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ANNEX III May 23, 1990 Excellency: I have the honor to transmit to Your Excellency a confidential letter to your Government in which the Inter-American Commission on Human Rights expressed its views on the human rights situation in your country, including its concerns and recommendations. I would like to reiterate here the paragraphs of that letter reading as follows:
Accept, Excellency, assurances of my most distinguished consideration.
Leo Valladares Lanza His Excellency Encl. COMMUNICATION FROM THE INTER-AMERICAN
COMMISSION ON HUMAN
The Commission has been continuously reviewing the human rights situation in Peru. Proof of its concern is the attention it has devoted to dozens of cases arising from numerous complaints received, and the direct communications exchanged with the Government of Peru on various issues that the Commission considered worrisome, some of which derived from a visit to Peru by a delegation from the Commission in May 1989. During that visit, the delegation had the opportunity to meet with high Peruvian authorities in the country. The delegation also visited human rights organizations, prisons, and met with groups representing various segments of Peruvian society, especially in Lima and Ayacucho. In this latter city the delegation met with various representatives of peasant and indigenous communities that are the victims of the prevailing violence. It also met in that region with the authorities of the Military Political Command that governs the region. At its 76th session, the Commission drafted a communication to the Government, thanking it for the courtesies extended during its visit. At that time, it voiced certain concerns, among which were, mainly, the following:
In that communication, the Commission expressed faith in the establishment of a productive exchange with the Government of Peru regarding these concerns as well as cases pending before the Commission in regard to which the Commission had broken a long period of silence. In its reply of November 10, 1989, Dr. Guillermo Larco Cox, Minister of Foreign Affairs of Peru, stressed how much he appreciated the work the Commission was doing. At the same time, he pointed to the difficulties that the balance in the international economy and the rash of violence posed for the Government of Peru in pursuing its policy toward terrorist activity within a legal and humanist framework of respect. His office, he said, would continue to make every effort to heed the suggestions in that note and provide the Commission with the relevant information for shedding light on the reports of alleged human rights violations. Subsequent to that note, and consistent with its policy line, the Commission has continued to forward to the Government of Peru information on reports received, new cases or those being processed. In light of the oft-repeated devotion to the defense of human rights expressed not only by the present Administration but also by the candidates participating in the electoral process, the Commission felt it should forward this communication to the Government of Peru as a contribution to the pacification process which, it hopes, will gain momentum in the near future. This communication is not based solely on information collected and observations made during the visit. As the Government knows, the human rights situation in Peru has attracted the notice of many government and private agencies, legal scholars and social scientists, Peruvian as well as international, who have produced an abundance of material on the subject. Among them may be mentioned the Special Committee of the Peruvian Senate of the Causes of Violence and Pacification Alternatives, the Andean Commission of Jurists, the Human Rights Commission of the United Nations Social and Economic Council, Amnesty International, Americas Watch, and the Inter-Church Committee on Human Rights in Latin America. Account has been taken of their work, as well as of the information furnished to the Commission by various Peruvian personalities of different persuasions and by the Government in its regular reports. A review of the cases being processed by the Commission, moreover, provides a close look that helps one gain an understanding of the specific mechanisms connected with the observance of human rights. In this connection the Commission regrets that even though Peru has fully ratified the American Convention and accepted the jurisdiction of the Inter-American Court of Human Rights, the Peruvian Government has in recent years maintained an attitude of minimum response to the complaints conveyed to it by the Commission, which is something the Commission hopes will be corrected in the immediate future by the new authorities. In deciding to send this communication, the Commission is also aware that, in line with the Peruvian Constitution, elections will soon be held for a new government. Irrespective of the outcome of the elections, however, the Commission finds the opportunity appropriate to address the Government of Peru in order to follow up and elaborate on the Commission's note of September 29, 1989. This communication will focus on those areas where Government action can lead to improved observance of human rights in Peru.
