Peru at a Crossroad: The New Impunity Law

In the last decades, Peru has undergone two significant transitions: one following the internal armed conflict of the 1980s and 1990s, initiated by the terrorist organisation Peruvian Communist Party Shining Path (SL), and another after the authoritarian rule from 1992 to 2000. While the SL was the main perpetrator of violence, state-led counter-subversive measures were equally documented to have led to serious human rights violations, including systematic extra-legal executions, forced disappearances, torture and systematic use of rape. In total, nearly 70,000 persons were killed during the conflict.

In this blog post, we argue that Peru stands at a pivotal point in its transitional justice process considering, in particular, a recently adopted law on the domestic level, which grants impunity for all crimes against humanity and war crimes committed during the internal armed conflict. We argue that the law was not only adopted in open disregard for Peru’s obligations under international law but may also mark a turning point in the country’s dealing with past injustices.

Progress Until Today

During the 90s, efforts for accountability faced consistent obstacles, such as amnesty laws and military jurisdiction over human rights cases. Still, shortly after the conflict, in 2001, Peru established a Truth and Reconciliation Commission, which was acclaimed as ‘exemplary’. Furthermore, the Inter-American Court of Human Rights (the IACtHR) and the Peruvian Constitutional Court significantly advanced the accountability processes. The IACtHR, for example, found that amnesty laws were contrary to Peru’s obligations under the American Convention on Human Rights (ACHR) in the Barrios Altos Case. The Constitutional Court limited the competence of military courts and the application of statutory limitations to crimes against humanity. Furthermore, several high-profile cases were conducted, including against former President Alberto Fujimori, who was convicted in 2009 for the killings committed by a ‘death squadron’. Many criminal proceedings regarding crimes committed during the conflict are, however, still ongoing, including against Fujimori, who currently faces charges in another case over the torture and killing of farmers in 1992.

The New Impunity Law

In this context, the Peruvian Congress (which has a disapproval rate of 94%) has recently passed Law 32107 (‘the impunity law’ or ‘the law’) to prevent the prosecutions of all crimes against humanity and war crimes committed before 1 July 2002. According to Article 5 of the law, no act before the entry into force of the Rome Statute may be qualified as a crime against humanity or a war crime, and no one shall be prosecuted or punished for acts committed before 2002 as crimes against humanity or war crimes. Article 4 establishes that ‘any sanction imposed [contrary to the law] is null and void and unenforceable’. Articles 2 and 3 highlight that in Peru, the Rome Statute entered into force in 2002 and that the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity entered into force in November 2003. When ratifying the latter, Peru made, in fact, a reservation, declaring that it ‘accedes to the Convention […] with respect to crimes covered by the Convention that are committed after its entry into force for Peru.’

In Peru, the statute of limitations for crimes is up to 20 years and, in exceptional cases, 30 years. Thus, crimes committed during the internal armed conflict (i.e. in the 80s and early 90s) are time-barred unless they are prosecuted as war crimes or crimes against humanity, to which no statutory limitations apply. Prosecuting the crimes committed in the context of the internal armed conflict as crimes against humanity or war crimes is now, however, explicitly prohibited by the new domestic law. In total, Peru’s prosecutors estimate that the law affects more than 550 victims (including child victims) of killings, torture, and enforced disappearances, among other crimes. The law may also affect the trials regarding forced sterilisations committed between 1996 and 2000, which affected more than 300,000 women and 22,000 men. In addition to this, already sentenced perpetrators may invoke the law and be released from prison.

Peru’s Open Disregard for International Law

The ‘impunity law’ was enacted in clear violation of Peru’s obligations under international law. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity explicitly applies, according to Article 1, to the relevant crimes ‘irrespective of the date of their commission’. Importantly, this principle of non-applicability of statutory limitations to crimes against humanity constitutes an ius cogens norm and applies even to states that have not ratified the latter Convention (see Case of Almonacid-Arellano et al. v. Chile, para. 153). Considering that Peru has made a reservation to Article 1, the question arises as to whether such a reservation is valid. According to Article 53 of the Vienna Convention on the Law of Treaties, ius cogens norms are norms from which no derogation is permitted. The International Law Commission has found that ‘[a] reservation to a treaty provision which reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply’. A reservation to such a norm is thus, according to the Commission, without effect. The norm was equally accepted as constituting customary international law when the Convention was drafted in 1966 (see also para. 214); an objection decades later would have been too late and required persistence. Furthermore, it may also be argued that the reservation is incompatible with the treaty’s object and purpose under Article 19(c) of the Vienna Convention on the Law of Treaties, considering that the raison d’être of the treaty is to prevent any application of statutory limitations to these crimes (this was argued by the Peruvian Constitutional Court in 2011, see para. 74).

Moreover, the ‘impunity law’ is contrary to Peru’s obligations under the ACHR, which Peru ratified in 1978. Under Articles 8(1) and 25 ACHR, Peru is obliged to provide the surviving victims (or their next of kin) access to a judge and to investigate and prosecute those responsible for serious human rights violations. One may also argue that the law violates the victims’ right to know the truth and leads to their secondary victimisation. Under Article 2 ACHR, Peru is, furthermore, obliged to harmonise its domestic law accordingly. In addition to that, reparation measures in the cases of Barrios Altos and La Cantuta included the explicit order to investigate and punish those responsible for the relevant crimes.

