by caterina reyes - human rights first · this document was written by caterina reyes, ......

Challenges to Justice Overcoming Statutes of Limitations and

Non-Retroactivity as Obstacles to Prosecuting

Human Rights Violations in Peru

By Caterina Reyes

May 2004

About Us For the past quarter century, Human Rights First (the new name of Lawyers Committee for Human Rights)

has worked in the United States and abroad to create a secure and humane world by advancing justice,

human dignity and respect for the rule of law. We support human rights activists who fight for basic

freedoms and peaceful change at the local level; protect refugees in flight from persecution and repression;

help build a strong international system of justice and accountability; and make sure human rights laws and

principles are enforced in the United States and abroad.

Acknowledgements This document was written by Caterina Reyes, a Peruvian lawyer, on behalf of the International Justice

Program at Human Rights First. Fiona McKay, Neil Hicks, Martina Pomeroy, and Ana Ayala reviewed

and edited the document.

The Center for Civil and Human Rights at Notre Dame University, under the direction of Juan Mendez, has

cooperated in the investigative phase of the project. We express special recognition to Javier Mariescurena

and Ana Gabrielidis.

Also, we are deeply grateful for the input received from individuals and institutions including Federico

Andreu-Guzmán from the International Commission of Jurists, Wilder Taylor from Human Rights Watch,

Hugo Relva from Amnesty International and the Coalition for the International Criminal Court, Iván Bazán

from the Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ), and Carolina Loayza from Lima

University.

This report is available online at www.HumanRightsFirst.org. Printed in the United States. © 2004 Human Rights First. All Rights Reserved.

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A Human Rights First Publication

Table of Contents Foreword......................................................................................................................................... i

Executive Summary ........................................................................................................................ iii

Introduction.....................................................................................................................................1

1. Human Rights in Peruvian Law.................................................................................................3

1.1. Human Rights Violations as Crimes in Peruvian Law...................................................3

1.2. The Non-Retroactivity Principle and Statutory Limitations Rules in Peruvian Law.....5

2. Integration of international law into Peruvian law.....................................................................8

2.1. Crimes under International Law.....................................................................................8

2.2. The Non-Retroactivity Principle in International Law...................................................12

2.3. The Non-Applicability of Statutory Limitations in International Law ..........................16

2.4. Incorporation of International Law into Peruvian Law..................................................22

3. General Conclusions Regarding the Applicability of the Non-Retroactivity and Statutory

Limitations Principles to the Prosecution of Human Rights Violations in Peru ......................26

4. Applicability of Statutory Limitations and Non-Retroactivity Principles for Specific

Crimes ......................................................................................................................................30

4.1. Torture............................................................................................................................30

4.2. Enforced disappearances................................................................................................37

4.3. Extrajudicial or arbitrary executions ..............................................................................42


Foreword Human Rights First is pleased to offer this legal study laying out possible solutions to two

challenges that threaten to hinder efforts to deliver justice for serious human rights violations in

Peru: the non-retroactivity principle and the statutory rules of limitation in national legislation.

Since the Peruvian Truth and Reconciliation Commission (TRC) issued its final report in August

2003, many calls have come from within the country for individuals responsible for the serious

violations revealed in the report to be brought to justice. The period of violence that lasted from

1980 to 2000 left 69,000 Peruvians dead or disappeared at the hands of guerrilla groups or state

agents. The TRC’s report uncovered gross human rights violations including killings, enforced

disappearances, kidnappings, violence against women, torture, arbitrary detention and

extrajudicial executions.

Human Rights First shares the TRC’s view that the investigation and prosecution of serious

human rights violations are crucial elements in delivering effective justice to the victims and in

helping Peruvian society as a whole to move on to a brighter future. Impunity only contributes

towards the perpetuation of violence and hinders reconciliation and healing. The prosecution and

punishment of gross human rights violations are also duties imposed under both international and

Peruvian law.

We hope this study will prove a useful tool as Peruvian prosecutors, judges, officials and civil

society now grapple with how to deliver justice and accountability for the human rights violations

of the past two decades. Peru is not unique in encountering obstacles in this endeavor. Ever

since Nuremberg, the international community has struggled to characterize gross violations as

crimes under international and national law, and to adapt principles of criminal law that

developed to protect peoples’ rights in national justice systems in order to prevent them being

used to shield from justice those who commit the worst of crimes. More recently, other countries

such as Argentina have also had to grapple with such challenges in order to prevent impunity for

gross violations. International law offers solutions to these problems and, as we seek to

demonstrate, those international law principles are a part of Peruvian law.

Human Rights First does not underestimate the challenges of delivering justice and accountability

for gross human rights violations. We wish those charged with this task in Peru every success.

Michael Posner

Executive Director

Human Rights First

New York, May 2004


Executive Summary The ability to prosecute serious human rights violations committed in Peru during the period of

internal violence that lasted from 1980 to 2000, documented by the Truth and Reconciliation

Commission (TRC), is largely dependent on how the Peruvian legal system deals with two

principles in domestic criminal law: (i) the non-retroactivity principle and (ii) statutory limitation

periods for the prosecution of crimes.

To apply the non-retroactivity principle (that no one should be punished in relation to an act that

was not a crime at the time it was committed) using only national law would prevent the

prosecution of crimes that were not codified in the Peruvian Penal Code at the time of their

commission. In some cases, a possible solution is to prosecute those acts as other crimes that

were already codified at the time of their commission, although this usually means those

responsible for grave human rights violations can only be charged with a less serious crime.

Since these less serious crimes carry considerably shorter limitation periods, the application of

statutory limitations would result in those crimes not being punished.

Since there are no exceptions to statutory limitation periods in Peruvian national law for serious

human rights violations, the passage of time could result in impunity for these violations. Human

Rights First believes that in determining the admissibility of human rights violations in criminal

courts, both international and national law must be taken into account. This does not mean that

national law is set aside. On the contrary, national law can be complemented by international

law.

International law provides definitions of crimes, establishes a new interpretation of the non-

retroactivity principle and the nullum poena sine lege principle (no one should be given a

punishment that was not applicable at the time of the crime), and calls for the non-applicability of

statutory limitations in cases of war crimes, crimes against humanity and other serious human

rights violations.

Among those crimes recognized under international law are genocide, crimes against humanity,

war crimes (or violations of international humanitarian law), torture, enforced disappearance and

extrajudicial executions. These acts are punishable in international law regardless of whether

they are considered crimes in the country where they are committed, and are therefore also

punishable in Peruvian criminal law through the mechanisms incorporating international norms

into domestic law established in the Constitutions of 1979 and 1993.

The widely accepted international interpretation of the non-retroactivity principle holds that no

one can be punished for acts that were not considered crimes either in national or international

law at the time they were committed. In order to determine whether particular behavior was a

crime at the time it was committed, one therefore has to look at both international and national

iv— Challenges to Justice


law. This interpretation is included in the International Covenant on Civil and Political Rights

(ICCPR) and the American Convention on Human Rights (ACHR), to which Peru is a party.

As regards statutes of limitations, international law provides that they should not be applied in

cases of the most serious crimes such as war crimes and crimes against humanity. This principle

is long established and has been codified in the Convention on the Non-Applicability of Statutory

Limitations for War Crimes and Crimes Against Humanity (Convention on Non-Applicability),

as well as in other international instruments.

Upon ratifying the Convention on Non-Applicability Peru issued an interpretative declaration

purporting to limit the treaty’s applicability to crimes committed after the date it came into force

in Peru, but this goes against a principle that was already a part of national law. Because of the

constitutional provisions incorporating international human rights principles into Peruvian

domestic law, the principle of the non-applicability of statutes of limitations in cases of crimes

against humanity and war crimes is a part of Peruvian national law and has constitutional status,

prevailing over the statutory rules in the Penal Code.

Even in cases that do not amount to crimes against humanity or war crimes there is a strong basis

in international law for asserting the non-applicability of statutory time limits. First, the jus

cogens nature of the prohibition on these violations means that there is an obligation erga omnes

on states to investigate such violations and not to use time limits as an excuse for failing to

prosecute. Second, statutory time limits in domestic legislation, if applied to serious violations,

go directly against the duty of all states under international law to investigate and prosecute such

acts. Third, the fact that statutory limitations rules are regulated by internal legislation and are

not recognized as fundamental rights in the Peruvian legal order means that the international law

principles take precedence.

Finally, the non-applicability principle must be respected regardless of how the relevant acts are

qualified by local prosecutors. For example, if a prosecutor were to prosecute a person for

causing bodily harm—a crime that existed in the Penal Code at the time of commission—instead

of for torture, the statutory limitation periods applicable to the crime of bodily harm should not be

applied if the act would also qualify as torture under international law.

In conclusion, there are ample legal bases under both international law and Peruvian law for not

applying statutes of limitations in cases of serious human rights violations such as torture,

enforced disappearances or extrajudicial executions, whether or not these acts are committed in a

context in which they would qualify as a war crime or as a crime against humanity.


Introduction After Peru emerged from its period of internal violence, which lasted from 1980 to 2000, a Truth

and Reconciliation Commission (TRC) was appointed. The TRC revealed a pattern of serious

human rights violations that had been committed during the period of violence. But aside from a

few cases in military courts that were aimed primarily at resulted in shielding the military from

responsibility, little progress has been made in prosecuting those responsible for the violations in

the national criminal justice system.

This report aims to analyze two of the main obstacles to the launching of criminal prosecution in

cases of human rights violations of the past two decades. The first is statutory limitations, the

time limit within which the prosecution of a criminal case must start. The second is the non-

retroactivity principle, which is relevant because some violations occurred before the acts were

codified as crimes in the Peruvian Penal Code.

The first part of the report sets out to describe how Peruvian national law addresses human rights

violations. We describe the prohibition and criminalization of human rights violations in national

legislation, and analyze the extent to which the principles of non-retroactivity and statutes of

limitation in Peruvian domestic law apply in cases of torture, enforced disappearance and other

violations. We conclude that national law alone does not provide a complete solution to the

problem of how to address such violations and that it is therefore necessary to look to

international law as well.

In the second part we present proposals for resolving the admissibility problems surrounding the

human rights cases revealed by the Truth Commission, by bringing applicable international law

principles into the domestic legal system. After explaining the concept of crimes under

international law, we provide international law interpretations of the non-retroactivity principle.

We then explain how international law provides for the non-applicability of statutes of limitations

in cases of war crimes and crimes against humanity, and present other arguments that favor the

elimination of time limits in cases of other serious human rights crimes. Finally, we demonstrate

how these international law principles are incorporated into national law and describe their status

in domestic law in Peru.

In the third part of the report we present our general conclusions. We seek to demonstrate that

the non-retroactivity principle is not violated if a person is prosecuted or convicted of acts that are

crimes under international law, even if the crimes were not codified in national legislation at the

time they were committed. In addition, we show that the statutes of limitations provided in

domestic law should not be applied in cases of the most serious human rights violations.

Lastly, we show how these general conclusions can be applied to the crimes of torture, enforced

disappearances and extrajudicial executions that were committed during Peru’s period of internal

violence.


1. Human Rights in Peruvian Law In this section we present the tools available in Peruvian national law for prosecuting human

rights violations and establishing their admissibility in the criminal courts, focusing in particular

on violations that occurred before the relevant acts were defined as crimes in the Penal Code and

on crimes to which the statutory limitation rules are applicable. We will first explain how human

rights violations are criminalized in Peruvian law, and then turn to the rules with regard to non-

retroactivity and time limitations that apply to those crimes. At this point, we are not taking into

consideration the relevant international norms that also form part of Peruvian law, which we will

consider in the next section.

1.1. Human Rights Violations as Crimes in Peruvian Law Some human rights violations are included in the Peruvian Penal Code. The Code of Military

Justice also includes certain crimes that can be considered human rights violations, but military

justice is not the best option for most of the human rights cases since the military justice system

in Peru has not proved capable of prosecuting violations of humanitarian and human rights law

effectively. We will therefore focus on crimes codified in the Penal Code that are tried in the

ordinary courts.

The crime of genocide was introduced in the Penal Code in 1991, in Article 129, “Crimes against

life, body and health.” However, the crime was included in the section of the Penal Code that

deals with ordinary crimes, such as homicide, a designation that fails to reflect its magnitude in its

intention to destroy a group in whole or in part and its special status as a human rights crime.

Furthermore, the Penal Code does not include incitement to commit genocide, and does not

follow the international definition of genocide contained in the Genocide Convention1 of 1948 as

it omits racial groups and adds “social” groups to those protected.

Enforced disappearance was also incorporated as a crime in the Penal Code of 1991, under the

heading of crimes of terrorism in a special chapter “Crimes Against Public Order.” The

designation of enforced disappearance as a crime of terrorism is inappropriate for two reasons:

first, such a designation fails to take into account the special and independent nature of enforced

disappearance as a human rights crime; and second, it implies that crimes of terrorism can be

lawfully committed by state agents in the case of enforced disappearances. Moreover, the

definition is also unclear and hard to distinguish from the crime of kidnapping. In May 1992,

then President Fujimori’s government introduced new anti-terrorism legislation and the crime of

enforced disappearance, considered an act of terrorism, was removed from the Penal Code.2 In

1 Convention on the Prevention and Punishment of the Crime of Genocide (1948)

2 Law Decree 25475, May 6, 1992.

4 — Challenges to Justice


July 1992 the crime of enforced disappearance was reinstated with the same terms as before,

except for a requirement that the actual disappearance be certain and proved, which makes it

extremely difficult to prosecute given the nature of this violation.3 This requirement has been

criticized by the Peruvian Ombudsman in its reports.4

Even prior to its inclusion in the Penal Code in 1991, the crime of enforced disappearance was

mentioned in Legislative Decree 665 enacted on September 2, 1991, which authorized

prosecutors to enter a detention center in order to check the conditions in which detainees were

held or to determine the situation of individuals who had allegedly disappeared. In addition, the

Constitution already regulated rights such as liberty of the person, judicial protection, due process

and the right to life—rights that are at risk when enforced disappearance occurs.