At the end of its in loco visit in May 1989, the Special Commission expressed deep concern over the persistent recourse to terror and indiscriminate violence as a way of settling social and political conflict, which certainly hinder the consolidation of democracy and economic development conduce to full respect for human rights. Both before and during the visit, and even after it, when the Commission contacted Government authorities to express its concerns, the authorities brought up the link between human rights and the need to stamp out the terrorism and subversion. (Indeed, the government has often reported to the Commission atrocities perpetrated by groups of insurgents, specifically Shining Path and the MRTA Movimiento Revolucionario Túpac Amaru-Tupac Amaru Revolutionary Movement). On this point the Commission wishes to reiterate its doctrine, published in previous special reports (Argentina, 1979; Colombia, 1981) and applied to its activities in all cases. In those cases, the Commission was able to ascertain, both through interviews and other inquiries made with all sorts of organizations, that although the legitimacy of the methods used to combat terrorism and subversion might the questioned, there was at the same time broad agreement about the existence of terrorism and the harm it caused. The Commission believes that it is important to insist that humanitarian law be respect by all the protagonists regardless of whether they are individuals, groups or institutions; and at the same tome notes that its competence in this regard is strictly established and limited by the American Convention on Human Rights. In this connection, the Commission deems it appropriate to repeat what it has said in the past.* * Report on the Situation of Human Rights in Argentina, 1979. Basically this issue can be analyzed by attempting to answer to questions that were repeatedly put to the Commission, both before and during the on site observation:
The simple and legally precise answer to the first question is that the sovereign states of the Organization of American States have not chosen to give the Commission jurisdiction to investigate terrorism and subversion. Obviously the Commission on its own, is not competent to establish its statutory norms in accordance with the changing preferences of its members. Its basic structure, including, of course, its functions and power, and determined by the norms which the members states of the OAS reveals that the task of the Commission --as, in general, that of all other intergovernmental bodies set up for the protection of human rights--is to investigate only those actions attributable to governments. Juridical factors, however, are not the only considerations. The practical consequences, were the Commission to investigate terrorist or subversive activities, would be truly serious. In effect, it the Commission, in violation of its mandate, were to agree to process a denunciation involving some alleged act of terrorism, in so doing it would implicitly place terrorist organizations on an equal footing with governments, as the Commission would have to transmit the denunciation to the subversive organization which allegedly is responsible for the act and request that it make such observations as it deems appropriate. Undoubtedly, such organizations would be very pleased to be dealt with as if they were governments. But, what government in the hemisphere could tolerate an implicit recognition of quasi-governmental status for an organization of this kind? In many instances, it has been the strategy of the subversives not just to acknowledge nut also to openly boast of their terrorist acts. If responsibility for the act has been acknowledged already, for the Commission formally to attribute responsibility to the terrorists would serve no purpose other than that of further publicizing their actions. In summary, those who attack the Commission for not accepting denunciations concerning terrorist acts committed by subversive groups, not only ignore the legal norms applicable to bodies such as the IACHR, but implicitly seek to elevate the international status of such groups and to help spread their propaganda. On the other hand, it is not the Commission's role to substitute for the State in investigating and punishing violations committed by individuals. However, it falls to the Commission to protect individuals whose rights have been injured by agents or organs of the State. The ultimate reason for international bodies to protect human rights, as in the case of the IACHR, lies in the need to have means of recourse when human rights have been violated by state agents or organs. Further, it is the sense of the Commission that its cooperation in the campaign against terrorism consists in faithfully carrying out the function assigned to it, that is, in promoting the effective observance of human rights on the part of governments, since, as experience has demonstrated, in countries where governments fulfill their obligations of promoting economic and social development, and maintain public order without violating human rights, terrorist groups never encounter massive popular support and their fate, inevitable, is to fail.
