Peru: Gov't Seeks Legal Shield for Security Forces
The Peruvian government has moved to protect the armed forces and police against investigations for crimes committed in the line of duty, especially in areas convulsed by social protests or where remnants of the Maoist Sendero Luminoso (Shining Path) guerrillas are still active.
The administration of Alan García sent Congress a package of bills that would limit action by prosecutors and grant extraordinary powers to the military authorities.
One of the draft laws would modify the Criminal Code, so that no legal action could be taken against soldiers and police who kill or injure civilians in the so-called "emergency zones," areas controlled by the security forces by order of the executive branch because of "terrorist" threats or violent social protests.
The presidential initiative also proposes that prosecutors must be in receipt of a "technical report" issued by the armed forces or police authorities, before opening investigations of soldiers and police for alleged human rights violations in the "emergency zones." The report must explain why the accused used the degree of force that caused death or injury.
The executive branch also sent a draft law to Congress on the purpose, scope and definition of the term "use of force" by the National Police, detailing situations in which a police officer is exempt from responsibility when his or her actions have a lethal outcome.
If the accused officer can justify the use of lethal force by the intensity and dangerousness of the aggression, the behaviour of the aggressor, or the hostile surroundings and situation, he or she will be exempt from criminal, civil and administrative responsibility, says the draft law.
The bills were introduced in Congress just as the Ombudsman's Office reported that as of Sept. 30, 2009, 288 social conflicts (such as protest demonstrations) had occurred in the country over the past year, nearly 62 percent more than the 177 conflicts recorded by September 2008.
A third draft law proposed by the government would give the military and police the prerogative to remove the bodies of members of the security forces without the presence of prosecutors, as the current laws require. This would mean that they could disturb a crime scene without judicial authorisation.
The package of bills follows an intense campaign by conservative and pro-military groups, which accuse non-governmental organisations (NGOs) of pressing for legal action against troops and police involved in putting down social protests and the guerrillas.
Defence Minister Rafael Rey argued that the armed forces were left without legal protection after being baselessly accused of a large number of crimes committed during the 1980-2000 internal conflict between the security forces and left-wing guerrillas.
The independent Truth and Reconciliation Commission report, published in August 2003, found that during that period 69,280 people were killed or disappeared by the insurgents or state agents, and that the majority of these crimes - between 54 and 60 percent - were attributable to the Maoist Shining Path guerrillas.
Rey referred to several notorious crimes by state agents against civilians as "excesses," of which he insisted there were very few.
Adding together all the "excesses" - in Barrios Altos (where 15 people, including an eight-year-old boy, were killed at a neighbourhood barbecue on Nov. 3, 1991), La Cantuta (where nine university students and a professor were seized and killed on Jul. 19, 1992), Accomarca (where 69 highland villagers were massacred on Aug. 14, 1985), and Putis (where at least 123 villagers were killed on Dec. 13, 1984) - the total number of victims was under 1,000, Rey said.
"I am not saying these figures are unimportant, as even one person abused or murdered is shocking, but it is unfair to blame the armed forces for 21,000 deaths," the minister said.
But human rights watchdog Amnesty International compiled evidence that torture, killings and disappearances by state agents were widespread and systematic during the internal conflict, constituting crimes against humanity. Military, intelligence and high-ranking government officials of the period have been convicted and jailed for their part in these acts, including former president Alberto Fujimori (1990-2000), and others await trial.
After judicial authorities exhumed some of the remains of the 123 civilians massacred by the army in 1984 in Putis, a rural hamlet in the mountains of the southern region of Ayacucho, Rey stated that the trials for human rights violations by army troops fighting Shining Path guerrillas in the valley of the Apurimac and Ene rivers, a jungle zone in the southeast of the country, were a more important issue.
The draft laws were called into question by the Attorney General, Gladys Echaíz.
"The proposal that the Attorney General's Office cannot open an investigation or bring charges without previously receiving a 'technical report' would place limits on the action of prosecutors," she said. "The constitution invests the Attorney General's Office with the power to undertake criminal prosecution, to conduct, direct and decide on investigations, without being subject to any conditions whatsoever."
"I don't think the military and police need a cloak of concealment," Echaíz said.
The deputy chair of the congressional committee on defence and internal order, Carlos Bruce, also expressed reservations about the constitutionality of the draft laws, especially the one that aims to prevent the Attorney General's Office from proceeding with a criminal prosecution until it receives a "technical report" from the security forces.
"I agree that members of the armed forces cannot be judged in the same way in emergency situations as in normal ones, but I do not agree with making the Attorney General's Office's actions conditional on a prior report from executive branch bodies. The prosecution service must be independent," Bruce told IPS.
Contrary to the aim of those who wish to protect the armed forces from legal action, these draft laws damage the image of the military institutions, the executive secretary of the National Human Rights Coordinating Committee, Ronald Gamarra, told IPS.
"Any legal initiative to secure impunity affects those members of the military who justifiably and with self-sacrifice fight against terrorism," Gamarra said. "No favours are done to the military by curtailing the powers of the Attorney General's Office or enabling interference in its functions. To hamper the constitutional powers of prosecutors is to seek not justice, but a cover-up."
The first vice president, retired vice admiral Luis Giampietri, proposed that the areas where the armed forces are fighting guerrillas be declared "war zones," so that they would be under purely military jurisdiction.
Giampietri said this would solve the problem of members of the armed forces being investigated, charged or taken to court for doing their duty.
The proposed bills to ensure the impunity of the armed forces and police "are perfectly aligned with the thinking of Vice President Giampietri, who has said that prosecutors and judges are a hindrance to the military," activist Roberto Lamilla, the coordinator in Ayacucho of the NGO Paz y Esperanza (Peace and Hope) which assists the families of the Putis victims, told IPS.
"Their goal is to guarantee impunity for members of the armed forces who commit excesses. Giampietri said it clearly: human rights are a hindrance to military action. If these bills are passed, it will be a serious setback in terms of human rights," Lamilla said.