Later, by Decree 26926 of February 21, 1998, a special section was created in the Penal Code

entitled “Crimes Against Mankind.” Appropriately, genocide, enforced disappearances and

official torture were included in this section. The definition of genocide (Article 319) remained

the same, as did that of enforced disappearances (Article 320)—even though the Inter-American

Convention on Forced Disappearance of Persons (IACFDP) had adopted a new definition in

1994. Article 320 provided:

A public official or state agent, who deprives another person of freedom by ordering or executing

actions that result in a certain disappearance, will be punished with imprisonment of no less than

15 years and disqualification from public service.

The crime of torture was brought for the first time into the Penal Code under Decree 26926 of

1998. The new Article 321 of the Penal Code provides:

A public official, public servant or any other person with the consent or acquiescence of a public

official or public servant, who inflicts grave pains or suffering, physical or mental, or that subject a

person to methods that annul his/her personality or diminished his/her physical or mental capacity,

regardless of whether they caused physical pain or psychological affliction with the intent of

obtaining a confession or information, or the intent of punishing the person, will receive

imprisonment of no less that 5 years and no more that 10 years [non-official translation].

In incorporating this crime, known as official torture (because it is committed by state agents or

persons under their control) into domestic law, Peru complied with the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Torture

Convention) and the Inter-American Convention to Prevent and Punish Torture of 1985

(IACPPT), both ratified by Peru (Torture Convention in 1988 and IACPPT in 1991). However,

torture can also be committed by non-state actors and state agents alike as a crime against

humanity or a war crime, recognized in the Rome Statute of the International Criminal Court,

adopted in 1998.

Peru has ratified the Rome Statute but has yet to incorporate its provisions in the Penal Code.5

Torture, enforced disappearance and extrajudicial killing may all qualify as crimes against

humanity or war crimes, depending on the context in which they are committed (see section 4

below). The Geneva Conventions, to which Peru is also a party, also include these crimes.

3 Law Decree 25592. July 2, 1992.

4 Informe Defensorial N. 55. La Desaparición Forzada de Personas en el Perú, Serie de informes defensoriales. January 2002, p. 39. Portal de la Defensoría del Pueblo. Available: http://www.ombudsman.gob.pe.

5 Draft legislation incorporating Rome Statute crimes of war crimes, crimes against humanity and genocide is currently under consideration by a Congressional Commission charged with reforming the Penal Code.

Human Rights in Peruvian Law — 5


To conclude, the crimes of torture, genocide and enforced disappearance are part of national

legislation since they are now included in the Penal Code. Even before their specific adoption in

the Penal Code, however, they were already counted as crimes under international law, and in that

way brought into Peruvian national law.

1.2. The Non-Retroactivity Principle and Statutory Limitations Rules in Peruvian Law The principle of legality—to which the non-retroactivity principle belongs—and the statutory

limitations rules are very well established in Peruvian domestic law.

The legality principle requires the existence of a prior law sanctioning conduct as a prerequisite

for criminal prosecution. This principle is widely accepted in national legal systems, particularly

in countries with a civil law legal system (which requires a formal source for law). From this

principle two rules are derived: the prohibition of analogy and the non-retroactivity of the penal

law (or nullum crimen sine lege praevia), except in cases where it favors the accused.

At the constitutional level, the legality principle is recognized in Article 2.24 d of the

Constitution, as well as in Article 103. It is also included in Article II of the “Preliminary Title”

section of the Peruvian Penal Code.

In other words, for certain conduct to be criminally sanctioned, the conduct must be codified

among the crimes in the Penal Code or in special legislation.

This presents certain difficulties in prosecuting human rights violations where those violations

were not specifically codified in the Penal Code at the time they were committed. In certain

instances, however, the acts in question may be capable of characterization as other crimes

already codified in the Penal Code (either in the Code of 1924 or that of 1991). For instance,

crimes such as kidnapping (already codified in the Penal Code of 1924) could be used as a basis

for prosecuting enforced disappearances, which were not codified as crimes until 1991.

Similarly, torture could be characterized as bodily harm or abuse of authority.

However, the use of other crimes as a basis for prosecuting human rights violations that are not

characterized as such at the time they were committed offers an incomplete solution. This is

unsatisfactory because people are prosecuted for less serious offenses and because it fails to take

into account the fact that those acts have been defined as crimes under international law.

The crime of enforced disappearance is somewhat different in that it qualifies as a “permanent

crime” as long as the whereabouts of the victim remain unknown. This principle was recognized

in the IACFDP of 1994, of which article III provides:

This offense [forced disappearance] shall be deemed continuous or permanent as long as the fate or

whereabouts of the victim has not been determined.

In other words, in cases where disappearance took place before it was codified in the Criminal

Code, and the victim had not yet appeared by the time the crime was codified, the crime would be

considered permanent and those responsible could be prosecuted under Article 320 of the Penal

Code. This interpretation was also accepted by the Peruvian Constitutional Court.6

The statutory limitation rules are another important factor affecting the prosecution of human

rights violations in Peru. The principle of statutory limitation is that once a certain period of time

6 Constitutional Court decision, Villegas Namuche case 2488-2002-HC/TC Piura (para. 26)



elapses, the state’s power to punish is extinguished. This rule is based more on the interests of

certainty than on principles of justice and it varies from state to state. Some states do not adopt

statutory limitation periods for prosecuting crimes at all, or do so only for less serious crimes.

Statutory limitation rules may either prevent the start of a penal process, or prevent the imposition

of a penal sanction. The rules are contained in Articles 80 and 86 of the Penal Code, and the term

for each particular crime is related to the length of imprisonment determined for each crime.

Article 91 of the Penal Code provides that the accused can choose to renounce the right to have

the relevant statute of limitation applied.

As regards human rights violations, the limitation periods for prosecuting genocide, torture and

enforced disappearances are up to thirty years, depending on the period of imprisonment for the

crime. There are two drawbacks, however. One is that these long limitation periods apply only if

the act can be qualified only as torture, genocide, etc. and not as any other crime. Second,

according to domestic law, the crime has to be codified as such in the Penal Code at the time they

were committed. For acts committed before the crimes were codified, the other crimes that could

be used as an alternative basis for prosecution, such as kidnapping, abuse of authority, or bodily

harm, carry considerably shorter limitation periods because they are not considered as serious.7

In cases of enforced disappearances, which are considered permanent crimes until the victim

appears, it is possible to prosecute under Article 82 of the Penal Code, which establishes that the

statutory limitation period for permanent crimes has to be counted from the date the victim

appears.

A further relevant factor in Peruvian domestic law is the Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes Against Humanity (Convention on Non-

Applicability), to which Peru is a party. The Convention provides for the non-applicability of

statutes of limitation in cases of crimes against humanity or war crimes, no matter when the crime

was committed. This is particularly relevant because in the view of the Peruvian Truth and

Reconciliation Commission (TRC), some of the violations committed during Peru’s period of

violence could amount to crimes against humanity.

When becoming party to the Convention, Peru made an interpretative declaration purporting to

restrict the applicability of the Convention to begin with its entry into force in Peru in November

2003. In making this declaration, the Peruvian government was attempting to ensure that the

Convention would not have a retroactive effect.8 Such a declaration, however, not only goes

against the very essence of the Convention, but also disregards the existence of the non-

applicability principle in international law that precedes the Convention.

In conclusion, the application of the statutory rules that exist in Peruvian domestic legislation

presents problems for the admissibility of prosecutions for human rights violations committed

during Peru’s period of violence, except in cases of enforced disappearances that are considered

permanent crimes. Peru’s adhesion to the Convention on Non-Applicability is undercut by the

7 See the decision of the Prosecutors’ Office in the “Cantoral” case, declining to prosecute a case on the basis that torture was not codified in the Penal Code at the time the violation was committed and the limitation period for bodily harm, or coaccion had expired. (Resolución de la Fiscalía del 07 de septiembre de 2003, denuncia 546-00, caso Cantoral).

8 As regards the retroactive effects of statutory limitations at the national level, there are debates as to whether the principle is of a substantive or a procedural nature. For instance, the Supreme Court decided that to apply statutory limitations rules provided in the Penal Code of 1991 to a crime committed under the previous Penal Code of 1924. If statutory limitations rules are considered to be procedural norms, it would be appropriate to analyze the effect of the Convention as a new set of rules. However, this discussion is irrelevant from an international law perspective because here we have the principle of non-applicability of statutory limitations that has universal effect. Therefore, regardless of the national rules, there are some international crimes to which these limitations are not applicable.

Human Rights in Peruvian Law — 7


interpretative declaration intended to prevent its retroactive application. As a result, we have to

look within international law for a solution that provides for the non-applicability of statutory

limitations not only for war crimes and crimes against humanity but also for other crimes.

Conclusion Peruvian domestic law alone does not present a complete and definitive solution to the problem

of how to prosecute cases of serious human rights violation cases committed during Peru’s period

of internal violence between 1980 and 2000 that were revealed by the Truth and Reconciliation

Commission (TRC). It is therefore necessary to look to international law, and to a harmonization

between international law and Peruvian law.


2. Integration of International Law into Peruvian Law In this section we will introduce international law into the analysis of how human rights

violations can be prosecuted in Peru. In doing so, we do not intend to set aside Peruvian national

law. On the contrary, we aim to demonstrate how national law can be complemented by

international norms that were adopted through international consensus.

2.1 Crimes under International Law The definition of crimes under international law occurred as part of the evolution of international

criminal law since World War II. Unlike general international law that establishes rights and

duties between states, international criminal law establishes crimes, assigns responsibility to

individuals, and assigns obligations to states to sanction those crimes. International criminal law

is based on the same sources as general international law, namely treaties, customary

international law, general principles of international law, judicial decisions and the writings of

legal experts.9

The development of international criminal law began after World War II with the establishment

of the Nuremberg and Tokyo Tribunals, created by the London Charter of the International

Military Tribunal to prosecute the highest ranking leaders responsible for atrocities committed

during the war. New categories of crimes under international law were created, such as genocide

and crimes against humanity, and the concept of war crimes was reinforced. The principle of

individual responsibility for persons who commit crimes under international law, and for those

who order them, was strengthened.

With the Nuremberg Charter the modern concept of crimes against humanity was born,

encapsulating acts the cruelty and magnitude of which engaged the whole international

community. Article 6.c of the Nuremberg Charter defines crimes against humanity as follows:

9 The sources of international law are generally accepted to be those set out in Article 38 of the Statute of the International Court of Justice:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized Hi civilized nations;

d. subject to the provisions of Article 5~ judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.



Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed

against any civilian population, before or during the war; or persecutions on political, racial or

religious grounds in execution of or in connection with any crime within the jurisdiction of the

Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a

common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts

performed by any persons in execution of such plan.

The definition of these crimes was further developed in Article ii.c of Allied Control Council Law

10 for the Punishment of Persons Guilty of War Crimes Against Peace and Against Humanity,

adopted as a basis for trials of the lower-level accused. The Nazi trials that took place in the

decades following World War II made an enormous contribution to the definition of crimes

against humanity, which were prosecuted regardless of the fact that they had not been

incorporated as crimes in the national legislation of the countries where the trials took place.10 At

first, some observers of the Nuremberg trials questioned whether the Charter complied with the

principle of legality because the concept of crimes against humanity was new. Today this

argument cannot be used, as crimes against humanity have now been part of international law

since 1945 and are established in treaties as well as in customary international law.

Professor Cherif Bassiouni asserts that crimes against humanity existed in customary

international law even before the Nuremberg Tribunal because the concept was originally linked

with war crimes, which have an older basis in customary international law in the form of the so-

called “Hague law.” He cites as evidence the trials of Paul Touvier, Klaus Barbie and Maurice

Papon in France and of Imre Finta in Canada.11

Since 1946, crimes against humanity have been recognized in different international instruments

that confirm their status as crimes in international law. The General Assembly of the United

Nations adopted a resolution on the extradition and punishment of war criminals,12 and another

confirming the principles developed through Nuremberg. Then, in 1950, the International Law

Commission drafted the Nuremberg Principles that define crimes against humanity, war crimes

and crimes against peace as punishable under international law (Article VI). In the Americas the

Inter-American Conference on the Problems of War and Peace (known as the Chapultepec

Conference) took place in 1945 and its final document qualifies atrocities committed during

World War II as horrendous crimes in violation of international law and of criminal law of

civilized nations. In the Draft Code of Crimes Against the Peace and Security of Mankind (1945,

1991 and 1996), general agreement was reached on the definition of crimes against humanity.

According to the definition of the 1948 Commission on War Crimes of the UN,13 crimes against

humanity are serious attacks against the dignity of humankind; events committed within a

widespread or systematic attack against civil population, condoned or instigated by the

10 Examples include United States v. Altstoetter (1946-49), Attorney General of Israel v. Eichmann (1965) and the Barbie case in France (1987).

11 Gutman, Roy and David Rieff. Crimes of War: What the public should know. W.W. Norton & Company, New York, 1999.

12 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War

Crimes and Crimes against Humanity (3 Dec. 1973)

13 United Nations War Crimes Commission (UNWC). History of the United Nations War Crimes Commission and the Development of the Laws of War. His Majesty’s Stationery Office, London, 1948, p. 178.

Integration of International Law — 11


government or authorities or political organized groups, and acts that are committed in times of

war or peace.14

The establishment of the notion of war crimes goes back to the nineteenth century, preceding that

of crimes against humanity. The Geneva Convention of 1864 and the Hague Conferences of

1899 and 1907, where laws and customs of war to protect the sick or wounded were drafted, are

evidence of the formation of a customary law of war.15 Following World War II, the Geneva

Conventions established in treaty form the modern concept of war crimes. They also established

what conduct is considered to constitute grave breaches of the laws of war, in relation to persons

protected under each Convention. These Conventions gather together the experience acquired

from the Military Tribunals of Nuremberg and Tokyo and reaffirm the customary law that already

existed.

The violations of humanitarian norms against persons who are not involved in a conflict are

known as violations of the laws and customs of war, also called “infringements of humanitarian

law.” Articles 8.c. and d. of the Rome Statute—which contains the most recent definitions of the

most serious crimes under international law—consider infringements of humanitarian law as war

crimes.

