[PLEASE DO NOT CITE} Transitional justice. What the Brazilian model of transitional justice has to say to the World

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1 Gustavo Carlos Macedo University of São Paulo [PLEASE DO NOT CITE} Transitional justice What the Brazilian model of transitional justice has to say to the World Abstract: This essay presents the debate about the social function of the Amnesty Law of 1979 in Brazil. It presents some possible interpretations about the law and how it is related to the debate of criminal responsibility. The main objective is to show how different readings may lead to different answers to the perceived challenges imposed by the law. Our work intends to show there is no easy choice because each of them presupposes some political conditions, but can leave room for some undesirable consequences. Introduction Most of the authors recognize that the transitional justice process in Brazil started with the approval of the Amnesty Law in 1979 (Lei 6.683/79) 1, which led to the release of thousands of political prisoners and the return of many exiles (BARAHONA de BRITTO, 2001:126). Traditionally interpreted as necessary for the political transitional, the amnesty had the objective of reconciliation between the state agents and their detractors. However, this objective is an interpretation because its existence is understood according to the historical context. To reduce the risk of misunderstandings, it is useful to resort to the text. According to the Law: Art. 1º É concedida anistia a todos quantos, no período compreendido entre 02 de setembro de 1961 e 15 de agosto de 1979, cometeram crimes políticos ou conexo com estes, crimes eleitorais, aos que tiveram seus direitos políticos suspensos e aos servidores da Administração Direta e Indireta, de fundações vinculadas ao poder público, aos Servidores dos Poderes Legislativo e Judiciário, aos Militares e aos dirigentes e representantes sindicais, punidos com fundamento em Atos Institucionais e Complementares. In this passage and in the whole text of the law there is no citation of the words torturador/tortura nor vítima. This is important as a first commentary because helps illustrate how complicated it is to give a precise interpretation of a law that should build a peaceful agreement between the civil society and the authoritarian regime. Back in 1979, the cases of tortures were already well-known between the victims and the military. The interpretation of a law that represented the interests of those in charge is shared by Barahona de Britto, who points out that the amnesty reached a partial result because not all the political prisoners were released, and members of the security forces were also included in the benefits of the law. This was accepted as a trade-off by the political class: thousands of previously disenfranchised politicians were allowed to re-engage in 1 The text of the Law is available at: <

2 politics in return for military impunity. (Ibidem) Another challenge is present by Martha Huggins. According to her, although Brazil had granted amnesty to known official (e.g., military and police) torturers and killers, most such internal security personnel had not used the amnesty process. This meant that most torturers and murderers could not be identified by confession or other self-revelation. (HUGGINS, 2000:60) Another important and controversial point about the law are the connected crimes (crimes conexos). For the jurist Flávia Piovesan, the interpretation of these crimes as equally shared by victims and perpetrators is an outrage for the international law. This is her central point to affirm that the Amnesty Law should be invalidated: Crimes conexos são os praticados por uma pessoa ou grupo de pessoas, que se encadeiam em suas causas. Não se pode falar de conexidade entre os fatos praticados pelo delinquente e pelas ações de sua vítima. A anistia perdoou a estas e não à aqueles; perdoou as vítimas e não aqueles que delinquem em nome do Estado. Ademais é inadimissível que o crime de tortura se concebido como crime político, passível de anistia e prescrição. (TELLES & SAFATLE, 2010:100) A broader conception of justice provided by a transitional justice theory can offer a different alternative to the problem of the revision/revocation of the Amnesty Law in Brazil. As pointed by Mendez, the state has four duties and the citizens have four rights, and the truth is similarly a duty and a right (MÉNDEZ, 2007). In this sense, if the CNV achieves its goal of revealing the historical truth, it will provide some of the substantive elements the victims may use to demand justice by prosecution. Also, once the truth has a pedagogical function, it may decidedly contribute to the demise of the cultural barriers that hamper the achievement of other forms of justice. Actually, there is no consensus in the literature about some important points. First, despite the fact that the authors agree with the origin of the Amnesty Law of 1979, there are some important details that are at stake. For instance, the meaning of the law regarding the political struggles since What groups and expectations were contemplated by the law? This is a central question because, as we have shown, its answer will suggest what should be the future of the law. In what extent is it legitimate? The studies of the origin of the amnesty in Brazil help answering these questions. Both agree with some central facts. The Amnesty Law of 1979 was possible because some political groups, especially composed by victims of the authoritarian regime or their relatives. The fight for amnesty took some years and gradually put different and spread groups together, at home and abroad. Initially seen with suspicion by the military, the final form of the law extended the benefit of the amnesty to the victims and to the perpetrators. Here, we can observe different explanations about this episode. Schneider, for instance, put more emphasis on the role played by the civil society and how it demobilized after reaching the common objective of amnesty, even with the consequent self-amnesty of the military. According to this reading, this was needed to build a climate of trust, which after leading to a peaceful transition to democracy. This

