Written by Taylor Potenziano

On August 7, 2024, Peru enacted Law 32107, more commonly known as the “impunity law.”¹Anna Kohte & César Bazán Seminario, Peru at a Crossroad: The New Impunity Law, Blog of the Eur. J. of Int’l L. (Sep. 4, 2024), https://www.ejiltalk.org/peru-at-a-crossroad-the-new-impunity-law/?utm_source=mailpoet&utm_medium=email&utm_campaign=ejil-talk-newsletter-post-title_2. The law establishes that no one can be prosecuted or sentenced for war crimes or crimes against humanity committed before July 1, 2002.²See Peru: Draft bill establishing statute of limitations on atrocity crimes contravenes international standards, say UN experts, U.N. Hum. Rts., (June 14, 2024), https://www.ohchr.org/en/press-releases/2024/06/peru-draft-bill-establishing-statute-limitations-atrocity-crimes-contravenes; Ley N.º32107, https://wb2server.congreso.gob.pe/spley-portal-service/archivo/MjA4Mjcx/pdf. The Popular Force party, led by Keiko Fujimori, the daughter of Peru’s notorious former president Alberto Fujimori, promoted the law.³Jingwen Liu, Peru congress approves bill introducing statute of limitations for crimes against humanity and war crimes, Jurist News, (July 5, 2024), https://www.jurist.org/news/2024/07/peru-congress-approves-bill-introducing-statute-of-limitations-for-crimes-against-humanity-and-war-crimes/. The impunity law represents a resurgence of “Fujimorism” in Peruvian politics, the root cause of increased social strife in the country over the past several decades.⁴See Carlos Bejar-Garcia, Populism and Peru: How a Dangerous Ideology Caused the Country’s Recent Instability, Harv. Int’l Rev., (Mar. 29, 2021) https://hir.harvard.edu/populism-and-peru-how-a-dangerous-ideology-caused-the-countrys-recent-instability, (describing how the resurgence of Fujimorism is one of the main causes of Peru’s recent descent into turmoil). From 1990 to 2000 Alberto Fujimori demonstrated a blatant disregard for human rights, and thus international law.⁵See id. (noting that Fujimori authorized secret death squads and military operations that led to the deaths of thousands in a “war on terror”). Fujimori’s ten-year rule was a bloody one tainted by corruption and human rights abuses alike.⁶See Aimee Sullivan, The Judgment Against Fujimori for Human Rights Violations, 25 Am. U. Int’l L. R. 657, 673-74 (2010); see generally Barrios Altos, CEJIL, https://cejil.org/en/case/barrios-altos-2/ (describing how a group of six men known as the “Grupo Colina” and affiliated with the Peruvian National Intelligence Service, interrupted a celebration in the Barrios Altos neighborhood of Lima and killed 15 people); The La Cantuta Massacre, MIT W. Hemisphere Project, https://web.mit.edu/hemisphere/pubs/abducted.shtml (detailing how Peruvian intelligence services and the army were responsible for the kidnapping, torture, and murder of 10 academics from La Cantuta University). His regime is noted as the most corrupt regime in Peru’s history.

In enacting the impunity law, Peru has violated the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (the Convention), which it became a party to on August 11, 2003.⁷ See Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity art. 1, Nov. 26, 1968, 754 U.N.T.S. 73 (hereinafter “the Imprescriptibility Convention”). The Imprescriptibility Convention explicitly prohibits State parties from passing statutes of limitation for war crimes and crimes against humanity irrespective of their date of commission.⁸See id. at art. 1(b). The Convention was created recognizing the fact that these crimes are among the gravest transgressions in international law and that the effective punishment of such crimes is integral to future prevention.

Crucial to this discussion is the declaration Peru made to the Imprescriptibility Convention when it signed onto the treaty. Peru declared that “[i]n conformity with article 103 of its Political Constitution, the Peruvian State accedes to the ‘Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity’, adopted by the General Assembly of the United Nations on 26 November 1968, with respect to crimes covered by the Convention that are committed after its entry into force for Peru.”⁹https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-6&chapter=4&clang=_en Essentially, Peru maintains it can apply statutory limitations to either war crimes or crimes against humanity committed prior to August 11, 2003, thereby rendering any crime against humanity committed under the Fujimori regime immune from prosecution. This declaration functions as a reservation in practice because it modifies the legal effect of the treaty¹⁰See supra note 7, art 2(d) (defining a reservation as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”); see also Roslyn Moloney, Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent, 5 Melbourne J. of Int’l L, (2004) (describing how the European Court of Human Rights treated Switzerland’s declarations as “reservations in disguise” in Belilos v. Switzerland because they were incompatible with the object and purpose of the European Convention)., violating Article 19 of the Vienna Convention on the Law of Treaties. Article 19 states that a treaty reservation is invalid if it is incompatible with the raison d’être, or the object and purpose of the treaty.¹¹Vienna Convention on the Law of Treaties, art. 19, May 23, 1969, 1155 U.N.T.S. 331.

