THE ERA OF TERRORISM: THE PERUVIAN ARMED CONFLICT AND THE TEMPORAL SCOPE

OF APPLICATION OF INTERNATIONAL HUMANITARIAN LAW

Alonso Gurmendi Dunkelberg*

During the eighties and nineties, Peruvians lived through what they call “the Era of Terrorism”,
or “la Época del Terrorismo” in the original Spanish. This epoch of politically inspired violence
pitted the Peruvian government against the Maoist “Shining Path”, a group once described as
“the most radical expression of Marxist revolution in the [Western] Hemisphere”.1

According to Peru‟s Truth & Reconciliation Commission (hereinafter, the “TRC”), the fight that
ensued not only reached the level of armed conflict, but actually resulted in an estimated 65,000
deaths within a 20 year period – over three thousand deaths per year.2 The Peruvian armed
conflict is one of the deadliest conflicts in the history of the Americas, more comparable in scale
to the civil wars of Central America than the dictatorial processes that other South American
countries underwent during the second half of the 20th century.

Despite its importance, however, not much attention has been given to the international law
implications of this armed conflict, specifically, its relationship to international humanitarian
law. One key aspect of this is the glaring lack of study on the temporal scope of application for
international humanitarian law in Peru. Most sources, including the TRC and the Inter-
American Court of Human Rights (IACtHR), use vague and unsupported statements with regard
to the conflict‟s duration, usually centering on the “eighties and nineties” or “1980-2000” as a
reference point.3 Yet these claims are easily questioned when one considers that the Peruvian
Army would not get involved in the fight against the Shining Path until 1983 and the last major
Shining Path bombing in Lima –Peru‟s capital- occurred in 2002.4 Despite these suspicions,
there is no leading case or landmark publication that has properly put the 1980-2000 threshold
to the test or properly established a legally sound timeframe. This article seeks to fill this gap in
the existing scholarship.

In this article, I will analyze the Peruvian armed conflict through the lens of international
humanitarian law. My objective will be to offer a definitive date both for the beginning and end
of the conflict. The main idea is to give proper content to the Era of Terrorism.

1. The Era of Terrorism: A Short Retelling

The history of the “Era of Terrorism” can trace its roots to the schism between Maoist and
Soviet ideologies at the heart of the Peruvian Communist Party in the mid-1960s, splitting the
party into two factions: the pro-Soviet Unidad (“Unity”) and the pro-Maoist Bandera Roja
(“Red Flag”).5 Throughout the 60s, the regional leader of Bandera Roja’s Ayacucho Regional

* Professor of International Law, Universidad del Pacífico (Lima, Peru). Comments are welcomed at
a.gurmendidunkelberg@up.edu.pe.
1
DAVID S. PALMER, SHINING PATH OF PERU, (David Scott Palmer ed., St. Martin‟s Press, 1992)
2
TRUTH & RECONCILIATION COMMISSION, FINAL REPORT (Peru, 2003) Annex 2, 22 (hereinafter TRC).
3
See e.g.: TRC, supra note 2, Vol I, Chapter 1, 53; Miguel Castro Castro v. Peru, C Series, Case No. 160,
Judgment (Merits, Reparations & Costs), ¶197.1 November 25, 2006.
4
Peru bomb fails to deter Bush, BBC NEWS (2002), http://news.bbc.co.uk/2/hi/americas/1884762.stm
(last visited Mar 1, 2017).
5
TRC, supra note 2, at vol. II, 14-16; Deborah Poole & Gerardo Renique, The New Chroniclers of Peru:
US Scholars and Their 'Shining Path' of Peasant Rebellion, 10 BULLETIN OF LATIN AMERICAN
RESEARCH 133–191, 141 (1991).

Electronic copy available at: https://ssrn.com/abstract=2927155

Committee, an obscure philosophy professor from Huamanga University, Abimael Guzmán,
grew ever more hostile to party leadership until 1970, when he and his supporters were expelled
on account of their radical hyper-violent views.6 In response, Guzman exscinded his Regional
Committee from mainstream Communist parties and established Sendero Luminoso (“Shining
Path”) as a separate entity with a particular interpretation of communist thought.7

Guzman concocted an ideology known as Pensamiento Gonzalo (roughly, the “Gonzalo

Doctrine”, after Guzman‟s criminal alias of Presidente Gonzalo) whereby he sought to establish
a mostly pastoral nation called the “Republic of New Democracy” that would replace the so-
called “old powers” of Peruvian democracy. In this regime, profit and currency would be
eliminated and everyone would be dedicated to survival agriculture. As a Maoist, Guzman
sought to replicate Mao‟s Cultural Revolution and believed that the only way to produce such
an outcome was through the violent overthrowing of government.