The Commission now wishes to address the second question. Do the existence of terrorists and the threats to subvert the public order influence the Commission's assessments or evaluations with respect to the observance of human rights in a govern country? Within the limits to be described below the obvious answer is yes. The Commission repeatedly has emphasized the obligation of governments to maintain public order and preserve the safety of their inhabitants. To that end, governments must energetically prevent and repress acts of violence, whether they be committed by public officials of private individuals, and regardless of whether their motivation may be considered political or not. In the life of any nation, threats to the public order or to the personal safety of its inhabitants, by persons or groups that use violence, can reach such proportions that it becomes necessary, temporarily, to suspend the exercise of certain human rights. The majority of the constitutions of the American States accept such limitations, and even provide for the temporary institution of states of emergency of states of siege in such circumstances. Of course, in order for such measures to be adopted, extremely serious circumstances must prevail, as the institution of such regimes must be in response to the necessity of preserving those rights and freedoms which have been threatened by the disturbance of the public order and personal safety. However, it is equally clear that certain fundamental rights can never be suspended, as in the case, among others, of the right to life, the right to personal safety, or the right to due process. In other words, under no circumstances, may governments employ summary execution, torture, inhumane conditions of detention, or the denial of certain minimum conditions of justice as the means to restore public order. These measures are proscribed in constitutions and in international instruments, both at the regional and at the global level.* In this regard, it is important to recall the words spoken by His Holiness Pope John Paul II at the OAS on October 6, 1979. After acknowledging that at times special measures may be adopted, he added the following:
Each government that confronts a subversive threat must choose, on the one hand, the path of respect for the rule of law, or, on the other hand, the descent into state terrorism. When a government enjoys broad popular support, the choice of the first method will always be successful, as various countries have demonstrated both in the distant and more recent past. As has already been pointed out, respect for the rule of law does not preclude, under certain circumstances, the adoption of extraordinary measures. When the emergency situation is truly serious, certain restrictions may be imposed, for example, on the freedom of information, or limitations on the right of association, within the framework established in the constitution. In more extreme cases, persons may be detained for short periods without it being necessary to bring specific charges against them. It is true * In the case of external or internal armed conflicts, the Geneva Convention of 1949 established minimum standards for the treatment of prisoners, which prohibit their being killed or tortured. that such measures can ultimately pose the risk that the rule of law will be lost; but that is not inevitable provided that governments act responsibly; if they register arrests and inform the families of the detainees of the detentions; if they issue strict orders prohibiting torture; if they carefully recruit and train security forces, weeding out sadists and psychopaths; and lastly, if there is an independent Judiciary to swiftly correct any abuse of authority.
The Senate Special Committee's Report on the Causes of Violence and Alternatives for Pacification in Peru (Lima, 1989, page 282) states the following:
The Commission has learned from various sources, and through direct interviews during its visits to the country, that in their so-called "prolonged war", the Senderista groups have killed several thousands people, sometimes individually, at other times in wholesale massacres. They have targeted not only members of the Armed and Security Forces of Peru but also peasant and labor leaders, workers, businessmen, politicians of various persuasions, and above all, leaders of leftist political parties and movements, Indian groups, and thus, virtually all segments of Peruvian society. This information has been gained from reports of social research institutions that keep statistical files on the victims of violence in Peru, based on the recognized acts of irregular groups. In each case, the strategy has been to try to explain these atrocious crimes, committed following premeditated decisions recognized by the perpetrators in that group. These actions do not stop at the liquidation of individuals, for which all kinds of excuses are made, but include the destruction of public property, the service infrastructure, the sabotage of constitutional electoral proceedings, and the punishment of those participating in them--in short, the direct attack upon the State, its agents, services, mechanisms for the renewal of government, and upon citizens trying to exercise their legitimate rights. The Commission's view is that while its mandate--as it stated earlier--does not include jurisdiction over irregular forces, it cannot fail to mention that it has knowledge of these actions which defeat any chance of civilized rapport, and provide incentives for those who would combat such conduct by using the same methods issuing from the State.
The Commission has also obtained information on the action of the MRTA. The Senate Report already referred to (page 351) bears noting:
As the Government is aware, the Commission had the opportunity of visiting the prisons during its mission in May of 1989. In interviews with inmates identified with this irregular organization, it received reports of lack of security and attacks upon them, inside the prison, by members of Shining Path also incarcerated there. In its note of September 1989, the Commission suggested, in this regard, that the Government take measures to guarantee the safety of the inmates of these penal institutions, whatever their affiliation or the reasons for their incarceration.
The Commission has received complaints and reports about the existence of organized groups reporting to and connected with government agencies, whose function is to retaliate for terrorist activities in order to punish the perpetrators, deter them from further activities and threaten their real or potential followers. Reports on the activities of the groups known as the Rodrigo Franco Commands (CRF) provide evidence of control by government sectors.
Obviously, as discussed in the first part of this report, it is not the role of this Commission to pass judgement on crimes committed by irregular groups. That is precisely the duty of the government, one of whose chief functions is to insure public safety and human rights. A government must be held accountable not only for cooperating with or promoting a terrorist group, either covertly or overtly, but for its obligation to take such legal measures as are needed to prevent those activities, investigate them, prosecute those responsible, and ultimately impose the proper penalties, giving publicity to its proceedings. Otherwise, it does more than violate domestic law and international commitments. In addition, its legitimacy vanishes, its authority before the nation is undermined, and the nation itself ultimately beaks apart.
