Abstract
Bernardi evaluates the impact of the Inter-American Human Rights System’s (IAHRS) transitional justice (TJ) norms in Peru, with a special focus on domestic human rights trials. The chapter argues that the impact of the IAHRS depends on the domestic political context, particularly the relative balance of power between constituencies that are anti- or pro-compliance. By analysing the mobilisation for and against TJ after the fall of Fujimori and in the subsequent period, Bernardi explores how political shifts between anti- and pro-compliance constituencies have produced different levels of impact over time, yielding TJ advancements that were subsequently reversed. The chapter concludes that as the political context within a country varies, domestic circumstances favourable to the impact of the IAHRS may change over time.
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- 1.
According to Roht-Arriaza (2006, p. 2), ‘Transitional justice includes that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law’.
- 2.
Pro-compliance constituencies include judicial actors, elected officials and other state actors interested in applying international human rights standards, and NGOs, which are traditionally the actors that most consistently pressure states to implement international decisions in this area. Anti-compliance constituencies include the armed forces, conservative (or even loyalist) judicial actors opposed to international human rights law and powerful political and economic figures who exercise substantial influence over the state (Dai 2007; Cardenas 2007).
- 3.
Data on reports on the merits is available at: http://www.oas.org/es/cidh/decisiones/fondos.asp#inicio
- 4.
With the fall of Fujimori, Valentín Paniagua was appointed by Congress as Interim President with the task of leading a transitional government until new elections were held in July 2001.
- 5.
Episcopal Commission for Social Action (CEAS) and National Commission on Human Rights (CONADEH) (later retitled as Commission on Human Rights, COMISEDH) were the two pioneering human rights groups but later lost their protagonist role to other NGOs.
- 6.
Interview with Francisco Soberón, founder of Pro Human Rights Association (APRODEH), 29 August 2012, Lima, Peru. All interviews cited in this chapter were conducted in Spanish and later translated to English by the author.
- 7.
Interview with Gloria Cano, 14 September 2012, Lima, Peru.
- 8.
FEDEPAZ was founded in 1993 as a result of an internal crisis within Research and Action Center for Peace (Centro de Estudios y Acción para la Paz, CEAPAZ). CEAPAZ had been formed in 1987 to continue the human rights work of CEAS.
- 9.
Interview, Francisco Soberón.
- 10.
Interview, Francisco Soberón.
- 11.
This case, which revolved around a massacre in the Ayacucho region in the first government of Alan García (1985–1990), was submitted by APRODEH with the support of Amnesty International and Human Rights Watch between 1988 and 1989. After transferring the case to the Court, the IACHR withdrew it. When the Commission later came to transfer it again, the Peruvian state objected to the move, and the Court upheld the objection. Despite this initial frustration, the decision taken by the NGOs was not to desist from using the IAHRS. On the contrary, the developments in the Cayara case were used as a learning curve, so that errors in litigation would not be repeated.
- 12.
Delia Revoredo, Guillermo Rey Terry and Manuel Aguirre Roca.
- 13.
IACtHR, Constitutional Court v Peru, 24 September 1999.
- 14.
The President of the Court from 2002 to 2005, Javier Alva Orlandini, lawyer and historic leader of the Popular Action party (AP), had been second Vice President during the second term of Belaúnde (1980–1985), senator for the AP until Fujimori’s coup in 1992 and opposition congressman between 1995 and 2000. Víctor García Toma, in turn, was a lawyer and jurist who had been secretary general of the Presidency of the Council of Ministers in the government of Alan García (1985–1990) and had participated in the Commission of the APRA government plan during the election campaign of 2001. Juan Bardelli Lartirigoyen was a member of the law firm of Antero Flores-Aráoz, a lawyer, politician and president of Popular Christian Party (PPC), while Magdiel Gonzalez had a history of Marxist activism, ties with the left and was supported by Perú Posible, President Alejandro Toledo’s political party.
- 15.
