In Peru, a law has been passed and published (Law No. 32301) that modifies the regulation and rules of accountability of NGOs that receive donations from international cooperation; this law is aimed at intimidating and even impeding the oversight role that civil society organizations play in any democratic society. A new amnesty law has also been approved (although not yet published) in favor of those accused and convicted of serious human rights violations perpetrated in Peru during the internal armed conflict (1980-2000). This is how Peru is preparing— unfortunately—for the next OAS General Assembly.
Political context matters
For the last decade, Peru has been going through a period of great instability and political and institutional deterioration, which has resulted, during the current government of President Boluarte, in the cooptation of relevant State sectors—like Peruvian Parliament—by corruption networks, organized crime groups, and illegal economies such as drug trafficking and illegal gold mining. In this undemocratic and increasingly authoritarian, corrupt and mafia-like context, Peru’s Parliament has passed laws that seek impunity for serious human rights violations or to impede the oversight work of civil society organizations. We are not in a democratic springtime or a political transition, but in a context of government powers being captured by organized crime, and this must be taken into account in the evaluation of these new legal norms.
Transparency yes, persecution no
It is false that the new law, which disproportionately intensifies control over civil society organizations receiving international cooperation donations, seeks greater transparency in the use of such resources. Transparency has always existed in the operation of NGOs for various reasons, among them, the control already exercised by the donors themselves (would a donor continue to support an organization that does not account for the funds donated?) and the Peruvian legislation itself, which, before this legal amendment, already contemplated rigorous control mechanisms. So it is not greater transparency that this law seeks, but rather to muzzle the NGOs that carry out oversight of the government.
Serious violation of the right of access to justice
Article 21.c.2 of the aforementioned Law classifies as a “very serious” offense the use of cooperation resources to settle lawsuits against the Peruvian State both at the national and international levels.¹ As is well known, one of the functions of NGOs is usually to seek the protection of fundamental rights such as life, health, or the environment, through legal proceedings before national courts or administrative bodies or before the Inter-American human rights system and the different bodies of the United Nations system. In other words, using the legal mechanisms provided by the rule of law to defend rights is now a serious offense in Peru, and NGOs could be severely sanctioned for it. Undoubtedly this is a serious violation of the right of access to justice or effective judicial protection enshrined in Article 25 of the American Convention on Human Rights.
Impunity for serious human rights violations, again
As will be recalled, thirty years ago, in 1995, the Peruvian Parliament approved the so-called “Self-Amnesty Law,” which sought impunity for serious human rights violations perpetrated during the internal armed conflict (1980-2000); in particular, it sought to favor the paramilitary group “Colina” that answered to former president Fujimori and his sinister advisor Montesinos. That law was declared unconstitutional by the brave judge Antonia Sacquicuray in the emblematic “Barrios Altos” case in domestic court and then, in 2001 and in the same case, the Inter-American Court declared the amnesty law incompatible with the American Convention “without any legal effect;” in other words, for the Court, the law never legally existed and could not have any legal effect. This emblematic case initiated a rich inter-American jurisprudence of proscription of amnesty laws or any other measure that seeks impunity for serious human rights violations.
Despite all of the above, three decades later, the Peruvian Parliament has just approved a new amnesty bill in favor of military, police and civilians prosecuted or convicted for serious human rights violations during the internal armed conflict. In order to become law, this bill must soon be submitted to a second vote in Parliament. The Inter-American Commission on Human Rights has criticized the approval of this bill and several human rights organizations have also condemned it, stating that it would affect 156 final judicial sentences and around 600 judicial processes in process.
The Peruvian Parliament seems not to have learned from the mistakes of the past and, once again, insists on an amnesty law clearly incompatible with the American Convention that—sooner or later—the Inter-American Court—in accordance with its sustained jurisprudence—will declare it null and void, that is, without any legal effect; perhaps for this reason, the new Peruvian Prime Minister has just proposed to Parliament to evaluate the possibility of Peru’s withdrawal from the jurisdiction of the Inter-American Court.
This is how the State of Peru arrives at the next OAS General Assembly. With a Colombian candidate running for reelection to the Inter-American Commission in one hand and, contradictorily, with the threat of abandoning the competence of the Inter-American Commission and Court and with amnesty laws and laws against NGOs in the other.
¹ Article 21.c.2 of Law No. 32301 states that “it is an improper use to use the aforementioned resources to advise, assist or finance, in any form or modality, administrative, judicial or other actions, in national or international instances, against the Peruvian State”.