MR. PRESIDENT OF THE CONSTITUTIONAL COURT
I, JOSÉ MIGUEL VIVANCO, Americas Director of the international nongovernmental organization Human Rights Watch, based in New York, ID number *********, establishing for this purpose legal address at 340 Fifth Avenue, 34th floor, New York, NY 10118, United States, in the case challenging the constitutionality of Legislative Decree 1095, respectfully request your authorization to participate in this case as a Friend of the Court, providing the following arguments so they can be taken into account by the Court when resolving the case.
On July 3, 2010, the Peruvian Congress adopted Law No. 29.548 granting former President Alan García legislative powers.On September 1, 2010, President García adopted a series of legislative decrees, including Legislative Decree 1095, which regulates the use of the armed forces in public security operations.
Article 27 of Decree 1095 statesthat “illicit conduct allegedly committed by military personnel when applying this decree or during the course of their duties” is subject to military jurisdiction.By establishing that any “illicit conduct” carried out by military personnel is subject to the jurisdiction of military courts, this decree could be used to prevent civilian courts from trying cases of human rights violations committed by military personnel against civilians.
On December 19, 2011, 6430 citizens, represented by Miguel Jugo Viera, Adjunct Secretary of the Coordinadora Nacional de Derechos Humanos; Mario Huaman, General Secretary of CGTP; Magdiel Carrión Pintado, President of CONACAMI; Alberto Pizango Chota, President of AIDESEP; Luz Gladis Vila Pihue, President of ONAMIAP; Jorge Prado Sumari; Rocío Silva Santisteban, Executive Secretary of Coordinadora Nacional de Derechos Humanos; and Francisco Soberon Garrido, Executive Director of APRODEH; represented by lawyers David Lovaton Palacios, Juan Carlos Ruiz Molleda and David Velazco Rondon, filed a request before the Constitutional Court, asking it to declare that Article 27 of Legislative Decree 1095 was unconstitutional for violating basic rights provided for in Peru’s Constitution. The request also asks the court to declare other articles in this decree, as well as other norms, unconstitutional.
We submit to the Honorable Constitutional Court of Peru this legal brief as Friends of the Court, with the purpose of offering an analysis of international human rights law applicable specifically to its evaluation of Article 27 of Legislative Decree 1095.
BASIS OF HUMAN RIGHTS WATCH’S INTERVENTION AS A FRIEND OF THE COURT
Human Rights Watch is a nongovernmental organization that, since 1978, has been dedicated to protecting human rights. The organization is independent and impartial with respect to any political, religious or economic organizations or movements. By mandate, the organization cannot receive money, directly or indirectly, from any government. It is headquartered in New York. Human Rights Watch enjoys consultative status with the United Nations Economic and Social Council, the Council of Europe and the Organization of American States, and it maintains a working relationship with the Organization of African Unity.
As part of its mandate, Human Rights Watch is committed to using judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.
PERU’S INTERNATIONAL LAW OBLIGATIONS
It is a principle of international human rights law that states have the obligation to have effective measures in place in their domestic law to protect and respect human rights, including the compatibility of their domestic legislation with international treaties. The Vienna Convention on the Law of Treaties consecrates this principle in its Article 27: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
According to Article 29 of the American Convention on Human Rights (ACHR), ratified by Peru in 1978, when provisions of internal law conflict with international law in the area of protecting human rights, that conflict shall be resolved by accepting the interpretation that extends, rather than restricts, the enjoyment of the rights guaranteed in the Convention.The same line of reasoning is used in Article 5 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which were also ratified by Peru in 1978.
In addition, it is also a well-established principle of international human rights law that States are obligated to adopt measures in their domestic law that guarantee the enjoyment and protection of human rights throughout their territory, and to refrain from enacting laws that deny the protection of these rights. States do not have an unlimited margin of discretion in fulfilling this obligation. On the contrary, these measures, regardless of their type, must conform, or be adjusted to conform, to the requirements of international obligations. Thus, the Inter-American Court of Human Rights has affirmed that “the protection of human rights must necessarily comprise the concept of the restriction of the exercise of state power.”
