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TRANSITIONAL JUSTICE AND THE INTER-AMERICAN HUMAN RIGHTS SYSTEM IN

PERU

Bruno Boti Bernardi

University of São Paulo

Prepared for the IAHRN Launch Workshop

Mexico City, October 10-11, 2014

The Main Questions

• Domestic factors that mediate the influence of the IAHRS;

• The Peruvian case has become a milestone for TJ in the Americas, but to what extent and under what circumstances the IAHRS has influenced the domestic political game concerning the issue of transitional justice in Peru;

• Standards from the IAHRS acquired great importance after the fall of Fujimori and were crucial to the reopening of criminal cases: 60 rulings in cases of HR violations committed in the 80s and 90s: 34 acquittals (57%), 15 convictions and 11 mixed decisions; 137 individuals acquitted, 67 convicted and 12 absent during trials (Burt 2013, p. 52);

• How it was possible for the Inter-American system to have had this level of impact over the domestic judicialization of cases regarding transitional justice;

• What has been the persistence of that influence over time.

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Analytical Framework

• The influence of the IAHRS is not static and depends on both the domestic political configuration of the target-countries and also the correlation of forces between certain key actors within and outside the state;

• The IAHRS will have an impact:

1) Whether and when certain domestic groups are able to understand and instrumentalize it as an effective mechanism for their own empowerment;

2) When these actors manage to overcome the resistance put forward by all those actors for whom the IARS is a threat either to its interests or to other notions such as sovereignty or the country’s security;

• A favorable correlation of political forces at a certain moment may change over time, affecting the impact of the IAHRS.

Transition by rupture: the role of pro-compliance constituencies• Abrupt fall of Fujimori as a critical juncture: atypical political context of

the transitional period was extremely favorable to the impact of the IAHRS;

• Executive and Congress tried to distance themselves from the authoritarian period by implementing a democratic agenda;

• A group of progressive justices used the IAHRS as a mechanism to strengthen the judiciary and recover its legitimacy and credibility – similar restructuring process at lower courts;

• Pro-violation constituencies extremely weakened (especially fujimoristas and the armed forces);

• 2000-2008: Intense period of relations with the IAHRS. NGOs’ demands channeled through the system found more room to be implemented.

Shifting the balance: the renewed strenght of pro-violation constituencies

• The renewed strenght of pro-violation groups – APRA, fujimoristas and the armed forces – constrained the leeway of the actors who exert political pressure in favor of the IAHRS, especially the HR NGOs and the most progressive judicial actors;

• They have large presence in the media, links with powerful economic actors who have benefited from their actions and networks of co-optation and pressure within the judiciary;

• For these the actors the IAHRS foments terrorism and is a threat to national sovereignty.

• Tactics of political pressure and intimidation were used to hinder the advancement of criminal cases;

• Most of the progressive justices/judges leave their positions (TC and SPN).

Regressions in the judicialization process

• 2,880 complaints - 1,374 were filed (48% of cases) and 1,349 are still in the preliminary or intermediate stages of investigations (47% of cases). Only 157 cases (5% of complaints) resulted in the formalization of charges and, in the end, only 2% of cases come to trial (Burt, 2014);

• Defendants are four times more likely, overall, to be acquitted than convicted by the SPN: conviction rate = 35% (Argentina = 90%) (Burt, 2014);

• Several rulings began to move away from the international human rights law and jurisprudence that had been accumulated in previous years by the Peruvian courts.

Final Remarks

• The Peruvian case points to the importance of domestic mediations with respect to the impact of the IAHRS, with emphasis on the balance of power between pro and anti human rights constituencies. As a result, the IAHRS is unable to substantively change by itself practical results in terms of human rights outcomes.

Final Remarks

• The effects of the IAHRS are not insignificant and in the absence of its pressures the performance of many states would be even worse.

• It is important to calibrate expectations in order to avoid the common wishful thinking “in which we imagine an unlikely ideal—for instance, that human rights treaties cure all of the world’s abuses—and then claim failure when the real world comes up short” (Hafner-Burton; Ron 2009, p. 377).