3 explanation understands the Amnesty Law of 1979 as a symbol of an agreement between both parts. Schneider also shows how this understanding is strong currently, even between some victims that occupy important political seats, notably in the Legislative and the Judiciary. (SCHNEIDER, 2011:50-52) On the other hand, Mezarobba offers an alternative reading of the process. I see this explanation as a historical institutionalism approach, which accuracy of analysis is more interesting because it is able to unveil the perpetuation of a patterns of behavior present both in the terms of the debate and the acts of some political actors, which seem to act according to a legal rationality. For this purpose, the author explains the origin of the Amnesty as a process that started with the demand of some social movements, but promptly was inverted by the military. According to this interpretation, there was really no room for debate in the 1979s and the consented opposition could not challenge the imposed pact. It is clear, therefore, that the Brazilian transition was handled so as to avoid what are now known as transitional justice mechanisms from being adopted at the start of the civilian government. (MEZAROBBA, 2010:12) In fact, this changes the meaning of the law a little bit. In this sense, the main objective of the Amnesty Law was not a peaceful transition, but the oblivion. This is the central point of the argument, which can be verified through the process that took more than 30 years. Actually, Mezarobba does not see the amnesty limited to the Law of Instead, it is a process of forgetfulness which was constantly reaffirmed in different episodes of the democratic transition. The first indirect elections for the Executive and the legislation of 1995 (9.140/95) and 2002 (10.559/02) all had in common the absence of the public debates and a rationality of oblivion. This leads to the second point about the Amnesty Law and its current function in Brazilian society. Is the need for justice a real necessity? If so, who demands this justice and why? Are the existing mechanisms of transitional justice enough? A possible way to answer these questions is returning to what the theory tells us what transitional justice should be and why. Then, we have to bear in mind if those objectives are compatible with the objectives of the Brazilian society. There is no easy response for that, but again, it is not possible to find out what should be done without a clear idea of how it started. Once again we are sent back to the explanations of what happened in As we have presented, the current debate is complex and there are different positions about what to do with the Amnesty Law. Also, a logical question that rises from it is the reflection about the criminal responsibility of the perpetrators. Again, not even the victims agree with the need for punishment. Altogether, regardless of any party affiliation or ideological disposition, legal experts disagree over whether it is viable to revoke the Amnesty Law from a juridical perspective. (SCHNEIDER, 2011:49) And it is highly related to the conception of justice. Briefly, as Juan Méndez put the question, the accountability is a crucial element of the transition to a democratic society. It has the role of education and enforcement. The citizens start believing in the democratic institutions of the rule of law when those institutions treat everyone equally before the law. This is fundamental principle of any democracy under the rule of law. Put in different words, not even the heads of the state should be above the law. Also, the

4 sentiment of impunity delegitimizes the political institutions and can throw the society in a spiral of distrust and insecurity. That is why the mechanisms of transitional justice should guarantee the realization of four principles: truth, justice, reform and reparation. This shows how complex is the Brazilian reality. This emerging democracy has to deal with a legacy of impunity, and its solution is not an individual right, but a social right. The Brazilian society has the right to know what happened and to judge it. The crimes committed by the perpetrators are crimes against the humanity, so they affect the society as a whole. Though, another difficult emerges. How to start the process of criminal responsibility? The frequent answer is the need for the revoke of the Amnesty Law. Despite these advances, it remains to be seen whether any prosecutions will take place. This would require an overturning of the blanket amnesty and firm executive commitment to confront any military resistance to justice. (BARAHONA de BRITO, 2001:143) This has already been tried before in 2010, when the STF decided for the upholding of the law. Also, some congressmen and congresswomen defend the revision truth the Legislative branch. This process has both a virtue and a problem. As I see it, the positive point of fighting for a congressional action is the consequent involvement of many social forces in the debate of justice and human rights something unusual in our political life. And, this process could initiate a deeper process of reflection on our political institutions and the type of country we want to build. However, this is a tricky argument, which understands that the result of this debate will be revision of the law and a consequent punishment of the responsible. It would require a high political cost, and would not challenge the culture of the judiciary. For this I mean the rationale that is present between those that do not believe in our institutions and so, they do not try the Amnesty Law in the tribunals. An alternative for this dilemma is presented by Mezarobba when we observe that the Amnesty Law has been tested only twice since 1979: In fact, the Brazilian courts have heard very few cases involving criminal liability. As far as is known, court cases testing the limits of the amnesty law in this respect were extremely rare, demonstrating not only the lack of confidence of the victims and their families in the legal system, but also how the climate of forgetfulness and impunity fostered by the military managed to restrain those affected by the violence of the regime. (MEZAROBBA, 2010:17) And in the last episode concerning Coronel Carlos Alberto Brilhante Ustra the tribunal recognized he was morally responsible for the act of torture and execution. But he was not criminally accountable. This is, to say little, inadmissible before the international human rights laws. So, according to Mezarobba thesis, if the demand for revoke presented by the OAB to the STF in 2010 had the objective of reaching punishment, it was probably mistaken. A law that discourages action is a law which performs its function. In this sense, the Amnesty Law is extremely efficient. As it was said before, the military were not amnestied because they did not seek amnesty. Our legislation imposes that the interested has to ask for amnesty to receive the official recognition of the state, and then its name is published in the Diário Oficial, which allows this

