The Law of Remedies and the Clean Hands Doctrine: Exclusionary Reparation Policies in Peru's Political Transition

As the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. Certainly, in the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever growing jurisprudence with respect to remedies law. Some issues, due to their potential to generate new forms of harm and even new rights violations, beg further discussion and clarification. Such is the case with the equity doctrine of "clean hands" (the "Clean Hands Doctrine") which dictates that an injured party's wrongdoing may limit his or her claim to reparations. However, this doctrine, when applied in cases where victims of human rights violations seek relief, conflicts directly with the well-established legal principle of nondiscrimination. This Article explores the applicability of the Cleans Hand Doctrine in human rights cases. In essence, this Article questions whether a person's innocence or guilt factors into whether he or she deserves to be repaired. Moreover, this Article explores what actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations. This issue has particular salience in cases in which victims of human rights abuses are alleged to have connections to "subversive" and "terrorist" organizations ("illegally armed groups"). To explore these issues, this Article begins with a general overview of reparations law, with specific analysis of its relevance to the transitional justice paradigm that produces administrative reparations plans. It then explores the concept of the Clean Hands Doctrine in international law, and examines the existing, albeit limited and inconsistent, jurisprudence on the issue. While consensus still does not exist on the doctrine's applicability and relevance in international law, it is possible to argue that in relation to human rights law, the Clean Hands Doctrine does not, and should not, apply. In support of this assertion, this Article discusses the position assumed by the organs of the Inter-American System of Human Rights, including the Inter-American Commission on Human Rights ("Inter-American Commission") and the Inter-American Court of Human Rights ("Inter-American Court"). While neither of these international human rights bodies has ruled directly on the issue, their decisions suggest that they do not consider the character or status of the victim as relevant factors in determining reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations. Yet, in practice, nations confronting politically divisive transitions from repressive regimes and internal armed conflict do not necessarily assume this general rejection of the Clean Hands Doctrine. This Article illustrates this phenomenon through the case study of Peru, which after twenty years of internal armed conflict between the State and illegally armed groups, embarked on a transitional justice project by forming its Truth and Reconciliation Commission ("TRC") in 2001.TRC presented its Final Report in 2003, including recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations) ("PIR"), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement the PIR, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the PIR thus far contain exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine. This policy has generated much tension in the implementation of the law. This Article discusses how this difficult context became more tense as a result of the recent decision of the Inter-American Court in Miguel Castro Castro Prison v. Peru ("Castro Castro Prison"), in which it ordered reparations for survivors and the families of victims who were killed and harmed in 1992 during a state lock down of a prison where they were being detained for terrorism. This Article concludes with a discussion of how the local tension produced by the practical repercussions of the Clean Hands Doctrine presents serious political challenges for emerging democracies attempting to build the rule of law and respect for human rights.