On May 17th, 1980, a group of Guzman‟s henchmen raided the town of Chuschi, in the Peruvian
Andes, burning ballot boxes that were going to be used in Peru‟s Presidential elections.8 From
then on, the Shining Path would begin an aggressive military operation to take over as many
Andean towns as possible. After killing local authorities and well-respected citizens, the Shining
Path would replace local governments with its own “Popular Committees”. These committees
subjected the Peruvian campesinos (the indigenous inhabitants of the Peruvian Andes) to a
veritable reign of terror that sought to micromanage every aspect of their life in order to make
sure it fit the requirements of Pensamiento Gonzalo. Failure to comply, was punished by death.9

The Peruvian Government proved to be completely unable to handle the Shining Path
insurgency in the Andes. After two years of ineffective police action filled with human rights
violations, the government declared a state of emergency and deployed the Armed Forces to
control the situation.10 The Armed Forces, however, were also ill-prepared to handle a complex
counter-insurgency operation. The Army itself has recognized that, on hindsight, none of its
training materials or equipment were suited for non-conventional war.11

Indeed, a proper strategy would have required a detailed counter-insurgency operation, where
the Army worked in tandem with the local population and sought to weed out terrorist elements
through the complete occupation of towns.12 Peru‟s military doctrine at the time, however, was
influenced by the ineffective and inhumane ideas of people like War Minister and Army
General, Luis Cisneros. At one point, for example, Cisneros publicly stated that, in his opinion,
the only way to defeat the Shining Path was by killing 60 people and hoping that at least three
of them would be terrorists.13

This gruesome ideology, combined with the Army‟s lack of technical capacity to operate in the
rugged Andean terrains of central Peru, meant that in many occasions, young impressionable
and undertrained Peruvian officers were asked to liberate their countrymen from an enemy they
6
Poole & Renique, supra note 5, at 186-187
7
TRC, supra note 2 at vol. II, 17
8
Id., at vol. II, 19.
9
Id., at vol. V, 29.
10
See: Supreme Decree 068-82-IN (Peru).
11
COMISIÓN PERMANENTE DE HISTORIA DEL EJÉRCITO DEL PERÚ, EN HONOR A LA VERDAD (2012) 16.
12
UNITED STATES DEPARTMENT OF THE ARMY, THE U.S. ARMY/MARINE CORPS COUNTERINSURGENCY
FIELD MANUAL: U.S. ARMY FIELD MANUAL NO. 3-24 (2007) 174.
13
CENTRO DE ESTUDIOS Y PROMOCIÓN DEL DESARROLLO (DESCO), II VIOLENCIA POLÍTICA EN EL PERÚ
1980-1988 (1989) 570.

Electronic copy available at: https://ssrn.com/abstract=2927155

could not see or understand. Fearing for their lives, many turned to punitive policies against
those same campesinos they were tasked to protect. Individuals accused of being en league with
the Shining Path were dealt with violently and with little regard to due process. Local
populations rapidly learned that they were trapped between Shining Path and Army bullets.14

Slowly but steadily, however, the Army realized its mistakes and commissioned a new counter-
insurgency manual that properly reflected the realities of Maoist guerrilla fighting. 15As a result,
in 1989, Manual ME 41-7 instructed soldiers to befriend rather than antagonize local
populations. The Manual also encouraged soldiers to train and arm them in so-called rondas
campesinas, which can roughly be translated as peasant community watches.16 These new
policies proved to be more effective, and soon the Army and the rondas were on the offensive.

While human rights violations continued for the remainder of the conflict, especially through
the creation of an illegal death squad called “Grupo Colina” during the government of
autocratic president Alberto Fujimori, this new counter-insurgency strategy did allow the Army
to turn the tide of the Andean front and ultimately cripple the Shining Path‟s military operations.
This, coupled with the arrest of Abimael Guzman by a police intelligence unit in 1992, led to
the ultimate downfall of the organization.17 Small remnants of Shining Path endure in specific
areas of the Peruvian jungles until this day, but they no longer seek to overthrow the
government. Instead, they basically function as mercenary muscle-men for drug trafficking
cartels and organized crime syndicates. The Shining Path, while not at all eliminated, is surely
and confidently defeated, from a strategic point of view.18

2. The Politics of Armed Conflict in Modern Peru

In order to properly understand the “Era of Terrorism”, it is not enough to merely know its
history. As with any internal conflict, its scars run deep within Peruvians‟ collective mind. In
modern day Peru it is difficult to find anyone over the age of 30 who doesn‟t have at least one
tragic story to share about the conflict, whether regarding the Shining Path or the Armed Forces.

Seeking to heal these scars, and upon the downfall of the Fujimori government, interim
President Valentín Paniagua commissioned the TRC, with the task of giving content and context
for the “Era of Terrorism”. It was the TRC that ultimately decided that the “Era of Terrorism”
had to be described as a non-international armed conflict (NIAC) subject to the provisions of
Common Article 3 of the Geneva Conventions.19 This was a controversial decision. Throughout
the 80s and 90s, all of Peru‟s governments had refused to describe the situation as anything
other than “delincuencia terrorista” – terrorist crime. The allegation that the government had
been engaged in a military contest with the Shining Path was poorly received both by Peru‟s
conservatives and the families of Shining Path victims, who saw the Commission‟s
determination as an ideological move by a left-leaning entity not wishing to be too harsh on left-

