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Linking Gender and Reparations in PeruA Failed OpportunityExecutive Summary
Peru's internal conflict, lasting from 1980 to 2000, was the bloodiest and longest in its republican history, causing as many as 69,280 deaths according to projections by the Truth and Reconciliation Commission [Comisión de la Verdad y Reconciliación] (CVR). The conflict began when Peru's communist party, Sendero Luminoso (SL), embarked on an ‘armed struggle' against the ‘old State' and ‘class enemies,' exploiting and manipulating the country's multiple social gaps. Unlike in other internal conflicts in Latin America, in Peru it was SL, not the State, that was the main perpetrator of murders, selective executions, massacres and widespread destruction, mostly in rural communities in the poorest areas of the country. The violence unleashed by SL increased in 1984 with the emergence of another insurgent group called the Tupac Amaru Revolutionary Movement [Movimiento Revolucionario Tupac Amaru] (MRTA). Although to a much lesser extent than SL, MRTA also perpetrated selective murders, hostage taking, and kidnappings. The government failed to implement a comprehensive strategy to face, within a democratic framework, the violence unleashed by the insurgent groups, gradually leaving the struggle in the hands of the Armed Forces. Within a legal framework for fighting terrorism, the Armed Forces applied several strategies, ranging from indiscriminate to selective repression, which effected numerous human rights violations. Such violations were of a systematic and/or widespread nature in certain places and during certain periods, to which the Peruvian court system never adequately responded. It was not until the fall of Alberto Fujimori's corrupt autocracy in 2000 that a transition process started, enabling the creation of the CVR. The Commission's mandate was to clarify the process, facts, and responsibilities related to human rights violations attributable to all players in the conflict. In August 2003, the CVR submitted its Final Report to the nation. This nine-volume report not only covers the causes, magnitude, and consequences of the internal armed conflict, but also issues recommendations to the Peruvian State aimed at preventing such violence from recurring, and includes a Comprehensive Reparations Plan. Two years after the submission of the CVR's Final Report the country has a relatively well-developed legal framework for dealing with reparations. A Policy Framework for Actions by the State Related to Peace, Reparation and National Reconciliation, which sets forth the axes for a reparations policy, has been established. These axes, in turn, were developed in a Comprehensive Reparations Plan - 2005-2006 Multiyear Program, which was approved in July 2005 and gives priority to the most affected rural communities. Finally, the Law creating the Comprehensive Reparations Plan, approved in late July 2005, provides a definition of victim and beneficiary for the purposes of the Plan, something neither of the other two documents had done. Furthermore, the Law orders the creation of a Reparations Council to be responsible for setting up a Unified Registry of Victims. In spite of such substantive progress, the actual implementation and execution of reparation measures contained in the Multiyear Program has not yet started. The Law has still to be regulated and the Reparations Council still to be formed; therefore, work on a Unified Registry of Victims has not begun. Although women were not the principal victims of violations committed by insurgent groups and State forces, they did suffer a set of crimes and outrages, which exacerbated previous conditions of ethnic, social, and gender inequality, and to which they were particularly vulnerable because of their gender. The CVR's Final Report documents how women were subject to sexual violence in different forms by State forces and insurgent groups. These types of crimes are typically underreported because of victims' feelings of guilt, shame, or fear of stigmatization or ostracism, so this documentation is particularly significant. These violations affected not only women's bodies, sexuality, and mental and reproductive health, but also their relationships with their families and communities. Women were often rejected, abandoned, or abused by partners, rejected by their families, and/or stigmatized by the community and seen as impossible to marry. The CVR found that the socio-demographic profile of women directly affected by human rights violations was relatively similar to that of men. Most female victims (73%) speak Quechua as their mother tongue; 80% of them live in rural areas; 34% are illiterate; and 48% are between the ages of ten and thirty. Furthermore, the crimes that most affected women were murders and extrajudicial executions (50%), followed by detentions (27%) and torture (23%). Rapes hold the sixth place (10%), after kidnappings (17%) and disappearances (16%). Gender roles were modified and redefined during the course of the unrest. Because men were the main targets, women's traditional space of development shifted as families disintegrated and family economies and community organizations collapsed. The new conditions posed new challenges for women, who, being the most stable element in the community, had no choice but to take on non-traditional roles in order to address these problems and guarantee the survival of their space. In many cases, violence led women to opt for displacement in order to protect their families or communities. They learned new ways to generate income and assumed productive and social-representation roles, moving from the private to the public sphere and from family to community issues. Women's community organizations played a significant role in achieving social integration, organizing daily life, building social networks, and offering an alternative to SL proposals. Women also assumed a leading role both in the struggle against violence and in the fight for human rights. They launched search and reporting processes, fought for the freedom of prisoners, buried the dead, sought the truth, and demanded justice for their relatives. In the course of these