As a State party that has ratified the Inter-American Convention on Human Rights, Peru is committed to respecting the rights and freedoms recognized therein and to guaranteeing the free and full exercise of those rights and freedoms. In the event that they are not guaranteed by law, it must adopt the legislative or other necessary provisions to make those rights and freedoms effective (Article 2). The American Convention authorized suspension of the obligations contracted only a State Party in the event of war, public danger or other emergency that threatens the independence or security of a State party, to the extent and for the period of time strictly required by the exigencies of the situation, without discrimination. Article 27.2 of the Convention restricts that suspension, which specifically states that it does not authorize the suspension of a series of basic rights. Concerning the right to judicial protection established in the American Convention, the Commission finds it necessary to discuss the institution and practice of habeas corpus in Peru. First, it draws attention to the advisory opinion of the Inter-American Court of Human Rights (OC-9/87) that:
The Commission believes that article 38 of the Political Constitution of Peru, insofar as it suspends habeas corpus and "amparo" actions in respect of guarantees and rights specifically mentioned in article 231 of the Constitution itself, is at odds with the provisions of the Pact of San José. Indeed, because such suspension affects guarantees that may not be derogated, it is expressly forbidden to the Contracting States under the Convention, as reaffirmed by the interpretation of the Inter-American Court of Human Rights in its Advisory Opinions 8 and 9. The Commission is also aware that the Peruvian Constitution itself stipulates that it is a primary duty of the State "... to guarantee the full effectiveness of human rights..." Besides the specific rights listed, among other provisions, in the 27 items and 13 subparagraphs of Article 2, the Constitution specifically provides that:
The Commission appreciates the fact that three types of difficulty undermine the full and effective force of the right of habeas corpus in Peru: a) certain judicial interpretations; b) restrictions imposed by the features specific to the emergency areas and so called extraterritorial conditions, as interpreted by the government authorities in those areas, and c) de facto obstacles to requesting that rights and to recognizing it on the part of the State judicial machinery. It is also troubling to the Commission that in cases where the principle of habeas corpus is accepted, specific petitions are denied on grounds of "extraterritoriality." The Commission cannot accept the concept of a "restricted military area," where habeas corpus guarantees are inapplicable or ineffective, as claimed by military authorities and some examining magistrates. The Commission holds that habeas corpus is the more necessary precisely in exceptional situations, where circumstances heighten tension and greater overreaction might therefore be expected from the parties involved in the emergency. This points, first and foremost, to the inadmissibility of such "perverse sanctuaries" where the possibility exists of violating basic rights with impunity. Another matter of concern to the Commission is the broad interpretation that is sometimes made of the suspension of constitutional guarantees under the state of emergency. Witness, for instance, the case of Hector Acuache Donayre, in the city of Lima, who was arrested for an alleged crime against property that had apparently nothing to do with the reasons for which a state of emergency was declared. On a habeas corpus application filed by his wife after he had spent more than twelve days in detention without being brought before the competent court, the Appeals Court [Tribunal de Casación] ruled that the length of detention was not a constitutional violation because the Supreme Decree extending the state of emergency had remained in force throughout. This interpretation would mean suspending, for all persons and for any reason whatever without limitation, the constitutional guarantees protecting the rights mentioned in article 231, which goes beyond the bounds of reasonableness set for any suspension of guarantees. At the same time, the Commission is pleased to see that the doctrine of judicial control of the legality of Executive actions has in some cases been applied by Peruvian judges. This position is consistent with the view expressed by the Commission on numerous occasions, including its request for an Advisory Opinion from the Inter-American Court of Human Rights:
It is obvious that these restrictions reflect a general attitude of the government designed to limit the effectiveness of habeas corpus and that this discourages its use by the population. With respect to the real frustrating circumstances, the Commission, during its 1989 visit, obtained similar information to that received by the United Nations Working Group in 1985 concerning the factors surrounding the non-use of the writ of habeas corpus.
As for the actual existence of an effective and swift judicial remedy, the Commission has repeatedly heard that one of the key problems in Peru is what the Bar Association of Lima describes as:
In the face of this anomalous legal situation, the Commission cherishes the hope that the Government will adopt the necessary remedies, which should include: a. Amending Peruvian law to limit the suspension of constitutional freedoms and their exercise and bring it into line with both the Pact of San José and the interpretation that the Inter-American Court of Human Rights has placed on the provisions of the Pact. b. Instructing the Attorney General's Office to abide by those guidelines, strengthening habeas corpus, whose full exercise, in turn, will conversely lend legal credibility to the suspension of some rights for exceptional reasons.