INTERNATIONAL LAW REGARDING THE USE OF MILITARY JURISDICTION TO INVESTIGATE AND PROSECUTE ABUSES AGAINST CIVILIANS
The independence necessary to investigate and prosecute serious human rights violations committed by the military generally does not exist in situations where military authorities investigate military personnel and prosecute them in military courts. Therefore, international human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving human rights violations against civilians, stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature.
Article 27 of Legislative Decree 1095 contravenes the principles established in rulings of the Inter-American Court of Human Rights and decisions by the Inter-American Commission on Human Rights, which have repeatedly stated that human rights violations should not be handled by the military justice system, and that the scope of military jurisdiction should be exceptional and restrictive.
For example, in November 2009, the Inter-American Court held in the judgment on the Radilla Pacheco v. Mexico case that, “[r]egarding situations that violate the human rights of civilians, military jurisdiction cannot operate under any circumstance.”More recently, in 2012, the Court clarified that “the criteria to investigate and prosecute human rights violations before the ordinary jurisdiction reside not on the gravity of the violations, but rather on their very nature and on that of the protected juridical right.”Moreover, as stated in the Inter-American Court’s May 2007 ruling, Rochela Massacre v. Colombia, this proscription of military jurisdiction applies to all stages of the proceedings, “The military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.”
The very structure of the military justice system fundamentally inhibits it from independently and impartially administering justice for cases of human rights violations. The Inter-American Commission on Human Rights has held that military jurisdiction is not appropriate for investigating, trying, or punishing violations of human rights, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”The result, the Commission has concluded, is “de facto impunity which ‘has a corrosive effect on the rule of law and violates the principles of the American Convention.’”
Specifically regarding the investigation of human rights violations by military courts in Peru, the Inter-American Commission has held that, “the investigation … by the military courts precludes the possibility of an objective and independent investigation carried out by judicial authorities not linked to the command structure of the security forces.”According to the commission, “military jurisdiction cannot be considered a real judicial system, as it is not part of the Judicial branch, but is organized instead under the Executive” and “judges in the military judicial system are generally active-duty members of the Army, which means that they are in the position of sitting in judgment of their comrades-in-arms, rendering illusory the requirement of impartiality, since the members of the Army often feel compelled to protect those who fight alongside them in a difficult and dangerous context.”
Based on these arguments, the Inter American Court has repeatedly ruled against Peru in cases in which it has established limits to military jurisdiction.In Durand and Ugarte v. Peru, the Inter-American Court has held that “[i]n a democratic State governed by the rule of law, the scope of authority of criminal military courts must apply on a limited and exceptional basis,” and that “[m]ilitary officers must be prosecuted for the commission of only those offenses and infractions that, because of their nature, have an adverse effect on the assets of the military.”
This case law is consistent with the views of United Nations human rights bodies. In the draft principles on military justice adopted by the former United Nations Human Rights Commission, principle No. 9 states that, “In all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.”The UN Human Rights Committee, which monitors implementation of the states’ obligations under the ICCPR, has repeatedly called on state parties to subject military personnel, alleged to have committed human rights violations, to civilian jurisdiction.According to the Committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.”
Similarly, this has also been the position of the European human rights bodies and the African Commission on Human and Peoples’ Rights.
With regards to the crime of enforced disappearance, it is also worth noting that Article 9 of the Inter-American Convention on Forced Disappearances of Persons, which Peru has ratified, provides that, “Persons alleged to be responsible for the acts constituting the offense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions.”
I request you, Mr. President of the Constitutional Court, to take into account the legal arguments provided by Human Rights Watch, as Friend of the Court, when you issue a ruling during this process challenging the constitutionality of Legistlative Decree 1095.
