Forgotten Victims

From 1980 to 2000 Peru was experiencing one of the bloodiest periods of its recent history. An internal armed conflict and a sterilization program implemented by the government led to countless human rights violations. The armed conflict resulted in the disappearances and deaths of over 70.000 people, but the other 300.000 victims of the forced sterilization policy are widely neglected. The Peruvian Truth and Reconciliation Commission (TRC) did not deal with this crime and neither did the competent domestic courts, as attempts to bring this case to trial have still not been successful. This blogpost draws attention to the forced sterilizations committed in Peru between 1996 and 2000 and argues that prosecuting them as a genocidal act is essential to acknowledge the gravity of systematically targeting Peru’s indigenous population and to address current impunity.

Unveiling the Past

The decades-long racial and social divide in Peru served as a catalyst for the country’s internal armed conflict. The fighting between the State and the radical left-wing guerrilla group, the Shining Path, only exacerbated this division and led to grave violations by both parties.

In 1990, when Alberto Fujimori was elected President, a new decade with social and economic transformations was about to start. Peru was in a terrible economic crisis with hyperinflation over 7.600 %. One of Fujimori’s main goals was to economically develop the country and lower poverty rates. Therefore, in 1996, the State launched the Programa de Salud Reproductiva y Planificación Familiar [Program of Reproductive Health and Family Planning (PSRPF)], which ultimately led to more than 300.000 indigenous women and 22.000 indigenous men being forcibly sterilized. Officially, the PSRPF was a national health program that promoted contraceptive methods and reproductive health. However, the government was hiding the underlying intentions behind it, misusing it to aggressively promote permanent sterilizations as a method of family planning. The PSRPF was a tool to combat poverty via population reduction which the government assumed would increase gross domestic product per capita (Carranza, 94).

Peru’s Lacking Legal Framework

Peru has a fragmentary legal framework that does not recognize sexual violence as an international crime. Thus, legally addressing the crimes of forced sterilization is a frustrating task. Sexual violence is regulated as an ordinary domestic crime. However, in the case of forced sterilizations, the acts committed from 1996 to 2000 fall under the statute of limitations, which is set at 20 years, according to Article 80 of the Peruvian Criminal Code (PCC). Moreover, categorizing these crimes as domestic crimes fails to capture their inherent gravity since the government systematically targeted the indigenous community (Kravetz, 734).

The only crimes that do not fall under the statute of limitations are stated in Articles 319 to 324 PCC and include genocide, forced disappearance, torture, discrimination, and genetic manipulation. Given the lack of clear provisions, it is argued that sexual violence can still be prosecuted as an international crime ‘provided that the charges are grounded in international law binding on Peru and that the required contextual elements for international crimes are met’ (Kravetz, 735; Peruvian Supreme Court, Exp. Nº A.V. 19-2001, paras. 56, 711, 714, 717, 803). This reasoning stems from the Peruvian Constitutional Court’s prioritization of international human rights treaties over domestic law (Peruvian Constitutional Court, STC 2488-2002-PHC, para. 23; Exp. 01460-2016-PHC/TC, para. 50). In practice, criminal behavior is prosecuted according to domestic regulations, with arguments often made to establish its classification as a crime against humanity based on the fulfillment of contextual elements (Kravetz, 735). Alternatively, sexual violence may qualify and be prosecuted as torture (under Article 321 PCC), but this norm was only adopted in 1998, meaning that the crimes committed from February 1996 to 21^st February 1998 cannot be included.

Hence, the Peruvian legal framework that is available for addressing sexual violence as an international crime is inadequate, leaving a sense of injusticed a gap for impunity.

Prosecuting Forced Sterilizations as Genocide

Peru follows a monistic legal system. The state ratified the Convention on the Prevention and Punishment of the Crime of Genocide in 1960. Hence, the treaty was legally binding right after its ratification. Furthermore, the prohibition of genocide is incorporated in Article 319 PCC. Thus, there is a solid legal basis for this crime in both the domestic and international legal system.