14
TRC supra note 2, at Vol. I, 107.
15
MINISTERIO DE DEFENSA, MANUAL ME 41-7: GUERRA NO CONVENCIONAL
CONTRASUBVERSIÓN (1989). See also: CARLOS TAPIA, LAS FUERZAS ARMADAS Y SENDERO LUMINOSO:
DOS ESTRATEGIAS Y UN FINAL (1997) 43-44; EN HONOR A LA VERDAD, supra note 11, at 161.
16
MANUAL ME 41-7, supra note 15, at 56-61
17
TAPIA, supra note 15, at 152-153.
18
Id., at 152-153.
19
TRC, supra note 2, at Vol. I, 204.
wing terrorism.20 All to the worse, one particular paragraph in the TRC‟s Report fueled the
flames of the debate:

“The TRC is not 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. Its use, on the contrary, at the outset of a protracted
armed conflict, is loaded with subjective meaning that complicates the analysis of the conduct
of those who decided to take up arms against the State and who, on that path, committed violent
crimes. For this reason, the TRC has distinguished between the subversive acts that had the
purpose of terrorizing the civilian population from those that have a different nature, and has
sought to use the terms „terrorism‟ and „terrorists‟ with caution and rigor”.21

The above paragraph has long been regarded by the TRC‟s opponents as recognition that it is
“soft on terrorism”. For them, the TRC meant to whitewash the Shining Path‟s crimes, choosing
to use international law to encourage leniency on history‟s judgment over the group‟s actions.
From then on, in Peruvian political discourse, the term “armed conflict” became a dirty word for
the average citizen, who rallied behind the cry “en el Perú no hubo conflicto armado, hubo
terrorismo” – “in Peru there was no armed conflict, there was terrorism”. For years to come,
therefore, pundits, politicians and political commentators continued to use the term armed
conflict as mostly a representation of anti-patriotic left-wing politicians and not as a legal term.
Moreover, whenever the term is used in scholarly materials, it is done so with little legal content
and very scant analysis of international humanitarian law. In Peru, the term “armed conflict”,
even to its own defenders, is little more than an empty legal shell.

Take for example the TRC‟s very own legal analysis on the application of international
humanitarian law: while the Commission did include an entire chapter devoted to legal issues,
the section dedicated to the application of IHL is barely five pages long and doesn‟t even cite to
any relevant case-law or authority. Indeed, the Commission determined that the magnitude of
the “Era of Terrorism‟s” death toll “can only be explained through the existence of an internal
armed conflict”.22 But the mere magnitude of the tragedy is not sufficient evidence for an armed
conflict under international law.23 Under the widely cited 1995 Prosecutor v. Tadic, an armed
conflict exists “whenever there is (…) protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State”.24 Not only did
the TRC fail to evaluate both the protractedness and organizational requirements, but it didn‟t
even cite to the decision at all.

Thus, in the absence of any authoritative clarification as to the application of Common Article 3
of the Geneva Conventions to the Peruvian situation or as to the content of “armed conflict” as a
legal term of art, the Peruvian national debate has continued to be defined by one key

20
Dante Bobadilla, ANÁLISIS DEL INFORME FINAL DE LA CVR, LIBERALISMO PERUANO (2012),
http://liberalismoperuano.blogspot.pe/2012/09/analisis-del-informe-final-de-la-cvr.html (last visited Mar
1, 2017) (claiming that the TRC had the “deliberate intention of employing this term [armed conflict] to
avoid labeling what [the Shining Path] actually did” in order to cover the terrorist actions of the
organization “with a veil of mischievously weaved historical and sociological explanations”).
21
TRC, supra note 2, at Vol. II, 25.
22
TRC, supra note 2, at Vol. II, 205
23
ANTHONY CULLEN, THE CONCEPT OF NON-INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL
HUMANITARIAN LAW (Cambridge University Press, 2010) 131.
24
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Interlocutory Appeal on Jurisdiction, ¶70 (1995).
misconception: that armed conflict and terrorism are antithetical to one another. Either an armed
conflict or terrorism, but never terrorism during armed conflict.

3. The Temporal Scope of Armed Conflict

After revising the history and politics of the Peruvian armed conflict, in this section I want to set
out the law applicable to the temporal scope of armed conflicts. The main objective will be to
properly frame the “Era of Terrorism” from beginning to end. In order to do that, I will first
establish the legal standards currently applicable to determine the starting and ending point of an
armed conflict. Later, I will apply these rules to both the beginning and the end of the Peruvian
armed conflict itself.

