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Published online by Cambridge University Press: 27 August 2015
Implementation of international humanitarian law (IHL) in national legislation is necessary to promote compliance with IHL in the event of an armed conflict. Owing to its consultative and interdepartmental nature, the National Committee for the Study and Implementation of International Humanitarian Law (CONADIH) plays a strategic role in promoting its implementation in Peru. To fulfil that role more effectively, CONADIH was strengthened during a structural internal reform of the Peruvian Ministry of Justice and Human Rights (MINJUS), where its presidency lies. Two of the crucial steps to that end were that the presidency fell under a higher authority within the Ministry and the creation of a governing body with decision-making powers regarding IHL and international human rights law, thus leading to the incorporation of IHL into a broad range of public policies.
1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). Approved by Peru through Legislative Resolution No. 12412 of 31 October 1955, promulgated on 5 November 1955, and in force since 15 August 1956.
2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1987). Approved by Peru through Legislative Resolution No. 25029 of 31 May 1989, promulgated on 1 June 1989 and in force since 14 January 1990.
3 Congress of the Republic, Legislative Resolution No. 29894 approving the International Convention for the Protection of All Persons from Enforced Disappearance, El Peruano (Official Gazette), 6 February 2012. Supreme Decree No. 040-2012-RE ratifying the International Convention for the Protection of All Persons from Enforced Disappearance, El Peruano (Official Gazette), 16 August 2012. In force since 26 October 2012.
4 Congress of the Republic, Legislative Resolution No. 29843 approving the Convention on Cluster Munitions, El Peruano (Official Gazette), 16 March 2012. Supreme Decree No. 021-2012-RE ratifying the Convention on Cluster Munitions, El Peruano (Official Gazette), 26 April 2012. In force since 1 March 2013.
5 Political Constitution of Peru, El Peruano (Official Gazette), 30 December 1993, Art. 55: “Treaties ratified by the State and in force are part of domestic law”.
6 Political Constitution of Peru, above note 5.
7 Genaro Villegas Namuche, Constitutional Court, Exp. No. 2488-2002-HC/TC, para. 12, available at: www.tc.gob.pe/jurisprudencia/2004/02488-2002-HC.html (all internet references were accessed on 21 June 2014). Political Constitution of Peru, above note 5, Art. 3: “The list of rights set out hereinafter does not exclude further rights guaranteed by the Constitution or other rights of a similar nature or those based on human dignity or on the principles of the sovereignty of the people, the democratic rule of law and the republican form of government.”
8 In one of its rulings, the Constitutional Court also states that international human rights law is part of domestic law. See Bar Association of Arequipa et al., Constitutional Court, Exp. No. 0025-2005-PI/TC and Exp. No. 0026-2005-PI/TC, 24 April 2006, para. 25, available at: www.tc.gob.pe/jurisprudencia/2006/00025-2005-AI%2000026-2005-AI.html.
9 Politicial Constitution of Peru, above note 5, Fourth Final and Transitory Provision.
10 Congress of the Republic, Constitutional Procedural Code, Act No. 28237, El Peruano (Official Gazette), 31 May 2004, Art. V of the Preliminary Title: “The nature and scope of the constitutional rights protected by the procedures set out in this Code should be interpreted in accordance with the Universal Declaration of Human Rights, with human rights treaties, and with the decisions handed down by the international human rights tribunals set up under the treaties to which Peru is a party.”