The most important rulings of the Constitutional Court that have made reference to TJ standards stemming from the IAHRS are the following: unconstitutionality of Fujimori’s antiterrorist legislation—Exp. No. 010-2002-AI/TC (Marcelino Tineo Silva y más de 5000 ciudadanos); recognition of both the right to truth and the legal type of forced disappearance—STC 2488–2002-HC/TC (Villegas Namuche); the mandatory nature of the IACtHR’s jurisprudence and the non-applicability of domestic legal provisions aimed at extinguishing criminal responsibility in cases of serious human rights violations—STC 2798-2004-HC/TC (Vera Navarrete) and STC 2730-2006-PA/TC (Castillo Chirinos); recognition of constitutional status to human rights treaties—STC 0047-2004-AI (Ninaquispe); the invalidity of amnesty laws and the military jurisdiction in cases of human rights violations—Exp. No. 679-2005-PA/TC (Martin Rivas).
- 16.
Interview, César Landa, 9 October 2012, Lima, Peru. In December 2004, as a result of the deaths of Guillermo Rey and Manuel Aguirre, two new judges were elected to the Constitutional Court, including César Landa. With a more academic profile and acquainted with the latest discussions in the field of legal doctrine, Landa was able to convince the other judges of the legitimacy of granting constitutional status to human rights treaties.
- 17.
There are three judicial spheres in charge of the prosecution of cases. In the specialised subsystem for cases of terrorism and human rights violations, there is the National Criminal Chamber (Sala Penal Nacional, SPN), that deals with most judicial proceedings related to TJ, whereas the cases of corruption and human rights abuses committed during the Fujimori government are judged by the Special Anti-corruption Criminal Chambers of the Superior Court of Lima. Parties can appeal the rulings from these courts to the Supreme Court of Justice. For the trial of former President Fujimori, a panel of three judges from the Supreme Court was created, and another panel of judges from the Supreme Court acted as court of appeal.
- 18.
SPN is the main court responsible for the judicialisation of human rights cases (Burt 2013, p. 52).
- 19.
Within the Public Prosecutor’s Office, there was also a group of progressive prosecutors prone to apply international norms on human rights, with prominent figures including Avelino Guillén, Victor Cubas Villanueva and Pablo Sánchez Velarde.
- 20.
After the 2006 presidential election, Fujimori’s party became the second largest group in Congress. In 2011, Keiko Fujimori, daughter of Alberto Fujimori, lost the second round of the presidential election to Ollanta Humala, a former army officer. In 2016, she ran again for the presidency and was defeated in the second round by Pedro Pablo Kuczynski. Throughout the period of 2011–2016, the Fujimorista party (Fuerza 2011, later renamed Fuerza Popular) has been one of the most important parliamentary groups in Congress. Fuerza Popular was the second largest political group until 2015, when it surpassed Humala’s party. In 2016, it obtained the majority of seats in Congress: 73 of a total of 130.
- 21.
Founded in 2009, the Movement for Amnesty and Fundamental Rights (MOVADEF) demands the release of arrested leaders of the Shining Path, which still has active units in the region of the Ene and Apurímac rivers known as Valle de los ríos Apurímac, Ene y Mantaro (VRAEM).
- 22.
Rafael Rey, Defence Minister during García’s second administration, denounced the SPN before the Consejo Nacional de la Magistratura. According to a former judge interviewed in Lima in September 2012, the judicial monitoring body made two visits to the SPN at the time, looking for wrongdoings in the prosecution of human rights cases.
- 23.
Recordings published by the press suggested that the Minister of Justice, the supranational prosecutor, the president of the Supreme Court and Judge Carmen Rojjasi, responsible for the case, had a meeting to discuss the acquittal of former state agents in 2013. In 2015, Peru was condemned by the IACtHR in this highly controversial case involving the MRTA attack on the residence of the Ambassador of Japan in Peru, in 1997.
- 24.
Although formally mandatory for all criminal judges, this decision was later revised by the Supreme Court in the case of cuartelLos Laureles. The controversy has not yet been resolved at the time of this writing.
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Bernardi, B.B. (2019). Transitional Justice and the Inter-American Human Rights System in Peru: The Role of Anti- and Pro-compliance Constituencies. In: Engstrom, P. (eds) The Inter-American Human Rights System. Studies of the Americas. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-89459-1_9
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