The Peruvian TRC has specifically stated that the Peruvian NIAC lasted from 1980 to 2000. 25
This determination has been formally accepted by both the Peruvian Government and the Inter-
American Court of Human Rights.26 As mentioned above, however, none of these entities has
offered support for this claim under international law. As I will show below, an analysis from
international humanitarian law does not seem to support this thesis. This means, therefore, that
either the traditional dates given by Peruvians to the “Era of Terrorism” may be mistaken or, at
the very least, that the “Era of Terrorism” and the “Peruvian NIAC against the Shining Path” are
not the same thing, but that rather the latter would be contained by the former. I will not choose
between these two possibilities, preferring to leave such determinations to history and the
Peruvian people itself. I will however, in the next section, use international law to establish a
proper timeframe for the existence and end of armed conflict in Peru.

a. The Existence of Armed Conflict

The temporal scope of NIAC is mostly a factual endeavour.27 As mentioned above, according to
the landmark Tadic judgment, a NIAC exists “whenever there is (…) protracted armed violence
between governmental authorities and organized armed groups or between such groups within a
state”.28 As such, an armed conflict begins whenever these requirements of protractedness and
organization are met. Both case-law and scholarship have explained and interpreted these
requirements –protractedness and organization- in quite specific ways.

With regards to protractedness, subsequent cases have interpreted it as an expression of

intensity, i.e. violence so intense that it cannot be put down but in a prolonged period of time. 29
This distinguishes armed conflict from so-called “internal disturbances” such as mutinies,
protests, demonstrations and other non-organized violent acts. In order to clearly distinguish
both scenarios, international tribunals have devised a series of useful criteria, including, e.g.,
how widespread the violence is, the number of troops deployed, the number of displaced
peoples and refugees, the kinds of weapons used, the strategies employed by the parties, the

25
TRC, supra note 2, at Vol. I, Chapter 1, 53.
26
Miguel Castro Castro v. Peru, supra note 3, at ¶197.1.
27
Tadic Interlocutory Appeal, supra note 24, at 70; Marko Milanovic, The end of application of
international humanitarian law, 96 International Review of the Red Cross, 2014, at 179.
28
Tadic Interlocutory Appeal, supra note 24, at 70.
29
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgment, ¶70 (May 7, 1997). See also: Prosecutor v.
Ramush Haradinaj; Idriz Balaj y Lahi Brahimaj, Case No. IT-04-84, Judgment, ¶40 (April 3, 2008)
(stating that “[i]n the Tadic case, the Appeals Chamber, when applying its own test, found that the
fighting among various entities within the former Yugoslavia since 1991 exceeded the 'intensity
requirements' applicable to armed conflict. The Trial Chamber consequently interpreted the term
'protracted armed violence' to refer to the 'intensity of the conflict'").
number of victims, the existence of battleground frontlines, etc.30 These factors, while useful,
are not however cumulative. The existence of some of them may suffice to determine the
existence of an armed conflict. Indeed:

"At the more systemic level, an indicative factor of internal armed conflict is the way that
organs of the State, such as the police and military, use force against armed groups. In such
cases, it may be instructive to analyse the use of force by governmental authorities, in
particular, how certain human rights are interpreted, such as the right to life and the right to be
free from arbitrary detention".31

As to the organization requirement, an organized armed group will generally possess a

command structure capable of issuing orders and internal regulations; military capabilities able
of producing a unified combat strategy at a grand scale, including the administration of territory;
logistical capabilities allowing for the recruitment and training of new members; a disciplinary
regime allowing for at least potentially sanctioning breaches of internal regulations and
international law; and, the ability to speak as a whole and with one voice.32

b. The End of Armed Conflict

There is less doctrinal agreement on the exact theory that explains the end of NIAC.33
Professors Lewis, Blum & Modirzadeh have found that at least four options exist:

- The “Two-Way-Ratchet” Theory, whereby a NIAC ends “as soon as at least one of the
constituent elements of the NIAC ceases to exist”.34
- The “No-More-Combat-Measures” Theory, whereby, similarly to what happens in
international conflicts, a NIAC ends “upon the general close of military operations as
characterized by the cessation of actions of the armed forces with a view to combat”.35
- The “No-Reasonable-Risk-of-Resumption” Theory, according to which a NIAC ends
“where there is no reasonable risk of hostilities resuming”.36

30
Prosecutor v. Ljube Boskoski & Johan Tarculovski, Case No. 04-82, Judgment ¶177 (July 10, 2008)
(stating that "[v]arious indicative factors have been taken into account by Trial Chambers to assess the
'intensity' of the conflict. These include the seriousness of the attacks and whether there has been an
increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in
the number of government forces and mobilisation and the distribution of weapons among both parties to
the conflict, as well as whether the conflict has attracted the attention of the United Nations Security
Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken
into account in this respect the number of civilians forced to flee from the combat zones; the type of
weapons used, in particular the use of heavy weapons and other military equipment, such as tanks and
other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent
of destruction and the number of casualties caused by shelling of fighting; the quantity of troops and units
deployed; existence and change of front lines between the parties; the occupation of territory, and towns
and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire
orders and agreements, and the attempt of representatives from international organizations to broker and
enforce cease fire agreements").
31
Id., at ¶178 (July 10, 2008).
32
Id., at ¶¶201-203 (July 10, 2008).
33
Dustin A. Lewis, Gabriella Blum, and Naz K. Modirzadeh, Indefinite War: Unsettled International Law
on the End of Armed Conflict, Harvard Program on International Law & Armed Conflict Research
Paper, (February, 2017).
34
Id., at 97.
35
Id., at 100.
36
Id.
 - The “State-of-War-Throwback” Theory, whereby a NIAC ends, as per the original
Tadic formulation, “upon the achievement of a peaceful settlement between the
formerly-warring parties”.37