Common Article 3 of the Geneva Conventions deals with the protection of persons who do not

participate in the hostilities during non-international armed conflicts. This article aims to ensure

respect for basic principles of humanitarian law. The question of whether violations of Common

Article 3 can be considered as grave breaches of the Conventions or not is currently a matter of

debate.16 However, there is a solid recognition that the conduct listed in Common Article 3

constitutes a serious violation of humanitarian law.17

The following conditions are needed for Common Article 3 to apply: i) the prohibited conduct

must be committed within an armed conflict, which in this case is an internal conflict; ii) the

conduct must be connected to the armed conflict; and iii) the conduct must have been committed

against persons not participating in the hostilities. Whether or not an armed conflict can be said

to have taken place during Peru’s period of violence will determine whether or not Common

Article 3 is applicable to acts committed during that period. An internal armed conflict may exist

where hostilities are directed against the government by an organized group, even at a low level.

Other relevant factors are the duration of the conflict, organization and supervision of the

insurgent forces, control of territory, level of tension, victims and efforts of the government to re-

establish order.18 The application of Common Article 3 to internal conflicts in Guatemala

(1954), Algeria (1956) and Cuba (1977) confirm the usage of this notion of internal conflict.19

14 Initially, crimes against humanity were connected to war crimes or crimes against peace, but this link has since been dropped. See Law 10, Draft Codes, the Genocide Convention, Convention on the Non-Applicability of Statutory Limitations and the Rome Statute.

15 Veuthey, Michel. Non-International Armed Conflict and Guerrilla Warfare, International Criminal Law – Crimes. 2nd ed. Ed. M. Bassiouni. Transnational Publishers Inc., New York, 1998, p. 416.

16 See the Tadic case, Appeals Chamber, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (01/02/1995) p.83, International Criminal Tribunal for the Former Yugoslavia. The Appeals Chamber decided that grave breaches only apply to international conflicts.

17 In the same decision (Tadic case, p.94), the Appeals Chamber concluded that violations of Common Article 3 fulfill all the characteristics of violations to humanitarian law. The Chamber listed those characteristics.

18 Experts Committee of the ICRC, Geneva, 1962, See in Veuthey, 1998, p. 422.

19 Ibid, p. 424.



Today, the notions of crimes against humanity and war crimes as infringements of international

humanitarian law have achieved solid and universal recognition in international law. The Rome

Statute and the Elements of Crimes adopted in relation to the crimes listed in the Statute contain

the most recent definitions of these crimes.

Because these crimes are recognized in international law independently from national law, states

cannot use their own internal legislation as an excuse to avoid sanctioning crimes recognized in

international law.

Parallel to the development of international criminal law, World War II also boosted the

development of international human rights law. Instruments recognizing fundamental human

rights such as the Universal Declaration of Human Rights (UDHR), the International Covenant on

Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural

Rights (ICESCR) and the American Convention on Human Rights (ACHR) were adopted. The

convergence of the recognition of these fundamental human rights and the definition of the

violation of those rights as crimes in international law has led to the development of certain

treaties and other legal instruments aimed at ensuring the prosecution and punishment of certain

specific violations, independent from their qualification as crimes against humanity or war

crimes. Examples include genocide, torture, enforced disappearances and extrajudicial

executions. For instance, the Torture Convention obliges all states that are party to it to exercise

jurisdiction over the crime of torture. In other words, even if the conditions are not present for an

act of torture to be categorized as a crime against humanity or a war crime, it can still be

considered a crime under international law.

Conclusions

Following World War II the development of international criminal law has recognized certain

human rights violations that are universally prohibited and rejected as crimes under international

law, regardless of whether the act constitutes a crime in the country where it was committed.

Crimes under international law that have achieved universal recognition include: crimes against

humanity, war crimes and violations of international humanitarian law, genocide, official torture,

enforced disappearances and extrajudicial executions.

2.2 The Non-Retroactivity Principle in International Law

2.2.1. Nullum crimen sine lege praevia

The non-retroactivity principle, or nullum crimen sine lege praevia, which derives from the

legality principle, is widely recognized in international law and guarantees that nobody will be

punished for acts (or omissions) that were not considered criminal at the time of their

commission, either in national or international law.

However, this principle has evolved in international law. It was accepted that for certain acts, no

pre-existing norm condemning those acts is necessary. This was based on an understanding of a

“substantive justice” purpose, and an acceptance that the most horrendous acts against humanity

must be punished even where there was no pre-existing norm.20 This approach was supported by

the Nuremberg Tribunal when Nazi leaders were judged for acts that at the time were not

necessarily considered crimes in international law.

20 Cassese, A. International Criminal Law, Oxford University Press, 2003, p. 143.



The approach came under criticism from detractors who questioned whether the Nuremberg

Tribunal was violating the non-retroactivity principle.21 The Nuremberg Tribunal addressed the

issue by stating that the principle nullum crimen sine lege praevia, which at that time did not have

universal recognition, was a general principle of justice and the punishment of those on trial was

not unjust because they knew they were doing wrong, and rather, that it would be unjust for those

acts to remain unpunished.22

Since then, the principle that has gained credence is that which states that although a person

should not be punished in the absence of any legal norm, a person can be punished if such a norm

existed at the time the offence was committed either in domestic or in international law. The

Geneva Conventions and Protocol I to the Conventions recognized this principle prohibiting the

retroactivity of norms. As regards penalties, the Nuremberg Principles provided that “the fact

that internal law does not impose a penalty for an act which constitutes a crime under

international law does not relieve the person who committed the act from responsibility under

international law.”

This new version of the non-retroactivity principle was also used in the Nazi trials that took place

before national courts. In the case of United States v. Altstoetter (1946 -1949) the US Military

Tribunal rejected the defense’s argument that the nullum crimen sine lege principle had been

violated, stating that this principle places no limitation on the punishment of acts that were

already crimes in international law when they were committed. In the case against Adolf

Eichmann (1965), the Israeli court rejected the defense argument that norms were being applied

retroactively, on the basis that the crimes were already offenses against the law of nations. In the

Barbie case (1987) the French courts also rejected the argument of ex- post facto norms because

the court understood that the Nuremberg Charter was only declaring what existed in international

law, and therefore the Statute was not an ex- post facto norm.

These cases, together with the Nuremberg Principles of 1950, saw the evolution of this

interpretation of the non-retroactivity principle which held that a pre-existing norm in domestic

law was not necessary so long as the norm existed under international law. Human rights treaties

have since confirmed this interpretation. The UDHR , for instance, provides as follows in Article

11(2):

No one shall be held guilty of any penal offence on account of any act or omission which did not

constitute a penal offence, under national or international law, at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal

offence was committed.

The ICCPR similarly provides, in Article 15.2, that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not

constitute a criminal offence, under national or international law, at the time when it was

committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time

when the criminal offence was committed. If, subsequent to the commission of the offence,

provision is made by law for the imposition of the lighter penalty, the offender shall benefit

thereby.

21 Bassiouni. M. Crimes Against Humanity International Criminal Law. 2nd ed. Ed. M. Bassiouni. Transnational Publishers, New York, 1998, p. 561.

22 Cassese, 2003, p.72.



Regional human rights instruments have followed the same course, including the ACHR (Article

9) and the European Convention on Human Rights.

As a result, it is possible to investigate and prosecute acts that are recognized as crimes under

international law, even if those acts are not codified as crimes under national law. Although

international law requires a previous norm in order to condemn acts or omissions, it is clear that

this means not only national law but also international law. It is also clear that the need for a

norm to exist in international law should not be understood in a restricted or formal sense, but has

to be understood in a wider sense, where relevant norms could include treaties and other sources

of international law such as customary law and general principles of international law. The

important thing is that in the absence of formality, the source of the international crime follows

the principle of certainty.23 This is achieved when a treaty is supported by customary law or

when the customary law norm is recognized in a treaty or proclaimed in a declaration of the

General Assembly, as happened with the Nuremberg Principles that defined crimes against

humanity. According to one commentator, the legality principle requires previous knowledge of

the forbidden conduct and the sanction of that conduct, which in international law does not need

to be expressly written but could also be part of customary law.24 Amnesty International

addressed the same argument to the House of Lords in the Augusto Pinochet case, using it as the

basis for asserting that a person accused of crimes against humanity could be prosecuted in full

compliance with international law.25

In summary, the non-retroactivity principle is not violated if a person is condemned for acts that

at the moment of their commission were sanctioned either i) in domestic law or ii) in international

law (meaning treaties, conventions, customary law and general principles of international law

accepted by the entire international community).

One result of this situation is that international criminal law becomes extremely important in

determining which acts can be prosecuted in national courts. As already mentioned, crimes that

have become recognized as crimes under international law since World War II include crimes

against humanity, war crimes or violations of humanitarian law, genocide, torture, enforced

disappearances among others. The recognition of an act as a crime under international law allows

national courts to prosecute a person for that crime, even if the crime is not codified in the

national penal code. 26 One reason why it may be extremely important that a person can be

prosecuted for a crime under international law instead of using an alternative national crime is to

emphasize the seriousness of the crime. It may be that a particular act is criminalized under

domestic law but only as a lesser offense. The ability of national courts to prosecute an act as a

more grave offense drawing directly on international law helps to overcome this problem and to

demonstrate strong disapproval towards certain types of crimes that are abhorred by all nations.27

23 San Martín, Cesar. “Los principios de legalidad penal y de complementariedad del Estatuto de Roma de la Corte Penal Internacional.” La Corte Penal Internacional y sus medidas para su implementación en el Perú. Instituto de Estudios Internacionales (IDEI), Fondo Editorial de la Pontificia Universidad Católica del Perú, Lima, 2001, p.116.

24 Mattarrollo, Rodolfo. “La jurisprudencia Argentina reciente y los Crímenes de Lesa Humanidad” in Revista Argentina de Derechos Humanos, Yr. 1, No. 0. Ad-Hoc, Buenos Aires, 2001, p.117.

25 Amnesty International, “Universal Jurisdiction and the absence of immunity for crimes against humanity,” EUR 45/01/99, January 1999.

26 Redress (Fiona McKay). Universal Jurisdiction in Europe – Criminal prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide, 30 June 1999. See the decision of a Court in Brussels in which General A. Pinochet was charged for the commission of crimes against humanity.

27 O’Shea, Andreas. Amnesty for International Law and Practice. Kluwer Law International, The Hague/London/New York, 2002, pp. 205-206.



Conclusion

It is possible to prosecute and punish individuals in national courts for acts or omissions that are

not crimes under national law if those acts or omissions were already considered to be crimes

under international law.

In order to determine what conduct is considered criminal it is necessary to look at both national

legislation and international law.

The direct application of international law is possible in order to prosecute and punish a person

where the crime is not codified in national law.

2.2.2. Nullum poena sine lege

The legality principle has also given rise to the principle nullum poena sine lege, which holds that

no one can be given a punishment that was not prescribed in law at the time the crime was

committed.

This principle has not achieved as widespread of an acceptance in international law as the non-

retroactivity principle. Cherif Bassiouni points out that none of the international instruments

attempt to establish penalties, and concludes that the principle does not belong to customary law.

On the contrary, its absence confirms that there is a rule in international law that allows the use of

analogy to similar crimes in applying sanctions for behavior that amounts to crimes under

international law. Despite the fact that the principle nullum poena sine lege is recognized in most

national legal systems, it is not applied uniformly and judges usually employ wide discretion. In

some cases this discretion allows the imposition of alternative sanctions or the use of analogy.28

Since the very first attempts to codify international crimes right up to the more recent statutes for

the ad hoc International Criminal Tribunal for Rwanda (ICTR) and International Criminal

Tribunal the former Yugoslavia (ICTY), and the Rome Statute, specific sanctions have not been

established and the determination of the punishment has been left to the tribunal itself. The ad

hoc tribunals have resorted to the practice of national courts in the country where the violation

took place. The Rome Statute lists possible sanctions that are available to the Court, with a

maximum of life imprisonment, but does not attempt to lay down sanctions for specific crimes.

In domestic criminal prosecutions, sanctions that did not exist in national law have sometimes

been applied. One example is the Barbie29 case in France. There the court ordered life

imprisonment, applying Article 27 of the Nuremberg Charter – which provides that the

Nuremberg Tribunal could assign any sanction it considered fair –and the French Penal Code

(which had abolished the death penalty).

Conclusions

• The nullum poena sine lege principle is not as widely recognized in international law

as is the non-retroactivity principle.

• State practice and decisions of international tribunals demonstrate that it is possible

to integrate national and international law in order to determine sanctions for crimes

under international law, and also that there is discretion to apply sanctions using

analogy.

28 Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law. 2

nd ed. Kluwer Law International, The

Hague, 1999, p.158.

29 Mattarrollo, 1999, p. 117.



• While not attempting to propose a basis for determining punishments for crimes

under international law lacking in Peruvian law, we note that Article 29 of the

Peruvian Penal Code provides for prison terms that range from two days to 35 years.

An integration of international and national law based on discretionary application of

international law and using the range given in the Peruvian Penal Code would be

possible.

2.3 The Non-Applicability of Statutory Limitations in International Law The notion that the ordinary statutory limitation rules should not be applied in the case of certain

extremely serious crimes that are abhorrent to the community of states as a whole has grown out

of a perception that certain acts are so horrific that the international community should join

together to fight impunity and ensure justice in relation to those acts. In that sense, the principle

of the non-applicability of statutory limitations differs from the non-retroactivity principle in that

it is limited to certain very serious crimes recognized as such by the international community as a

whole, whereas the generally accepted rule regarding non-retroactivity set out in the previous

section is not necessarily limited to those crimes.

We will deal first with international norms calling for the non-applicability of statutes of

limitations in cases of war crimes and crimes against humanity and later with other legal rules

that suggest that the statutory limitation rules should be disapplied in relation to a wider list of

crimes under international law.

2.3.1 The non-applicability of statutes of limitation for war crimes and crimes against humanity

The Convention on Non-Applicability, adopted in 1968, reflected a consensus that had emerged

around the existence of a customary international law rule. Following World War II and the

attempts to deal with the crimes committed by the Nazi regime, after the question of the non-

retroactivity principle had been dealt with, a second thorny problem arose when in the late 1950s

it was realized that limitation periods for prosecuting crimes in the countries where the Nazi trials

were being held were about to expire. The development of an international law norm to the effect

that statutory limitations should not be applied in cases of international crimes dates to that time.