In the area of human rights, attention must be drawn to the special system of Public Defenders that was established, a function assigned to prosecutors from the office of the Attorney General. The Commission must pay tribute here to all those officials of the judiciary who, at the risk and sometimes the cost of their lives, hear complaints and investigate them fully according to professional standards, with no other aim than to seek out the truth and see justice done. Apparently reliable reports and information indicate, however, that the system is obstructed and undermined from within and from without. Some typical circumstances are: 1. Prosecutors do not have jurisdiction to demand from military authorities the information or evidence needed to discharge their duties. 2. Prosecutors have no means of conducting inquiries or investigations, especially in areas under Military Political Command. On various pretexts, military authorities deny them the means (vehicles, safe-conducts, transit rights) needed to do their job. 3. The number of prosecutors is insufficient to handle the volume of complaints about human rights violations, bearing in mind that in most cases prosecutors must look into complaints of all kinds. In his statements to the members of the United Nations Working Group, the Chief Prosecutor [Fiscal General] indicated that merely 30% of his qualified staff was available, and that one half of the prosecutors held temporary appointments. 4. The Investigations Police (PIP), which is responsible for conducting investigations requested aby prosecutors, reports directly to the Military Political Commands, thereby creating a conflict of interest that prevents them from fulfilling their task. Police forces are not in a position to carry out instructions from prosecutors that have not been cleared by their military superiors. 5. In most cases prosecutors are kept out of prisons located within military compounds, even though the suspension of constitutional guarantees under the state of emergency implies no such prohibition. 6. Prosecutors suffer threats, direct attacks and harassment intended to prevent them from fully investigating complaints about human rights. 7. Prosecutors who have performed their duties with special professional zeal are transferred, discouraged, or even removed from their jobs. 8. Reports from prosecutors which, based on the available evidence, call for an indictment, are rejected by higher officials of the Office of the Attorney General, or else the deadline for bringing charges is allowed to expire without the Office taking action. 9. When military authorities fail to answer legal inquiries from prosecutors, the latter may theoretically file charges against those responsible for obstructing justice. According to the information received by this Commission, however, in most cases such actions do not succeed. Regarding the behavior of the Office of the Attorney General, Amnesty International had this to say in February 1990:
The Commission believes that the Government of Peru must take measures to strengthen the jurisdiction and the timeliness and effectiveness of the activities of the Office of the Attorney General and the Public Defenders, including: a. Establishing an adequate number of prosecutors, so that all emergency areas may be covered and cases may be fully investigated. b. Establishing a system of tenure and promotion for prosecutors, in order that they may securely discharge the duties entrusted to them by the country and may have a minimum incentive to run the risks inherent in their jobs. c. Clarifying by law of congress the obligations that with respect to the Office of the Attorney General and to court orders are incumbent upon the armed forces responsible for Military Political Commands in emergency areas. d. Establishing an adequate joint mechanism by which the inquiry and investigation activities carried out by court officials pursuant to habeas corpus applications may be performed within restricted military areas, so that national defense interests are not affected. e. Giving prosecutors the legal power, subject to the proper legal safeguards, to requisition vehicles or elements needed to discharge their task. f. Taking the necessary measures to place the Investigations Police under the Ministry of Justice, as technical police, thereby enabling it to act independently of the Military Political Commands. g. Establishing a mechanism for independent and automatic judicial review of reports from low-ranking prosecutors that recommend indictment and are not accepted by higher officials.
It is up to each country to decide--consistently with domestic and international legal standards--how it will organize the defense of internal order and human rights. As a rule, therefore, the Commission must not pass on the manner in which Peru organizes its self-defense systems based on the resources of its own communities. Military spokesman have on various occasions expressed their frustration at the absence of commitment from other sectors to defend legality and order. Civilian mistrust and lack of confidence in the behavior of government agents is the main obstacle to the popular support of National Defense envisages by Article 270 of the Political Constitution:
Nevertheless, various Peruvian and international institutions have expressed concern to the Commission through complaints and information received about abuses and violations stemming from the way in which self-defense groups are promoted by or connected with official agencies. Thus, it is reported that the authorities force or compel certain populated areas to join "self-defense groups" without providing them with the necessary guidelines for action and self-control, as a result of which many of these groups that remain outside the traditional structures of community control have taken the law into their own hands and used their power for personal vendettas or unlawful actions. What arouses the concern of the Commission is not the strengthening of the natural structures of communities through the recognition and promotion of mechanisms enabling them to exercise a greater degree of self-government and defend their lives, property and culture, but the fact that in generating new para-police structures based on community resources, structures that are artificially imposed and that lack the necessary control and legal framework to regulate their activities are being promoted. as in other cases discussed in this communication, relinquishment by the State of the exercise of its legal power automatically entails the renouncement of its own legitimacy. In this sense, the Commission takes into account and concurs with the provisions or Article 270 of the Peruvian Constitution. What is necessary, is that this reemergence of community power should take place comprehensively, that is to say, in accordance with legal rules, so as to strengthen que internal structures of the community--which are particularly important and valuable among indigenous populations.