Each of these theories has its pros and cons. For example, while a final settlement offers clarity
on the specific date one chooses for the end of the conflict, it does not actually guarantee peace
on the ground. Warring parties may continue to engage in hostilities against one another despite
having signed an agreement, whereas parties no longer in conflict do not necessarily agreed to a
ceasefire.38 For its part, under the “No-Reasonable-Risk-of-Resumption” approach, the situation
on the ground is a privileged factor, but at the cost of specificity. Under this theory, the conflict
would continue to exist even if one of the constituent elements of armed conflict ceases to meet
the Tadic threshold, so long as there remains a risk of resumption of hostilities. The subjectivity
of the standard for what will count as “resumption of hostilities” makes this theory, in my
opinion, less reliable.39 The “No-More-Combat-Measures” Theory suffers in that it purports to
equate the conditions of hostilities in international and internal conflicts, something that should
be done only with great caution. To argue that a NIAC persists until the “final end of all fighting
between all those concerned”40 so that no more “movements, manoeuvers and actions of any
sort”41 are carried out by any armed force sounds unlikely to be a common occurrence for most
modern NIAC. Lastly, the “Two-Way-Ratchet” Theory, while popular for its simplicity42, also
faces important hurdles, since it may lead to a “revolving door of applicability and non-
applicability of IHL”, as the intensity of hostilities rises and diminishes above and below the
Tadic standard.43

Determining which theory should be the definitive, dominating interpretation on the end of
armed conflict is beyond the scope of this article. I will, however, argue that both the “No-
More-Combat-Measures” and “State-of-War-Throwback” theories seem exceedingly
demanding considering today‟s outlook. Moreover, under both theories, one would have to be
forced to admit that contemporary Peru is still facing a NIAC against the remnants of the
Shining Path; something few would support, given that neither the organizational nor intensity
requirements seem to be met nowadays. Theories that support the continued and indeterminate
application of international humanitarian law –with all its flexibility and complexity- to
situations that do not currently meet the Tadic standard, nor have met it at any time in the recent
past, seem to be at least prima facie misplaced, and conducive to never-ending conflicts.
Because of this, I will focus my analysis mostly on the “Two-Way-Ratchet” and “No-
Reasonable-Risk-of-Resumption” theories, which seem better equipped to explain the Peruvian
situation.

c. The Start of the Peruvian NIAC

Under the traditional retelling seen above, the “Era of Terrorism” began on May 17th 1980,
when a group of Shining Path militants took over a voting station in the Andean town of
Chuschi and burned down electoral materials. This was the first recorded violent act by the

37
Id., at 103.
38
Id., at 64.
39
Id., at 101.
40
Id., at 33.
41
Id., at 34.
42
Marko Milanobvic, supra note 27.
43
Dustin A. Lewis, Gabriella Blum, and Naz K. Modirzadeh, supra note 33, at 97.
Shining Path. It cannot, however, be the first belligerent act of the Peruvian NIAC. While at this
point the Shining Path was definitely a well-organized group, the mere burning of ballots is by
no means an intense enough act to trigger the application of the law of armed conflict.

In fact, between 1980 and 1982, the Peruvian Government‟s official position was to publicly
deny the existence of any “subversive atmosphere”.44 For example, Francisco Belaunde, then
Speaker of the House of Representatives, and brother of President Fernando Belaunde, stated in
November 1980 that classifying the Shining Path as a terrorist organization was an over-
exaggeration: “[t]errorism means blowing up a train with 80 passengers like what happened in
Bologne, Italy. Putting a bomb in the doorsteps of a city hall to scare the mayor is but an
infantile action”, he said.45

As the months went by it became increasingly clear that the Shining Path was no ordinary band
of brigands, but an insurgent group seeking to completely overthrow the government. By 1982,
however, the Government still seemed utterly divorced from reality. Interior Minister José
Gagliardi, for example, stated in 1982 that he remained open to dialogue with “anyone that
claims representation of the Shining Path in order to put an end to the useless spilling of blood
between Peruvians”.46 Later, he would candidly (and unbelievably) ask on national television
that the government “would like to know what their demands are”.47 It is clear, therefore, that
the response of the Belaunde government did not correspond to a belligerent one. Police action,
while violent and in breach of fundamental rights, did not amount to an armed conflict akin to
the Tadic standard.

In fact, it was not until December of 1982 that the Belaunde Government issued an ultimatum to
the Shining Path, ordering it to demobilize or face military intervention.48 It is at this point that
the Government finally decided to engage the Shining Path through military means. It was only
at this point that there were two parties actually fighting one another, and not just intense
violence on the part of the Shining Path, met by inefficient and violent police repression by the
Government. Indeed, as Professor Liesbeth Zegveld states, “[t]he applicability of the law to a
party to the conflict should not depend solely on the features of the other party to the conflict”.
49
In other words: a conflict needs more than one party; the Shining Path could not start a war
until the government responded by military means.

