Peru: Amicus Brief on Military Court Jurisdiction

Source: Human Rights Watch

Restrict Use to Offenses Strictly Military in Nature

(New York) – The jurisdiction of Peru’s military courts should be limited to offenses that are strictly military in nature, Human Rights Watch said today in an amicus brief filed before the Constitutional Court of Peru.

In September 2010, former President Alan García adopted a series of legislative decrees, including Legislative Decree 1095, which regulates the use of the armed forces in public security operations. Article 27 of Decree 1095 statesthat “illicit conduct allegedly committed by military personnel when applying this decree or during the course of their duties” is subject to military jurisdiction.

“By establishing that any ‘illicit conduct’ carried out by military personnel is subject to the jurisdiction of military courts, the 2010 decree could be used to prevent civilian courts from trying cases of human rights violations committed by military personnel against civilians,” said José Miguel Vivanco, Americas director at Human Rights Watch. “International courts have consistently ruled that having military courts try offenses against civilians is no guarantee of justice.”

The brief was submitted in a case brought before the Constitutional Court in December 2011 by leading Peruvian nongovernmental organizations, representing 6,430 citizens who requested the court to declare that Article 27 was unconstitutional.

The independence necessary to investigate and prosecute serious human rights violations committed by the military generally does not exist in situations in which military authorities investigate military personnel and prosecute them in military courts, Human Rights Watch said.International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving human rights violations against civilians.

Article 27contravenes the principles established in rulings of the Inter-American Court of Human Rights and decisions by the Inter-American Commission on Human Rights, Human Rights Watch said. These bodies have repeatedly ruled that human rights violations should not be handled by the military justice system, and that the scope of military jurisdiction should be exceptional and restrictive. Human Rights Watch also cited similar jurisprudence from United Nations, European, and African human rights bodies.