War crimes and crimes against humanity are generally impossible to prosecute immediately after their occurrence. Given the context in which these crimes are committed, it is necessary to wait for a change in the political climate for prosecutions to become feasible.¹²See The Practical Guide to Humanitarian Law, Drs. Without Borders, https://guide-humanitarian-law.org/content/article/3/non-applicability-of-statutory-limitations/#:~:text=The%20non%2Dapplicability%20of%20statutory%20limitations%20prevents%20the%20most%20serious,to%20prosecute%2C%20from%20going%20unpunished. Thus, the inherent purpose of the Convention is to prevent the most egregious crimes from going unpunished after political circumstances change.¹³See id. The language of the treaty is clear in implementing this goal when it states that statutes of limitation shall not apply to crimes against humanity “irrespective of their date of commission.”¹⁴Supra note 7. By signing onto the Convention, states are therefore obligated to decline from propagating statutes of limitation on any crimes against humanity committed by their governments – past, present, or future. Peru’s reservation creates a temporal barrier on the application of statutes of limitation to crimes against humanity, which goes directly against the Convention’s objective to prohibit such obstructions.

Traditionally, there have been two approaches to treaty reservations: opposability and permissibility.¹⁵See Kasey L. McCall-Smith, Severing Reservations, 63 Int’l & Compar. L. Q. 599, 599. The opposability school of thought, in connection to a treaty, proposes that if a reservation is objected to by another state party, then the reserving state will not be considered a party to the treaty.¹⁶See id. at 609. On the other hand, the permissibility approach dictates that reservations are only valid when they are compatible with the object and purpose test; if it is not compatible with the test, then it is without legal effect.¹⁷See id. at 607; supra Moloney note 10 at 3. While the permissibility doctrine has been argued to be more theoretically correct, generally, the opposability approach more accurately describes state practice.¹⁸See International Law Commission, Report of the International Law Commission on the work of its 47th session, U.N. Doc. A/50/10, at 106 (1995); supra note 10 at 608 (noting that the permissibility school ignores that incompatibility is one of the main reasons states cite to when they object to treaties). Nonetheless, permissibility has been posited to be the doctrine that accompanies human rights treaties.¹⁹See supra Moloney note 10 at 3 (comparing traditional “contractual” treaties, which are reciprocal in nature and thus provide an incentive for contracting states to object to reservations they believe are unacceptable, with human rights treaties, under which contracting states have a common interest rather than interests of their own); Matthew Craven, Legal Differentiation and the Concept of the Human Rights Treaty in International Law, 11 EJIL 489, 508 (2000) (. . .”opposability has little salience in the context of human rights treaties”). However, neither approach provides a black-line rule for reservations, which led to the emergence of a third doctrine: severability. Severability states that if a court determines a reservation to be invalid, then it is without legal effect and is severable; the obligation which the invalid reservation concerned would still be controlling upon the reserving state.²⁰See Belilos v. Switzerland, App/No. 10328/83, Eur. H.R. Rep. 466, ¶ 60 (holding that Switzerland was bound to the ECHR despite having made an invalid reservation in the form of a declaration).

Because Peru’s reservation is contrary to the object and purpose of the Convention, it is unacceptable under the permissibility doctrine. Furthermore, if the matter appeared before a court, Peru could be held responsible to the Convention under the severability doctrine. Therefore, if Peru’s reservation were to be challenged on the regional or international level, prosecutors would have two avenues of attacking the reservation’s legality under international law. The reservation is invalid under the permissibility doctrine, the traditional approach to human rights treaty reservations, because it is contrary to the raison d’être of the Convention.²¹See McCall-Smith, supra note 15 at 607-09. Alternatively, the reservation could be challenged under the severability doctrine, which would render it legally ineffective and hold Peru responsible to its obligations under the Convention.²²See id. at 611-12.

In conclusion, Peru has violated its duties under the Convention due to its enforcement of the impunity law. Furthermore, Peru’s declaration to the treaty functions as an invalid reservation because it is incompatible with the treaty’s objective and purpose: to prevent the most egregious crimes from going unpunished. Moving forward, I recommend that the Inter-American Court of Human Rights take action to condemn Peru’s actions. The Court has already been vocal about its rejection of Peru’s impunity law, going so far as to order Peru to suspend its legislative process for the bill originating the law in June 2024.²³See The Inter-American Court of Human Rights held a public hearing to hear representatives of the victims from the Barrios Altos and La Cantuta cases, and of the Peruvian State on the pro-impunity bill, CEJIL, (Jun. 18, 2024). https://cejil.org/en/press-releases/the-inter-american-court-of-human-rights-held-a-public-hearing-to-hear-representatives-of-the-victims-from-the-barrios-altos-and-la-cantuta-cases-and-of-the-peruvian-state-on-the-pro-impunity-bill/. A ruling stating that Peru’s impunity law violates international law would be a step forward for victims and their families. It would send a message to the international community and deposit shame on the Peruvian government. The thousands of victims and their families who were irreparably injured and traumatized by their own government deserve recognition of their suffering and action on their behalf.