(IPS) – Trials of members of the security forces for human rights violations in Peru, especially in cases of massacres of civilians, are moving very slowly, creating “the perception of a climate of impunity,” said United Nations expert Martin Scheinin at the conclusion of a visit to the country.
Scheinin, the U.N. Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, told IPS he is especially concerned about decree-law 1097, issued Sept. 1 by President Alan García, that may confer benefits on those accused of crimes against humanity during the 1980-2000 counterinsurgency war.
The decree, which has the force of law because of special powers granted to García by parliament, reinforces this climate of impunity because it appears to set a statutory limitation on criminal trials against perpetrators of crimes against humanity committed before Nov. 9, 2003, he said.
There are two controversial aspects to the recent decree-law.
One is an order to close cases against members of the armed forces and police accused of human rights violations after the maximum period of 36 months allowed for presentation of evidence, if they cannot proceed to trial. The other controversial aspect is that it recognises the non-applicability of a statute of limitations to crimes against human rights, but only for those committed after Nov. 9, 2003.
Scheinin told IPS he had heard opinions of members of the judicial branch and the public prosecutor’s office, to the effect that this law is unconstitutional and should not be enforced because it was allegedly designed to favour certain individuals involved in current trials.
“Although the Defence Minister, Rafael Rey, assured me that it was not the purpose of the law to favour those accused of crimes,” he added.
Scheinin expressed concern that decree-law 1097 may give rise to a climate of impunity, in a country that has shown the world that it is capable of judging people accused of crimes against humanity according to international standards, as in the case of the head of the Shining Path (Sendero Luminoso) guerrillas, Abimael Guzmán, and former president Alberto Fujimori (1990-2000).
In Scheinen’s view, there is a tendency among some authorities towards impunity, and towards sweeping deeds that are punishable by law under the carpet.
Two trials involving the Colina group, a death squad made up of agents of the Army Intelligence Service (SIE) that was active in 1991 and 1992, are currently under way.
The first, against death squad members themselves, is for the Nov. 3, 1991 killings of 15 people in the Lima neighbourhood of Barrios Altos, the May 2, 1992 murders of nine small farmers in El Santa, on the northern coast of Peru, and the 1992 kidnapping and enforced disappearance of journalist Pedro Yauri.
The second trial is of Vladimiro Montesinos, adviser to then president Fujimori, Nicolás Hermoza, who was commander of the army, and the heads of the Colina group, retired majors Santiago Rivas and Carlos Pichilingüe, for the 1992 killings of nine students and a professor at La Cantuta University.
For his responsibility in these massacres, Fujimori was sentenced last year to 25 years in prison.
Those on trial for the Barrios Altos and La Cantuta killings have asked that the charges against them be deemed to have lapsed, since decree-law 1097 states that the U.N. Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity “entered into force and became valid in Peru on Nov. 9, 2003,” according to their defence lawyers’ interpretation of a Constitutional Court ruling.
The motion was presented at a Special Criminal Court in Lima, presided over by judge Inés Villa Bonilla.
However, Magdiel González, a former Constitutional Court judge, said the executive branch misinterpreted this ruling in order to confer improper benefits on members of the security forces accused of the massacres.
“The Constitutional Court never said that the non-applicability of statutes of limitations to crimes against humanity is only valid from 2003 on,” González told IPS.
“All it said was that the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity came into effect on Nov. 9, 2003, which is not the same thing,” he said.
“It’s not at all the same thing, because the convention itself stipulates that statutory limitations are not applicable to crimes against humanity, no matter when they were committed,” he stressed.
According to the lawyer for the victims of the La Cantuta massacre, Gloria Cano of APRODEH, a human rights organisation, the executive decree-law is very similar to the amnesty law issued by Fujimori in 1995 to release from prison military and police personnel convicted of human rights abuses.
“Both these laws have the same purpose of granting illegal benefits to those who wore military uniform and murdered innocent, unarmed civilians,” she said.
In Cano’s view, “it is remarkable that the decree-law should be issued just when the trial of Vladimiro Montesinos, former military officers and former SIE agents has entered its final stages. Decree-law 1097 is intended for specific persons, known by name,” she said.
But Defence Minister Rey said at a press conference that decree-law 1097 is based “on considerations involving international and national law,” and that its intent is to end supposed judicial abuses against military personnel “who fought selflessly against terrorism.”
He denied that former SIE agents prosecuted for the Barrios Altos and La Cantuta killings would benefit from the decree-law, and emphasised that the spirit of the decree is to protect “active and retired military and police officers who are persecuted and investigated for years, and have not been sentenced.”
Former prime minister (2006-2008) and pro-government lawmaker Jorge del Castillo admitted to IPS that the decree-law could be improved, although he understood its aim was to help military and police personnel who fought the guerrillas and claim to be innocent of any crimes, yet face trials that go on for years.
“It isn’t intended to benefit death squad members,” del Castillo said. “I will do all I can to prevent it from favouring those accused of crimes against humanity,” he added, stating that “the decree can be revised to avoid that.”