By J. Chandler Republished courtesy of IDN-InDepth NewsAnalysis
TORONTO (IDN) – Human Rights Watch has asked Peru to amend new presidential decrees that in practice mean a blanket amnesty for military and police personnel accused of committing human rights violations.
The decrees at issue are the four issued on September 1, 2010 by President Alan Garcia. These adopt new rules of procedure for investigations by civilian criminal courts of human rights abuses committed by military and police personnel, modify the military justice system, and regulate the use of force by the armed forces.
The decrees were adopted as a consequence of legislative powers that Congress granted García on July 3, 2010.
"President García has created a legal framework that amounts to a blanket amnesty for the vast majority of abuses by state agents in Peru's recent history, including during his first presidency," said José Miguel Vivanco, Americas director at Human Rights Watch (HRW).
"This means that those responsible for killings, ‘disappearances,' and torture will never have to pay the price for their crimes."
HRW points out that Peru is party to several international treaties that impose an obligation to investigate and prosecute serious violations of human rights, and to provide effective remedies to victims. These include the American Convention on Human Rights and the International Covenant on Civil and Political Rights.
According to HRW, the presidential decrees violate Peru's international legal obligations by establishing that:
1. Crimes against humanity committed prior to 2003 may be subject to statutes of limitations.
Decree 1097, which adopts procedural rules applicable to military and police personnel accused of human rights abuses, states that the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) is only applicable as of March 23, 2003, when Peru ratified the convention.
HRW says that this provision would allow Peruvian courts to apply statutes of limitations to cases of grave human rights abuses committed in the 1980s and 1990s, which are currently under investigation. These include atrocities during Garcia's first term, from 1985 to 1990, such as the massacre of 122 prisoners in El Fronton in 1986.
But under international law, crimes against humanity, because of their gravity, may never be subject to statutes of limitations. The Convention states that "[n]o statutory limitation shall apply to [crimes against humanity], irrespective of the date of their commission," and that states must ensure that no statutory or other limitations apply to the prosecution and punishment of these crimes.
2. All investigations involving abuses committed by military and police personnel in which the deadline to present formal charges against suspects has expired must be immediately closed.
Under article 6.2 of the presidential Decree 1097, the judge in charge of a case that implicates military or police personnel must order the "partial acquittal" of suspects who have been under investigation longer than the legal time limit.
As a result, the investigation against these individuals could never be reopened for the same crimes, although courts could continue to prosecute others for those crimes. Under Peru's statute and case law, investigations may only last up to 18 or 36 months, depending on the complexity of the crime.
HRW points out that on September 6, the accused in three emblematic cases asked the judiciary to acquit them, contending that the investigations had taken too long. The lawyer representing victims of human rights violations told Human Rights Watch that a general and several members of the Colina Group, a special "death squad" of military and intelligence officers, had asked the judge to close the investigation into the 1991 massacre of 15 people in the Barrios Altos neighborhood of Lima, the 1992 enforced disappearance of the journalist Pedro Yauri, and the 1992 enforced disappearance of nine peasants in the Santa Valley. The judge has not ruled on the request.
Peru's international legal obligations to investigate and fairly prosecute grave violations of human rights should not violate the fair trial rights of defendants, Human Rights Watch said. However, society's interest in prosecuting grave and often complicated and politically charged human rights violations can be handled in a manner that ensures that the duties both to prosecute and to uphold the rights of defendants are respected.
The Inter-American Court of Human Rights held in its Barrios Altos ruling against Peru that "all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law."
3. Military jurisdiction is applicable in all cases in which military personnel commit criminal offenses.
Article 27 of Decree 1095, which regulates the use of force by the armed forces, states that "illicit conduct allegedly committed by military personnel when applying this decree or during the course of their duties" is subject to military jurisdiction.
HRW says, by establishing that any "illicit conduct" carried out by military personnel is subject to the jurisdiction of military courts, this decree could be used to prevent civilian courts from trying cases of human rights violations committed by military personnel against civilians.
International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving abuses against civilians, stating that the jurisdiction of military courts should be limited to offences that are strictly military in nature.
The United Nations Human Rights Committee, which monitors implementation of the states' obligations under the International Covenant on Civil and Political Rights, has repeatedly called on states parties to subject military personnel who are alleged to have committed human rights violations to civilian jurisdiction.
Furthermore, the Inter-American Court of Human Rights has stated that military jurisdiction should have a "restrictive and exceptional scope." A "restrictive" jurisdictional scope would require trying military personnel by military tribunals only when they are charged with crimes or offenses that "by [their] own nature attempt against legally protected interests of military order."