The Commission has received complaints and information, not only during its visit to Peru but also from multi-governmental agencies and human rights advocates, about systematic violations of the rights to life, physical integrity and personal freedom of Peruvian citizens, allegedly committed by government agents.
These practices, which involve sometimes individual victims and other times groups of persons connected by family, neighborhood or association ties, display various characteristics: a. Disappearance of persons arrested in front of members of their families or neighbors by personnel clearly identified as belonging to the military or the police, who arrive or are supported by official vehicles, even helicopters sometimes. Taken to detention sites where their presence is acknowledged at first informally, they then disappear, and in response to inquiries from their families or human rights organizations, or even to court orders, their arrest and/or presence is denied. In some cases their bodies turn up, in others they do not. b. Disappearance of persons arrested in a relatively subreptitious manner by agents who may or may not display official insignia, but where strong circumstantial evidence justifies the assumption that the arrests were made by government agents. In general, these disappearances are marked by the following: the victims are persons who have been previously threatened or harassed by government agents; they are abducted in areas effectively controlled by military and police forces capable of thwarting any such abduction by irregular forces; the abduction takes place during curfew hours, when there is strict control of roads and streets; and eyewitness accounts and/or other evidence from released prisoners of information disclosed by the staff of detention centers or supplied by neighbors who saw the prisoners being led into these prisons make it possible to identify the abductors or to harbor well-founded suspicions that the victims were imprisoned, tortured and/or killed by government agents. The Commission has considered the possibility that some of these cases might be attributed to Shining Path. In this connection, the Commission is able to confirm the statement made in the United Nations report that, according to their information:
c. Disappearance or arrest of relatives and neighbors when they inquire of the authorities as to the whereabouts of the arrested-abducted person. d. Temporary disappearances fitting the above description where the victims reappear after a time, and there is no legal justification for their imprisonment and mistreatment. e. Disappearance and/or suspicious death of important witnesses to human right violations committed by government agents. f. Arrest, abuse and murder of children by governments agents in round-up activities or reprisals. g. Disappearance of persons arrested by the Armed Forces, persons claimed by the Government to have been released, with release forms allegedly signed by them. However, they fail to show up and relatives still do not know their whereabouts. Reports received by the Commission indicate that after President Alan Garcia took office, while the practice of forces disappearances continued it took on different characteristics. The cases involve people arrested/abducted who are temporarily kept in military facilities and tortured. After recovering from torture they are turned over the Investigations Police (PIP) which usually sets them free. The Commission has received may reports of extrajudicial executions carried out by the Armed Forces. Although the Commission is aware of an includes in that category the killing of inmates at the three Lima prisons in 1986, these are not the only instances brought to the knowledge of the Commission. The information received from human rights organizations points to the existence of documented reports or more than 3,000 such executions by security forces. Yet from 1983 to date, the Commission has no knowledge of any criminal penalty ever having been imposed on a member of the military on that account.
The Commission has also received consistent and repeated information about serious violations of the physical, mental and moral integrity of persons and communities, particularly in emergency areas. These practices are marked by the following: a. Torture and physical mistreatment of persons, carried out publicly by the armed forces to instill collective fear, as retaliation for attacks from irregular groups, for purposed of interrogation, etc. In many cases torture includes rape or mutilation of organs and in some cases leads to death. b. Torture and physical and other mistreatment of communities that have been exposed, sometimes by force, to political proselytizing from irregular groups such as Shining Path, or that have been forced by those groups to provide them with food, lodging or simply to keep silent about their activities. The virtual majority of villages, particularly in the Ayacucho region but also in other emergency areas, is terrorized as a result of being caught "between two fires," i.e. punished by the subversives if they fail to satisfy their needs for help them out (or simply as intimidation) or else tortured, kidnapped or killed --sometimes with equal or greater violence--by government forces for having done so or for allowing themselves to be intimidated and not reporting the presence of irregulars. c. Torture and physical and other mistreatment of prisoners, either upon or during detention. In some cases, according to reports, the victims are forced either by threats or as a condition for release, to sign and acknowledgement that they are being set free without having been tortured. d. Violation of the psychic and moral integrity of family members of detainees or missing persons by denying them information on the whereabouts and situation of these. e. Violation of the psychic and moral integrity of members of human rights organizations and officials of the judiciary who investigate the whereabouts and situation of alleged victims or who request compliance by the government with rules protecting human rights. f. Unjustified delay of justice for detainees who are kept in prison for months and sometimes years without any judicial decision being taken.