efforts, they often had to face new abuses. However, the system of inequality, hierarchical relations, and discrimination prevailing in Peru has survived the conflict and impacts the way the conflict is remembered. Within this context, it is not surprising that women, as victims of the conflict, have become invisible. The dominant image of both political and armed players is that of men. The fact that the victims belong to a marginalized (poor, indigenous, rural) sector of the population only makes matters worse. Consequently, the violations suffered by women, either inherent to their condition as women or not, have been silenced, as has their role in the regeneration of social networks. Women's Involvement in the Articulation of Reparations It is difficult, within the Peruvian context, to speak of a ‘movement' or ‘discussions' on the specific issue of reparations and of related mobilization strategies by women. Throughout the conflict, feminist organizations focused mainly on women's sexual and reproductive rights in general, distancing themselves from the domestic context of political violence. Women's community organizations, on the other hand, devoted themselves to survival issues. Human rights NGOs worked directly with women, but mainly in their roles as relatives of victims of disappearances or arbitrary detentions. Women in victims' and relatives' organizations were more prone to seek truth and justice for their relatives -placing themselves in their roles as mothers, daughters, wives or sisters-than for themselves. Furthermore, women generally do not perceive violations of their human rights as such because they are not fully aware of holding legal rights. The main reasons that women mobilized had little to do with their awareness of having been victims of specific crimes or human rights violations. Instead, what forced them to act were the absolute helplessness, vulnerability, and need brought about by the disruption and violence in their lives. Therefore, and due to their socio-economic status, women's demands usually are based in terms of attracting the State's attention, are not tied to a specific violation, and are related to basic services. However, women's level of organization, their experience within organizations, and their closeness to NGOs have impacted the number and types of demands made. The more organized and experienced the groups were, the more reparation measures they demanded and the more their demanded measures resembled the concept of reparations contemplated under international law. Most of the discussions on reparations took place parallel to the CVR's work and its design of the Comprehensive Reparations Plan [Plan Integral de Reparaciones] (PIR). Upon drafting its reparations proposals, the CVR's PIR Team [Grupo de Propuesta Integral de Reparaciones] (GPIR) sought to encourage an open exchange among human rights NGOs, victims' organizations, and itself. Although the CVR included a gender perspective in its work (as reflected in two chapters devoted to sexual violence against women and the differential impact of violence), the GPIR's approach to gender issues was limited. It restricted itself to organizing workshops with ‘a gender focus,' which meant they were aimed at women or men only. Though the visibility granted to women's experience during the conflict by the CVR's Final Report has encouraged a certain degree of refocusing on this issue, the attention has remained in civil society and has not reached state institutions. The development of a regulatory framework related to reparations following the CVR's work failed to include a dialogue with civil society. This is one of the reasons why none of the documents were drafted with a gender-based focus. Definition of the Violations to be Repaired Although the CVR's Report is the first official attempt to record human rights violations affecting women and to acknowledge the differential impact of violence on women and men, the Commission did not fully reflect this in its reparations plan. The CVR adopted the following definition of victim in its Comprehensive Reparations Plan: "all such persons or groups of persons who, due to or by reason of the domestic armed conflict affecting Peru from May 1980 through November 2000, have suffered acts or omissions that violate International Law on Human Rights."[1] This neutral wording fails to adequately reflect the specific characteristics of the experiences women suffered. In the PIR-CVR, the term ‘torture' is used instead of ‘torture and cruel, inhuman or degrading treatment,' although these forms of violence are described in other chapters of the Report. Furthermore, the term ‘rape' is used instead of ‘gender violence' or even ‘sexual violence,' both of which categories go beyond rape and relate to other forms of violence aimed at women or having a differential impact on women (also described in other chapters of the Report, such as forced abortion, forced cohabitation, forced contraception, forced domestic labor, sexual slavery, sexual molestation, sexual mutilation, etc). There are several practical, conceptual, and ethical reasons why the list of crimes to be repaired failed to reflect the complexity of the crimes and secondary damages suffered by women and girls during the conflict. These include the fact that the Database and forms used to collect statements, since they were the first tools to be developed, were not designed with a focus on gender or reparations. Valuable information was then lost, which could have been used to conduct a thorough analysis of the victims' expectations and the scope of sexual violence. Furthermore, communication within the CVR was poor, which prevented the GPIR from making full use of all the available information in its analysis of gender violence and its effects. Also, the CVR's Gender Team did not have a chance to develop specific guidelines to include a gender-based perspective in the Commission's recommendations. Finally, discussions on reparations in the Commission's Plenary Session were always undermined both by the issue of providing evidence for crimes and by the pragmatic discourse on political and financial feasibility, which led to reducing the list of crimes according to ‘classic' or ‘conservative' definitions in favor of those relating to the right to life. The limitations in the CVR's PIR are found again in the Law creating the Comprehensive Reparations Plan, the sole instrument adopted after the CVR that proposes a definition of victim and a listing of crimes to be repaired. The only relative step forward taken by this Law is its official acknowledgement of rape among the crimes to be repaired. Gender-Based Definition of Reparation Benefits and Beneficiaries The concept of beneficiary adopted by the CVR's Plan is very complex. The Commission tried to go beyond its own notion of victim to include the relatives of dead and disappeared persons and, for the purposes of some specific reparations measures, another set of persons whose rights had been infringed upon such as those who became undocumented due to the conflict, those unduly charged, those who as minors had been members of Self-Defense Committees, and children of rape. Regarding the concept of relatives, the CVR acknowledged that beneficiaries should include the spouse or partner, children, and parents, thereby seeking to go beyond the Peruvian law of succession, which provides that the property of the deceased goes first to the children and the surviving spouse or partner, and, only if there are no children, to the parents. Furthermore, the CVR accepted the validity of various types of relationships beyond consanguinity in an attempt to incorporate the prevailing notion of the family unit in the high Andean and jungle communities. The CVR's PIR concept of beneficiary thus covers a larger set of individuals who were affected by the conflict, which theoretically means it should cover more women. However, the Plan is largely limited by the assumption that the victim is dead or disappeared, and does not reach relatives of surviving victims -although they also suffered harm. This is the case, for example, with relatives of unduly detained persons, including women, who had to provide for their families on their own. Furthermore, although children of rape are included as beneficiaries of certain reparation measures to compensate for their abandonment and vulnerability and their mothers' higher financial burden, women themselves are not acknowledged as victims who were forced to have an unintended child. This shows a certain gender bias in the CVR's PIR, which can also be found in the Law creating the Comprehensive Reparations Plan -largely because it was inspired by the CVR's plan. In terms of benefits, the CVR's PIR is characterized by its comprehensive nature, combining individual reparation measures with collective measures, as well as symbolic and material reparation measures. It is made up of six programs: symbolic reparations, health reparations, educational reparations, rights restoration, economic reparations, and collective reparations. In general, and although women, as direct victims, relatives, or members of a collective beneficiary, should have access to the whole array of reparation measures proposed by the CVR's PIR, the programs do not specify the gender of the beneficiaries. They also fail to take into account the stigmatizing, economic effect of crimes -such as that which being a victim of sexual violence can have on women's access to a stable income-when determining benefits. With this in mind, granting victims of sexual violence life pensions instead of a one-time indemnification would have been more adequate. The programs also fail to consider the potential stigmatizing effect of receiving individual benefits within the contexts of communities in which collective interests often prevail. The issue is a complex one, even when dealing with collective reparation measures -which might seem to be the best alternative in these contexts, considering that women are generally the most vulnerable members of such collectivities. The CVR's PIR recommended a combination of the following economic reparations: family compensations and pensions for the relatives of the dead or disappeared; life pensions for the partially or totally, physically and mentally disabled, provided such disability is the result of rape, torture, wounds or injuries included in the CVR's list and that occurred during the conflict; compensation for persons unjustly imprisoned; compensation for rape victims, both men and women; and pensions for children of rape up to the age of 18. Though not explicitly, violations were classified according to a scale that put rape at the bottom because it was not seen as relating to the right to life and was wrongly considered as not entailing loss of profit or the interruption of a life project. The compensation scheme proposes a priority order among relatives of the dead and disappeared favoring the spouse or partner and, thus, generally women. It is meant to compensate for economic difficulties caused by the absence of a family member. However, life pensions are reserved for women older than 50 on the too-often wrong assumption that younger women are able to generate enough income to replace that of the absent man. A review of the various programs in the CVR's PIR shows a series of gaps that are likely to limit or hinder women's access to benefits. Certain measures, however, could have a transformative impact upon women, both at a practical level and at the level of their self-esteem. This is particularly the case with measures seeking the restoration of citizenship rights (such as normalizing the legal status of missing persons and that of undocumented individuals), but also with programs assigning social service packages (literacy plans or access to higher levels of education; physical and mental health assistance; work training enabling women to boost their abilities; employment or business opportunities). These types of reparation measures, which consider not only gender, but also ethnic origin, could significantly bridge the existing gender gaps and enable women to improve their position vis-à-vis their communities, their families, and themselves. The regulations approved after the end of the CVR's mandate introduce some changes to the scheme proposed by the PIR and only the Multiyear Program develops the specific content of reparation programs, and this is