Practice Relating to Rule 89. Violence to Life
Peru’s Human Rights Charter of the Security Forces (1991) states that one of the 10 basic rules is to respect human life. It adds that “human life is sacred for every person” and that the lives of the wounded or of persons who surrender must be respected. These rules must be respected by the armed and police forces.
Peru’s Human Rights Charter of the Armed Forces (1994) states that respect for a person’s life and mental and physical integrity is one of the three principles common to the 1949 Geneva Conventions, which represent the minimum level of protection to which every human being is entitled.
Peru’s IHL Manual (2004) states:
g. Violence to the life, health or physical or mental well-being of any person is prohibited.
h. Murder … is prohibited.
The manual also states that war crimes include “wilful killing”.
The manual further states:
The following acts, among others, are prohibited and are considered war crimes:
a. any act leading to the death of a prisoner of war;
b. any act that endangers the life of a prisoner of war.
With regard to non-international armed conflicts, the manual restates the provisions of Common Article 3 of the 1949 Geneva Conventions.
Peru’s IHL and Human Rights Manual (2010) states with respect to the civilian population:
g. Violence to life, health and physical or mental integrity is prohibited.
h. Murder … of all kinds is prohibited.
The manual also states that war crimes include “wilful killing”.
The manual further states: “The life of prisoners of war must be respected … The treatment accorded to prisoners of war only applies to combatants who refrain from any hostile acts and do not try to escape.”
In its Glossary of Terms, the manual states: “Extermination
… [i]s prohibited by the law of armed conflict in order to protect the wounded, sick, prisoners of war and any other protected person.”
In a section on occupied territories, the manual states that it is prohibited for “civilian or military officials to … exterminate protected persons through killing, torture, corporal punishment, mutilation or any other brutal means.”
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions.
In a section on the relationship between IHL and human rights law, the manual states:
There are … principles common to the  Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [r]espect for life, physical and mental integrity … [and] each individual’s right to security of the person.
Regarding these fundamental guarantees there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict.
In a section on the human rights obligations of the security forces, the manual further states: “The life of persons who are captured or who have surrendered must be respected.”
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their place of habitual residence or who have resettled in another part of the country have a right to:
e) be protected against genocide, homicide, summary or arbitrary executions … ; as well as any threats and incitement to commit any of the foregoing acts.
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police who, in the context of an international or non-international armed conflict:
1. Kills a person protected by international humanitarian law shall be imprisoned for a period of no less than 20 and no more than 30 years.
The Code also states:
A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:
7. Treacherously kills or wounds a member of the enemy armed forces or a member of the hostile party directly participating in hostilities.
These articles are no longer in force. Along with certain other articles in this legislation, they were declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because they do not stipulate crimes committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:
a. Violence to life and physical integrity, in particular murder of all kinds … and [summary] executions.
e. … [T]he carrying out of executions without previous judgment by a regularly constituted court, affording all the judicial guarantees.
f. Threats to carry out any of the aforementioned acts.
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
International human rights law, international humanitarian law and Peru’s Political Constitution recognise the right to life …
In international humanitarian law, Article 3 common to the  Geneva Conventions prohibits in non-international armed conflicts attempts on the life and physical integrity of civilians, in particular murder in all its forms.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president … was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. [He] was charged with various offences under domestic criminal law, including murder in relation to events that took place in Barrios Altos and at the so-called La Cantuta university in Lima. The court summarized the facts as follows:
[The murders] that occurred in the Barrios Altos neighbourhood and on Ramiro Prialé Avenue, that the crime [of murder] … were prepared in advance. This presupposes the existence of a preconceived plan, at least in terms of an outline for implementation. A special intelligence detachment was created for this purpose with the specific mission, inter alia, of killing those deemed to have links to the political or military apparatus of the “Shining Path” terrorist organization.
The direct perpetrators acted with absolute cold-bloodedness and determination in what they understood to be a military operation to eliminate members of Shining Path. To this end, they deliberately and stealthily entered the Jiron Huanta-Barrios Altos neighbourhood and the National University of Education “Enrique Guzman y Valle”, [also known as] La Cantuta, where they pretended to be conducting a search operation for terrorists in student and faculty buildings. They surprised the victims, who were not expecting such an operation, and proceeded to subdue and kill them using their weapons of war.
In the first case [in Barrios Altos], they entered the building at 840 Jiron Huanta, taking advantage of the fact that the victims were busy with a fundraising event. They singled out some of those present and shot them without any consideration whatsoever, even murdering a little boy. In the second case, under the guise of an operation to identify potential subversives, they entered the La Cantuta university – which was under military control at the time – and selected individuals whom they deemed to be members of Shining Path based on a previous identification process. They took these individuals to an open area on Ramiro Prialé Avenue, and executed them without further authority using the weapons of war they carried. They subsequently buried and burned the bodies to cover up the crime they had committed.
The court held:
[These] murders were carried out pursuant to a previously conceived plan, and, at least outwardly, the manner in which the crime was committed exhibited patterns inherent to military operations, albeit in deviation from and in breach of military regulations. The plan was clearly based on disregard for human life and on overt defiance of the basic rules of civilized society, of the very essence of military honour, and of the guidelines governing engagements and the treatment of a defeated or unarmed enemy.