Consequently, the victims’ representatives in the two latter cases requested provisional measures under Article 63(2) ACHR to stop the law’s adoption. On 1 July, the IACtHR ordered provisional measures and a Resolution monitoring compliance with the two judgments, requiring Peru to refrain from adopting the law or render it without effect. Disregarding the latter, on 4 July, Congress passed the law. The law was promulgated on 7 August.

Furthermore, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (para. 40), the Convention on the Elimination of All Forms of Discrimination against Women (see, e.g. the ‘comfort women’ case), and the International Covenant on Civil and Political Rights (para. 18) have been interpreted as limiting the states’ prerogative to enact statutes of limitations for crimes such as torture and rape. The latter treaties entered into force in Peru in 1978 (ICCPR), 1982 (CEDAW) and 1988 (CAT).

Finally, Congress based the law on the prohibition of the retroactivity of penal laws. Article 9 ACHR establishes that ‘[n]o one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed.’ The question arises whether international law qualifies as ‘applicable law’ under Article 9 ACHR, considering that war crimes in internal armed conflicts (see para. 134) and crimes against humanity already constituted crimes under customary international law at the material time (see e.g. regarding murder as a crime against humanity paras 94-100). It may be noted that different from the European counterpart (Article 7(1) European Convention on Human Rights), Article 9 ACHR does not explicitly refer to conduct criminalised by international law as a source of law. Still, ‘applicable law’ may be understood as covering both national and international law. The IACtHR implicitly interprets Article 9 accordingly when requesting the prosecution and punishment of the relevant crimes but has refrained from explicitly addressing the question in its 1 July Resolution.

In conclusion, the law contradicts Peru’s obligations under international law. Unfortunately, Peru’s disregard for international human rights law is not new: In December 2023, the IACtHR requested Peru to refrain from executing the Constitutional Court’s order to release Alberto Fujimori from prison. Despite this, he was released a few days later. The IACtHR, therefore, found Peru to be in contempt. The ‘impunity law’ is, in fact, thought to primarily favour the latter.

Joint Confrontation with the IACtHR by Congress and the Presidency

The law was first introduced in February 2024 and approved by the Constitutional Commission of Congress in March. In June, the law passed its first vote in the Plenary session with 60 votes in favor and 36 against, representing less than the absolute majority of the Peruvian Congress, which consists of 130 members. The law was subsequently passed in a second vote by the Permanent Commission of Congress, with 15 votes in favor and 12 against. This vote occurred during the congressional recess, when the Permanent Commission, composed of representatives from each political party, assumed the legislative duties. The Popular Force party, led by Keiko Fujimori, the daughter of Alberto Fujimori, contributed the largest share of the votes, casting 6 of the 15 votes in favor. Even though the law legally benefits both sides of the conflict, it was justified as benefiting those ‘who fought to pacify the country during a period of entrenched terrorism’ (original in Spanish), portraying members of the armed forces as needing protection from what is perceived as an overreaching justice system. Given the extensive legislative activity surrounding controversial issues, the law received limited public attention.

Finally, President Dina Boluarte chose not to exercise her constitutional power under Article 108 to submit observations before the law’s promulgation by the President of the Congress. In addition to that, following the law’s adoption, President Boluarte, alongside former Congressional President Alejandro Soto, sent a letter to the President of the IACtHR, accusing the IACtHR of attempting to establish itself as a supranational authority ‘with the power to dictate and control the operations of Peru’s legitimate institutions’ (original in Spanish). The same was argued by Prime Minister Gustavo Adrianzén the day before. This signals that they may be contemplating denouncing the ACHR. Congressman José Cueto, one of the law’s two ‘principal authors’, and Prime Minister Adrianzén have both openly discussed this possibility when questioned about the law’s incompatibility with the ACHR.

Resistance on the National Level

The law was also adopted despite internal findings of the Public Prosecutor’s Office and the Ministry of Foreign Affairs, besides the findings of the IACtHR and UN High Commissioner for Human Rights Volker Türk, that it was contrary to Peru’s obligations under international law. Several domestic institutions also reject the law, including the association of judges and the prosecutors of the specialised system set up to investigate human rights abuses, as well as human rights organisations and Peru’s bishops’ conference.

Peru’s prosecutors and judges may indeed decide to refrain from applying the law to act in a manner compatible with Peru’s obligations under the ACHR (applying the ‘conventionality control’) and by adhering to the obligation not to apply laws contrary to Peru’s constitution (see Article 138 Constitution). This is precisely what Judge Antonia Saquicuray did in 1995 when she refused to apply the Amnesty law in the Barrios Altos Case, which led to the famous case before the IACtHR. Judges have, thus, to decide whether to follow her path, disregard domestic law with possible sanctions imposed on them, or apply the ‘impunity law’ and violate international law.

Conclusion

Unfortunately, the passing of the impunity law does not stand alone but is part of a broader trend of undermining transitional justice and accountability mechanisms in Peru. This trend has now reached a new high with an impunity law that is both egregious and in flagrant violation of international law. Many victims who remain alive appear, however, not prepared to accept this shift. Even though they may now directly lodge a petition to the Inter-American Commission on Human Rights, since an exception to the requirement of exhaustion of domestic remedies may apply, these proceedings are time-consuming. As has been noted elsewhere before, for most victims, ‘time is running out’.