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The core argument is Gustavo’s: regret for the disrespectful, “unprecedented” (sic) behavior of the Inter-American Court and the demand to stop a process that has not yet concluded. Demonstrating against a law enacted is one thing – I follow the arguments of the Palace and Congress – but asking the government to stop a parliamentary process is too much.
Mira: Congress and Gustavo versus the Monumental Court, by Fernando Vivas
I spoke to Diego García Sayán, former president of the Inter-American Court, for this chronicle and asked him whether it was indeed a dangerous step for international judges to ask for a suspension of national legislative processes. “I don’t think it’s contradictory to ask for something that clearly violates its provisions and principles to be stopped, and it’s better to do it before it’s enacted, which is preventive.”I asked the court’s press office to help me confirm if our prime minister was correct, but I had no luck. Until I consulted with Julissa Mantilla, a Peruvian and former president of the Inter-American Commission on Human Rights (IACHR), and she did have an answer.
Yes, there is precedent.
Mantilla provided me with references to two cases where, without a doubt, the court requested a suspension of the legislative process and it was complied with. Let’s look at the resolution of October 20, 2023, which oversees and provides for provisional measures in the case of members of the village of Chichupac, Guatemala. It turns out that the Guatemalan Congress is discussing an amnesty bill for state agents who have committed enforced disappearances, extrajudicial executions, torture and other crimes considered crimes against humanity that have affected the residents of Chichupac and other towns. A resolution from March 2023 called for a suspension of the processing of this law and it was implemented. The first point of the October resolution says this: “Recognizing that the State has taken the initiative to file Law No. 5377, which seeks to grant amnesty for all serious violations committed during the internal armed conflict, as requested by this Court in its Resolution on Provisional Measures issued on 12 March 2019”.
The term “internal armed conflict” is part of the legal language of the Inter-American Court and other multilateral institutions. Another case Mantilla mentioned was the one before Bukele from El Salvador. It was a resolution of May 28, 2019, imposing emergency measures and monitoring on the El Mozote massacre that took place in 1981. The first operative paragraph said: “demands that the State of El Salvador (…) immediately suspend the legislative process of the draft “Special Law on Transitional National Reconciliation and Restorative Justice” currently before the Political Committee of the Legislative Assembly, in order to ensure access to justice for the victims of the Mozote massacre and the surrounding area.The resolution came days before the swearing-in of Nayib Bukele, who in principle supported not approving the law, although he later confirmed the military’s version of the loss of documents that would have allowed the identification of those responsible for the massacre of 900 civilians, more than half of whom were minors.
Leaving aside distance and context, here we have the June 13 Resolution on Supervision and Provisional Measures in the Barrios Altos and La Cantuta Cases, which calls for an “immediate suspension of processing” of the bill (now a law awaiting enactment). Our government shares the same goal as Congress, rejecting the court’s intervention in a process that has not yet concluded. “In fact, this letter shows that the government does not want to confront Congress, with which it has a corrupt side deal, and the Ministry of Foreign Affairs is playing the same game,” García Sayán further said. I reminded Diego that the government has not yet taken a position on the substance of the law. “This seems to be a preamble that the government will take the same position as Congress, but we hope that it will reconsider.”
Arevalo said that the Inter-American Court “cannot order the power of the state not to do something”, but this common phrase conflicts with the meaning of the convention. “Anti-convention” sentiment has taken root in the minds of the three major powers, which are, however, accustomed to signing agreements that imply small transfers of sovereign power. It happens that this issue has become ideological and polarized. A few weeks ago, I interviewed Andrea Pochak, an Argentine jurist, a member of the Inter-American Commission on Human Rights (IACHR), who participated in the hearing on June 13 in San José, where she ruled against the upcoming law (approved at the time in the first vote) declaring the statute of limitations for crimes against humanity committed before Peru joined the Rome Statute in 2002. Pochak told me that there is no provision in the American Convention for the complete imprescriptibility of the statute, but that what is assumed by tradition and principles in the Inter-American system is “customary, international law”. Ideology becomes unwritten law if it is shared by everyone. But in Peru in 2024, this principle has not been realized.
Undecided sovereignty
At a press conference on Monday, the 8th, the president was asked whether he would comply with Law 5951, which declared the statute of limitations for crimes against humanity before the entry into force of the Rome Statute of the International Criminal Court in 2002, and she said: He will wait for the National Assembly to send him the law. I am already out of time; a few hours ago, at 1:23 pm, the text of the law arrived at the palace with the Blue House receipt seal. The ball against humanity is in the sovereign court of the palace, and the argument that “I can’t stop the National Assembly” is no longer valid.
Given the 15-working-day deadline and the upcoming holidays, the government could wait until the new legislature is in place to enact it or observe it. If the government enacts it on its own, it would be a very rude challenge to the Inter-American Court, which is inconsistent with the fact that the executive branch recently lobbied the Inter-American system to appoint a Peruvian, Alberto Borea, as a judge on that court. Nor should one believe that Borea, who was a fierce opponent of Fujimori when he denounced the court, would let the court go to the other extreme. “You have to have a stubborn mind to think that,” García Sayán told me, whom he admires and is a friend of his, even though they disagree on many issues.
Fernando Rospigliosi, who co-sponsored the initiative with congressman and admiral José Cueto, told me that the reason was not Fujimori, but that he believed that about 600 Peruvians (including prisoners and defendants, most of them military and some police officers) should not be subjected to the torture of a long ordeal. “If the government complies, it must be approved at its insistence, but in one case it presents specific observations that we must analyze.” Rospigliosi added that this nuance would allow the government to act as a mediator between the Inter-American Court and Congress. It would be a big surprise if the government not only complied with the law, but also opposed it and raised the possibility of its unconstitutionality to the TC.
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