This makes sense if one looks at the data provided by the TRC. In 1980, the TRC only
registered 13 deaths at the hands of the Shining Path and 6 attributable to the State (26%). In
1981, the number of deaths rose slightly to 49, of which 34 were killed by the Shining Path and
9 by the State (18%). In 1982, the Government killed 148 of a total of 576 casualties (26%). It is
not until 1983, after the intervention of the military, that these statistics begin to even out. In
that year, the Government was responsible for 44% of all casualties. In 1984, 42%, and so on.50

I argue, therefore, that the Peruvian armed conflict began not on May 17th 1980, but rather, on
December 30th 1982.

44
DESCO, supra note 13, at Vol. II, 65.
45
Id., at Vol. II, 369.
46
Id., at Vol. III, 566.
47
Id., at Vol. III, 566.
48
Id., at Vol. II, 387-388.
49
LIESBETH ZEGVELD, THE ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN INTERNATIONAL
LAW (Cambridge University Press, 2007) 138.
50
TRC, supra note 2, at Annex 2, 84.
 d. The End of the Peruvian NIAC

Just like with the beginning of armed conflict, Peruvians have a traditional date for the end of
the Era of Terrorism. According to the TRC, it is November 2000. The reason for this date has
mostly to do with the downfall of autocratic President Alberto Fujimori. In Peru, Fujimori is
widely yet controversially credited with defeating the Shining Path. During his government,
human rights violations were rampant and a government-approved death-squad was created to
illegally kidnap, torture, and execute alleged Shining Path operatives in urban settings. To many
Peruvians, the end of the Fujimori years meant a return to democracy and paved the way for the
creation of the TRC. The ensuing interim government, rising out of strong opposition to
Fujimori, did not want to limit the TRC‟s mandate to just part of Fujimori‟s administration, and
so authorized it to analyze human rights violations from May 1980 to November 2000. This
ultimately stuck, and now the fall of Fujimori is widely regarded in Peru as the end point for the
“Era of Terrorism”.

From a legal standpoint, however, the end of an autocratic government cannot mark the end of
application of international humanitarian law. Both events are simply unrelated. The Shining
Path did not cease to exist once Fujimori resigned from the presidency. In fact, on August 9,
2001, well into the administration of Alejandro Toledo, winner of the 2001 Presidential
elections, 4 policemen and 12 Shining Path subversives died in an armed engagement in the
Amazonian town of Satipo.51 Moreover, the Shining Path‟s last major bombing in Lima
occurred in 2002, as a response to George W. Bush‟s visit to the country. Even to this day,
Shining Path remnants continue to operate in the Peruvian jungle, serving as private security
forces to drug cartels and other organized crime syndicates.52

Yet, while the end of the Fujimori Government cannot mark the end of the Peruvian NIAC,
neither can the mere existence of Shining Path operatives mean the continuation of the Peruvian
NIAC until today. From the perspective of the “Two-Way-Ratchet” Theory, the relevant legal
question is at which point the Shining Path stopped complying with either the intensity or the
organization requirement as per Tadic. For the “No-Reasonable-Risk-of-Resumption” Theory, it
is at which point was the Shining Path unable to reengage the government with sufficient
intensity as to re-trigger the Tadic threshold. This, surely, happened –on both counts- before the
downfall of Fujimori. In order to prove this, I will analyze the facts surrounding the end of the
Shining Path, below.

Volume II, Chapter 5 of the TRC‟s Report focuses on Shining Path activity between the capture
of its leader, Abimael Guzmán, in 1992, and the fall of Fujimori, in 2000. In this section, the
TRC recalls that “while alongside Guzman, an important part of the Shining Path political
leadership was captured as well, the military apparatus of the organization remained relatively
untouched”.53 Thus, “during the following months [to Guzman‟s capture] the [Shining Path]
tried to prove that the hit had not been very relevant, waging bloody offensives in the inner
regions of the country”.54

51
Perú: 16 muertos en enfrentamientos, BBC MUNDO (2001),
http://news.bbc.co.uk/hi/spanish/latin_america/newsid_1481000/1481436.stm (last visited Mar 1, 2017).
52
"Ya Perdí", dijo 'Artemio' cuando fue capturado por la policía y el Ejército, EL COMERCIO (2012),
http://elcomercio.pe/politica/gobierno/ya-perdi-dijoartemio-cuando-fue-capturado-policia-ejercito_1-
noticia-1373688 (last visited Mar 1, 2017).
53
TRC, supra note 2, at Vol. II, Chapter 5, 115.
54
Id., at Vol. II, Chapter 5, 116.
While still active, however, the Shining Path had indeed been mortally wounded: “the new
leadership of the active [Shining Path] did not change its modus operandi, but its terrorist
actions lost effectiveness. Achieving the same effects as before now required ever-increasing
doses of violence and authoritarianism, isolating the [Shining Path] and pushing it towards
marginal areas, away from the centers of power”. 55

This recollection of facts tells the story of an ever-weakening armed group. This process of
progressive defeat would continue unstopped throughout the years until today, when the Shining
Path is virtually non-existent. It is within this timeframe, that at some point in time, the Peruvian
NIAC died off, under both the “Two-Way-Ratchet” and the “No-Reasonable-Risk-of-
Resumption” theories.