done without any trace of a gender perspective. Furthermore, the conceptual basis applied is different to that of the CVR, with emphasis placed on dealing with the after effects of the armed conflict instead of on repairing victims for individual violations. Within this logic, the entire population of the affected communities will receive benefits, regardless of whether they suffered a human rights violation. There is the risk that reparation measures will be confused with development or poverty eradication programs, contributing to the invisibility of the most vulnerable groups of victims, including women. Gender-Based Implementation of Reparation Programs Because the implementation process of the PIR has yet to start, and neither the CVR follow-up body nor the instruments adopted after the CVR's PIR have developed specific implementation proposals for their programs, it is difficult to identify the formal or informal limitations women could face in effectively accessing reparations. However, there are signs of what such limitations may be, including women's higher illiteracy rates and greater difficulties in directly accessing information. In the specific case of sexual violence, fear of ostracism and stigmatization, as well as feelings of shame and guilt, will be an issue. Other factors, such as mistrust in the public institutions that failed to play a protective role during the conflict, or lack of knowledge and understanding of the State's institutional structure, may affect men and women alike. Furthermore, although the process to qualify to receive reparations within the framework of a reparations program should be, in principle, more flexible than a judicial proceeding, the limitations that women have traditionally faced when trying to access courts show prevailing attitudes of racism, male chauvinism, and discrimination among court officials. Conclusions and Policy Recommendations A reparations program embodies a certain view on violence and has, therefore, a strong symbolic impact on society. In order to design a gender-sensitive reparations program, a thorough analysis of the society's gender (and race and class) structure before and after the transition is necessary, as well as a study of women's socio-economic and political status, the different forms in which violence impacted their lives, and the effects of violence on different groups of women. It is therefore important not only that the list of crimes researched by truth commissions includes gender violence, but also that such violations are expressly included in databases and the interview forms. Internal communication, cross circulation of findings by research teams, and development of specific guidelines are also essential components to provide recommendations, including those on reparations, with a gender perspective. Peru is an example of a failed opportunity to link a thorough exercise of documenting forms of violence against women and the differential impact of violence on women's lives with an exercise of drafting gender-sensitive reparation recommendations. Concrete lessons, however, both positive and negative, can be drawn from the Peruvian experience. On the positive side, the inclusion of rape among crimes to be repaired, and particularly among crimes potentially covered by economic reparations, represents a major step forward, considering the prevailing belief in Peruvian society that rape is a collateral damage of war. Another positive element is the fact that the concept of beneficiary in the reparations scheme is based on a notion of family that purports to be culturally diverse and inclusive in a way that could make it possible for a larger number of women to qualify as beneficiaries. It would have been much more adequate, however, if the notion of beneficiary for relatives had not been limited to cases in which the direct victims lost their lives or disappeared. The comprehensive nature of the proposed reparations scheme is also to be celebrated, as it seeks to respond to the complexity of the damages caused by the conflict, which affected victims morally and materially and on individual and collective bases. The inclusion of measures to restore citizenship rights and measures aimed at restoring social networks are worth highlighting, as they are likely to have a positive disparate impact on women. The distribution scheme for pensions and indemnifications among relatives of dead or missing people -though contentious because of the age limits recommended-should also be positively embraced. At the same time, however, designing reparation measures that effectively take into account the social, family, and community reality of the women -both direct victims and relatives of direct victims-depends on an early analysis of the impact of certain violations, particularly rape, on women's social status and their capacity to access a stable income. It also depends on identifying tensions that may arise within the family or the community due to the reparations, particularly economic reparations, since women tend to be the most vulnerable element in such spaces. In Peru, the program failed to do either. This is likely to have an especially negative effect on rural Quechua-speaking women who are victims or relatives of victims. Furthermore, specific guidelines should be developed to ensure that, first, both the process of identifying victims and beneficiaries and the process of implementing individual and collective reparation measures are based on an acknowledgment of the social, economic, and political inequalities that exist among men and women, and, second, that they attempt to create special conditions to overcome such inequalities. None of this has been done in Peru. The following three concrete suggestions for reparations programs in other parts of the world are based on Peru's experience:
Click here for the full text of this chapter as it appears in What Happened to the Women? Gender and Reparations for Human Rights Violations, ed. Ruth Rubio-Marín (New York: Social Science Research Council, 2006).
[1] Truth and Reconciliation Commission, Final Report of the Truth and Reconciliation Commission, vol. IX (Lima, 2003), 156.
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