Headlines, Human Rights, Latin America & the Caribbean

RIGHTS-PERU: Activists Warn of “Impunity Measures”

Ángel Páez

LIMA, Nov 14 2008 (IPS) - The governing party in Peru is working to keep members of the military and police accused of human rights violations committed in the context of counterinsurgency operations out of the courts, on the argument that they are being unfairly targeted by the justice system.

A draft amnesty law presented by Congressman Edgar Núñez of the governing APRA party, who is chair of the single-chamber legislature’s committee on defence and internal order, has been joined by a similar initiative introduced by fellow APRA lawmaker Mercedes Cabanillas.

The Congresswoman’s proposal would create a pardon committee to release from prison those who – she argues – were “unjustly” convicted.

The sentences handed down to the members of the security forces are for extrajudicial execution, forced disappearance, torture, kidnapping and rape.

Aurelio Pastor, spokesman for the APRA legislators, told IPS that the ruling party will back the draft law for a pardon, and may also support the proposed amnesty.

“What we want is for (President Alan García) to receive proposals for pardons for members of the police and military who did not violate human rights and are facing trial or have been sentenced,” said Pastor. “This is a measure to strengthen the process of reconciliation. Obviously we aren’t suggesting that those who are guilty be pardoned.”

Cabanillas and Núñez argue that hundreds of members of the security forces who fought the leftist guerrillas from 1980 to 2000 have been tried and sent to jail “merely on the strength of accusations by the victims.”

To illustrate their point, the two legislators cite supposed legal proceedings against the members of the Chavín de Huantar commando, which carried out a spectacular rescue of 72 hostages held for four months by the insurgent Tupac Amaru Revolutionary Movement (MRTA) in the Japanese ambassador’s residence in 1997.

But both Defence Minister Ántero Flores Aráoz and National Ombudswoman Beatriz Merino clarified that not a single member of the Chavín de Huantar commando has been tried, let alone jailed.

Cabanillas’s draft law proposes the creation of an ad hoc committee that would recommend that the president “pardon and commute the sentences of those members of the armed forces and national police who in the context of the struggle for peace are sentenced by the civilian or military courts on the basis of insufficient evidence that makes it reasonable to presume that they are not responsible for the crimes in question.”

But experts say the initiative is contradictory, because the pardon would not be applicable to those accused of torture, summary, extrajudicial or arbitrary executions, or forced disappearance, while most of those who have been prosecuted or convicted are charged with precisely those crimes.

Moreover, the Truth and Reconciliation Commission (CVR) recommended that these cases be brought to trial.

According to the CVR, almost 70,000 people were killed, including a large number of civilians, in the 20-year armed conflict in Peru, which pitted the Sendero Luminoso (Shining Path) Maoist guerrillas and the much smaller MRTA against the Peruvian army.

“We are seeking a pardon for those members of the military and police who, unjustly and without substantive evidence, were prosecuted and sentenced for supposed human rights crimes,” said Cabanillas, former chair of the committee on defence and internal order.

Cabanillas claims there are 625 members of the armed forces and 172 members of the police facing prosecution for human rights violations, but has not clarified that only 45 have actually been sentenced – specifically on charges of extrajudicial execution, torture, and forced disappearance.

The office of the ombudswoman, on the other hand, reports that 348 members of the security forces are facing prosecution, and that of the 52 cases in which the CVR specifically recommended legal action, charges have been brought in only 30.

In addition, only a tiny proportion of the 419 soldiers and police officers accused of rape are facing legal action.

Cabanillas said the ad hoc committee will include representatives of the attorney general’s office, the ombudswoman’s office, the Catholic Church, and the Evangelical Council.

No delegates of human rights groups are to be included.

The APRA legislators’ proposal for a pardon has received, not unexpectedly, the support of the lawmakers of former president Alberto Fujimori’s (1990-2000) party.

But it has also been backed, surprisingly, by Prime Minister Yehude Simon, who spent nine years in prison himself for “apology for terrorism” until he was pardoned by caretaker president Valentín Paniagua (2000-2001).

“The judicial system operates with independence and autonomy, so it is very disturbing for a political measure to be adopted that would interfere with ongoing judicial proceedings,” Diego García Sayán, a Peruvian judge on the Inter-American Court of Human Rights, told IPS when asked about the matter.

“Pardons and amnesties are provided for in the Peruvian constitution, but the administration of justice must always prevail,” he said.

“A pardon or amnesty should only be resorted to under very specific circumstances, and every attempt should be made not to interfere with the administration of justice,” he added.

One of the arguments set forth by the advocates of a pardon for soldiers and police is that during the Fujimori regime, a committee reviewed the cases of civilians who were unjustly accused of “terrorism” and recommended that the president pardon them, which led to the release of hundreds of prisoners.

But García Sayán said the two situations are “completely different, because today there are very few cases of members of the military and the police who have been sentenced, while under the Fujimori administration, thousands were sentenced on terrorism charges.”

“Besides, in the case of the armed forces and police, the great majority involve ongoing cases,” he explained.

“Interference in the judiciary should be avoided. There are trials that are unreasonably delayed because the Defence Ministry is not handing over information, and the political powers should help resolve that problem, but without interfering in the judicial sphere,” said the judge.

The draft law aimed at pardoning members of the security forces is an attempt at guaranteeing impunity for mass murderers, kidnappers and torturers, according to Francisco Soberón, secretary general of the non-governmental Human Rights Association (APRODEH).

“It is an attempt at interfering with the autonomous and independent work of the judicial branch, because it is not only a pardon, but also cuts short legal proceedings and commutes, or reduces, sentences,” Soberón told IPS.

“We believe that no measure, whether an amnesty or pardon, should be used to obtain impunity,” he added.

“We have a judicial system that is different than it was during the Fujimori era. Today the members of the military are prosecuted by a justice system that might not be perfect, but is much more reliable and trustworthy, and for that reason, neither pardons nor amnesties should be accepted because they block the administration of justice for the victims.”

At a ceremony on the anniversary of the Navy on Oct. 8, President García said it was time to bring to a halt the “political persecution” of those who fought “terrorism.”

The campaign on behalf of armed forces personnel accused of human rights abuses has been joined by army chief General Edwin Donayre, who asked the business community in a letter for money to help finance the defence of soldiers and officers.

Ombudswoman Merino has declared her opposition to both the amnesty and the pardon, which she said would be “a setback.”

“Peru is a constitutional state that respects the rule of law, which means any initiative that seeks impunity for human rights violators should be rejected,” she said at a recent press conference. “Any form of amnesty or mechanism that stands in the way of the investigation of these cases is incompatible with the state’s obligation to investigate.”

When Congresswoman Cabanillas was asked in an interview by the press to mention an emblematic case of judicial bias against a member of the security forces who deserved to be pardoned, she was unable to name any single case, and merely said that all of them were important.