The TRC recalls that the last major army offensives against the Shining Path occurred between
1994 and 1995. There were two basic objectives on this offensive: (i) to liberate indigenous
Ashaninka communities in the last areas of Shining Path control; specifically, rivers Ene and
Tambo; and (ii) to destroy Shining Path remnants in the left bank of the Huallaga river (code-
named Operation “Aries”). As the TRC itself states, the Army managed to contain the Shining
Path to the Ene river basin by 1995 (where they operate to this day).56 Also, after Operation
Aries, in 1994, no major Army operations were conducted in the Huallaga river area. By
January, 1997, future TRC member and expert on Shining Path strategy, Carlos Tapia, wrote a
book officially concluding that the Shining Path was strategically defeated.57

After 1996, even the organization of the Shining Path began to crumble. In 1999, the last active
member of the original Shining Path leadership, “Feliciano” was captured. As of then, both the
Ene and Huallaga factions of the Shining Path went their separate ways, the latter remaining
loyal to the now imprisoned Guzmán and Feliciano, the former choosing to work with drug
cartels and organized crime. After this, the entire political-military organization of the Shining
Path collapsed, most certainly below the Tadic threshold and totally unable to resume hostilities
at such intensity levels.

Upon all of these considerations, therefore, it is safe to say that the Peruvian NIAC concluded
sometime after the 1994-1995 military operations at Huallaga and Ene. Under the “Two-Way-
Ratchet” theory, this would most likely be around early to mid-1996. Under the “No-
Reasonable-Risk-of-Resumption” Theory, this end-point could possibly be extended until July
1999, upon the capture of “Feliciano”. It is most likely, however, that the alternative that most
corresponds to reality is the former rather than the latter.

4. The Role of Recognition

Ever since the entry into force of the Geneva Conventions, recognition has played a diminishing
legal role in the rules applicable in times of armed conflict. However, even despite these efforts,
it is still the case that “non-recognition by a party to the conflict or a third party may have
practical implications”.58 Lewis, Blum & Modirzadeh point for example to the case of a human
rights tribunal not admitting the existence of an armed conflict and point to the European
Court‟s precedent in Isayeva v. Russia.59 In this case, despite the use of heavy weaponry by

55
Id., at Vol. II, Chapter 5, 110.
56
Id., at Vol. V, Chapter 2, 264.
57
TAPIA, supra note 15, at 152-153.
58
Dustin A. Lewis, Gabriella Blum, and Naz K. Modirzadeh, supra note 33, at 69.
59
Isayeva v. Russia, App. no. 57950/00, Eur. Ct. H. R., Judgment, Feb. 24, 2005, ¶ 191.
Russian forces, the Court decided to use human rights law, instead of international humanitarian
law, because “[n]o martial law and no state of emergency has been declared in Chechnya, and
no derogation has been made”.60

Such situations have a bearing in the Peruvian case. No Peruvian government ever recognized
the situation as an armed conflict throughout the duration of the “Era of Terrorism”, choosing to
label it instead as a wave of terrorist crime, as seen above. This refusal to acknowledge a role
for international law had important practical and legal consequences. From the start of the
conflict, human rights abuses were rampant, with little to no available guidelines on how exactly
army men were supposed to behave in the conduct of hostilities. In fact, it has been reported that
in the early eighties President Belaunde, seeking to appease his own generals, threw an unread
Amnesty International Report into a trash can.61 Moreover, a few years earlier, responding to
accusations from Church leaders claiming police forces where using torture in the Peruvian
Andes, a sarcastic Belaunde told the media that the Church saw terrorists as “very delicate
petals” who should not be touched because their frailty.62 This situation continued throughout
the García and Fujimori administrations, which were also riddled with accusations of human
rights violations.

This meant that the rules of engagement devised by the armed forces many times completely
eschewed both human rights law and international humanitarian law, producing situations of
egregious violation. Take for example the landmark Barrios Altos case before the Inter-
American Court of Human Rights (IACtHR).63 As told by the Court, “[a]t approximately 11.30
p.m. on November 3, 1991, six heavily-armed individuals burst into the building located at No.
840 Jirón Huanta (…). The individuals (…) obliged the alleged victims to lie on the floor. Once
they were on the floor, the assailants fired at them indiscriminately for about two minutes,
killing 15 people and seriously injuring another four”.64 All of the victims were later confirmed
to be civilians, not involved with the Shining Path in any way.