The Commission cannot help but focus on the unspeakable events described in reports about collective reprisals committed by groups belonging unquestionably to the armed forces, some of which have been thoroughly investigated even by Peruvian officials without such investigations ever succeeding in getting the judiciary to act and bringing about an exemplary punishment and proper redress or in avoiding the subsequent repetition of equally condemnable events. The Commission has received confidential testimony from persons connected with the armed forces who have indicated that those cases have indeed occurred and do occur, prompted by a desire for vengeance and the frustration of government forces that have been ambushed and have suffered losses at the hands of forces dressed or pacing themselves off as innocent peasants. Beyond the debate over whether or not there is a policy of collective reprisals or whether these are carried out as individual reactions from sectors of the armed forces, the Commission wishes to point out that: a. As regards the events themselves:
b. As regards the investigation of the events and the reaction of the judiciary: The Commission has received information on some efforts made by the Peruvian government to investigate the events and provide a legal remedy. Investigations were launched, for instance, into the massacres at Accomarca and Cayara, among others. According to the information received by this Commission, none of these investigations led to a full airing of the facts, the punishment of the chief perpetrators, or serious attempts at reform and self-control by the armed forces. Without entering into a discussion of the legality, the justification or the defenses that might be put forward in this connection, the Commission believes that the regular and semi-permanent character of the reported situations points, beyond the particular cases, to a state of affairs that requires government action consistent with its minimal obligations as the legitimate authority.
The Commission considers the following among other measures necessary: a. Establishment of a central registry of persons imprisoned and detained for any reason, irrespective of the agency responsible, that within 24 hours of the detention will record the name, identification of the detainee and the authority in whose jurisdiction the detainee is being held. This registry must supply information immediately to the judicial authorities requesting it, including Public Defenders and human rights organizations. b. Providing access to that registry through means of communication (telephone, telegraph, etc.) from the various regions of the country, so that relatives or missing persons may know at once whether their family member is being held by the government. c. Designating officials responsible for obtaining and supplying such information to the families of missing persons, subject to serious penalties for failure to do so. d. Placing all detainees, within 24 hours of their arrest, under the jurisdiction of the courts. e. Providing facilities for International Red Cross personnel to have access to any detainee. f. Establishing such new guidelines for combating subversion so as to guarantee respect for human rights, in particular the presumption of innocence, especially in communities located where guerrillas operate. g. Full support by the whole government apparatus of the investigative work carried out by the National Parliament through its special investigating committees. As the body traditionally representative of different tendencies, it has in some cases demonstrated the ability to conduct an in depth investigation and publish findings arrived at in common. It is the responsibility of parties, in this connection, to make certain that such investigations are not distorted or obstructed for partisan reasons, which has also happened, according to the information supplied to this Commission. h. Legislation to regulate offenses committed in connection with the performance of duties, in order to punish crimes committed by members of security forces in emergency areas. The bills introduced in Congress have not yet come up for discussion.
The Commission notes with satisfaction that, on the whole, there is freedom of the press in Peru. The Commission believes this freedom to be particularly important and necessary in this hour of trial for institutional and personal life in Peru. Indeed, the Commission feels that if there is still a fabric by which Peruvian social life is held together despite the cruelty of armed social conflict, the yarn of that fabric is the media. And again, social respect for government and its duty to preserve order depends on the government's respect for the freedoms enshrined in the American Convention, which include the "freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers." This right may not be subject to prior censorship but only to subsequent imposition of liability, which must be expressly established by law to the extent necessary to ensure, among other things, the protection of national security and public order. The Commission has received reports about newsmen barred from the very areas where the armed forces were accused of committing human rights violations. In emergency areas, journalists are expressly prohibited from coming out of the cities, and the only source of information about events in the interior of Departments are the brief communiques put out by the public relations office of the Military Political Command in each area or by the Joint Command of the Armed Forces. It is the view of the Commission that the media represent the citizenry's access to the truth about conditions, and insofar as the behavior of government agents is legal, such access will win or add to the respect and support of the nation.
