The decision of the supranational court has generated great controversy and the rejection of the national government and the Congress of the Republic. However, it has not been the only manifestation of a Peruvian constitutional body, since the Public Prosecutor's Office through the Board of Supreme Prosecutors has expressed its concern about the initiative of Congress, having the prosecutors of the Specialized Subsystem of Human Rights and Interculturality pointed out that "the figure of the statute of limitations in these cases means a serious situation of impunity and an undermining of the prosecutorial work of the Public Prosecutor" and that this decision would impact 550 victims.
This situation has generated international concern, having been pronounced not only by the Court, but also by the Inter-American Commission on Human Rights, the United Nations Human Rights Council, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition, the Special Rapporteur on extrajudicial, summary or arbitrary executions, among others. We are in the eyes of the world.
The first thing that must be said, contrary to the motivation of the autograph of the law, is that this is not a matter of domestic law. We are faced with a criterion of international law that is pacified and that admits no doubt: crimes against humanity cannot prescribe, nor do they generate the possibility of amnesties due to the nature of the extremely serious acts they represent.
This criterion was not born with the Rome Statute of 1998, nor with the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, the former adopted by Peru in 2001 and the latter in 2003. It is a category or principle of ius cogens, which already existed in the international order, which implies that it cannot be ignored by the States before and even less after the subscription of these Treaties.
Under this consideration, imprescriptibility is a criterion recognized by the international community for a type of particularly serious and sensitive crimes that affect human dignity. Crimes against humanity correspond to certain types of crimes such as murder, torture, rape, forced prostitution, forced sterilization, persecution of a group or collectivity with its own identity, forced disappearance of persons, among others, whose perpetration requires an objective condition: to be committed as part of a widespread or systematic attack against the civilian population and with knowledge of such attack. Thus, we are faced with serious human rights violations, and in each case it must be discussed whether the crime committed occurs in this context.
It was precisely the Barrios Altos case that developed for the first time the jurisprudential doctrine of the Inter-American Court on the imprescriptibility of crimes against humanity and established that provisions cannot be applied to prevent the investigation of serious human rights violations; it has also developed this legal position in other cases such as Almonacid v. Chile and Herzog v. Brazil.
Can domestic law be used to oppose this? No, and it is not the first time that a decision has been made to seek the statute of limitations in this matter. In addition to what happened with the amnesty laws in the 90's, some time later through Legislative Decree 1097 of September 1, 2010, in a final provision it was sought to specify that the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity takes effect and applies to Peru as of November 9, 2003, according to the declaration made by Peru at the time of accession to the Convention, something very similar to what is provided for in the autograph under comment. But this norm was repealed only fifteen days later by Law 29572. Despite the repeal, the Constitutional Court decided to hear the claim of unconstitutionality filed against said legislative decree and ruled on the merits, accepting the thesis of international law based on the argument of the recognition of the right to truth and to guarantee justice to the victims (Exp. 024-2010-PI/TC).
In effect, the Constitutional Court in the aforementioned ruling specifies that a crime against humanity is "an act of singular inhumanity and gravity due to its nature, executed with ferocity, cruelty or premeditation (murder) and in a specific context". It concludes that crimes against humanity must be prosecuted by the justice system and cannot be subject to a statute of limitations, since ".... the mandate to prosecute them is regardless of the date on which they were committed", clearly stating that "it is not in force in the Peruvian legal system as a consequence of the entry into force of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (November 9, 2003), but arises by virtue of an imperative rule of general international law which, as the Inter-American Court has held, does not arise from the Convention, but is recognized in it".
As has been explained, international and national jurisprudence is contrary to state norms that seek to encapsulate the criminal statute of limitations in temporal terms in order to promote impunity. Overcoming this legal consensus is an impossible task, since imprescriptibility, as established by reiterated jurisprudence, does not arise with the adoption of treaties such as the Rome Statute or the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, but is based on custom as a source of international law.
A couple of final points. Under these considerations, from a legal point of view, the only way to go is to observe the autograph of the bill. There is no other option at the risk of incurring in a new contempt that from the point of view of Law would be counterproductive and would affect Peru's image in the international concert.
Second. It is necessary to be careful with the arguments related to the alleged lack of competence of the Inter-American Court to supervise compliance with its judgments and to issue provisional measures at this stage. Beyond agreeing or disagreeing with the Court, it must be pointed out that the supervision of judgments is an indisputable competence at least since the Baena Ricardo v. Panama case of 2001, which pacified this extreme, for which it can issue provisional measures. This is also considered in the Rules of Procedure of the Court, but it also follows from the nature of things, since it must be taken into account that one of the neuralgic points of the Inter-American system is the large number of cases that remain in the supervision stage; as an example let us take the case of Peru: the Court has issued in its history 60 judgments that correspond to our country -it is the State with the largest number of judgments- and 95% of these are still in execution, since only three have been archived for total compliance. Without provisional measures that allow the Court to demand compliance, it will be difficult to close this gap.
The conclusion of all the above is to act in a prudent manner, with a legal approach that avoids the country facing the consensus that exists in international law.
