United Nations Special Rapporteur on human rights and counter-terrorism concludes fact-finding mission to Peru

GENEVA – 8 September 2010: From 1 to 8 September 2010, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Martin Scheinin, conducted an official country visit to Peru at the invitation of the Government. The purpose of his mission was to learn about the Peruvian legislative and institutional framework and policies in the fight against terrorism and whether they are in compliance with international human rights law. The Special Rapporteur would like to thank the Peruvian Government and all his other interlocutors for their positive cooperation in the realization of a successful mission.

During his mission, the Special Rapporteur visited Lima, Ayacucho and Cusco. He met with the Ministers of Foreign Affairs and Defence and Government officials from the Ministries of Foreign Affairs, Justice and Interior, as well as with the Prosecution, the Armed Forces, the Police and the intelligence service. Further, he had meetings with parliamentarians, Justices of the Supreme Court and other members of the judiciary, the Ombudsperson and her regional representatives, the President of the Truth and Reconciliation Commission, and regional and local authorities in Ayacucho and Cusco. He met with representatives of civil society, including non-governmental organizations, academics, lawyers, representatives of local and indigenous communities and of displaced persons, victims of terrorism, victims of human rights violations committed by State authorities and members of the compensation commissions.

Through his meetings and other methods of fact-finding, the Special Rapporteur gathered information on the practicalities and consequences of Peru’s counter-terrorism measures. Valuable insights and experiences were provided by defence lawyers of those accused of terrorist crimes, and by representatives of the State security forces, some of whose members are alleged to have committed human rights violations in the context of the fight against terrorism. In Miguel Castro Castro Prison in Lima and in Yanamilla Prison in Ayacucho he was also able to privately interview suspects and convicts of terrorism-related crimes. The Special Rapporteur also visited a resettled community of internally displaced persons and met with leaders from returned communities.

The Special Rapporteur learned about the violence and internal armed conflict that affected Peru between 1980 and 2000 and the tragic suffering of the population, in particular of the indigenous and peasant communities as a consequence of terrorism, but also of counter-terrorism activities conducted by the State. He commends the comprehensive work undertaken by the Truth and Reconciliation Commission which was established in 2001 and issued an impressive final report in August 2003. Various representatives at different levels of Government informed about efforts and challenges in implementing the recommendations of the Commission.

In his earlier thematic and country specific work on the right to a fair trial in the fight against terrorism, the Special Rapporteur has emphasized the importance of the principle of normalcy, i.e. his strong preference for dealing with terrorism as a serious crime, subject to ordinary proceedings before ordinary courts. Peru provides important lessons in that respect through its abandonment of “faceless courts”. A matter of concern for the Special Rapporteur, however, is that Peru is one of the few countries that have repeatedly resorted to declaring a state of emergency and to derogating from some of its human rights obligations because of terrorism.

One dimension of the counter-terrorism policies of previous decades was the prosecution of a very large number of individuals for terrorism, through trials that did not meet international human rights standards, inter alia, because of the use of so-called “faceless courts”. Retrials followed a Constitutional Court ruling of 2003 that declared unconstitutional several elements in the previously applied legal framework, and led to the acquittal of a major part of the accused who had been wrongly convicted for terrorist crimes. The process of retrials and acquittals has become an important element of the reconciliation process and the restoration of the rule of law in the country. Equally important is the bringing to justice of Mr. Alberto Fujimori Fujimori, former President of Peru, and several of his closest governmental and military aides, through a widely acclaimed trial for gross human rights violations committed during the years when the Constitution and its guarantees were suspended or disregarded.

However, while acknowledging the complexities of these and a large number of other open cases, the Special Rapporteur is concerned that prosecution and punishment of State officials for human rights violations, including killings of civilians, are progressing very slowly and may be subject to old and new legal obstacles. The already existing perception of a climate of impunity has recently been enhanced by the new Legislative Decree No. 1097, which appears to subject criminal proceedings against perpetrators of crimes against humanity committed in Peru before 9 November 2003 to a statute of limitations, although both the Inter-American Court for Human Rights and the Peruvian Constitutional Court demanded the prosecution of all such crimes irrespective of a cut-off date. Another provision in Legislative Decree No. 1097 appears to set an unreasonably strict time limit for the handling of cases concerning crimes against humanity, which in the view of the Special Rapporteur is likely to result in breaches of international law. Many of the Special Rapporteur’s interlocutors took the view that Legislative Decree No. 1097 is unconstitutional and must not be applied by Peruvian courts.