Accordingly, the Commission attaches the greatest importance to the media being given free access to emergency areas, under simple rules that insure freedom of information without detracting from the effectiveness of police operations.
The Commission must voice its concern about the general restrictions that emergency laws have for several years imposed on the freedom of residence and movement of more than half the population of Peru. Although the Convention allows these rights to be limited for specific periods or in designated areas for reasons of safety or public order, it is important that these restrictions should be truly exceptional and not a permanent status quo amounting to generalized house arrest, which would not only be a violation of individual rights but would lead to situations of territorial confinement bordering on servitude or bondage to the land. And besides, from a sociological standpoint, the outcome of such a situation is precisely the opposite of what is intended. Indeed, massive migration of entire communities to the cities, in defiance of controls imposed by emergency laws, has in a few years upset the socio-geographical distribution of the population, with the ensuing consequences. There are, however, reports of violations of the freedom of residence that clearly go beyond any kind of legal restrictions, being part of a pattern of serious violations. Among these should be noted the case of the CASERIO DE CCOCHJAPUCRO [Ccochjapucro hamlet] in the district of Umamarca, Province of Andahuaylas, Department of Apurimac. On November 4, 1989 Peruvian army forces evicted 100 peasant who tended animals in the area, threatened to kill them if they continued to live there, murdered FORTUNATO VENEGAS and raped a 47-year-old mother and her daughter under 10 years of age. A month earlier, army forces had come to the village, arrested a large number of farmers, murdering MAXIMILIANA SOTAYA (aged 50), DONATO MORAN (aged 75) and his wife EMILIA PIGA. The body of Maximiliana Sotaya was dynamited, and those of Donato Moran and Emilia Piga were quartered. CONCEPCION CCACCYA BARRIENTOS (aged 52) was arrested by those same forces and has since disappeared. LEONARDO CCACYA BARRIENTOS (catechist of the parish, married, three children) reported these events to the Office of the Attorney General and, since then, he has been threatened, arrested for more than a month and then set free, his house has been searched, and at the time of the report (February 1990) he was being threatened by Peruvian army forces with death if he did not leave the area. The matter was reported to the Government of Peru, which at the writing of this report has not yet replied, as in the overwhelming majority of cases, even though the regulatory deadline has run out.
The Commission is concerned by complaints and information it has received that indicated a limiting of the right of association, imposed an anti-subversive measure, and employed to attack the legitimate actions of labor unions. These complaints deal with the arrest by police of labor leaders and their subsequent disappearance and murder, their interrogation and subjection to torture, the searches of their homes and destruction of property and threats directed towards their family members. Likewise, the Commission has received with concern complaints of attacks on and massacres of peaceful demonstrations of peasant in areas where the state of emergency and presence of guerrillas do not obtain, followed by raids of local union offices. The best known case is that of El Pucallpa in the Department of Ucayali, where disguised police forces opened fire on a crowd of some 8,000 peasants who were confirming a collective bargaining agreement. In that incident several dozens of persons lost their lives. Thereafter, the bodies of the dead were removed by the police to a secret location.
On the eve of constitutional reforms dealing with executive and legislative powers, the Commission believes that it is important to deliver this communication to the Government of Peru on a confidential basis as a contribution to its future task of fulfilling its international obligations in the area of human rights. As is made clear in this communication, the Commission is following with concern the human rights situation and in particular the Governments' lack of cooperation with the Commission in the hundreds of pending cases it has before it, based on complaints of different institutions concerning the alleged violations of the Pact of San Jose. The Commission places itself at the disposition of the Government of Peru in order to cooperate within the terms of its mandate, in all that could constitute support for the further observance of human rights. As the Government is aware, the Commission adopted a series of decisions at its 77th Regular Meeting that included the delivery of this communication, the submission to the Inter-American Court of Human Rights of a case for eventual disposition and other decisions regarding individual cases. The Commission shall continue to follow with attention developments related to the observance of human rights during the forthcoming period and looks forward to analyzing the Government's response to this communication at its next meeting in September of 1990.
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