5 person to look for their rights of amnestied. The military did not go to the state asking for amnesty. Why? Because if they did so, they would be recognizing they did something to be amnestied for, e.g. torture. Who does not hold the status of amnestied cannot be protected by the Amnesty Law, so they could be prosecuted. (MEZAROBBA, 2007; HUGGINS, 2000) This is an alternative for the problem of punishment in Brazil, but there are some considerations about this point. Maybe the amnesty do not need to be revised to try the military agents, however, not modifying it can cause some unexpected harm. What does it mean to leave it as it is? What is the message Brazil is sending home and abroad when it does not revise or revoke the Amnesty Law? For instance, what about the condemnation of the self-amnesty by the IACHM? (TELLES & SAFATLE, 2010:118) More than thirty years after the approval of the Amnesty Law, it has already suffered some modifications by amendments. However, it endures and its presence and recent uphold by the Supreme Court (STF) in 2010 brought the question of its function back once again. In the following year, as part of the transitional justice process in Brazil, the National Truth Commission (CNV) has created (Lei 12528/2011) with the purpose of investigating serious human rights violations between 1946 and Differently to some Commissions around the world, the CNV does not have the function of judgment of the responsible for the violations. Stead, the Art. 3º of the 12528/2011 law establish that the Commission has the objective to: IV - encaminhar aos órgãos públicos competentes toda e qualquer informação obtida que possa auxiliar na localização e identificação de corpos e restos mortais de desaparecidos políticos, and VI - recomendar a adoção de medidas e políticas públicas para prevenir violação de direitos humanos, assegurar sua não repetição e promover a efetiva reconciliação nacional Brazilians should also take this into account if they opted by not changing the situation of the law even if they choose the trials of the military. Possibly, this debate can evolve to a well know contradiction if the international and external image. The conclusion is that even the third alternative does not solve all the problems because it can also lead to another challenge. Probably, the more effective choice between the alternatives presented should be the one which makes the better interpretation of how the Brazilian society is presently organized. What alternative will find more support from the different social actors? Which social actors should be taken into account? How different is the present society and its forces regarding the military years? There is no chance for a test, and the next generations will judge our choices the same way we do today. But there are some signals to be considered. I prefer to think that we should not lose the opportunity to listen to the different positions, even if they are opposed. The freedom of speech in Brazil is not perfect today, but is greatly different from There is not much time for reflection, who takes the first step gains relative advantage.

6 Bibliography Barahona de Brito, Alexandra Truth, Justice, Memory, and Democratization in the Southern Cone. In The Politics of Memory: Transitional Justice in Democratizing Societies, edited by A. Barahona de Brito, C. González-Enríquez and P. Aguilar. New York, NY: Oxford University Press Fernandes, Padua Nem justica nem transicao: a lei brasileira de anistia e o Supremo Tribunal Federal, Sopro 30 (2010) Available at: Huggins, Martha K Legacies of Authoritarianism: Brazilian Torturers' and Murderers' Reformulation of Memory (in The Military-Police Nexus). Latin American Perspectives 27 (2): Mallinder, Louise Can Amnesties and International Justice be Reconciled? International Journal of Transitional Justice 2 (1): MÉNDEZ, Juan. Interview with Juan Méndez, President of the International Center for Transitional Justice, SUR-International Journal for Human Rights, 7:4, 2007 Mezarobba, Glenda. (2010) Between Reparations, Half Truths and Impunity: The Difficult Break with the Legacy of the Dictatorship in Brazil, Sur- International Journal on Human Rights, 7(13): O Preço do Esquecimento : as Reparações Pagas às Vítimas do Regime Militar. Tese de Doutorado; orientador Gildo Marçal Brandão. USP - São Paulo, f.. Um acerto de contas com o futuro: a Anistia e suas consequências um estudo do caso brasileiro. Dissertação de Mestrado, São Paulo, Depto de Ciência Política, USP, Payne, Leigh, Unsettling accounts: neither truth nor reconciliation in confessions of state violence, Duke University Press (2008) Schneider, N. (2011). Breaking the Silence of the Military Regime: New Politics of Memory in Brazil. Bulletin of Latin American Research 30(2): Schneider, Nina The Supreme Court s Recent Verdict on the Amnesty Law: Impunity in Post- Authoritarian Brazil, European Review of Latin American and Caribbean Studies 90 (2011): Telles, Edson. & Safatle, Vladimir. O Que Resta da Ditadura. São Paulo : Boitempo, 2010