Recently adopted Legislative Decree No. 1095 on the use of force by armed forces on the national territory appears to be based on the erroneous premise that a domestic decision authorising the military forces to exercise the powers of the State in an area within Peru’s territory would trigger the application of international humanitarian law, possibly with adverse consequences for human rights. The definition of “hostile groups”, that under the law are presumed to act as a party to an armed conflict, is so wide that it could encompass social protest movements not carrying firearms. The Special Rapporteur emphasizes that international humanitarian law is applicable only where the objective facts on the ground prove the existence of an ongoing armed conflict between identifiable parties capable of and organized for conducting armed hostilities.

The Special Rapporteur welcomes the adoption by the Peruvian Government in 2005 of Law No. 28592 on the Comprehensive Reparations Programme, which provides for individual and collective reparations to victims of the internal armed conflict. The Special Rapporteur identifies as an element of best practice that the compensation schemes do not differentiate between victims of terrorist violence and victims of abuses by military and police authorities of the State but seek to bring justice equally to all victims of the violence.

Terrorist crimes, committed between 1980 and 2000, affected, to a large extent, the population in remote areas of the country which are characterized by the absence of and the lack of protection by State authorities and hence mostly came to affect extremely poor, discriminated and excluded indigenous and rural communities. The Special Rapporteur considers of utmost importance that the implementation of collective reparation programmes is carried out through effective participation by their beneficiaries. This concerns in particular indigenous peoples and women who often found themselves in the crossfire of the violent conflict. While recognizing the importance of the work by the Multi-Sectoral High Level Commission (CMAN) to integrate regional and local governments in the implementation process, he expresses concern that so far very little regard has been given to the participation of women. This became very clear in his discussions with various interlocutors who were usually unable to identify any gender-specific elements in the implementation of the reparation programmes. Further, the Special Rapporteur is concerned that the obligation to consult with indigenous peoples, as required by ILO Convention No. 169, ratified by Peru, is not duly taken into account within the implementation of the collective reparation programmes. Empowerment should constitute a central element within the reconciliation process. In addition, the Special Rapporteur wishes to emphasize that effective participation helps to avoid experiences of further social injustice and the risk of creating breeding grounds for new waves of terrorism. The involvement of women, indigenous peoples and rural communities in the design and implementation of reparations programmes is in his view a cornerstone in building a society without terrorism.

During his mission, the Special Rapporteur sought information on current forms and threats of terrorism in Peru. He was informed that remnants of the terrorist organization “Sendero Luminoso” (“Shining Path”), the main perpetrator of atrocities against the civilian population and other terrorist crimes between 1980-2000, are now operating mainly in the VRAE region in an alliance with organized crime groups engaged in drug trafficking. It remains unclear to what extent this constitutes an actual threat of a new wave of terrorism, as compared to other forms of organized crime. The Special Rapporteur was also informed of instances of the re-emergence of ideological and propaganda activities, including at educational institutions, that are reminiscent of the slogans of “Sendero Luminoso” but do not appear to be linked to that organization or actual acts of terrorism.

While acknowledging the right and duty of the State to counter terrorism, and aware of the painful ordeal large parts of the population went through during the decades of violence and internal armed conflict, the Special Rapporteur stresses that terrorism can only be combated in compliance with international human rights norms. The principle of legality does not allow for overbroad and vague definitions of terrorism-related crimes. The right to judicial review over any form of detention must be effective also in cases based on terrorism charges. The independence of the judiciary is indispensable in an effective and law-abiding fight against terrorism. The Special Rapporteur is concerned about information received in Ayacucho concerning a judge amending an arrest warrant in a terrorism-related case into a summons to appear before the court and whose dismissal from the judiciary by the competent oversight body is now being sought solely for this reason.