Next, the Court considered whether the incidents in Barrios Altos and at La Cantuta university were crimes against humanity. The court held:
[T]he acts that occurred in Barrios Altos and at La Cantuta [university] can evidently be subsumed under … [crimes against humanity]. Nonetheless, this finding must be limited [in the present case]. Therefore, (i) … [although the] provisions [on crimes against humanity], whose core is represented by the  Nuremberg Statute, are part of customary international law; (ii) the constitutional requirements of the principle of legality in criminal proceedings must be taken into account … and it must therefore be recognized that from the perspective of substantive law, at the time when the crimes were committed – in 1991 and 1992 – there was no law that would have incorporated into domestic criminal law a crime that included, on the one hand, all elements of the definition of the … [crime against humanity of murder] under customary international law (not even the present legislator has complied with the requirements flowing from the ratification of the Statute of the International Criminal Court by the State of Peru), and, on the other hand, the corresponding sanction. [Nevertheless,] … (iii) the serious violation of individual human rights manifested in the conduct prohibited by crimes against humanity … cannot have been unknown and unforeseeable for the perpetrator.
The court considered the definition of murder as a crime against humanity and held:
[M]urder has been characterized as a crime against humanity if it results from or is an expression of a systematic attack by a State or by its executive organs supported or fuelled by official or quasi-official policies or directives, and which affects the civilian population in conjunction with a belligerent or social conflict.
[footnotes in original omitted]
The court further held:
The murders and serious injuries that occurred in Barrios Altos and at La Cantuta [university] are also crimes that manifest a State policy of selectively eliminating alleged members of subversive groups. …
It has been demonstrated that it was a State decision, ordered and approved by the Chief of State and carried out by military intelligence bodies – the Colina Special Intelligence Detachment and DINTE [Army Directorate of Intelligence] – ultimately directed by the SIN [National Intelligence Service], with every conceivable form of official support, whose ultimate objective was the forced disappearance and/or arbitrary or extrajudicial murder of alleged subversives. In this context, Barrios Altos and La Cantuta were two, though not the only, significant events.
[footnote in original omitted]
In 2009, in the Armed Forces case, 31 members of Peru’s Congress requested that Peru’s Constitutional Court declare unconstitutional Article 7(1)–(2) of Law No. 29166 of 20 December 2007 which establishes rules on the use of force by members of the armed forces on Peruvian territory. On 9 September 2009, the Court held:
57. … [T]he second paragraph of Article 7 of Law No. 29166 states the following:
58. If military personnel participates in the control of internal order in accordance with its constitutional function during situations in which a state of emergency has been declared; or in support of the control of internal order in situations in which a state of emergency has not been declared, it may use force under the following conditions:
a. [The use of force must be] [i]n accordance with the assigned mission.
b. Legitimate defence: This is the right of a member of the military to use force against acts which put his or her life or physical integrity at risk, as well as the life or physical integrity of personnel under his or her protection.
c. Hostile act: This is an attack or the unlawful use of weapons which threatens the life or physical integrity of individuals, or which results in injuries or destruction of public property, private property or military installations.
d. Hostile intent: This is the threat or attempt to unlawfully use weapons demonstrated by the carrying out of acts in preparation of a hostile act.
In the aforementioned situations, with the exception of paragraph d), and if necessary, military personnel may use lethal force.
60. The main problem is that this provision conflates concepts of International Humanitarian Law regarding the conduct of hostilities in armed conflict with the use of force in situations of internal disturbances and tensions, in which International Human Rights Law is the applicable legal framework.
63. Since the Armed Forces must have a clear legal framework for their actions and use of force, Congress must adopt a brief law which regulates the use of force in the following situations: (i) the conduct of hostilities under International Humanitarian Law applicable in armed conflict; and (ii) the use of force in situations in which a state of emergency can be declared or in situations of internal tensions in which International Human Rights Law is applicable.
64. In the development of this law, Congress must take the United Nations Principles on the Use of Lethal Force as a basis:
a) The use of lethal force by military personnel is regulated by the Constitution and by treaties of Human Rights and International Humanitarian Law, depending on the circumstances.
b) The use of force and the use of lethal force may only be used in exceptional circumstances and as a last resort with the aim of reducing the risk of unnecessary damage.
c) ... [L]ethal force must only be used if it is strictly inevitable and reasonable in order to protect the right to life or another fundamental legal good.
d) Military personnel must give a warning, if possible, before using force and lethal force.
e) The use of force does not include the use of fire arms and ammunition which may cause unintended injuries or which may constitute an unjustified risk to third parties.
f) The competent authority may open an official investigation if there are reasonable indications that the means of force employed did not comply with the previously established norms.
66. Nevertheless, Congress must adopt within six months of the publication of the present decision a law which regulates the use of force by the Armed Forces. This law shall be divided into two parts:
a) a first part concerning the use of force in situations of armed conflict regulated by the 1949 Geneva Conventions and the 1977 Additional Protocols;
b) a second part which regulates the use of force in states of emergency, internal tensions or riots in accordance with International … [Human Rights] Law. At the same time, these rules must comply with the common principles recognized by the United Nations set out in this decision.
[emphasis in original]
On 9 September, the Court also held:
1. Declares the request for unconstitutionality partially FOUNDED. Consequently:
a. The second part of the second paragraph of Article 7 of Law No. 29166, which provides that “in the aforementioned situations, (...) and if necessary, military personnel may use lethal force”, is UNCONSTITUTIONAL. Until a new law on this matter is adopted, the rules set out in paragraph 64 above apply.
On 17 September 2009, the Court clarified:
With respect to the [above quoted] rule contained in paragraph 64(a) and (b) … which distinguishes between “the use of force” and “the use of lethal force”, the decision [of 9 September 2009] is clear in that it is considers it necessary for Parliament to establish the framework for the use of force and lethal force in accordance with the Constitution and the relevant human rights and international humanitarian law treaties. “Use of force”, without the adjacent adjective “lethal”, refers to any use of force that is not intended to cause death.