In 1965 the Council of Europe approved a declaration stating that governments should take

measures to combat impunity for crimes committed on racial, political or religious grounds, and

for crimes against humanity in general. At the UN, the Human Rights Commission adopted

Resolution (3XXI), declaring that statutory limitations should not apply to war crimes and crimes

against humanity. In 1964, France adopted a law providing for the non-applicability of statutory

limitations for crimes against humanity.

This activity eventually led to the adoption of the Convention on Non-Applicability, which

provided that statutory limitation rules should not be applied to those crimes, regardless of when

the crime was committed. The Preamble to the Convention includes the following:

Noting that none of the solemn declarations, instruments or conventions relating to the prosecution

and punishment of war crimes and crimes against humanity made provision for a period of

limitation […]

The Preamble goes on to declare:



It is necessary and timely to affirm in international law, through this Convention, the principle that

there is no period of limitation for war crimes and crimes against humanity, and to secure its

universal application.

Since the Convention on Non-Applicability was adopted in 1968, the principle has been further

consolidated through other international instruments and decisions of national courts. For

example, UN General Assembly Resolution 2583 calls on states to abide by the principles

recognized in the Convention, and Resolution 3074 declares that war crimes and crimes against

humanity must be punished wherever and whenever they are committed.

The principle has been also recognized in other treaties including the IACFDP (at Article VII)

and the Rome Statute of 1998 (Article 29).

National law has continued to recognize the principle. In 1993, Hungary established that in cases

where statutory limitation periods have expired in cases of crimes against humanity and war

crimes, criminal prosecution can still continue.30 In the same year, Belgium adopted the principle

of non-applicability of statutory limitations for war crimes. Moreover, Article 5 of the

Paraguayan Constitution provides that torture, genocide, enforced disappearances, kidnappings

and homicides for political reasons are not subject to statutes of limitation. Article 325 of the

Constitution of Honduras provides that statutory limitations will not apply to political killings.

Article 28 of the Ethiopian Constitution includes the non-applicability of statutory limitations for

crimes against humanity, genocide, extrajudicial executions, enforced disappearances and torture.

Article 23 of the Ecuadorian Constitution provides that genocide, torture, enforced disappearance,

kidnapping and homicide for political reasons are not subject to statutes of limitations.

National courts have also referred to the principle. In the Barbie case in France, the Court of

Cassation determined that the accused was not entitled to claim the statutory limitation rules.31

The Convention on Non-Applicability provides in Article 1 for the non-applicability of statutory

limitations for war crimes and crimes against humanity, regardless of when these crimes were

committed. It is a subject of debate whether the application of this provision to crimes committed

before the adoption or ratification of the Convention offends the non-retroactivity principle.

Based on our analysis of the non-retroactivity principle in international law above (in section 2.2),

this principle is not violated if the relevant norm already existed in international law at the time

the act is committed. Article 4 of the Convention on Non-Applicability obliges all States Parties

to adopt the necessary procedures to ensure the abolition of statutory limitation rules. Since the

Convention only reaffirms and declares a principle that already existed in international law,

applying this convention to acts committed before its adoption would therefore not offend the

non-retroactivity principle.

Such an interpretation has been adopted in Argentina, which is not even a party to the Convention

on Non-Applicability. There, national courts have confirmed that the principle of non-

applicability of statutory limitations exists in international law even without the Convention. The

Cámara Federal de La Plata held in the 1989 Schwamberger case that the non-applicability of

statutes of limitations is a principle of international law to which Argentinean law is subject. In

30 Decision 53/1993 (x.13) Constitutional Court of Hungary, October 1993. Duc v. Trang, “Beyond the Historical Justice

Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary.” Vanderbilt Journal of Transnational Law, Vol. 28, No. 1 (1995).

31 Sadat Wexler, Lelia. “The French Experience” in International Criminal Law- Enforcement III. 2nd ed. Transnational

Publishers Inc, New York, 1998, p.280.



the Massera cases, the Camara Federal stated that the fact that the crimes were crimes against

humanity means that they are not subject to statutes of limitations. In the case of Simon Julio,

Del Cerro, Judge Cavallo stated that at the time the Convention on Non-Applicability was

adopted in 1968, and with the adoption of the European Convention, the non-applicability of

statutory limitations had been established as an international norm beyond the existence of the

treaty.32

In the case of Peru such an interpretation is even more apposite, since Peru is a State Party to the

Convention and the principle was already well established in international law at the time the

period of internal violence began in 1980.

The interpretative declaration made by Peru upon becoming party to the Convention on Non-

Applicability therefore goes against the principle of the non-applicability of statutes of limitations

to war crimes and crimes against humanity that existed in international law prior to the adoption

of the Convention and which, as we shall see, also forms part of Peruvian national law.

2.3.2. Other legal bases for the non-applicability of statutory limitations rules

International law recognizes the existence of imperative norms that have a higher hierarchy than

other norms of international law. Such a category was recognized in the Vienna Convention on

the Law of Treaties. Article 53 of the Vienna Convention defines the jus cogens norm as a

… peremptory norm of general international law is a norm accepted and recognized by the

international community of States as a whole as a norm from which no derogation is permitted and

which can be modified only by a subsequent norm of general international law having the same

character.

Article 64 further provides that “if a new peremptory norm of general international law emerges,

any existing treaty which is in conflict with that norm becomes void and terminates.”

Some but not all of the crimes that are recognized as crimes under international law have

achieved the status of a jus cogens norm. What sets the jus cogens norms apart is that the

behavior is considered to offend the international community as a whole. Although there is no

single agreed list of which international crimes can be regarded as jus cogens norms, among the

list of crimes that have been considered as such by state practice, court decisions and

commentators are: genocide, crimes against humanity, war crimes, aggression, torture, enforced

disappearances, extrajudicial executions, slavery or related practices, piracy, arbitrary detention

and racial discrimination.33

The main consequence of being a jus cogens norm is that there is a corresponding obligation,

known as an obligation erga omnes that must be complied with. In the Barcelona Traction case,

the International Court of Justice stated:

An essential distinction should be drawn between the obligations of a State towards the

international community as a whole, and those arising vis-à-vis another State in the field of

32 Causa 8686/2000 caratulada Simón Julio, Del Cerro, Juan Antonio s/sustracción de menores de 10 años, Juzgado

Nacional en lo Criminal y Correccional Federal N. 4. (Juez Gabriel Cavallo).

33 Bassioni includes aggression, genocide, crimes against humanity and official torture on his list. Bassiouni, C. “International Crimes: Jus cogens and Obligatio Erga Omnes.” Reining in Impunity. Siracusa Impunity Conference, 1998, p.139; Bianchi includes genocide, apartheid, torture, systematic killings, arbitrary detention and enforced disappearances. Andrea Bianchi, “Immunity Versus Human Rights: The Pinochet Case.” European Journal of International Law, Vol. 10, No. 2. In the civil case of Siderman v. Argentina in the U.S., the Ninth Circuit court recognized torture, genocide, slavery, killing, disappearances, arbitrary and prolonged detention and racial discrimination as jus cogens norms. Siderman v. Argentina, United States Court of Appeals (Ninth Circuit) Decided May 22, 1992.



diplomatic protection. By their very nature the former are the concern of all States. In view of the

importance of the rights involved, all States can be held to have a legal interest in their protection;

they are obligations erga omnes.34

If a crime has the status of a jus cogens norm, this carries with it the obligation erga omnes to

prosecute and to avoid impunity for those crimes. Erga omnes obligations include i) the

obligation to either prosecute or extradite (au dedere aut judicare) and ii) the non-applicability of

statute of limitations for jus cogens crimes.

The jus cogens nature of crimes against humanity, genocide, enforced disappearance, torture and

extrajudicial executions imposes an obligation on states to ensure that those crimes are prosecuted

and punished. States that apply statutes of limitations in order to avoid prosecution of such cases

are therefore violating their obligations under international law.

The Convention on Non-Applicability declares in its Preamble that there is no norm of

international law for which statutory limitations are specifically provided. This had been pointed

out in the Priebke case in Argentina in 1995.35

Statutory limitations are rules created by states in order to achieve some certainty in the

prosecution of cases in which considerable time has elapsed. In international law, certainty is not

as essential a value as justice. Statutory limitations are really domestic rules that are left to each

State to determine.

In most countries, rules laying down time limits for the launching of criminal proceedings exist

for less serious crimes.36 However, for more serous crimes, legal systems frequently do not

impose statutory limitation periods. In fact, some states do not have statutory limitations at all or,

if they do have them, impose them only for minor crimes –examples include Austria, Bulgaria,

the Czech Republic, the United Kingdom, Ukraine, Singapore and India.

In other words, there is no principle either in national or in international law that calls for the

application of statutory limitations. Nor are the statutory limitations considered fundamental

rights in those countries in which they do exist. There are no treaties or customary norms that

recognize such rules as fundamental rights.

In Peru, the fact that statutory limitations are not mentioned in the Constitution, but only in the

Penal Code, indicates that there was no intention to consider them to be fundamental rights.

Statutory limitations are purely within the domain of those domestic rules over which states have

discretion, and they do not have the status of fundamental rights. As a result, they should not

prevail over the overriding need for justice and accountability for serious human rights crimes –

to allow them to do so would be to use these domestic rules as a pretext for permitting impunity

for serious human rights violations.

The duty to prosecute and investigate human rights violations derives from certain rights and

freedoms that states are obliged to respect and ensure. Article 1of the ACHR and Article 2 of the

34 Barcelona Traction, Light and Power Co. Ltd., (Belgium v. Spain), 1970, I.C.J. 3, 32 (February, 5).

35 Paragraph 83 of the Opinion of Judge Bossert – Supreme Court of Argentina. (Causa 16.063/94 “Priebke Erich,

s/solicitud de extradición”, fallo del 02 de noviembre de 1995)

36 Márquez Carrasco, Maria del Carmen. “El principio de imprescriptibilidad en el Estatuto de Roma.” La Corte Penal

Internacional y las medidas para su implementación en el Perú. Instituto de Estudios Internacionales (IDEI), Fondo Editorial de la Pontificia Universidad Católica del Perú, Lima, 2001, p. 181.



International Covenant on Political and Civil Rights, both ratified by Peru in 1979, impose the

duty to respect and guarantee the rights and liberties mentioned in the Conventions.

In undertaking the obligation to respect and guarantee the rights that are protected in these

conventions, states commit themselves to prevent, investigate and pursue human rights violations

that occur in their territory. This interpretation was confirmed by the Inter-American Court of

Human Rights (ICHR) in the leading case of Velázquez Rodriguez v. Honduras:

The State has a legal duty to take reasonable steps to prevent human rights violations and to use the

means at its disposal to carry out a serious investigation of violations committed within its

jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the

victim adequate compensation.37

In addition, certain treaties to which Peru is a party expressly impose the duty to prosecute and

investigate certain crimes. Examples include the Torture Convention, the IACPPT and the

IACFDP. Article 4 of the Torture Convention provides:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The

same shall apply to an attempt to commit torture and to an act by any person which

constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take

into account their grave nature.

International law specifically imposes a duty on states to prosecute crimes against humanity and

war crimes. So far as crimes against humanity are concerned, since the Nuremberg Tribunal

there has been a clear duty to prosecute. Arguing in favor of the existence of a customary

international law rule obliging states to prosecute crimes against humanity, Diane Orentlicher

says that the Nuremberg precedent, as subsequently ratified, reflects the international

community’s resolve that atrocious crimes carried out as part of a mass campaign of persecution

must not go unpunished.38

As regards war crimes, the duty to prosecute grave breaches of the Geneva Conventions is

included in all four conventions.39

The duty to prosecute crimes against humanity and war crimes is also affirmed in the Preamble of

the Rome Statute, and the principle of complementarity that underlies the International Criminal

Court (ICC) can be considered as evidence that it is states that have the primary duty to prosecute

these crimes.

Since there is a duty to investigate and prosecute human rights violations – including crimes

against humanity, war crimes, torture and other violations – a state that fails to do so will be in

violation of its obligations under international law, thus incurring responsibility at the

international level. This interpretation was confirmed by the ICHR in the leading case of Bamaca

Velázquez:

37 Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-American Court of Human Rights. Par. 174.

38 Orentlicher, Diane. “Settling Accounts: The duty to prosecute human rights violations of a prior regime.” Yale Law Journal, Vol. 100 (1991), p. 2586.

39 Article 49 of the 1st Convention for the Amelioration of the Conditions of the Wounded and Sick on the Battlefield, article 50 of the 2nd Convention for the Amelioration of the Conditions of the Wounded and Sick at Sea, article 129 of the 3rd Convention relative to the treatment of the prisoners of war and article 146 of the 4th Convention relative to the protection of civilians in time of war.



A state that does not punish human rights violations is also infringing its duty to guarantee the full

exercise of rights to the persons subject to its jurisdiction [non-official translation].40

Moreover, the Restatement (Third) of Foreign Relations Law of the U.S also provides that the

failure to comply with the duty to prosecute and investigate human rights violations falls under

the State’s responsibility.41

Domestic statutory limitations rules are incompatible with the duty to investigate and prosecute

serious human rights crimes because they prevent the investigation and prosecution of human

rights violations, resulting in impunity. UN Special Rapporteur Louis Joinet noted this point in

his 1996 report to the UN Human Rights Commission.42 In the Barrios Altos case,

43 the ICHR

also declared that statutory limitations for human rights violations are contrary to the rights

recognized in the ACHR:

This Court considers 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.

In addition, the Constitutional Court in Peru has recently urged the State to find a way to address

statutes of limitations so that they do not affect human rights cases.44

In conclusion, since the statutory limitations rules contradict the duty to investigate and prosecute

serious violations, states can not use these rules of domestic law as an excuse for failing to

comply with their obligations.45 States that do so incur international responsibility.

Conclusions

• The most serious violations of human rights, such as crimes against humanity, war

crimes or violations of humanitarian law, enforced disappearances, official torture

and extrajudicial executions, should not be affected by the statutory time limits for

prosecution that are provided in domestic law.

• Statutes of limitations should never be applied to crimes against humanity and war

crimes. The principle of non-applicability of statutory limitations for these crimes

has long been recognized in international law including in the Convention on Non-

Applicability of 1968. The Convention should be applied to acts committed before

its adoption by individual states because the principle already existed in international

law before the Convention on Non-Applicability was adopted.