The Special Rapporteur is concerned at the broad formulation of the basic definition of the crime of terrorism in Article 2 of Decree Law No. 25475, which has not been formally amended although the Constitutional Court in its 2003 ruling established guidelines restricting the interpretation of this provision. He reiterates his position that terrorism should be defined through the unjustifiable means it resorts to, namely lethal or otherwise serious physical violence against members of the civilian population or segments of it, or the taking of hostages. Together with the intention to cause fear amongst the population, or to compel a Government to do something, this threshold of violence is sufficient in distinguishing terrorism from any other type of crime, or from social protest for that matter. The Special Rapporteur takes the view that the Peruvian definition is overly broad as it is not based on such a threshold of violence.

Likewise, the Special Rapporteur remains concerned at Article 4 of the same Decree Law that appears to criminalize as collaboration with terrorism, actions that for their “goals” coincide with those pursued by terrorists, instead of requiring factual links with specific acts of terrorism or persons perpetrating those acts.

Because of the vague nature of these provisions, the Special Rapporteur sought during his mission information on any instances of resorting to arrests or prosecution for terrorist crimes in cases that amount to social protest but not terrorism. He became convinced that such a tendency indeed exists also in Peru, although it of course can be properly countered through the vigilance of an independent judiciary. In Cusco he was informed of an incident when the police had wrongly identified a demonstration by the local community as siding with “Shining Path”. In Ayacucho, he was taken aback at meeting two indigenous community leaders in pre-trial detention for terrorist crimes in Yanamilla Prison but who had apparently merely been expressing legitimate claims of their communities in a peaceful manner, including pursuant to ILO Convention No. 169. Further, he has expressed his concern to the Peruvian Government over an investigation for terrorist crimes against 35 indigenous and environmental activists who opposed mining projects in Piura. He also heard reports about media or some local politicians using the notion of terrorism to stigmatize expressions of protest.

The Special Rapporteur recommends the review of Articles 2 and 4 of Decree Law No. 25475 and other provisions that define terrorist crimes, in order to secure strict compliance with the requirement of legality. He is aware that the application of the existing provisions is constrained by guidelines stemming from the Constitutional Court ruling of 2003. Nevertheless, to counter any temptations of broader application, he calls for legislative reform. He sees the prospect of drafting and adopting a proper counter-terrorism law as an opportunity to move away from laws adopted by the Executive through delegated authority, and to strengthening the rule of law by enacting a proper framework for measures against terrorism through parliamentary legislation.

During the mission the Special Rapporteur learned that an expert commission has prepared a draft new counter-terrorism law that would replace Decree Law No. 25475. The new law would also take into account the framework of Peru’s international obligations under various conventions and protocols against terrorism and Security Council resolutions. The Special Rapporteur welcomes this plan and the offer made to him during the mission to be consulted on the draft law in the near future.

The Special Rapporteur was informed that currently in Peru there are hundreds of situations categorised as social conflicts present, often related to the effective enjoyment of human rights or elements of subsistence, such as water, energy, education, health services or agricultural lands. He emphasizes that such conflicts cannot be resolved by confusing protest with subversion or by arresting and charging with terrorist offences leaders of the very communities which suffered most during the decades of violence and internal armed conflict and remain marginalized and subject to discrimination.

The Special Rapporteur notes that although Peru is a party to the Convention Against Torture (CAT) and, since 2006, also its Optional Protocol (OPCAT), it has not yet established a national independent mechanism for visiting all places of detention, although a proposal has been made that the Ombudsperson (Defensora del Pueblo) will be entrusted with this function. The creation of an independent national visiting mechanism is one of the main treaty obligations under the OPCAT and particularly important in the context of counter-terrorism, as persons detained as terrorism suspects often face an aggravated risk of torture and an effective preventive mechanism is needed to outroot any temptations to resort to prohibited means of interrogation in the investigation of terrorism cases.
The Special Rapporteur wishes to thank all his interlocutors for their constructive cooperation in the preparation of and during the mission, and in particular the Ministry for Foreign Affairs for its excellent facilitation of the visit. Further, he expresses his gratitude to the United Nations Resident Coordinator and to United Nations agencies in Peru, as well as to the United Nations Office of the High Commissioner for Human Rights and his competent and committed delegation that consisted of two assistants and two interpreters.
Martin Scheinin was appointed Special Rapporteur by the former United Nations Commission on Human Rights in August 2005. The mandate was renewed by the Human Rights Council in December 2007. As Special Rapporteur, he is independent from any Government and serves in his individual capacity. He is Professor of Public International Law at the European University Institute in Florence.