Rodolfo Pereira sat down for a coffee with his friend, an investigative journalist who was about to be sent on a project related to violence allegedly caused by terrorist organisation “The Shining Path” in the Peruvian Andes. Three days later the journalist along with eight of his friends had been killed.
Peru witnessed one of the most violent and prolific forms of terrorism during the 80s and 90s, one where close to 70,000 people lost their lives due to the activities of “The Shining Path”, a group which was once described as “the most radical expression of Marxist revolution in the Western Hemisphere”. The Truth & Reconciliation Commission (hereinafter referred to as “TRC”) which was set up between 2001-2003. It analyzed the fight against the group as something which could be understood only as a non-international armed conflict. However, there exist various pieces of information which the TRC has casually ignored and which this article will discuss. The author believes that the armed campaign against the Marxist group falls under the scope of International Humanitarian Laws (hereinafter referred to as “IHL”)
Analysing the TRC Report
If we look at the TRC’s report we’ll be able to understand that there existed more than one party to the conflict that took place in Peru, The Shining Path which was responsible for 54% of the civilian deaths, The Tupac Amaru Revolutionary Movement (hereinafter referred to as “MRTA”) responsible for 1.5% of civilian deaths and the authorities and governments in power during the period of conflict which constituted the rest of the percentage of civilian deaths during the conflict. The vast majority of TRC report however focuses only on The Shining Path and doesn’t talk about the MRTA. Further, even the courts at international level seem to be fine with whatever the TRC report states and haven’t indulged in analyzing the conflict and the role of both MRTA & The Shining Path to the entire Peruvian conflict.
Another reason to suspect the TRC report is the fact that while the report states that the conflict lasted from 1980-2000 these dates can be questioned on the fact that by 1996 many analysts had already considered The Shining Path to be strategically defeated with no scope of its resurgence. Further, applying the Tadic standard  in IHL it is safe to say that the armed conflict could only begin whenever the organisation of the parties and the intensity of hostilities crossed the standard’s levels. Hence, going by the Tadic standards the conflict is said to have begun in 1983 when the army was deployed in the Andes region till 1996.
Describing the armed conflict in Peru as a non-international armed conflict as per Art.3 of The Geneva Conventions is also controversial for another reason, it effectively nullifies the Peru government’s claims throughout the 80s and 90s that the situation existing at that time was nothing short of a terrorist crime which can be seen on a plain reading of the TRC report . The TRC through this can be seen to have made an attempt to whitewash The Shining Path’s crimes and to go “soft on terrorism”.
Implications of non-recognition of MRTA
Not recognizing a party to a conflict can have practical implications for instance in a case  before the European Court of Human Rights, despite the use of heavy weaponry by Russian forces the ECHR decided to use human rights law instead of IHL since, “no martial law and no state of emergency had been declared in Chechnya, and no derogation had been made”.
The problem being that so far no Peruvian government has recognized the situation as an armed conflict and has just labelled it as a wave of terrorist crime which effectively has meant that Peru has refused to acknowledge the role of international law during the entire “Era of Terrorism” in Peru which has led to human rights violations and abuses in Peru, a notable incident of which is when Church leaders accused police forces of using torture in Peru’s Andes region the then President of Peru Fernando Belaunde stated that the Church saw terrorists as “very delicate petals” who shouldn’t be touched because of their frailty .
It is also astonishing to note the fact that none of the parties nor the Inter American Court of Human Rights which was hearing the Case of Barrios Altos v Peru described the situation as an armed conflict and only after the TRC report was published in 2003 did the Inter American Court start to refer the situation as a NIAC. However, this still didn’t make it liable to apply IHL to the cases it was hearing and it was only in the case of Cruz Sanchez in 2015 did the court start to apply IHL and stated that fighters of MRTA weren’t civilians but members who actively participated in the hostilities which took place during the conflict years in Peru which was in contrast to the same court ruling in 1999 in the Case of Castillo Petruzzi et al v Peru where the court referred to MRTA members as civilians, thus showing the court’s shaky grounds of applicability of IHL in cases related to Peruvian conflict.
In the end, it is important to properly understand the cost many innocent Peruvians paid with their lives for the price of victory. For this, proper and correct legal rules should be applied to frame the obligations of the government and the rights of its citizens. Refusing to do so even in a post-conflict stage can lead to improper results which is evident from the court’s mistaken status of MRTA militants during the conflict.
David S Palmer, Shining Path of Peru, (Palgrave Macmillan, 1994)
Established by the case of The Prosecutor v Dusko Tadic [IT-94—1-T] the Tadic standard establishes when does a situation become an international armed conflict which include: whenever the states resort to armed force amongst themselves, protracted armed violence between governmental authorities and organised armed groups or between such groups in a State
“The TRC isn’t convinced that [the term terrorism] is able to precisely describe the wide range of conducts these groups employed, nor that there exists a widespread international legal consensus on the content of such a term”, Vol.II pg 25 of TRC report
Isayeva v Russia, App. No. 57950/00, Council of Europe: European Court of Human Rights, 24 February 2005, available at: https://www.refworld.org/cases,ECHR,4223422f6.html (accessed on 12th October, 2019)
Alonso Gurmendi Dunkelberg, “The Era of Terrorism: The Peruvian Armed Conflict & The Temporal Scope of Application of International Humanitarian Law
Views expressed are solely those of the author.
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About the Author
Karun Gupta is a law graduate from Amity Law School, Delhi, Indraprastha University. He is a passionate speaker and an enthusiastic participant in Moots and Model United Nations Conferences. He loves research and has published a paper in a leading Law and Policy journal as well. Additionally, he works as a Student Editor at a reputed Law Journal as well. His interests lie in the field of public policy, constitutional law and international law.