POV: How would you describe the Peruvian government’s approach to fighting terrorism during the presidency of Alberto Fujimori?
Robert Goldman: I think it’s good to preface by saying that, first of all, the groups which were operating in Peru — Sendero [Sendero Luminoso, or Shining Path], and MRTA, but particularly Sendero, were pretty much sui generis. No one had seen in the past a group that was as brutal as they were. They engaged in all sorts of massacres — this was not like the FMLN in Salvador, or the Guatemalan insurgents, or even the FARC in Colombia, for that matter. Not that those groups have not committed very gross violations of the laws of war, but Sendero was really an exceptional and extremely brutal group.
And one has to understand that under two previous governments, prior to Fujimori, there was a widespread perception that the government did not respond adequately to the threat posed by Sendero and MRTA. By the time Fujimori was elected you had a population in the cities, and particularly in Lima, that was living in fear.
The response, once Fujimori came in, was vigorous and robust, and over time became increasingly indiscriminate and downright lawless. The military response, and most of the military activities, took place in rural regions outside of the cities, and it was characterized by indiscriminate violence on all sides. This has been well-documented by the Truth Commission in Peru. Fujimori also adopted a series of legal measures.
As you know, Fujimori staged in 1992 what has been called a self-coup — closing the judicial branch effectively, closing the constitutional court, gutting the supreme court, removing virtually the great majority of judges and prosecutors and reshaping the judiciary to his whims. He instituted a series of legal measures that defined terrorism and aggravated forms of terrorism in extraordinarily broad terms that resulted in many hundreds of innocent people being swept up and subject to trial before faceless military and civilian courts. When we say “faceless,” that means that the identities of the judges and witnesses were not known.
And we now know that during his administration, death squads were operating. There was a group, Grupo Colina, that was operating and disappearing and murdering people who were civilians suspected of having links with the terrorist groups.
The response was quite brutal. It had results in helping to put down Sendero, but it became increasingly indiscriminate over time. As I said, it’s been well-acknowledged that hundreds of innocent people were swept up, and others were killed. Many were subjected to legal processes utterly devoid of any kind of due process.
POV: How different was Peru’s approach from other nations — especially Peru’s neighbor states in South America?
Goldman: Peru’s neighbors in the southern cone of Latin America — Argentina, Chile, Uruguay — had what were called “dirty wars.” But they really weren’t armed conflicts. “Dirty wars” involved the state, over a prolonged period of time, engaging in what amounts to state terror against internal enemies. Peru, in contrast, was a true armed conflict, within the meaning of the laws of war.
So it’s really hard to compare these things with what happened in Argentina, Chile and Uruguay. In Peru, Fujimori was elected by the people. In Argentina, Chile and Uruguay, the democratically-elected governments were overthrown, and you had coupist governments that basically suppressed and terminated the parliaments and the courts. They really were not armed conflicts, but they were extremely brutal. We know in Argentina that perhaps up to 30,000 people were disappeared. Uruguay engaged in systematic torture and had up to 10,000 political prisoners.
The closest thing is the 40-year period of the ongoing armed conflict in Colombia. But there are also some major differences. For one, the dissident forces in Colombia, the FARC, and to a lesser extent the ELN, have certainly engaged in a lot of violent acts and violations of the laws of war. The Colombian response so far has been somewhat checked, and that is because Colombia has not had a coup d’état in this period, and the legislature has acted as something of a brake.
Colombia opted, at one point in the early 90s, to use faceless courts, but they ditched those. The closest thing to Sendero in Colombia would be various elements of the paramilitary forces that have effectively been aligned with the state security forces. They have been responsible for barbaric and indiscriminate acts directed against suspected dissidents and their opponents. With the reelection of president Alvaro Uribe, and his control of Congress, we’ll have to see whether those brakes and checks continue to operate on his policies. But I would not say that any of the Colombian governments have acted as lawlessly as the Fujimori government did in trying to put down Sendero.
POV: How did Peruvians react to the government’s efforts to combat Shining Path, MRTA and other rebel groups?
Goldman: There’s no question that initially, Fujimori had great popular support. When he closed the courts, the people applauded, because the system had become completely corrupt. It was unable to engage in convictions and function well. The amount of justice you got was really dependent on the size of the bribe. This was well known. And so people applauded. When people feel there is no security, people will support suspension of fundamental liberties, basically believing, “This really doesn’t affect me, I’m a good citizen, I’m not engaged in any subversive activities.”
