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Slow justice for Peru's disappeared

In an unprecedented move, an active duty general was found guilty of the enforced disappearance of a school principal.

Last Modified: 29 Oct 2013 06:31
Jo-Marie Burt

Jo-Marie Burt is currently director of Latin American Studies and co-director of the Center for Global Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA).
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"Most of the 15,000 disappeared remain missing, and their family members are in anguish about their fate, and are waiting to bury their bodies," writes Jo-Marie Burt [AP]

On Sundays Rubén Villanueva Toro liked to escape the small village of Buena Vista nestled high in the Andean mountains where he was a school principal. On the afternoon of March 30, 1990, he was in the nearby town of Lircay. He  was near the main plaza with friends when a group of military officers stopped them and asked for their identity cards. Ruben did not have his electoral card. He was detained and taken to the military base in Lircay. "It’s just a routine detention", his friends were assured. But the hours passed, and Villanueva Toro remained in custody.

The following day, Ruben’s identity card in hand, Wilber Villanueva went to the Lircay military base to try to get his brother released. To his surprise, he, too, was arrested on the order of Army Captain Carlos Paz Figueroa, head of the base. He was savagely tortured. Released the following day, he went to a hospital to have his injuries tended to. But Wilber Villanueva got no information about the whereabouts of his brother. On the contrary, he was told by Paz Figueroa that his brother was not being held at the base.

Villanueva Toro’s relatives decried his disappearance and reported it to local and national authorities, but to no avail. He remains missing to this day.

Delayed justice

Some measure of justice was handed down on September 23, when two military officers - including Paz Figueroa, now an active-duty brigadier general - were found guilty of the crime of the forced disappearance of Villanueva Toro and sentenced to 15 years in prison.

It was a split 2-1 decision. The dissenting opinion, written by Judge David Loli Bonilla, said that contradictions in the testimonies of the eyewitnesses made conviction impossible. The two judges voting in the majority, Marco Cerna Bazan and María Vidal, following precedents in international law, argued that minor contradictions in eyewitness testimony does not invalidate the testimony itself, especially when the essence of the testimony about a human rights violation remains coherent over time.

The core testimonies of eyewitnesses, along with other important evidence, provided sufficient evidence to convict the two defendants, in their majority opinion. Two people testified that they saw Villanueva Toro being detained by the military, and a woman testified that she saw him being taken into Lircay's military base. Wilber Villanueva had the hospital records attesting to his having been tortured. That the judges considered these eyewitness testimonies as valid evidence is important; in previous rulings, other judges have acquitted military officers charged with grave violations of human rights based on tiny contradictions or discrepancies in eyewitness testimony.

Such discrepancies are in fact not uncommon in the testimonies of victims of traumatic events, as has been noted by the Inter-American Court for Human Rights. In a ruling against the state of Mexico in a case of sexual violation - Rosendo Cantú et. al. versus Mexico [Sp] - in which there were minor discrepancies in the testimony of the victims, the Court ruled that inconsistencies were to be expected in the aftermath of such traumtic events, and especially after so much time had elapsed since the occurrence of the trauma. In such cases, the Court ruled, minor inconsistencies do not invalidate the value of victim testimony when the essence of the testimony is consistent over time.

We still don’t know where his body is. That is the most important thing - to find out where his body is, so we can bury him. That is our right.

- Rubén Villanueva Toro's sister

A crime against humanity

The September 23 ruling also determined that the forced disappearance of Villanueva Toro is a crime against humanity because it took place during a period of massive forced disappearances committed by security forces against unarmed civilians in the context of a counterinsurgency war against armed subversive groups. During each of the latter years of Alan Garcia’s first presidency - 1987 to 1990 - Peru registered the highest number of forced disappearances in the world, according to UN's Working Group on Enforced Disappearances.

Beyond these stultifying numbers, the verdict identifies the specific mechanisms by which crimes against humanity occurred in Peru in the 1980s and especially during the Garcia government.

Since late 1982, successive constitutional governments decreed states of emergency in conflict areas, establishing “emergency zones” that were then put under the control of the armed forces. The Working Group found that the majority of the forced or involuntary disappearances documented in Peru - primarily between 1983 and 1992 - occurred in these emergency zones, including Ayacucho, Apurimac, San Martin, and Huancavelica, where principal Rubén Villanueva Toro was last seen alive.

Also, a 1985 law decree determined that any military or police infraction would be adjudicated by military rather than civilian courts. This undermined the ability to conduct impartial investigations of accusations of human rights violations allegedly committed by security force personnel, a sure-fire way of guaranteeing impunity.

Echoing the findings of the Peru's Truth and Reconciliation Commission - whose Final Report was published ten years ago last August - the judges found that forced disappearance, extrajudicial execution, and the use of torture were “criminal acts that were perpetrated constantly” during this time period. The ruling sharply criticises the “indolence, ineptitude, and the indifference” of those who could have avoided this “human catastrophe” but chose not to.

A third presidency in 2016?

Alan Garcia has never faced criminal prosecution for the massive violations of human rights that occurred during his first presidency (1985-1990). Despite a number of on-going investigations of crimes committed during this period, he has yet to be successfully charged with any crime. In 2006, he was elected to a second term, and he is gearing up for a third term in 2016.

But things may be catching up with Garcia. One on-going case involves the murders of several regime opponents in the late 1980s by a death squad that went by the name of the Rodrigo Franco Command[Sp]. Among those on trial are Garcia’s Minister of Interior, Agustin Mantilla, and several members of his Peruvian Aprista Party (APRA) party who are accused of ordering and carrying out a number of murders. Victims included presumed members of Shining Path, but also regime opponents, including trade union leader Saúl Cantoral, who was killed in 1989.

Trials for other human rights cases from the first Garcia presidency are due to open soon, among them the 1986 Fronton prison massacre, when more than 100 inmates were executed by security forces, and the 1988 Cayara massacre, in which dozens of indigenous peasants were murdered by security forces in retaliation for a Shining Path attack on a military convoy. Several eyewitnesses to the Cayara massacre were later killed off, one by one. The state prosecutor in that case, Carlos Escobar, sought asylum in the United States when his investigations got too close to the powers-that-be.

Peru’s Constitutional Tribunal recently ruled that the Fronton massacre does not constitute a crime against humanity, but that ruling has come under fire by human rights groups for prejudging a case currently in litigation. Regardless of whether it is a crime against humanity, it no doubt constitutes a grave human rights violation, and under international law, states are obligated to prosecute such crimes and hold these responsible accountable.

No solace for families

Few want to remember the days of violence in Peru. But most of the 15,000 disappeared remain missing, and their family members are in anguish about their fate, and are waiting to bury their bodies. How much longer will Peru continue to deny them their right to truth and justice? And how long with the international community continue to ignore the very real and very present effects of this human catastrophe?

Villanueva Toro’s sister was at the hearing the day the verdict was handed down. “We still don’t know where his body is,” she said. “That is the most important thing - to find out where his body is, so we can bury him. That is our right.”

Jo-Marie Burt is a political scientist, writer and human rights activist. She is currently director of Latin American Studies and co-director of the Center for Global Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). She worked as a researcher for the Peruvian Truth and Reconciliation and has written extensively about human rights in Peru and Latin America.

Follow Jo-Marie Burt on Twitter: @jomaburt

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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