11 Constitutional Court, Exp. No. 00002-2008-PI/TC, 9 September 2009, para. 70, available at: www.tc.gob.pe/jurisprudencia/2009/00002-2008-AI.html; Constitutional Court, legal proceedings on unconstitutionality, No. 00021-2009-PI/TC, 5 November 2009, para. 6, available at: www.tc.gob.pe/jurisprudencia/2009/00021-2009-AI%20Resolucion.html; Constitutional Court, Exp. No. 679-2005-PA/TC, 2 March 2007, paras 30–31, available at: www.tc.gob.pe/jurisprudencia/2007/00679-2005-AA.html; Constitutional Court, Jurisdictional Plenary, No. 0022-2004-AI/TC, 12 August 2005, para. 52, available at: www.tc.gob.pe/jurisprudencia/2005/00022-2004-AI.html; Constitutional Court, Exp. No. 4677-2005-PHC/TC, 12 August 2005, paras 9–15, 18–22, available at: www.tc.gob.pe/jurisprudencia/2006/04677-2005-HC.html; Constitutional Court, Exp. No. 0275-2005-PHC/TC, 9 February 2005, paras 3–5, available at: www.tc.gob.pe/jurisprudencia/2005/00275-2005-HC.html; Constitutional Court, Exp. No. 2310-2004-HC/TC, 21 June 2004, para. 4, available at: www.tc.gob.pe/jurisprudencia/2006/02310-2004-HC.html; Constitutional Court, Exp. No. 2798-04-HC/TC, 9 December 2004, paras 6, 14–17, available at: www.tc.gob.pe/jurisprudencia/2005/02798-2004-HC.html.
12 Supreme Resolution No. 234-2001-JUS, Art. 1, establishing the National Committee for the Study and Implementation of International Humanitarian Law, El Peruano (Official Gazette), 2 June 2001. The regulations for the Committee were approved through Ministerial Resolution No. 240-2001-JUS.
13 Supreme Resolution No. 234-2001-JUS, Art. 3.
14 Supreme Resolution No. 062-2008-JUS modifying the composition of the National Committee for the Study and Implementation of International Humanitarian Law, El Peruano (Official Gazette), 24 April 2008, Art. 1.
15 The National Human Rights Council, set up in 1986, is an interdepartmental body whose purpose is to give opinions to and provide assessments for the executive branch of government on the development of public policies, programmes, projects, plans of action and strategies in the field of human rights, in particular under the National Human Rights Plan. Supreme Decree No. 011-2012-JUS, Art. 136.
16 The reorganization of the Ministry of Justice followed the approval of Act No. 29809 on the Organization and Role of the Ministry of Justice and Human Rights, El Peruano (Official Gazette), 8 November 2011, and Supreme Decree No. 011-2012-JUS establishing its related regulations, El Peruano (Official Gazette), 20 April 2012.
17 Act No. 29809, Art. 4(a).
18 Act No. 29809, Art. 12(a).
19 Supreme Decree No. 011-2012-JUS, Art. 16(h), which stipulates that the Vice-Ministry shall “approve guidelines for the dissemination and promotion of international humanitarian law and human rights law, at the national level”.
20 Supreme Decree No. 011-2012-JUS, Arts 114, 115(a).
21 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005, 2404 UNTS 261 (entered into force 14 January 2007).
22 Congress of the Republic, Act No. 29166, El Peruano (Official Gazette), 20 December 2007, Repealed. This Act lays down the rules governing the use of force by military personnel on Peruvian territory. Act No. 29166 was amended as a result of legal proceedings, detailed in Exp. No. 00002-2008-PI/TC, that led the Constitutional Court to rule that certain provisions of the Act were unconstitutional. See Constitutional Court, Jurisdictional Plenary, 9 September 2009, available at: www.tc.gob.pe/jurisprudencia/2009/00002-2008-AI.html.
23 Congress of the Republic, Act No. 28296, General Law on the Cultural Heritage of the Nation, El Peruano (Official Gazette), 22 July 2004, Title 1, Chapter 2, “Regime Governing Property Deemed to Be Part of the Nation's Cultural Heritage”, Art. 26.
24 Ministry of Education, Supreme Decree No. 011-2006-ED, approving the Regulations for Act No. 28296, General Law on the Cultural Heritage of the Nation, El Peruano (Official Gazette), 1 June 2006, Chapter 1, “General Provisions”, Art. 7; Chapter 8, “Protection for Cultural Property During Armed Conflict”.