40 Inter-American Court of Human Rights, Bamaca Velasquez case, Judgment on February 22, 2002, para.74.

41 Restatement (Third) of the Foreign Relations Law of the United States Part II, Persons in International Law, Chapter 1, § 206. Sub Chapter B. Capacities, rights and duties of states.

42 UN Special Rapporteur Louis Joinet, “Question of the impunity of perpetrators of violations of human

rights (civil and political rights).”Presented to the Sub-Commission on Prevention of Discrimination and

Protection of Minorities, 49th session in application of the decision 1996/119. (E/CN.4/Sub.2/1997/20)

43 Inter-American Court of Human Rights, Barrios Altos case, Judgment of March 14, 2001, para.41.

44 Constitutional Court decision, Villegas Namuche case, 2488/2002-HC/TC, para.23.

45 Vienna Convention on the Law of Treaties, Article 27: “A State Party may not invoke the provisions of

its internal law as justification for its failure to perform a treaty.”



• Statutory limitations should not be applied to war crimes and crimes against

humanity, independently of how the acts are characterized in the domestic legal

system for the purposes of prosecution. For instance, if a prosecutor decides to

prosecute an act as bodily harm, if that act falls within the definition of torture and

occurred in a context where it amounted to a crime against humanity, the time limits

should not be applied.

• Even if they do not amount to a crime against humanity or war crime, serious human

rights violations should not be subject to statutory limitations for the following

reasons: i) their prohibition amounts to a jus cogens norm which leads to an

obligation erga omnes on states to prosecute those violations; if the State fails to

prosecute, using statutory limitations as an excuse, it is contravening its international

obligations; ii) the duty to investigate and prosecute that derives from the obligation

to respect and ensure the fundamental rights is in contradiction with statutory

limitations, and states cannot therefore use them as an excuse for not complying with

their international obligations; iii) statutory limitations are rules of internal legislation

and are not fundamental rights.

2.4 Incorporation of International Law into Peruvian Law International law does not establish a single method of incorporating international norms into

national law, nor does it provide for a particular hierarchy of the different levels of norms within

national legal systems. International law does, however, impose on states a duty to comply with

international norms. The result is each State is left to manage the incorporation of international

law as it wishes, as long as it complies with its international obligations.

It is in their constitutions that states declare how international law will be incorporated into

domestic law, the status of international law within the domestic legal system and the hierarchy of

norms. After analyzing the status of international law in the Peruvian legal order, we conclude

that since the adoption of the Constitution of 1979 and later the Constitution of 1993,

international norms related to human rights have been incorporated into Peru’s national law at the

constitutional level. Based on this conclusion, we then demonstrate how human rights violations

committed during the internal conflict in Peru could be subject to investigation and prosecution

even where they had not been codified in the Penal Code at the time of their commission, and

how the principle of non-applicability of statutory limitations is also part of Peruvian national

law.

2.4.1. Incorporation of international law

Article 55 of the Peruvian Constitution of 1993 provides that “treaties signed by the State and in

force are part of national law.” Through this article, international treaties are incorporated into

national law. However, this article does not indicate how international norms other than those

contained in treaties to which Peru is a party are incorporated into the national legal order. For

that, it is necessary to look to Article 3 of the Constitution of 1993 (in identical terms to Article 4

of the Constitution of 1979), which provides:

The enumeration of the rights provided in this chapter does not exclude others guaranteed by the

Constitution or still others of similar nature or those premised on the dignity of man, on the

principles of popular sovereignty or of the democratic State [based] on Law and of the Republican

form of Government.



This article –which comes directly after the enumeration of fundamental rights and freedoms in

Article 2 – aims to recognize fundamental rights that are not expressly mentioned in the

Constitution. Article 3 therefore opens the door for the incorporation of three categories of rights:

i) rights that the Constitution guarantees but that are not listed in Article 2, ii) rights of a similar

nature to the rights in the Constitution, and iii) rights that are premised on the dignity of man, on

the principles of popular sovereignty or on the idea of a democratic State based on law and a

republican form of government.

Article 3 does not differentiate between different sources of rights, so they could originate at

either the domestic or the international level. Nor does this article require that such rights be

recognized in treaties ratified by Peru, so rights recognized in customary law or general principles

of international law could be included.

As we have seen, international human rights law has recognized and sought to protect certain

fundamental human rights, while the emergence of international criminal law has led to certain

violations being defined as crimes under international law.

We can therefore conclude that Article 3 incorporates into Peruvian legislation all international

norms related to human rights, including the norms that define crimes in international law and the

obligations of states in relation to human rights. These international human rights norms have

substantial similarities to the rights recognized in the Constitution, and they are also premised on

the dignity of man and the principles of popular sovereignty.

According to Dr. Marcial Rubio, a Peruvian legal scholar,46 Article 3 establishes Peru as a

country following the so-called “monist” approach to international law, which means that

international law is incorporated into domestic law without the need for specific acts of

incorporation. Dr. Rubio also points out that Article 3 establishes an extensive and not a

restrictive incorporation of international law, since the rights that are not listed are subject to

change and augmentation as international human rights norms evolve.

The Peruvian Constitutional Court has adopted this approach, and has used Article 3 to recognize

rights that are not expressly mentioned in the constitution. For instance, in the Villegas Namuche

case and others, the Court recognized a “right to know the truth”47 for cases that involve human

rights violations, imposing on the State the responsibility to take all the necessary measurements

to investigate the violation.

2.4.2. Hierarchy of norms in the Peruvian legal order

The Constitution of 1993, which is currently in force, does not expressly mention the status of

international law in the Peruvian legal hierarchy. In the Constitution of 1979, Articles 105 and

101 had explicitly provided that international human rights treaties had constitutional status, and

this has been restored in the draft new constitution currently under consideration.48 The

elimination of this provision in the 1993 Constitution does not, however, change the status of

international law in the Peruvian legal hierarchy.

46 Rubio, Marcial. “La Ubicación Jerárquica de los tratados referentes a derechos humanos dentro de la Constitución

Peruana de 1993.” Materiales de Lectura, Seminario internacional “Retos de la judicialización en el proceso de verdad, justicia, reparación y reconciliación.” Coordinadora Nacional de Derechos Humanos, Lima, July 2003, p. 107.

47 Constitutional Court decision, Villegas Namuche case 2488-2002-HC/TC Piura, para. 12-13.

48 Article 82 of the new draft on the Constitution. Discussions on the draft are pending within the Constitutional Review

Commission at the Congress.



To determine the current hierarchy of legal norms in Peru, it is necessary to look at Article 57 of

the Constitution of 1993, together with the 4th Final Provision and Article 3.

Article 57 provides that:

The President of the Republic may accept or ratify treaties without need for the prior approval of

the Congress in matters not covered in the previous article. In all these cases, he must render an

account to the Congress.

When the treaty affects constitutional provisions, it must be approved by the same procedure that

applies to amending the Constitution before being ratified by the President of the Republic.

The denunciation of treaties falls under the authority of the President of the Republic who is

responsible for rendering account to the Congress. In the case of treaties subject to the approval of

the Congress, their denunciation requires its prior approval.

This article establishes a procedure for the approval of treaties that affect constitutional

provisions. This constitutes a clear recognition of the constitutional hierarchy of treaties; the

legislator decided to adopt the constitutional reform procedure for the approval of treaties

affecting the constitution in order to avoid collisions between norms of the same level. The

Constitution of 1979, which expressly mentioned the constitutional status of international treaties,

had the same provision in Article 103.

In addition, the 4th Final Provision of the Constitution provides:

Norms concerning the rights and freedoms that the Constitution recognizes are interpreted in

accordance with the Universal Declaration of Human Rights and with treaties and international

agreements concerning corresponding matters ratified by Peru.

This provision establishes the UDHR and international treaties dealing with fundamental rights as

the guides that should be used for interpreting the rights recognized in the Constitution. This

leads to the conclusion that the rights recognized in the UDHR and other international treaties and

agreements have a constitutional level. The Peruvian Constitutional Court adopted this

interpretation in the Urrelo Alvarez case.49

Finally, when Article 3 of the Constitution provides that similar rights are also part of the

Constitution, it indicates that those rights also have a constitutional level.

Conclusions

• At least since the entry into force of the Constitution of 1979, and continuing with the

Constitution of 1993, international norms related to human rights, meaning the norms

that define human rights violations as crimes in international law and the obligations

of states in relation to human rights violations, are part of Peruvian internal law and

have constitutional status. It makes no difference whether these norms are

recognized in treaties or customary law or if they are part of the general principles of

international law.

• The non-retroactivity principle and the principle of non-applicability of statutory

limitations for war crimes and crimes against humanity, being international norms

related to human rights, are also part of Peruvian law and have constitutional status.

49 Constitutional Court decision, 2209-2002/AA/TC, Urrelo Alvarez case.



• These international norms that are part of the Peruvian law prevail over other sub-

constitutional norms such as the Penal Code.

• International crimes such as torture, enforced disappearance and extrajudicial

executions are part of Peru’s internal law and have constitutional status. As a result,

such crimes can be the subject of investigation and punishment by national courts

even if they were not codified in the Penal Code at the time of their commission.


3. General Conclusions Regarding the Applicability of the Non-Retroactivity and Statutory Limitations Principles to the Prosecution of Human Rights Violations in Peru 1. The prosecution of human rights violations committed during Peru’s twenty-year period of

violence has encountered obstacles due to the application of the non-retroactivity principle

and the application of statutory limitations that exist in domestic legislation.

2. If the non-retroactivity rules recognized in domestic law are applied, then the serious human

rights crimes committed before they were codified as such in the Penal Code cannot be

prosecuted. In some cases, a possible solution is to prosecute those acts as other crimes that

were already codified at the time of their commission, even though this usually means those

responsible can only charged with a less serious crime. But in other cases, the worst

consequence could be the application of statutory limitations, which would result in the

impunity of those crimes.

3. The statutory limitations as they are provided in Peruvian national law do not make any

exceptions for serious human rights violations. As a result, the passage of time could result

in impunity for these violations.

4. Human Rights First believes that in determining the admissibility of human rights violations

in criminal courts, both international and national law must be taken into account. This does

not mean that national law is set aside. On the contrary, national law will be complemented

by international law.

5. International law provides definitions of crimes, establishes a new interpretation of the non-

retroactivity principle and the nullum poena sine lege principle, specifically calls for the non-

applicability of statutory limitations for war crimes and crimes against humanity and provides

the basis for the non-applicability of this principle to other human rights violations as well.

Specifically, international law provides the following:

• The concept of crimes under international law: the convergence of international

criminal law and international human rights law have consolidated the notion of

international crimes such as crimes against humanity, war crimes, genocide, torture,

enforced disappearances and extrajudicial executions.

• A new interpretation of the non-retroactivity principle: this principle now means that

no one could be punished for acts that were not considered crimes in national or



international law at the time they were committed. In order to determine whether

particular behavior was a crime at the time it was committed, one therefore has to

look at both international and national law.

• The nullum poena sine lege principle: this principle is not part of international law in

the same way as the non retroactivity principle. Where there is no punishment

provided in the domestic Penal Code for a particular crime, it is possible to determine

the appropriate sentence through applying the discretion permitted in international

law and the range of sentences provided in Article 29 of the Penal Code.

• Non-applicability of statutory limitations: the principle of non-applicability of

statutory limitations for war crimes and crimes against humanity is a well established

principle of international law and has been expressly recognized in the Convention of

Non-Applicability of Statutory Limitations for War Crimes and Crimes Against

Humanity as well as other international instruments.

• There is also a strong basis for asserting the non-applicability of statutory time limits

for other human rights violations that do not amount to war crimes or crimes against

humanity, such as torture, enforced disappearances or extrajudicial executions: (i) the

jus cogens nature of the prohibition on these violations means that there is an

obligation erga omnes on states to investigate such violations and not to use time

limits as an excuse for failing to prosecute, (ii) statutory time limits in domestic

legislation if applied to these violations will directly contradict the duty of states to

investigate and prosecute these violations, and (iii) the fact that statutory rules are

part of internal legislation and not of international law, and that they are not

recognized as fundamental rights in the Peruvian legal order..

6. The Constitutions of 1979 and 1993 establish mechanisms for incorporating international

norms relating to human rights, with the following consequences:

• The non-retroactivity principle as defined under international law is also part of

Peruvian law and has constitutional status. This interpretation does not contradict

Article 2.24.d of the Constitution (which establishes the non-retroactivity principle)

because crimes under international law are already part of domestic law.

• Since this principle is part of national law, it is possible to prosecute acts that were

crimes under international law even if those acts were not codified in the Penal Code

at the time.

• The principle of non-applicability of statutory limitations is also part of national law

and has constitutional status. Peru is a party to the Convention on the Non-

Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

of 1968, and the principle is part of national law because the Constitution

incorporates treaties into national legislation. Even before Peru ratified the

Convention, this principle was already recognized in international law, so it became

part of Peruvian law through the mechanism established in the Constitution for

incorporating international human rights norms into the Peruvian domestic legal

order.

• The interpretative declaration made by Peru upon becoming party to the Convention

on Non-Applicability that purports to limit its effect goes against a principle that was

part of national law even before Peru ratified the Convention.

• The international crimes recognized in international law are also part of national law.

General Conclusions — 29


7. The integration of international law and national law provides the necessary basis for

admissibility of human rights cases in Peruvian criminal courts, taking into consideration the

international law interpretations of the applicability of the principles of non-retroactivity and

statutory limitations that are found in the Penal Code.

8. It is therefore possible to directly apply international crimes that are recognized in

international law, and to use these as a basis of admissibility of human rights violations

before national courts even if they were not recognized as serious human rights crimes in the

Penal Code at the time of their commission.

9. The lack of codification of human rights violations in the Penal Code at the time such

violations were committed should not prevent their prosecution. The direct invocation of

crimes recognized in international law does not violate the non-retroactivity principle because

the principle, as defined under international law, includes international law as the applicable

law. In addition, the international norms that define those crimes are part of Peruvian law

and have constitutional status.