Washington, D.C., May 13, 2013
José Miguel Vivanco
Law 29.548, http://www.congreso.gob.pe/ntley/Imagenes/Leyes/29548.pdf(accessed April 26, 2013).
Legislative Decree 1095, http://www.congreso.gob.pe/ntley/Imagenes/DecretosLegislativos/01095.pdf(accessed April 26, 2013).
Legislative Decree 1095, art. 27: “Competencia del Fuero Militar Policial. Las conductas ilícitas atribuibles al personal militar con ocasión de las acciones realizadas, en aplicación del presente Decreto Legislativo o en ejercicio de su función, son de jurisdicción y competencia del Fuero Militar Policial, de conformidad al artículo 173° de la Constitución Política”.
Vienna Convention on the Law of Treaties (Vienna Convention), Treaty Series, vol. 1155, p. 331, May 23, 1969, entered into force January 27, 1980.
American Convention on Human Rights (ACHR) (“Pact of San Jose, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), ratified by Peru on July 12, 1978.
Both articles are substantively identical: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.”. International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Peru on April 28, 1978, art. 5 (1).
And: “No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.” International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976., ratified by Peru on April 28, 1978, art. 5 (2).
Inter-American Court of Human Rights, The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986,Inter-Am.Ct.H.R. (Ser. A) No. 6 (1986),para. 21.
See, for example, Inter-American Court of Human Rights, Case of Almonacid Arellano et al v. Chile, Judgment of September 26, 2006, Inter-Am.Ct.H.R., Series C. No.154, para. 131; Case of the Rochela Massacre v. Colombia, Judgment of May 11, 2007, Inter-Am.Ct.H.R., Series C No. 163, para. 200; Case de Radilla Pacheco v. Mexico, Judgment of November 23, 2009, Inter-Am.Ct.H.R., Series C No. 209, paras. 272 and 274; Inter-American Commission on Human Rights, Admissibility Report No. 19/05. Petition 54/04, Valdemir Quispialaya Vilcapoma, Peru, February 25, 2005, para. 46. Admissibility Report N° 13/04. Petition 136/03, Eduardo Nicolás Cruz Sánchez et al., Peru, February 27, 2004, para. 59. Admissibility Report N° 41/02. Petition 11,748, José del Carmen Álvarez Blanco et al. (Pueblo Bello), Colombia, October 9, 2002, para. 24; Third Report on the Human Rights Situation in Colombia (1999), para. 17; Second Report on the Human Rights Situation in Colombia (1993), Chapter IV; Report on the Human Rights Situation in Brazil (1997), pp. 40-42.
Inter-American Court, Case of Radilla Pacheco v. Mexico, Judgment of November 23, 2009, Inter-Am.Ct.H.R., Series C No. 209, para. 274.
Inter-American Court, Case of Vélez Restrepo and family v Colombia, Judgment of September 3, 2012, Inter-Am.Ct.H.R., Series C No. 248, para. 244.
Inter-American Court of Human Rights, Case of the Rochela Massacre v. Colombia, Judgment of May 11, 2007, Inter-Am.Ct.H.R., Series C No. 163, para. 200.
IACHR, “Annual Report 1995,” Report No. 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.
See also IACHR, “Report 93/06, Petition 972-03. Admissibility. Valentina Rosendo Cantu et. al. Mexico,” October 21, 2006, para. 28, https://www.cidh.oas.org/annualrep/2006eng/MEXICO.972.03eng.htm (accessed May 2, 2013); IACHR, “Report 94/06. Petition 540-04. Admissibility. Inés Fernandez Ortega et.al. Mexico,” October 21, 2006, https://www.cidh.oas.org/annualrep/2006eng/MEXICO.540.04eng.htm (accessed May 2, 2013), para. 24.
