Across the world, people are concerned about the effectiveness and legality of the ways governments seek to "fight terrorism". In many different national contexts – the United States and Russia, Britain and Pakistan, Thailand and Uzbekistan – they are asking a critical question: can civil liberties and human rights be balanced with national security in the modern environment of a "war against terrorism"?
The way this question is answered will have far-reaching impact on democratic systems, and how the world will view democracy. A fresh way to approach it, in light of my own experience as a human-rights lawyer who has worked in Peru, might be to look at this Latin American republic's experience of coming to terms with the insurgent and state violence that disfigured it in the 1980s and 1990s.
In August 2003, the Peruvian Truth and Reconciliation Commission (TRC) published a nine-volume report on that country's twenty-year war on terrorism, in which armed insurgents (mainly the Sendero Luminoso [Shining Path] but also smaller groups like the Tupac Amaru revolutionary movement) waged a relentless war of attrition with state forces, with many atrocities on both sides. The TRC document mapped the terrible toll of the conflict: it estimated that 70,000 people died or were disappeared during it, leaving tens of thousands more bereaved.
The TRC acknowledges that 64% of these casualties were inflicted by the Sendero and its affiliates, but points out that the state also engaged in systematic violations of fundamental human rights. From its collection of more than 16,000 testimonies, the TRC concluded that the majority (70%) of the victims came from the marginalised and poor sections of the population. In part, racism and discrimination explains why powerful elites ignored their cries for help.
The TRC confirmed that it was intelligence work rather than the state's heavy-handed tactics that eventually led to the capture of terrorist leaders, leading many Peruvians to wonder how far the "military" solution helped to prolong rather than resolve the conflict. In this sense the TRC report is a standing rebuke to an acquiescent public who allowed itself to be persuaded by an authoritarian president, Alberto Fujimori, that terrorism could only by vanquished if civil liberties too were thrown onto the bonfire.
A tale of innocents
The TRC devoted a full chapter to the effects of Peru's anti-terrorist laws, which permitted the arbitrary detention of thousands of people, many of whom were tortured. The report also exposed the irreversible damage of forsaking minimal due process in the hunt for terrorists, giving license to Peruvian armed forces to detain suspects on vague suspicion of terrorism, hold them incommunicado for prolonged periods of time, deny them access to family and lawyers, torture them in order to elicit false confessions, and then subject them to sham trials with minimal time to prepare a defence and no opportunity to contest incriminating evidence or cross-examine witnesses. Many of these unfortunate people, known in Peru as "the innocents", spent as many as fifteen years in prison waiting for their vindication.
Thousands of Peruvians can tell a story that resembles your worst nightmare of being in the wrong place at the wrong time, of ordinary people plucked out of their simple, non-political lives only to face years of hell. Tragically, had there been due-process protections in place they would have nothing remarkable to tell: they would still be ordinary people. In a brief article I cannot begin to do justice to the countless heartbreaking tales of personal horror. Two hint at the magnitude of suffering:
- a campesino adolescent from the countryside fed a group of people passing through his village, who unbeknownst to him were terrorists. When questioned later by the armed forces, he innocently affirmed his act. As a consequence he spent fifteen years in prison under charges of association with terrorism. Doctors, lawyers and journalists also suffered a similar fate for attending to, defending or reporting on those involved in the conflict.
- Gladys Canales, 42, was a normal worker, mother, and wife, who spent eight years in prison after a teenager accused her of being a terrorist to escape torture. In a sardonic twist, both the young girl and Gladys ended up sharing the same prison cell. Now free, Gladys faces a broken family, the stigma of her incarceration, unemployment, health problems from her torture and a host of other problems. Yet she is a leading activist in the fight for reparations, as recommended by the truth commission. Most stunning of all, she feels it's her job to educate the rest of the world so that no other human has to endure her own hell.
An end to blind faith
How far is the United States today repeating the same equivocal path as Peru in many of its policy decisions? When I first began to work in Peru in 2002, soon after 9/11, I watched from afar as the Americans public conceded the executive unprecedented power. As had happened in Peru, the ubiquitous fear of attack meant that security became a mantra, and the public permitted the government to pass "patriotic" anti-terrorism laws that diluted due process and permitted worrisome intrusion on privacy rights.
A naïve trust in government belies part of this problem, a blind faith that the US constitutional system – embodying the assumption of a vigilantly questioning public – never contemplated. Yet as a US citizen myself, I realise that in the post-9/11 era we perhaps lacked the wisdom to understand the implications of reacting from emotion as opposed to principles grounded in concepts of the rule of law and human rights. Indeed, living in Peru has taught me that "wars on terrorism" which fail to abide by such principles follow a predictable paradigm that inevitably leads to unnecessary and unspeakable harm. The results not only offend our moral senses, they break our international laws.