10. International law clearly provides that the statutory limitations in the Peruvian Penal Code

should not be applied in cases of war crimes and crimes against humanity. There is also a

solid basis under international law for the non-applicability of statutes of limitations in cases

of serious human rights violations that do not occur in a context where they amount to crimes

against humanity or war crimes. These violations include torture, enforced disappearances

and extrajudicial executions.

11. The non-applicability of statutory limitation periods must be respected regardless of how the

relevant acts are qualified by local prosecutors. For example, if the prosecutor decides to use

crimes that existed in the Penal Code at the time of commission instead of international

crimes (for instance, to prosecute for bodily harm instead of torture), statutory limitation

periods applicable to the crime of bodily harm in the Penal Code should not be applied if the

act would also qualify as torture in international law.

12. The nullum poena sine lege principle is not widely recognized in international law in the way

that the non-retroactivity principle is recognized. It is possible to draw on both national and

international law in order to determine the appropriate punishment for the crime, and also

there is discretion to apply sanctions by analogy. Without intending to propose any particular

solution for determining appropriate punishments where they are not provided in Peruvian

legislation for crimes under international law, we note that Article 29 of the Penal Code

provides a range of prison terms from two days to 35 years. An approach that draws on both

international and national law would allow the discretionary application of sanctions based on

international law, using the range in the Peruvian Penal Code.


4. Analysis of the Applicability of Statutory Limitations and the Non-Retroactivity Principle For Specific Crimes The purpose of this section is to apply the above conclusions to specific international crimes that

were committed during Peru’s period of internal violence, namely torture, enforced disappearance

and extrajudicial executions.

4.1. Torture

4.1.1. Different characterizations of torture as a crime under international law

In its Final Report issued in August 2003, Peru’s Truth and Reconciliation Commission

concluded that during the period 1980-2000, acts of torture and other ill treatment were

committed by states agents or persons under their control, and also by subversive groups or

guerrillas. The Commission noted that torture practiced by the insurgent groups could qualify as

a violation of international humanitarian law and also, if used as part of a widespread practice,

could qualify as a crime against humanity. It concluded that during the period 1983-1997 there

was indeed a widespread practice of torture carried out by state agents that amounted to crimes

against humanity.

The absolute prohibition on torture has been widely recognized as a norm of international law,

contained in both treaty law and in customary international law.50 Torture also numbers among a

small group of non-derogable rights that states cannot suspend, even in time of public emergency

which threatens the life of the nation.51

At the same time, torture has developed as a crime under international law, under several

headings: i) as official torture, committed by state agents or persons under their control; ii) as a

violation of international humanitarian law; and iii) as a crime against humanity. A single act

could qualify as more than one of these categories.

50 Amnesty International. End Impunity: Justice for the victims of torture. Amnesty International Publications, London,

2001, p.28; Steven Ratner and Jason S. Abrams. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford University Press, 1997, p.111; and

Theodor Meron. Human Rights and Humanitarian Norms as Customary Law. Clarendon Press, Oxford University Press, 198.

51 Article 4.1 of the International Covenant on Civil and Political Rights and article 27.1 of the American Convention.



Official torture

An act of torture committed by or at the instigation of agents of the State is a crime recognized

under international law, including customary law. The UDHR provides that any act of torture is

an offense to human dignity and shall be condemned as a violation of the UN Charter and of the

rights and liberties proclaimed in the Declaration that provide evidence of the status of the

prohibition on torture as a customary norm is the Declaration Against Torture, adopted by the UN

General Assembly in 1975.52

In 1984, the UN General Assembly adopted the Torture Convention, to which Peru is a party.

One of the main purposes of this convention is to ensure that acts of torture will be criminalized

by all states and that states will exercise jurisdiction even over acts of torture committed

elsewhere, on the basis of universal jurisdiction. In the Americas, the Assembly of American

States adopted the IACPPT, to which Peru is also a party.

As already mentioned, Peruvian law has adopted the non-retroactivity principle which aims to

ensure that no one can be punished for acts that at the time of their commission were not

categorized as crimes either in national or in international law. Torture has been recognized as a

crime under international law since the beginning of the period of violence in Peru in 1980. As

noted above (section 2.4), the international norms that define crimes under international law are

part of Peruvian law and have constitutional status. Torture – which was already recognized as a

crime in customary international law by the beginning of the period of violence in 1980 – had

become part of Peruvian national law through the application of the mechanism that incorporates

international human rights norms into domestic law, established in the Constitution of 1979 that

was in force at that time.

Later, in May 1988, Peru ratified the Torture Convention. Through incorporation of that treaty,

torture continued to be part of national law on the basis of its recognition in a convention to

which Peru is a party.

Finally, official torture was codified in the Peruvian Penal Code in 1998, which served to

demonstrate that Peru recognized torture as a crime under international law.

As a result of the long recognized status of official torture in Peruvian law, the investigation and

prosecution of cases of torture committed by state agents or persons under their control can be

admitted in the criminal courts even if they occurred before the codification of torture as an

offense in the Penal Code. Such a process would not violate the non-retroactivity principle

because it involves the application of a pre-existing norm in international law, which is also part

of national law with constitutional status.

Torture as a violation of international humanitarian law

International humanitarian law applies to the parties to an armed conflict, whether internal or

international. This body of law has been recognized for decades and was codified in the four

Geneva Conventions of 1949, to which Peru has been a party since 1956.

Among these rules is Common Article 3 to the Geneva Conventions, which applies in situations

of non-international armed conflict. Common Article 3 includes the prohibition of torture.

Common Article 3 applies not only to State actors but also to individuals who are members of

subversive groups, even though those groups are not party to the Geneva Conventions.

52 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975.

Analysis of Applicability — 33


If the period of violence in Peru fulfills the definition of a non-international armed conflict53 this

would give rise to the application of Common Article 3 to the Geneva Conventions. Since

Common Article 3 was part of Peruvian law even before the conflict started, cases of torture

could be admissible even if they occurred before the crime of torture was codified in the Penal

Code. Such a process would not violate the non-retroactivity principle because it would involve

the application of a pre-existing norm of national law that has constitutional status.

Torture as a crime against humanity

Crimes against humanity are serious violations committed on a widespread or systematic basis

against a civilian population. Torture has been considered to be among the acts that could

constitute crimes against humanity since the adoption of the Nuremberg Statutes in 1945.54

Torture was expressly included in Law 10 of the Allied Control Council in 1945, which provided

the basis for the prosecution of lower level Nazis. The Nuremberg Principles adopted by the UN

also include inhumane acts against a civilian population as a crime against humanity.

In the cases of United States v. Wilheim von Leeb et al. and United States v. Ulrich Greifelt et al.,

criminals tried under Law 10 before the U.S. Military Tribunal that was established to try World

War II criminals between 1946 and 1949, defendants were convicted of torture as a crime against

humanity.

Later, the statutes for ICTY and ICTR also listed torture among the crimes against humanity, and

the decisions of these tribunals have helped to clarify the definition of this crime. Torture is also

listed as a crime against humanity in Article 7.2. (e) of the Rome Statute. Even though the Rome

Statute does not apply to crimes committed during Peru’s period of violence, the definitions

developed in these tribunals provide guidance on accepted definitions in international law.

All this activity at the international level provides ample evidence that torture has been

recognized as a crime against humanity, when committed as part of a widespread or systematic

attack against a civil population.

The Peruvian Constitutions of 1979 and 1993 incorporate crimes under international law – crimes

against humanity among them – into national law even if those crimes are only recognized in

customary sources of international law. Therefore, at least since the Constitution of 1979, torture

as a crime against humanity has been incorporated into national law because by that time it was

already recognized in customary international law. The crime of torture remained a part of

national law through the application of Article 3 of the 1993 Constitution, which remains in force.

Torture as a crime against humanity, whether committed by states agents or by members of

subversive groups, if the acts occurred within a context of a widespread or systematic attack

against a civil population, are capable of being prosecuted in Peru ever since the incorporation of

the relevant international norms into Peruvian law. Such a process would not violate the non-

retroactivity principle because it involves the application of a pre-existing national norm that has

constitutional status.

53 See footnote 16 (part 2.1)

54 The trial of Kaltenbrunner at the Nuremberg Military Tribunal. Kaltenbrunner was Head of the RHSA, the Gestapo and

SD in occupied territories. The Tribunal found the defendant guilty of crimes against humanity for the commission of torture acts against Jews.



4.1.2 The non-applicability of statutes of limitations for torture

In this section we will present the basis for the non-applicability of statutory limitations for

torture, when it qualifies as a war crime or a crime against humanity, and when it does not.

The Peruvian TRC concluded in its final report that during the period 1983-1997 there was a

widespread practice of torture committed by state agents, and that those acts could therefore

qualify as crimes against humanity.

The principle of non-applicability of statutory limitations for war crimes and crimes against

humanity developed under customary international law, and was then recognized in treaty form in

the Convention on Non-Applicability. By becoming party to this treaty, Peru expressed its will to

apply the principle as regards those crimes. That is not to say, however, that adhesion to the

Convention is the only basis of Peru’s obligation to comply with the principle. The principle of

non-applicability of statutory limitations to war crimes and crimes against humanity already

existed in international law before the period of internal violence in Peru started. At least since

the entry into force of the 1979 Constitution, this principle has been part of national law through

the application of Article 101, and has constitutional status. In addition, it continues to be part of

national law through the application of Article 3 of the 1993 Constitution.

The interpretative declaration made by Peru when becoming party to the Convention on Non-

Applicability that purported to restrict the effect of the Convention to crimes committed from the

date of entry into force in Peru clearly contradicts the principle on non-applicability of statutes of

limitations that was already part of domestic law and has constitutional status.

If the Peruvian courts were to apply the principle of the non-applicability of statutory limitations

to war crimes or crimes against humanity committed before the entry into force of the Convention

on Non-Applicability for Peru, they would not be violating the non-retroactivity principle because

they would be applying a pre-existing norm that was part of both international and national law at

the time.

This approach has been accepted by the Argentinean courts, even though Argentina itself is not a

party to the Convention on Non-Applicability. The courts accepted that the principle of non-

applicability already existed in international law. 55

Torture, whether official torture or torture as a crime against humanity or a war crime, is a jus

cogens crime. The Inter-American Commission on Human Rights has held that the right to

humane treatment and the prohibition against torture are obligations that cannot be waived

because they are jus cogens norms and they impose erga omnes obligations on states. In the

ICTY in the Furundzija case, the jus cogens nature of the prohibition of torture was also

recognized.56 The jus cogens nature of the crime of torture has also been recognized in decisions

regarding acts of torture committed in Latin America.57 The jus cogens nature of torture as a

crime against humanity was also established in the Priebke case in Argentina.58

55 Decision of the Argentinean Federal Criminal Chamber on the Massera case (Decisión de la Cámara en lo Criminal y Correccional Federal de la Argentina en el proceso contra Massera y otros. Massera s.Excepciones j.7 s.13 Expediente 30514), and the decision of the National Criminal Court N.4 on the abduction of minors case (Causa 8686/2000 caratulada Simon Julio, Del Cerro, Juan Antonio s/sustracción de menores de 10 años, Juzgado Nacional en lo Criminal y Correccional Federal N.4 - Fallo del Juez Gabriel Cavallo)

56 Prosecutor v. Anton Furundzija., Judgment, Case No. IT-95-17-1, 10, December 1998, par.144.

57Decision of the National Criminal Court N.4 on the abduction of minors de case (see footnote 53), Siderman v.

Argentina, United States Court of Appeals (Ninth Circuit), Decided May 22, 1992; Filartiga v. Pena Irala, United States



The consequence of the recognition of the crime of torture as a jus cogens norm is obligations on

states erga omnes to address impunity for those crimes. If a state uses statutory limitation periods

in its domestic law in order to avoid prosecuting torture, the state is violating its international law

obligations to address impunity.

The duty to investigate and prosecute torture

The duty to prosecute torture and other violations derives from the obligation to respect and

guarantee the rights recognized in the ACHR and the ICCPR, to which Peru is party. The ICHR

has expressed this view, and has noted that when a State recognizes fundamental rights it is also

accepting the obligation to investigate and prosecute violations of those rights.59 Peru’s duty to

prosecute torture derives from its obligation to respect the integrity of the person, a right that is

recognized in the ACHR (Article 5) and the ICCPR (torture is prohibited under Article 7).

In addition, the duty to prosecute torture is expressly recognized in the Torture Convention, and

also in the IACPPT. These treaties create a legal framework that obliges states to adopt necessary

measures to prevent, investigate and punish official torture.

The UN Committee Against Torture, which monitors states’ compliance with the Torture

Convention, has expressed the view that even before the Convention on Non-Applicability was

adopted a general norm already existed in international law that obliged states to adopt measures

to punish the practice of torture. There is also widespread state practice accepting the duty to

prosecute the crime of torture, making it possible to argue that this duty has become a norm of

customary international law.60

The duty to investigate and prosecute torture as a crime against humanity or a war crime that was

established since the adoption of the Nuremberg Statute and reflected in subsequent instruments

reflects the international community’s resolve that atrocious crimes carried out as part of a mass

campaign of persecution must not go unpunished.61 In the case of war crimes committed in

international armed conflict, the duty to prosecute grave breaches including torture is provided in

the Geneva Conventions, and many now argue that violations of Common Article 3 applicable in

internal armed conflicts must also be prosecuted.62

Court of Appeals (2

nd Circuit), June 30, 1980; Lord Hutton Opinion, House of Lords of Appeal for Judgment, March 24

th

1999.

58 Supreme Court of Argentina, Priebke case. (Causa 16.063/94 “Priebke Erich, s/solicitud de extradición”, fallo del 02 de noviembre de 1995)

59 Velasquez Rodriguez case, Judgment of July 29, 1989, par. 32-34; Godinez Cruz case, Judgment of July 21, 1989,

par. 30- 3; Caballero Delgado y Santana case, Judgment of December 8, 1995, par.69; El Amparo case, Judgment of September 14, 1996, par 61.

60 O’Shea, 2002, p. 238.

61 Orentlicher, Diane. Settling Accounts: The duty to prosecute human rights violations of a prior regime, Yale Law

Journal, Vol. 100 (1991), p. 2537.