According to the Genocide Convention (Art. 2), genocide refers to ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’. The indigenous population, distinguished by physical and cultural differences from European descendants, forms a distinct ethnic and racial group. The implementation of the PSRPF further caused serious bodily and mental harm to the victims (Art. 2b Genocide Convention) given thatsterilization procedures caused infections and excruciating pain. Several women died because of a lack of postoperative care. Victims also reported enduring long-term disadvantages in their daily lives post-procedure, unable to resume their previous way of life (Carranza, 97). The PSRPF was also a policy intended to prevent births (Art. 2d Genocide Convention). The government mandated the distribution of family planning methods to at least 50 percent of women of childbearing age, indicating a deliberate aim to reduce births within this demographic.

Moreover, the crime of genocide requires special intent. A conviction for the crime of genocide is only given where it is established that, in addition to mens rea, the perpetrator committed acts with the specific intent to destroy, in whole or in part, a specific group. The intent to destroy the indigenous population is reflected in the purpose behind the forced sterilization program. The Peruvian government targeted the indigenous population, because it perceived it as responsible for the country’s poverty. This belief was exacerbated by a colonialist mentality and a sense of superiority (Carranza, 100). Moreover, to achieve the economic development that Fujimori had in mind,State implemented mandatory sterilization quotas, monetary incentives, and penalties for medical personnel, such as threats of sanctions and denial of promotions (Gilmore and Moffett, 2). This pressure led to victims being maliciously misinformed about the sterilization process to influence them and undergo the procedure. Lastly, the intent to destroy means the physical or biological destruction of the group. This requirement was also existent, considering that sterilization prevents persons from procreating (Carranza, 95).

Confronting Impunity

The lack of accountability for this crime appears incomprehensible, yet the victims have never seen justice come to light. Given that the TRC had a positive impact in Peru it could have been a useful tool to investigate and report on the crimes of forced sterilization. Its mandate was to clarify the process, the events, and the responsibilities concerning human rights violations perpetrated by the State from 1980 until 2000. However, TRC Commissioners argued that forced sterilization was not directly related to the internal conflict and therefore did not include this investigation in their work (Getgen, 18). Now, while reparations are being provided to 70,000 victims of the armed conflict based on TRC recommendations, the victims of forced sterilization have been left without any compensation (Vidal, 20).

Moreover, several attempts were made to file cases in domestic courts, but none of them were successful. In 2016 there was an attempt by human rights organizations to bring 2,074 cases of forced sterilization to the Public Prosecutor’s Office, but these cases were quickly set aside because of ‘insufficient information’. Only after pressure from the Inter-American Court of Human Rights and human rights organizations were these cases reopened (Carranza, 95).

Precisely, in 2018, criminal investigations against Fujimori and related government personnel reopened. The case had several backlashes because of, for example, the lack of translators for the mostly Quechua-speaking victims and the COVID-19 pandemic (Vidal, 44). Given the delays, the hearings only started in March 2021 (Carranza, 104). Nonetheless, one of the accused, former Health Minister Alejandro Aguinaga, submitted a complaint that was declared founded by the Supreme Court, which agreed that there was lack of proof and reasoning concerning the categorization of forced sterilizations as human rights violations and crimes against humanity (El Peruano, 13/12/2023, Ed. 3674).

Final Reflections

Although forced sterilizations had dramatic implications on the victims of the PSRPF, the Peruvian legal framework cannot properly address these implications and grant redress for the victims. At this point, the statute of limitations will be applied hindering judicial action, even though, as the analysis above highlights, the implementation of the PSRPF was a genocidal act.

Against this background, it is imperative to acknowledge and rectify the injustices committed towards the indigenous population. Failure to do so will only perpetuate the conception of superiority, which will keep on dividing Peruvian society. Action can be taken through prosecutions, reparations, and truth-seeking inquiries, while symbolic acts such as public acknowledgments and apologies may also be helpful, especially in an atmosphere of denial and indifference (Getgen, 33-34). Peru’s dark history cannot remain unresolved. Pursuing justice is not just a moral duty, but a cornerstone of international law. Only by taking decisive action, we can support the victims and finally overcome the impunity gap.