It took a long time after 9/11 for we Americans to begin to acquire the visceral, gut impact that gives life to hypothetical and rhetorical arguments against current US policy. Not until a brave soldier leaked pictures of prisoners in Abu Ghraib being cruelly tortured, did we finally feel the first shock, wipe the sleep from our eyes and wondered if we could blindly go down this path.
As more revelations followed – of the government infiltrating activist movements, of tourists innocently videotaping New York sights and ending up in solitary confinement for months, of detainees dying from the wounds of torture in US military prisons – more and more people were led to ask whether unfettered power really makes sense.
Also in openDemocracy on legal and moral accountability for political crimes:
Anthony Dworkin, "The trail of Milosevic: global law or war? "
Victor Peskin, "After Zoran Djindjic: the future of international criminalk justice" (March 2003)
Nahla Valji, "No justice without reparation" (July 2003)
Anthony Dworkin, "The trials of global justice" (June 2005)
Hanny Megally & Veerle Opgenhaffen, "Algeria's past needs opening, not closing"
Hanny Megally & Veerle Opgenhaffen, "Saddam's trial: the needs of justice" (October 2005)
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It can happen here
The retired US Supreme Court judge, Sandra Day O'Connor, has observed that naïve trust in an unchecked system "carries the potential to become a means for oppression and abuse of others." The domino effect here is that laxity in one case undermines the whole protective system. This concept, although abstract, distinguishes systems like that founded in the United States from supposed "rogue states" where landslide erosion of rights resulted in tyranny. There, at any moment, a person can cross into a murky world where – like the innocents in Peru – they can only feel a stranglehold of apprehension and yell in astonishment: "this cannot be happening to me!"
The key distinction is the dismissal of due process as a human right, a simple yet indispensable prophylactic against harm. Major international human-rights treaties consider due process to be a right that cannot be derogated even during times of conflict. Without this right, no system is immune from error; it is enough for someone to be called a terrorist to haul them into the lawless darkness.
Do not assume it cannot happen in the United States, or other nations engaged in this campaign. In its numerous opinions issued in landmark rulings in June 2004, the US Supreme Court provided only vague guidance on what procedures satisfy the due-process standards during a war on terrorism. For instance, hearsay, presumptions in favour of the government's evidence, and monitoring of attorney-client conversations – although usually barred in ordinary criminal trials – remain an option for determining the status of terrorist suspects. Most disconcerting, the court condoned military tribunals, not used since the second world war, whose judges are subject to the same chain of command as the military itself and thus are less impartial. All this is familiar to the Peru of the "dirty war" years.
There is no evidence that the public revelation of Peru's tragic lessons has provided any guidance for the Bush administration. For instance, Peru's supreme court as well as the Inter-American Court of Human Rights in Costa Rica have ruled that the sham military trials used to try terrorist suspects in Peru were unconstitutional; yet their resemblance to the military commissions established to try the (as of July 2004) 594 non-US citizens held at Guantánamo Bay, Cuba on suspicion of terrorism are uncomfortably close.
Moreover, most members of the US military commission were handpicked by top US officials and lacked legal training. Some observers noted that the commissioners, although well intentioned, were "making up the rules as they went", unfamiliar with the basic concept of due process; others, like the National Institute of Military Justice, criticised the fairness of these hearings. As the US Congress moved closer to the renewal of the US Patriot Act on 1 March 2006 – a decision postponed after revelations of unauthorised spying by the National Security agency after 9/11 – United States citizens again face the question of whether their system withstands the test of its balances and checks.
Indeed, after years of judging, even invading, countries that ruled by oppressive means and systematic violation of human rights, the US public is entitled to feel great chagrin. It can no longer invoke an automatic sense of being "different", nor blame "inferior" cultures and political systems subject to internal manipulation for the man-made disasters its own system has produced.
The experiences of countries like Peru evidently do not inform the choices of the United States administration. But the world, including Peru, does anxiously observe the US, and wonders whether the latter's often revered political and judicial system will survive the test of the "war on terrorism".
Meanwhile, if the US continues down the present path, it could benefit from reflecting on the findings of Peru's Truth and Reconciliation Commission. The conclusion may be that the US needs to start planning its own "truth commission" to clarify the responsibility for the human and civil-rights disasters of the post-9/11 era; to repair the damage to its democratic system; and to prepare for claims for individual reparations, measures that (as Peru shows) are unfortunately always too little, too late.