25 In memory of the actions taken by Admiral Miguel Grau Seminari, who was commander of the Peruvian warship Huascár during the War of the Pacific between Peru and Chile (1879–1883). The battle of Iquique pitted the Huascár against the Chilean warship Esmeralda, commanded by Arturo Prat. Although Admiral Grau sank the Esmeralda, he ordered the rescue of the surviving crew from the waters and wrote a letter of condolence to Captain Prat's widow, Carmela Carvajal, praising the conduct of her husband. He also sent her some of her husband's personal effects, including his sword. Soon thereafter, States adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (22 August 1864), the Hague Convention with Respect to the Laws and Customs of War on Land (29 July 1899) and the Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 (29 July 1899). Miguel Grau applied the principles and rules of IHL before he had any knowledge of the existence of the latter convention.
26 The Miguel Grau Course on International Humanitarian Law was taught online during the first three weeks. See the website of the course, available at: www.minjus.gob.pe/actividades-institucionales-y-eventos/curso-de-derecho-internacional-humanitario-miguel-grau-se-desarrollara-de-manera-virtual-en-su-primera-etapa/.
27 OAS, General Assembly, AG/RES 2795 (XLIII-O/13), 5 June 2013, paras 8 and 11, available at: www.oas.org/consejo/sp/AG/AG43ordinaria.asp.
28 OAS, General Assembly, AG/RES 2651 (XLIII-O/11), 7 June 2011, available at: www.oas.org/consejo/sp/AG/Documentos/AG05445S05.doc.
29 In accordance with Organic Law of the Executive Power No. 29158, El Peruano (Official Gazette), 20 December 2007, Art. 36(3), permanent interdepartmental committees are established by Supreme Decree and approved by the president of the Council of Ministers and the heads of the departments concerned, and their internal regulations are approved by ministerial resolution.
30 Ministry of Justice and Human Rights, “Approved National Human Rights Plan (2014–2016)”, El Peruano (Official Gazette), 5 July 2014, available at: www.minjus.gob.pe/wp-content/uploads/2014/07/DS-005-2014-JUS-Aprobacion_PNDH.pdf.
31 Ministry for Women and Vulnerable Populations, Supreme Decree approving the National Plan of Action for Children and Adolescents (PNAIA 2012–2021) and establishing an interdepartmental committee tasked with its implementation, Supreme Decree No. 001-2012-MIMP, El Peruano (Official Gazette), 14 April 2012, pp. 90–91, available at: www.mimp.gob.pe/webs/mimp/pnaia/pdf/Documento_PNAIA.pdf.
32 Ministry of the Interior, Supreme Decree No. 004-2011-IN, approving the National Plan against Trafficking in Persons (2011–2016), El Peruano (Official Gazette), 19 October 2011, pp. 19, 25, available at: http://spij.minjus.gob.pe/Graficos/Peru/2011/octubre/19/DS-004-2011-IN.pdf. In accordance with this document: “Although Act No. 28950 makes no specific mention of forced recruitment, this practice is covered by the National Plan, which takes a broad approach to the defence of human rights and victims of trafficking.”
33 Ministry of Health, Report No. 121-2013-DSM/DGSP/MINSA, Official Communication No. 2156-2013-DGSP/MINSA, General Directorate of Health, 12 August 2013.
34 CONATIAF was set up through Ministerial Resolution No. 134-2007-PCM, El Peruano (Official Gazette), 9 May 2007, and its regulations were approved through Ministerial Resolution No. 0186, 11 February 2009. It is made up of the Ministries of Foreign Affairs, Defence, the Interior, and Justice and Production, the Office of the Public Prosecutor, the National Directorate of Intelligence and the National Superintendency of Tax Administration. The purpose of CONATIAF is to coordinate interdepartmental action for the implementation of plans and programmes – whether adopted by the United Nations, the OAS, the Andean Community or other international forums, or through bilateral agendas – that are conducive to promoting cooperation and the exchange of information and experiences among States in order to prevent, hinder, combat, eradicate or eliminate the manufacturing of and trafficking in illicit firearms, ammunition, explosives and other related materials throughout the national territory.