So the only voices out there were the human rights organizations that were beginning to document and bring to light what was going on. And this came to light as more and more measures were taken, as more innocent people were swept up under these anti-terrorism laws, as they saw the justice system was also becoming an instrument of repression. When Fujimori began attacking critics who were influential, the press, the constitutional judges, it made people uneasy. So there began to be diminishing returns.
POV: It seems that government efforts to combat terrorism often involve tradeoffs between ideals of security and liberty. How do governments and citizens negotiate that tradeoff? Is there an inevitable conflict between security and liberty?
Goldman: First of all, I really think it’s a false tradeoff, and I think one has to start with the basic presumption that human rights are not an obstacle. Respect for the rule of law and human rights is not an obstacle to successfully fighting terrorism. Indeed, they are complementary responsibilities — after the September 11 attacks, for instance, the Security Council and the General Assembly have all indicated through resolutions that the fight against terrorism has to conform to respect for fundamental human rights and the laws of war. Indeed, those who know human rights law will realize that these commitments and treaties such as the Geneva Conventions were written by states.
States were keenly aware of the need to balance national security concerns against individual liberty. And they included in the treaties measures that are temporary and exceptional that states can take when facing an extraordinary threat, which could include both international and domestic terrorism. This means that states are able to restrict and limit rights, and occasionally able to suspend the exercise of certain rights. But all within the framework of the rule of law. In other words, you cannot justify surrendering away the rule of law, of fundamental checks and balances, in doing this.
Experience largely tells us, unfortunately, that this does not seem to have been followed by many states. States, and the United States included, in my judgment, do not seem to have learned the lessons from the past. People seem to forget that in the 1980s, based on experiences in Asia and Latin America, very detailed studies were done on the effects of emergencies on the rule of law and the protection of human rights. Almost all of these studies showed that the initial responses of states, when facing terrorist threats, have been to increasingly have power flow to the executive branch, with a concomitant passivity or marginalization of the legislative branch. At times the civilian judiciary has also been marginalized, because frequently the model has been to create special jurisdictions to deal with terrorist offenses.
The great lesson that came out of past experiences is that the other branches of government need to be involved, and that the civilian judiciary needs to be involved in a supervisory role, both with respect to the content and the nature of the measures to ensure that the rule of law is not surrendered. Various individual countries have also learned some lessons. Criticism of U.S. policies on terrorism come from places like Chile, Argentina, Uruguay and Western Europe, all regions which have had to deal with severe terrorist threats in the past. They have opted for different ways of dealing with these things.
So I don’t think that following basic due process precludes a state from taking strong, vigorous and robust measures against legitimate terrorist threats. But when you start acting lawless abroad, it’s going to have a spillover effect at home, and vice versa. I think those lessons are well-documented.
POV: What lessons about combating terrorism can be drawn from the Fujimori era in Peru? Are there particular lessons in the way that fighting terrorist groups reinforced the government’s slide toward autocracy?
Goldman: I think the lesson, always is, “The ends can’t justify the means.” Fujijmori ended up discredited, in large measure — though there’s still a portion of the population that supports him.
One can look at the Argentine experience for an example of the wounds that can be incurred by a state’s responses to terrorism. We’re 20 or 25 years from the events there, and Argentina is still coping with the effects of policies in which the ends justified the means. People still want the truth, they want accountability, they want justice.
When, in the name of fighting terrorism, the state descends to the same level as the terrorists, when they say “the gloves are coming off,” when the prohibition against torture is set aside, we see a spillover effect like what has happened in Guantanamo Bay and Abu Ghraib and God knows where else. These divide society, have created major problems for us with our allies and certainly not have helped us in public opinion. Arguably, these methods have been counterproductive for trying to win support globally for the war on terror.
Peru is still a very fractured society. People are still demanding justice. There’s been a truth commission that did a superb, very balanced report in assigning responsibility, but the society is not ready to confront all of the consequences of the lawlessness that occurred, and this will continue to haunt Peru, just as it’s haunted Argentina, and it’s haunted Chile, and it’s haunted Uruguay. What one would hope is that in fighting terrorism, complying with the law is not a weakness, it’s a strength. It’s what differentiates you, in part, from your enemy. It’s also going to give you legitimacy, both at home and abroad. I think that that’s the lesson that needs to be learned.
Robert Goldman is a professor of law at the Washington College of Law at American University and co-director of the Center for Human Rights and Humanitarian Law. From 2004 to 2005 he served as an independent expert on human rights and terrorism at the United Nations. From 1996 to 2004 he served on the Inter-American Commission on Human Rights for the Organization of American States. From 1992 to 1994 he chaired a commission created by the U.S. and Peruvian governments to evaluate anti-terrorism measures in Peru.