62 Ambos, Kai. “Deberes de Penalización en caso de graves violaciones a los derechos humanos.” Materiales de

Lectura, Seminario internacional “Retos de la judicialización en el proceso de verdad, justicia, reparación y reconciliación.” Coordinadora Nacional de Derechos Humanos, Lima, July 2003, p. 205.



The Rome Statute also makes it clear that have the primary duty to investigate and prosecute

genocide, war crimes and crimes against humanity because the ICC has only complementary

jurisdiction. 63

Statutory limitation periods in domestic law are incompatible with the international law duty to

investigate and prosecute the crime of torture. Since this duty is an international obligation that

derives from Conventions to which Peru is a party, it has constitutional force and therefore

prevails over the lower ranked rules that create obstacles to the carrying out of this duty.

The Restatement (Third) of the Foreign Relations Law of the United States takes the position

that does not comply with their duty to prosecute carry responsibility for that violation under

international law.64

Conclusions

• An integrated approach using both national and international law allows for solutions

to the problems of admissibility experienced in relation to cases of torture occurring

during Peru’s period of internal violence.

• Torture is widely recognized as a crime under international law whether as a crime

against humanity, a war crime or act of official torture, and is incorporated into

Peruvian internal law through the application of the Constitutions of 1979 and 1993.

• The non-retroactivity principle is not violated when torture cases are prosecuted,

even if these cases relate to acts committed before the Penal Code codified them as

crimes in domestic law. It is possible to process cases of torture committed since the

beginning of the period of internal violence in Peru, without having to rely on

alternative offences.

• The basis of the non-retroactivity principle is prior knowledge, at the time the offense

was committed, that the relevant conduct was wrong. Even if torture was not

codified in the Peruvian Penal Code until 1998, the fact that there were other crimes

that could be used to prosecute the act demonstrates that the person would have

known the conduct was wrong.

• As regards sentencing, the principle nullum poena sine lege allows judges a

discretionary application of sentences. In cases in which no sentence has been

determined in the Penal Code, it is possible to proceed on the basis of the discretion

permitted in international law and the range of terms of imprisonment provided in

Article 29 of the Peruvian Penal Code.

• The principle reaffirmed in the Convention on Non-Applicability was already part of

Peruvian domestic law even before Peru became party to the Convention, and has

constitutional status. Statutory limitations cannot be applied to acts of torture when

they qualify as a crime against humanity or as a war crime committed during the

period of internal conflict in Peru.

63 Preamble of the Rome Statute: “Affirming that the most serious crimes of concern to the international community as a

whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”

64 Restatement (Third) of the Foreign Relations Law of the United States Part II, Persons in International Law, Chapter 1, § 206. Sub Chapter B. Capacities, rights and duties of states.



• There are also strong legal grounds for the non-applicability of statutory limitations

for acts of torture that do not qualify as a crime against humanity or a war crime,

namely: i) the jus cogens nature of the prohibition on torture, which gives rise to an

obligation on states erga omnes to fight impunity for torture, with the consequence

that statutory limitations cannot be applied, and ii) the duty to prosecute torture

cannot be reconciled with the application of statutory limitations that are found in

domestic legislation, so states cannot use them as an excuse to avoid their

international law obligations.

4.2. Enforced Disapearances In its Final Report, the TRC concluded that during the period of internal conflict in Peru, enforced

disappearances were committed by state agents or individuals under their control. The TRC adds

that during the period 1983-1984 and again in 1989-1993, enforced disappearances were

committed as part of widespread and systematic attacks on the civilian population, and therefore

amounted to crimes against humanity.

Enforced disappearance is by definition a crime committed by state agents or persons under their

control or authority (although the Rome Statute added political organizations). The essence of

this crime is official denial both of the fact that a person has been detained and of their

whereabouts, which differentiates the crime from ordinary kidnapping.

This crime is considered “plurioffensive” because its commission affects several fundamental

rights including the integrity and liberty of the person and due process. Other violations, such as

torture or extrajudicial execution, commonly accompany an enforced disappearance, since the

person is held outside all legal process and is vulnerable to further abuse. Where several crimes

are committed, there is a “concurso real” of various crimes, recognized in Article 50 of the

Peruvian Penal Code of 1991.

An important characteristic of the crime of enforced disappearance that is very relevant to its

admissibility in domestic criminal courts is its status as a permanent crime. Article 3 of the

IACFDP affirms that this crime will be considered permanent for as long as the victim does not

reappear or his/her whereabouts are not established. The ICHR has also explicitly recognized the

crime as permanent, as have the Argentinean, Chilean and Paraguayan courts.

The implications are that in cases of enforced disappearances where the whereabouts of the

victim has not been determined, the crime can be prosecuted on the basis of Article 320 of the

Penal Code, which is the current version of the crime of disappearance that was initially

introduced into Peruvian criminal law in 1991, even if the disappearance was initiated before that

date.

A second reason why enforced disappearances can be prosecuted even where the offense was

committed prior to codification in the Penal Code is that it amounts to a crime under international

law.

In its Annual Report of 1977, the Inter American Commission of Human Rights expressed its

concern about cases of enforced disappearances in the region. During the years that followed, the

General Assembly of the Organization of American States and the Commission itself continued

to draw attention to this problem in their reports. In 1978, the UN General Assembly also

expressed its concern about enforced disappearances, and asked governments to ensure that law

enforcement authorities be held accountable for abuses that result in enforced disappearances.

The creation of the UN Working Group on Enforced Disappearances in 1980 represented an

attempt to address the practice.



This universal consensus is expressed in the decision of the Forti v. Suarez Mason case before

American courts.65 Also, the ICHR declares that there is a tendency to criminalize the practice of

enforced disappearance (separate vote of Judge Cancado Trindade in the Blake case).66

In 1992, the UN General Assembly adopted the UN Declaration on the Protection of All Persons

from Enforced Disappearances. At the regional level, an IACFDP was adopted, to which Peru

has been a party since February 2002. This Convention recognizes the crime that already existed

in customary international law and which, in the case of Peru, was already included in the Penal

Code.

Enforced disappearance can also be a crime against humanity if it is committed as part of a

widespread or systematic practice against a civilian population. In its Resolution of 1983

(AG/RES. 666 XIII-0/83), the UN General Assembly declared that the practice of enforced

disappearance can be a crime against humanity. The UN Declaration on enforced disappearances

also mentions that the systematic practice of disappearances is a crime against humanity. The

ICHR in the Velasquez Rodriguez case, the Argentinean courts in the cases of Videla, Jorge

s/procesamiento and the Simon Julio, Del Cerro abduction of minors cases all confirm that

enforced disappearance can be a crime against humanity. Article 7 of the Rome Statute also

includes enforced disappearance on the list of crimes against humanity.

The principle of non-retroactivity, as already mentioned, is part of national law and provides that

no one can be prosecuted or punished if there was no national or international law that

criminalized the act at the time it was committed. As we have already demonstrated, by the

beginning of Peru’s period of internal violence, enforced disappearances were already considered

to be crimes in international law.

Crimes recognized in international law are part of Peruvian domestic law. In this case, since by

the beginning of the internal violence in Peru in 1980 this crime was already considered to be a

crime under international law, it had became part of Peruvian domestic law with constitutional

status through the application of Article 4 of the 1979 Constitution, which was in force at the

time. The crime then continued to be part of domestic law through the application of Article 3 of

the 1993 Constitution. This crime therefore prevails over the Penal Code and other sub-

constitutional norms.

In short, enforced disappearances, whether as an ordinary human rights crime or as a crime

against humanity, can be prosecuted in Peruvian criminal courts even if committed prior to

codification in the Penal Code. Such a process would not violate the non-retroactivity principle

because it involves the application of a pre-existing national norm that has constitutional status.

An additional argument in favor of the admissibility of these cases is that non-retroactivity

principle is based on the perpetrator’s knowledge that the act is illegal. Even if enforced

disappearance was not codified in the Penal Code until 1991, there were other codified crimes

that would ensure the requisite knowledge that the practice of enforced disappearance was illegal,

including the crime of kidnapping.

65 United Status District Court, N.D. California, Alfredo Forti and Debora Benchoam v. Carlos Guillermo Suarez Mason,

N. C-87-2058-DJL, July 6, 1988.

66 Separate vote of Judge Cancado Trindade regarding the ICHR Judgment of January 24, 1998, para.15.



4.2.1. The non-applicability of statutory limitations for enforced disappearances

In this section we present the basis for the non-applicability of statutory limitations for enforced

disappearances both when it amounts to a war crime or a crime against humanity and when it

does not.

The Peruvian TRC concluded that the majority of enforced disappearances committed during the

period of internal violence in Peru were crimes against humanity.

The principle of non-applicability of statutes of limitation for war crimes and crimes against

humanity is well established in international law and codified in the Convention on Non-

Applicability, to which Peru is a party. By becoming party to the treaty, Peru expressed its will

not to apply statutory limitations for these crimes. The interpretative declaration made by Peru

upon becoming party to the treaty and purporting to restrict the effect of the Convention

contradicts the principle of non-applicability of statutory limitations. That principle is already

part of domestic legislation through the application of the Constitutions of 1979 and 1993.

We can therefore conclude that statutory limitations do not apply to enforced disappearances

committed in the context of a widespread and systematic attack during Peru’s period of violence,

when they qualify as crimes against humanity. This does not involve a retroactive application of

the Convention on Non-Applicability because the principle already existed in international law

before the Convention came into force in Peru, and had become part of Peru’s domestic law by

the time the period of violence began in 1980. The Argentinean courts recognized the principle

of non-applicability of statutes of limitation even though Argentina was not party to the

Convention. 67

The nature of enforced disappearances as permanent crimes

The IACFDP provides in Article 3 that enforced disappearances are a permanent crime for as

long as the victim fails to reappear or their whereabouts remain unknown. The UN Declaration

on Enforced Disappearances has the same provision and the ICHR has accepted the principle.68

Recently the Court of Appeals in Santiago, Chile accepted the same interpretation. The Peruvian

Constitutional Court has also recognized enforced disappearance as a permanent crime.

Since this is a permanent crime, Article 82 of the Penal Code, which provides that the limitation

period does not start to run until a crime is completed, comes into play. In situations where the

fate of the victim remains unknown, the statutory limitation periods will not arise.

The Inter-American Convention expressly provides for the non-applicability of

statutory limitation for enforced disappearances

The Inter-American Convention on Forced Disappearance of Persons of 1994 provides in Article

7 that there is no statute of limitations for this crime unless there is a fundamental norm in

national law opposing this provision. As already mentioned, the statutory limitation rules in Peru

are not established as fundamental norms in the Constitution and the accused can waive his right

to take advantage of them.

67 See footnote 53.

68 Inter-American Court of Human Rights. Blake v. Guatemala case, Judgment of January 24, 1998; Godinez Cruz case,

Judgment of January 20, 1989; Velasquez Rodriguez v Honduras case, Judgment of 29 July, 1988.



Since there is no fundamental norm opposing this provision in Peruvian national law, we can

conclude that enforced disappearances are not subject to statutory limitations. This provision is

applicable to any act of enforced disappearance, not only after Peru became party to the

Convention.

The jus cogens nature of the prohibition of enforced disappearance

The prohibition against enforced disappearances is widely accepted and recognized by the

international community. Both national and international courts have recognized the jus cogens

status of enforced disappearances. For instance, the Ninth Circuit of the U.S. Court of Appeals

accepted the jus cogens status of enforced disappearances in the case of Siderman v. Argentina.

The District Court of California, also in the U.S., recognized that enforced disappearances

committed by state agents are acts in violation of the law of nations.

Once the jus cogens nature of enforced disappearances has been recognized, the erga omnes

obligation to fight against impunity for those crimes results. If a State applies statutory limitation

periods in its domestic law in order to avoid prosecuting cases of enforced disappearance, it

would be violating its obligation under international law to combat impunity for those crimes.

The duty to prosecute and punish enforced disappearances

The duty to prosecute human rights violations derives from the obligation to respect and

guarantee the rights recognized in the ACHR, the ICCPR and other treaties to which Peru is a

party.

In the Godinez Cruz case the ICHR expressed the view that are obliged to investigate any

situation in which the rights recognized in the Convention on Non-Applicability have been

violated.

The duty to prosecute and investigate enforced disappearances derives specifically from the

obligation to respect and ensure the right to personal integrity in Article 7 of the ACHR and the

prohibition on arbitrary detention or imprisonment in Articles 9 and 14 of the ICCPR.

The duty to prosecute enforced disappearances is expressly recognized in the IACFDP, which

also obliges to prosecute enforced disappearances.

There is also a general principle of international law to the effect serious human rights violations

must be prosecuted and are subject to a duty to prosecute. 69 Diane Orentlicher mentions that the

frequent mention of a duty to prosecute human rights violations is evidence of the existence of

customary law.70 The Human Rights Committee, interpreting the ICCPR, has said that there is a

duty to prosecute, punish and provide reparation when enforced disappearances occur. In its

statement concerning the Quinteros and Bleir cases against Uruguay, the Committee concluded

that the government must take measures to ensure that those responsible are brought to justice.71

As for the status of enforced disappearances as a crime against humanity, the UN Declaration and

the IACFDP both provide that in cases in which enforced disappearances are committed as part of

69 Ambos, July 2003, p. 219-221.

70 Orentlicher, Diane. “Settling Accounts: The duty to prosecute human rights violations of a prior regime.” Yale Law

Journal, Vol. 100 (1991), p. 2585.

71 United Nations General Assembly Official Records. 37

th Session 1982, Supp.40. Annex X, concerning the

Communication R. 7/30.37, Bleier v. Uruguay. UN Doc. A/37/40 (1982). United Nations General Assembly Official Records. 38

th Session 1983, Supp. 40. Annex XXII concerning the Communication 107/1981, Quinteros v. Uruguay. UN

Doc. A/38/40 (1983).



a widespread and systematic attack they will amount to a crime against humanity – providing an

additional basis for the duty to prosecute.

Recently, the Rome Statute makes it clear that states have the primary duty to investigate and

prosecute, because the ICC’s jurisdiction is complementary to that of national courts.

Statutory limitation periods in domestic law are incompatible with the duty to investigate and

prosecute the crime of enforced disappearance. Since this duty is an international obligation that

derives from conventions to which Peru is a party, it has constitutional recognition and prevails

over contradictory lower ranked rules.

