Watch
Americas Watch was prominent in the effort to apply INCA human rights conditions to the proposed aid, and its recommendations for changes in Peruvian government policies were largely reflected in the demands of congressional leaders to the U.S. and Peruvian governments. A short report, Into the Quagmire: Human Rights and U.S. Policy in Peru, published in September, was widely circulated on Capitol Hill. It outlined the conditions prevailing in Peru during President Fujimori's first year in power _ abuse by agents of the state and rebel forces, corruption and impunity _ and offered a critique of the Bush Administration's arguments for aid. On September 12, Americas Watch also offered testimony on Peru before the House Subcommittees on Western Hemisphere Affairs and on Human Rights and International Organizations, and before the Task Force on International Narcotics Control.
Research and continuous monitoring of Peruvian conditions were done by Americas Watch in Washington and by the Americas Watch representative based in Santiago, Chile. Representatives of the organization visited Peru in May and July. Several campaigns were undertaken on behalf of victims of human rights violations, including numerous letters to President Fujimori.
During 1991, the OAS Inter-American Commission of Human Rights presented two cases against the government of Peru. Americas Watch is co-petitioner in each of these actions; the first regards the forced disappearance of inmates from the El Frontón prison during an uprising in 1986, and the second involves the massacre by soldiers of at least twenty-seven peasants in Cayara in May 1988 and the subsequent forced ydisappearance of nine witnesses to the massacre. On December 11, the Court ruled in the El Frontón case against preliminary objections raised by the Peruvian government; a trial on the merits is expected in 1992.
The authorship of this particularly controversial feature of the State Department determination is a mystery. The U.S. ambassador to Peru, Anthony Quainton, revealed in a meeting with human rights groups that he was unaware of the contention, suggesting that it was added in Washington.
By December, only one of those cases showed some progress: for the first time in recent years, the Peruvian army accepted responsibility for a massacre, and instituted charges in military courts against a lieutenant and five soldiers for the murder of fourteen peasants in Santa Barbara, Huancavelica. In November, a civilian prosecutor investigating the case and the president of the Santa Barbara community were arrested and held for four days under charges of obstructing justice by making accusations against the army.
The notorious case in which Lima police were videotaped as they arrested a medical student and two minors who were later found dead has been bogged down in a jurisdictional conflict between civilian and military courts. The Supreme Court ruled in favor of the civilian court, but then vacated its own judgment on a technicality and will rule again. In the meantime, only the three policemen involved in the actual arrest remain in prison, while higher officials initially arrested in connection with it have been released and are still on active duty. There has been no progress whatsoever in the other seven cases in which the U.S. Congress expressed interest. ICRC access has indeed been granted and ICRC delegates have visited many police and military detention centers. As for prosecutors, however, it appears that only in six or seven instances have they tried to use their newly gained access, without problems. In general, prosecutors are still acting under severe intimidation and prefer not even to try to visit military detention centers. The central registry of detainees has not been created, and State Department officials have reported that technical and bureaucratic complications will delay implementation of this condition for a long time to come.