In the Commission’s view, basic characteristics of the military justice system impede access to an effective and impartial judicial remedy in this jurisdiction. These include that the military justice system is part of the executive branch and is composed of active duty members of the army who often feel compelled to protect their fellow officers. IACHR, “Report 2/06. Case 12.130. Merits. Miguel Orlando Muñoz Guzmán,” February 28, 2006, http://iachr.org/annualrep/2006eng/MEXICO.12130eng.htm (accessed May 2, 2013), para. 83.
IACHR, “Annual Report 2000,” Report No. 53/01 (Case 11.565. Ana, Beatríz y Celia González Pérez), Mexico, para 81. [Citing IACHR, “Annual Report 1995,” Report No. 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.]
Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights in Peru, 2000, http://www.cidh.org/countryrep/Peru2000en/chapter2b.htm(accessed on April 26, 2013), para. 210.
Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights in Peru, 2000, http://www.cidh.org/countryrep/Peru2000en/chapter2b.htm(accessed on April 26, 2013), para. 211.
Inter-American Court, Case of Castillo Petruzzi and others v Peru, Judgment of May 30, 1999, Inter-Am.Ct.H.R., Series C No. 52. Inter-American Court, Case of Cantoral Benavidez v Peru, Judgment of August 16, 2000, Inter.Am.Ct.H.R., Series C No. 69. Inter-American Court, Case of Cesti Hurtado v. Perú, Judgment of September 29, 1999, Inter.Am.Ct.H.R., Series C No. 56.
Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Judgment of August 16, 2000, Inter-Am. Ct. H.R., (Ser. C) No. 68 (2001), para. 117.
United Nations Human Rights Commission, Report of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel Decaux, Draft Principles Governing the Administration of Justice Through Military Tribunals, E/CN.4/2006/58, January 13, 2006, principle no. 9.
For example, in its 1993 observations to Egypt, the HRC considered that “military courts should not have the faculty to try cases which do not refer to offenses committed by members of the armed forces in the course of their duties.” UN Human Rights Committee, Comments on Egypt, UN Doc. CCPR/C/79/Add.23 (1993), para. 9. In 1997 it urged the Colombian government to take “all necessary steps… to ensure that members of the armed forces and the police accused of human rights abuses are tried by independent civilian courts,” specifically recommending “that the jurisdiction of the military courts with respect to human rights violations be transferred to civilian courts.” UN Human Rights Committee, Comments on Colombia, UN Doc. CCPR/C/79/Add.76, (1997), para. 34.
UN Human Rights Committee, Comments on Chile, UN Doc. CCPR/C/79/Add.104, (1999), para. 9. UN Human Rights Committee, Comments on Peru, UN Doc. CCPR/C/79/Add.67, (1996), para. 22.
See, for example, the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa (1999); African Commission on Human & Peoples’ Rights, “Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,” DOC/OS(XXX)247, 2001 which provides that “[t]he only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.” This position is reaffirmed in jurisprudence such as Law Office of Ghazi Suleiman v. Sudan, Comm. Nos. 222/98 and 229/99, (African Commission on Human and Peoples’ Rights 2003); Media Rights Agenda v. Nigeria, Comm. No. 224/98, (African Commission on Human and Peoples’ Rights 2000). The European Court has also been critical of the use of military tribunals for the prosecution of offences other than those strictly of a military nature, in cases involving civilians, and even where the subject matter may be a matter properly assigned to a military tribunal has been repeatedly critical of the lack of independence of military tribunals. See jurisprudence of the Court in e.g. Findlay v. The United Kingdom (110/1995/616/706) Judgment February 25, 1997; Incal v. Turkey, Judgment of June 9, 1998, ECHR Reports 1998-IV,;Ergin v Turkey (47533/99) (2008) 47 EHRR 36.
Inter-American Convention on Forced Disappearances of Persons, 33 I.L.M. 1429 (1994), entered into force March 28, 1996, ratified by Peru on February 8, 2002, art. 9.