Conclusions

• An interpretation based on both national and international law presents solutions to

the problem of admissibility of cases of enforced disappearances that occurred in

Peru’s period of internal violence of 1980-2000 that was investigated by the TRC.

• Enforced disappearance should be considered a permanent crime for as long as the

whereabouts of the victim is not established, with the result that statutory limitation

periods do not start to run. The non-retroactivity principle is not violated if a person

is prosecuted under Article 320 of the Penal Code, introduced in 1998, even for

disappearances that were initiated before the crime was codified.

• Since the beginning of Peru’s period of internal conflict, enforced disappearance has

been recognized as a crime under international law and was therefore incorporated

into Peruvian domestic law through the application of the Constitutions of 1979 and

1993.

• The non-retroactivity principle is not violated if cases of enforced disappearance are

prosecuted, even if the acts in question were committed before the Penal Code

codified them. It is therefore possible to prosecute cases of enforced disappearance

committed since the beginning of the period of internal violence in Peru without

needing to use alternative crimes.

• Since the basis of the non-retroactivity principle is the need for prior knowledge that

particular conduct is wrong, even if enforced disappearance was not codified until

1991, the fact that there were other crimes that could have been used to prosecute the

same act (such as kidnapping) demonstrates that the perpetrator would have known

that the conduct was wrong.

• As regards the determination of sentences, the principle nullum poena sine lege

allows judges’ discretion. As regards crimes for which no sentence is laid down in

the Penal Code, an integrated approach exercising the discretion permitted in

international law and the range of terms of imprisonment provided under Article 29

of the Peruvian Penal Code.

• Where a case of enforced disappearance qualifies as a crime against humanity or war

crime, the principle of non-applicability of statutory limitations for these crimes,

reaffirmed in the international convention on that issue, arises. The general principle,

and the Convention on Non-Applicability itself, have been part of Peruvian national

law since before the period of internal violence began. It is therefore not possible to

apply statutory limitations to enforced disappearances that were committed during a

widespread or systematic attack against a civilian population.

• There are additional bases of the non-applicability of statutory limitations for

enforced disappearances, namely: (i) the fact that enforced disappearance is



considered a permanent crime until the fate of the victim is known means that time

limits do not start to run until the whereabouts of the victim is known; (ii) the Inter-

American Convention expressly mentions that statutory limitations do not apply to

this crime; (iii) enforced disappearance is a jus cogens prohibition, and as a

consequence, states have an erga omnes obligation to fight impunity for this crime,

with the result that it is not possible to apply statutory limitations to these cases; (iv)

statutory limitation periods in domestic law are incompatible with the duty to

prosecute enforced disappearances, and states cannot use them as an excuse to avoid

their international obligations.

4.3. Extrajudicial or Arbitrary Executions In its final report, the TRC concluded that during the period of internal conflict in Peru,

extrajudicial executions were carried out by state agents or individuals under their control. The

TRC adds that during the period 1983-1984 in Ayacucho and between 1989 and 1993 in the

“emergency zones”, extrajudicial executions were committed as part of widespread and

systematic attacks, and therefore amounted to crimes against humanity.

Extrajudicial executions and arbitrary killings perpetrated outside the law by state agents or

individuals under their control violate one of the most fundamental rights of the individual, the

right to life, which is widely recognized in national and international law.

Such killings are arbitrary acts because they are not carried out as a result of a judicial process

and do not comply with due process guarantees. The prohibition of such conduct is universally

accepted because it goes to protect a fundamental right. Extrajudicial executions could also

qualify as crimes against humanity if perpetrated as part of a widespread and systematic practice.

They could also qualify as violations of international humanitarian law, as they are prohibited in

Common Article 3 of the Geneva Convention applicable to internal armed conflicts.

International human rights law prohibits extrajudicial executions in treaties such as the ICCPR,

the ACHR and others applying at the international or regional levels. All of these treaties provide

that nobody shall be arbitrarily deprived of life.

There is also a large volume of activity at the international level recognizing extrajudicial

executions as crimes under international law. These include UN Resolutions of 1980 and 198172

in which the UN condemns the practice of extrajudicial killings and urges states to respect the

prohibition. In 1989 the UN adopted Principles on extrajudicial killings.73 The ICHR, in the case

of Barrios Altos, established that extralegal executions are grave violations of human rights

because they go against non-derogable rights recognized in international human rights law.

Courts in the U.S. have also accepted, in civil cases relating to human rights violations, that

extrajudicial killings are crimes against the law of nations. 74 The Restatement (Third) of U.S.

72 Resolution 35/172 December 15, 1980 and Resolution 36/22 November 9, 1981.

73 UN Principles on the Effective Prevention and Investigation of extra-legal, arbitrary and summary executions. UN

resolution 1989/65. May 24, 1989.

74 Forti v. Suarez Mason. United States District Court, N.D. California, N.C-87-2058-DJL, July 6, 1988; Xunxax v.

Gramajo, United States District Court for the District of Massachusetts, April 12, 1995; Kadic v. Karadzic, United States Court of Appeals for the Second Circuit, October 13, 1995.



foreign relations law says that whenever a human rights crime such as torture, murder or

disappearance is committed as a policy of the State, that state is violating customary law.75

Extrajudicial killings have been recognized as crimes against humanity since the Nuremberg

Statutes (Article 6.c.), reaffirmed subsequently in the Nuremberg Principles. Later, the Rome

Statute mentions extrajudicial killings when committed as part of a widespread and systematic

attack against civilians as a crime against humanity.

Extrajudicial killings could also qualify as a violation of international humanitarian law or war

crime if practiced in an internal conflict against persons protected under the Geneva Conventions,

as is stated in Common Article 3 to the Geneva Conventions.

The non-retroactivity principle is part of Peruvian national legislation and ensures that nobody

can be prosecuted or punished if there is no national or international law that provides for the

crime at the time it was committed. As we have sought to demonstrate, from the beginning of the

period of internal violence in Peru, extrajudicial executions were already widely recognized in

international law and also as a crime against humanity or violation of international humanitarian

law.

Peru is party to the ICCPR and the ACHR. Those treaties are part of domestic law through the

operation of Article 101 of the Constitution of 1979, and subsequently through Article 55 of the

Constitution of 1993. They have constitutional status.

In conclusion, extrajudicial executions committed during the period of violence in Peru, whether

or not the conditions for their qualification as crimes against humanity or war crimes are present,

can be admitted before national criminal courts even if they were not expressly codified in the

Penal Code at the time they were committed. Such a process would not violate the non-

retroactivity principle because it is applying a pre-existing norm of national law that has

constitutional status.

An additional argument in favor of the admissibility of these cases is that the non-retroactivity

principle is based on the need for knowledge on the part of the perpetrator that the conduct was

illegal. Even if extrajudicial executions were not codified in the Penal Code there were other

codified crimes that would have ensured the appropriate knowledge of the illegality of the

practice of extrajudicial executions, such as the crime of homicide.

4.3.1. The non-applicability of statutory limitations to extrajudicial executions

In this section we will present the basis for the non-applicability of statutory limitations for

extrajudicial executions both in cases where they qualify as war crimes or crimes against

humanity and where they do not.

As the TRC reported, murders committed by state agents as part of a widespread or systematic

attack against civilians can constitute crimes against humanity. They could also qualify as war

crimes or violations of international humanitarian law if the period of violence that lasted from

1980 to 2000 can be categorized as an internal armed conflict.

The non-applicability of statutes of limitations for war crimes and crimes against humanity is a

principle well established in international law and recognized in the Convention on Non-

Applicability, to which Peru is a party. This Convention does not create the principle, it only

75 Restatement (Third) of the Foreign Relations Law of the United States. Part VII, Chapter 1, § 702 Customary

International Law of Human Rights, (c), (d).



recognizes it. By becoming a party to this Convention, Peru expressed its intention not to apply

statutory limitations for theses crimes. The interpretative declaration made by Peru upon

becoming party to the Convention, purporting to restrict the effect of the Convention, goes

against the principle of non-applicability of statutory limitations that is the very purpose of the

Convention and that already forms part of the domestic law in Peru through the operation of the

Constitutions of 1979 and 1993. Such an interpretation has been adopted by the Argentinean

courts in the Massera and Simon Julio cases.76

We can therefore conclude that the statutory limitation periods do not apply to extrajudicial

executions committed in the context of a widespread and systematic attack during the period of

violence in Peru that qualify as crimes against humanity. Nor do they apply to killings committed

during an internal armed conflict against persons that were not participating in the hostilities.

This does not mean that the Convention on Non-Applicability is being applied retroactively

because the principle of non-applicability of statutory limitations existed in international law

before Peru became party to the Convention, and hence became part of domestic law before the

period of violence began.

The jus cogens nature of the prohibition of extrajudicial executions

The prohibition against extrajudicial executions is widely accepted and recognized by the

international community. Among the cases that have recognized the jus cogens status of

extrajudicial executions are Siderman v. Argentina and Forti v. Suarez Mason, civil cases before

the U.S. courts.77 The Restatement (Third) of the Foreign Relations Law of the United States also

considers the prohibition on extrajudicial executions as a jus cogens norm.78 The jus cogens

status of extrajudicial killings when they amount to crimes against humanity or war crimes has

also been recognized.79

Once the jus cogens nature of extrajudicial killings was recognized, the consequence is the erga

omnes obligation of to address impunity for any such crimes. If a tate attempts to use the

statutory limitations provided in its domestic legislation to avoid prosecuting a case of

extrajudicial killing, it would be violating its obligation to combat impunity.

Statutory limitations go against the duty to prosecute and punish extrajudicial

executions

The duty to prosecute human rights violations derives from the obligation to respect and

guarantee the rights recognized in the ACHR and the ICCPR, to which Peru is a party. Under

those treaties Peru is obliged to guarantee the right to life, which gives rise to the duty to punish

individuals who violate it. The ICHR has affirmed the duty to investigate and prosecute

extrajudicial executions on the Godinez Cruz case.80 The European Court of Human Rights in

76 See footnote 53.

77 Siderman v. Argentina, United States Court of Appeals (Ninth Circuit), Decided May 22, 1992; Forti v. Suarez Mason.

United States District Court, N.D. California, N.C-87-2058-DJL, July 6, 1988;

78 Restatement (Third) of the Foreign Relations Law of the United States. Part VII, Chapter 1, § 702 (n).

79 Decisión de la Cámara en lo Criminal y Correccional Federal de la Argentina en el proceso contra Massera y otros.

Massera s. Excepciones j.7 s.13 Expediente 30514; Corte Suprema de la Nacion de Argentina, Caso Priebke, Erich s/solicitud de extradición. Causa 10.063/94 fallo del 02 de noviembre 1995.

80 ICHR, Godinez Cruz case (extrajudicial executions), Judgment on January 20, 1989, para.189.



Salman v. Turkey held that the obligation to protect life results in the duty to investigate the

circumstances that surround killings perpetrated by state agents. 81

In addition, The Restatement (Third) of the Foreign Relations Law of the United States expresses

the view that states are in violation of customary law if, as State policy, their agents carry out

extrajudicial killings. The Human Rights Committee, charged with monitoring compliance with

the ICCPR, has affirmed the duty to prosecute and punish extrajudicial executions in its reports

on Suriname and in the Dermis Barbato case against Uruguay.82

The duty to investigate and prosecute extrajudicial executions when they amount to crimes

against humanity has been established ever since the adoption of the Nuremberg Statutes. The

Rome Statute makes it clear that states have the primary duty to prosecute because the ICC’s

jurisdiction is complementary to that of national states.

Statutory limitation periods in domestic law are incompatible with the duty to investigate and

prosecute extrajudicial executions. Since this duty is an international obligation that derives from

Conventions to which Peru is a party, it has constitutional recognition and therefore prevails over

contradictory lower ranked rules. Such an interpretation was adopted by the ICHR in the Barrios

Altos case against Peru, in which the Court expressly mentioned that statutory limitations that are

applied with the intention of avoiding the investigation and punishment of those responsible for

grave human rights violations, such as torture and extrajudicial executions, are not acceptable.83

Conclusions

• An integrated interpretation based on both national and international law allows for

solutions to the admissibility problems facing extrajudicial executions cases from

Peru’s period of internal violence investigated by the TRC (1980 -2000).

• Since the beginning of the period of internal conflict, the prohibition of extrajudicial

executions was already included in treaties to which Peru is a party, and this crime

was also recognized as part of customary international law. This crime was

incorporated into national law through the operation of the Constitutions of 1979 and

1993.

• The non-retroactivity principle is based on the principle that a person should be

aware that conduct is illegal at the time it is committed. Even if extrajudicial

executions were not codified in the Penal Code there were other codified crimes that

would have ensured that a person would have known that the practice of extrajudicial

killings was illegal, such as the crime of homicide.

• As regards the statutory limitations in cases of extrajudicial executions as a crime

against humanity or war crime, the principle of non-applicability of statutory

limitations for war crimes and crimes against humanity has long been recognized,

reaffirmed by the Convention on the Non-Applicability. This principle was already

part of Peruvian domestic law even before the beginning of the period of internal

violence. It is therefore not possible to apply statutory limitations to extrajudicial

81 European Court of Human Rights, case of Salman v. Turkey, application 21986/93, Judgment of June 27, 2000,

para.104.

82 United States General Assembly Official Records. 38

th Session 1983, Supp. 40 Annex IX, concerning the

Communication 84/1981, Case Dermit Barbato and Hugo Aroldo v. Uruguay. UN Doc. A/38/40 (1983).

83 See footnote 41.



executions committed during a widespread or systematic attack or committed during

an internal armed conflict against a civil population not participating in the hostilities.

• There are additional bases for the non-applicability of statutory limitations for

extrajudicial executions, including: (i) the status of extrajudicial executions as jus

cogens prohibitions, meaning that states have the erga omnes obligation to fight

impunity for these crimes, making it impossible to apply statutory limitations to these

cases, and (ii) statutory limitation periods in domestic law are incompatible with the

duty to prosecute extrajudicial executions, so states cannot use them as an excuse to

avoid their obligations under international law.

by caterina reyes - human rights first · this document was written by caterina reyes, ......

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