35 CONTRAMINAS was set up through Supreme Decree No. 113-2002-RE, El Peruano (Official Gazette), 13 December 2002, and its regulations were approved through Supreme Decree No. 051-2005-RE, El Peruano (Official Gazette), 2 July 2005. It is made up of the Ministries of Foreign Affairs, Defence, the Interior, and Education and Health, and the National Council for the Integration of Persons with Disabilities. It draws up government policies for action against anti-personnel mines in Peru and monitors compliance with the Convention on the Prohibition of Anti-personnel Mines.
36 CONAPAQ was set up through Act No. 26672, El Peruano (Official Gazette), 13 December 2002. It has been accepted by the Ministries of Foreign Affairs (which chairs it), Production, the Interior, Defence, and Justice and Health, the Office of the Public Prosecutor, the National Superintendency of Tax Administration and the National Society of Industries. It acts as the “National Authority” referred to in Article VII(4) of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.
37 Congress of the Republic, Act No. 27741 establishing an educational policy on human rights law and setting up a national plan for its teaching and dissemination, El Peruano (Official Gazette), 29 May 2002.
38 The Act on the Organization and Role of the Ministry of Defence stipulates that this ministry is specifically in charge of “ensuring that compulsory instruction in fundamental rights and constitutional procedures be provided in all training centres for its staff”. IHL and human rights law are taught in several training centres, including the Centre for National Studies and the Centre for IHL and Human Rights Law. These centres are in charge of organizing and implementing training programmes for the armed forces and for civil servants at the national and local levels. Article 14 of the above-mentioned Act stipulates that the planning, preparation, coordination and conduct of military operations and actions must take place in compliance with IHL and human rights law. Executive Power, Legislative Decree No. 1134 approving the Law on the Organization and Role of the Ministry of Defence, El Peruano (Official Gazette), 10 December 2012, Art. 6(19); Ministry of Defence, Regulations for the Organization and Role of the Ministry of Defence, Supreme Decree No. 001-2011-DE, El Peruano (Official Gazette), 3 March 2011, Arts 66, 67.
39 One of the tasks of the chief of staff of the Joint Command of the Armed Forces is to “see to the dissemination and implementation of the provisions of human rights law and international humanitarian law applicable at the national and international levels, including those set out in the treaties to which Peru is a party”. Executive Power, Legislative Decree of the Chief of Staff of the Armed Forces, Legislative Decree No. 1136, El Peruano (Official Gazette), 10 December 2012, Art. 7(28).
40 Directive No. 02-2009-DIREDUD-PNP-SUBDACA/SEC: “Rules for promoting the teaching and dissemination of international humanitarian law, as it applies to police duties, among the national police forces of Peru.” Ministry of the Interior, approved through Directoral Resolution No. 2105-2009-DIREDUD PNP/SDACA, 30 December 2009.
41 UNGA Res. A/RES/65/29, 6 December 2010, available at: www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/65/29&Lang=S.
42 OAS, General Assembly, AG/RES 2795 (XLIII-O-13), AG/RES 2575 (XL-O/10), AG/RES 2507 (XXXIX-O/09), AG/RES 2293 (XXXVII-O/07), AG/RES 2226 (XXXVI-O/06), AG/RES 2127 (XXXV-O/05), AG/RES 2052 (XXXIV-O/04), AG/RES 1904 (XXXII-O/02), AG/RES 1771 (XXXI-O/01), AG/RES 1706 (XXX-O/00), AG/RES 16195 (XXIX-O/99), “Promotion and Respect for International Humanitarian Law”; AG/RES 1565 (XXVIII-O/98), AG/RES 1408 (XXVI-O/96), AG/RES 1335 (XXV-O/95), “Respect for International Humanitarian Law”.