Neither the parties nor the IACtHR itself described the situation as an armed conflict at any
point of the judgment. In fact, it was not until after 2003, with the publication of the TRC‟s
Final Report, that Inter-American case-law began to expressly refer to the Peruvian situation as
a NIAC.65 This, however, did not make the Court apply international humanitarian law. Before
2012, the Court traditionally refrained from applying international humanitarian law as per its
precedent in Las Palmeras.66 The first time that the Court actually applied international
humanitarian law to the Peruvian NIAC was in 2015, in the Cruz Sánchez case.67

Such a cumbersome and varied approach to the applicable law makes for peculiar results. For
example, in Castillo Petruzzi v. Peru, a case tried in 1999, the IACtHR condemned the State for

60
Id., ¶ 191.
61
Lewis Taylor, Counter-Insurgency Strategy: the PCP-Sendero Luminoso and the Civil War in Peru,
1980-1996, 17 BULLETIN OF LATIN AMERICAN RESEARCH, 1998, at 35–58, 41.
62
DESCO, supra note 13, at 375.
63
IACtHR, Case of Barrios Altos v. Peru, Judgment (Merits) 14 March 2001.
64
Id., ¶2.
65
See e.g.: Miguel Castro Castro v. Peru, supra note 3, at ¶197.1.
66
IACtHR, Las Palmeras v. Colombia, Judgment (Preliminary Objections), 4 February 2000.
67
IACtHR, Case of Cruz Sánchez et al. v. Peru, Judgment (Preliminary Objections, Merits, Reparations
and Costs) 17 April 2015.
unlawfully trying a civilian in a military tribunal, in violation of the right to a natural judge.68
While I do not put the illegality and unconscionable nature of Peru‟s 1990s anti-terrorist
legislation under any doubt, I do wish to underline the fact that the Court described Mr. Castillo
Petruzzi, a senior commander of the Tupac Amaru Revolutionary Movement (MRTA) as a
civilian.69 By contrast, in 2015, the same Court, now cognizant of the Peruvian NIAC and
applying international humanitarian law, expressly stated that MRTA fighters “were not
civilians, but rather members of the MRTA, that actively participated in hostilities”.70 Such
contradictions are a direct result of the Court‟s wavering use of humanitarian law throughout the
years.

The point here therefore is that while legally irrelevant, lack of recognition both by the state and
international actors can have practical and legal implications for the use and proper
interpretation of humanitarian law. When governments refuse to recognize the existence of an
armed conflict, they will likely undertake military operations without regard to the humanitarian
principles of distinction, proportionality and military necessity, leading to human rights
violations. When international courts refuse to apply international humanitarian law (even if
they recognize the existence of armed conflict) they will judge the state‟s actions under the
wrong legal standard, leading either to imperfect precedents or potentially –in at least some
cases- miscarriage of justice.

5. Conclusions

As I have shown above, Peru is a country voluntarily alienated from international humanitarian
law. Given the heated political situation surrounding the “Era of Terrorism”, Peruvians have
generally refrained and/or refused to give content to the legal rules applicable to one of its most
dire national tragedies. This estrangement, helped in part by the IACtHR practice of eschewing
international humanitarian law from its case-law, has caused a legal gap on some of the most
fundamental aspects of Peru‟s armed conflict. Its duration, in all honesty, is only one of other
several still unresolved questions.71

I have concluded that the traditional times set out by Peruvian society for the duration of the
“Era of Terrorism” do not coincide with the actual duration of the Peruvian NIAC, a key fact
that escapes not just average Peruvians, but even the Government and civil society themselves.
As mentioned above, whether this means that the “Era of Terrorism” is a different process from
the Peruvian NIAC or whether the “Era of Terrorism” is a NIAC that lasts not from 1980 to
2000, but rather from 1983 to 1996 (or 1999, depending on the theory one uses), is for Peruvian
society to decide, not this article. What I want to stress from this finding is rather that such a
gross lack of knowledge about one‟s own history is seldom a good tool for post-conflict
reconciliation.

Peruvians, as any society recovering from mass murder and strife, must come to terms with the
costs that winning the armed conflict meant. Peruvians must acknowledge that human rights

68
IACtHR, Case of Castillo Petruzzi et al. v. Peru, Judgment (Merits, Reparations, and Costs) 30 May
1999.
69
Id., ¶128.
70
Cruz Sánchez et al. v. Peru, supra note 67, at ¶277.
71
For example, the exact level of involvement of the MRTA in the conflict, the legality of use of force by
the Army in the Andean front, the applicability of Additional Protocol II (or parts of it) to the hostilities,
the applicability of international humanitarian law to peoples being rescued from Shining Path slave
camps today, etc.
violations, death squads and torture are neither moral nor legal means to defeat an enemy like
the Shining Path, and that many innocent Peruvians paid the price of victory with their own
lives.

To properly do this; to properly understand this cost, it is imperative that the correct legal rules
are used to frame the obligations of the government and the rights of its citizens. Refusing to
know and apply the correct law, even in a post-conflict stage, can only lead to bad results. This
is not, moreover, an argument solely for the sake of legal purity. As seen above, practical
consequences do abound. Mistaking the status of MRTA militants during the conflict, as done
so by the IACtHR, is but a minor possibility amid a large ocean of potentially disastrous legal
mistakes. If Peru is to amend the flaws of its past, it should do so with the proper applicable
law.