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Better Late than Never: the challenge of bringing justice to Brazil

In Barbara Tigre Maia on March 19, 2012 at 10:07 am

March 14th 2012 has become a historical day for Brazil. Brazilian prosecutors filed charges against former army officer Sebastião Curió Rodrigues de Moura for the disappearances of five guerrillas in the Araguaia region during the 1964–1984 military dictatorship[1]. If accepted, the indictment would be the first penal action aiming to punish a military employee for a crime committed under the years of military rule. As discussed below, Brazil sustains an Amnesty Law of 1979, applied to both military and civilians who have committed crimes during the dictatorship.

Nonetheless, recently the Federal Supreme Court has decided to extradite two Argentinean military officers who were living in Brazil under the claims of “permanent kidnapping” – the same charge being pressed now against Curió[2]. The Prosecutor’s Office action was heavily instructed by witnesses’ testimonies, including some of those who had participated in the military actions. According to the prosecutors, the five guerrillas were kidnapped by troops commanded by Curió between January and September 1974. Among the (estimated) 156 “desaparecidos politicos[3] of the dictatorship, 70 were in Araguaia. After sessions of torture there were no further news related to their whereabouts at the time.

To understand the importance of this news we need to briefly revisit the history of Brazilian dictatorship and its repercussions in the re-democratic era post-1985.

In the early 70s, militants of the Communist Party of Brazil (PC do B) settled near the Araguaia River to promote a rural uprising of resistance to the military regime, which held power since 1964. The movement was focused in the municipalities of south and southeast of the state of Pará and the northern part of the state of Tocantins. In order to gather a large amount of sympathizers, the militants soon established relationships with the local population, gaining knowledge of the region and also fostering a growth in members.

The military responded to these riots with actions of organized repression, fighting hard against the militant dissidents and culminating in the episode known as “Guerrilha do Araguaia” (Araguaia Guerrilla). Even though in many cases the state’s agents refrained from killing the dissidents outright, disappearances (abductions and kidnappings), mistreatments, egregious acts of violence and summary executions took place. According to the prosecution, Curió was in charge of these military operations that aimed to unveil and to fight the guerrilla project in the Araguaia region.

During her mandate, President Dilma Rousseff[4] created a Truth Commission to investigate human rights abuses – including those committed during military rule – approved by the national Congress. Although the idea of a national Truth Commission has been around for years in Brazil, the project remains scarily limited and with some quite critical aspects. First of all, a commission of this character should be autonomous and independent from the (Brazilian) State, and NOT revalidate the 1979 Amnesty Law (which will be addressed later on). Secondly, it should not encompass investigations of crimes committed between 1946-1988 as it currently stands (!) but it should be restricted to the two decades of military dictatorship the country has lived through (that is, 1964–1984). Thirdly, it should establish some sort of legal duty to send its reports and conclusions to the competent legal authorities.

Furthermore, instead of “promoting national reconciliation” it might have been better said to “promote the consolidation of democracy” – which is a more appropriate goal to prevent any repetition of the abuses seen under the military regime. It should also state that all activities by the Commission must be public – no exceptions granted. Accordingly, all the information and classified documents relevant to this period should also be available to public knowledge, otherwise Brazilian society will remain unaware of the facts that led to the severe violations of human rights by agents of the state and no “truth” will actually be found[5].

Until today, the Prosecutor’s Office remained inert thanks to the Amnesty Law of 1979[6], which forgave illicit acts both by the military and the militants[7]. But the people never forgot. Despite requests by the Inter-American Court of Human Rights[8], the Brazilian Supreme Court declared in 2010 that this law makes it impossible to punish the crimes committed during that period. The decision to maintain the Amnesty Law lies in the fact that it resulted from many debates involving politicians, lawyers and class members; at the time it was seen as a beneficial and necessary step to the Brazilian society on the transitional process towards a democratic regime and the possibility of revision could bring serious political instability now.

Nonetheless, the Inter-American Court stated that the prevailing interpretation of the Amnesty Law goes against international law – its dispositions that prevent the investigation and sanctions of severe human rights violations are incompatible with the American Convention on Human Rights (1969)[9], they lack judicial effects and cannot remain representing an obstacle to the investigation of the facts of the Araguaia case. It is also emphasized the imprescribility of Crimes Against Humanity (especially the case of torture[10], frequently seen in military dictatorships).

Thus, the Inter-American Court requested the Brazilian government to remove all practical and judicial obstacles related to the investigation of the crimes, to clarify the truth and to prosecute those involved. Moreover, it also emphasised the need to justify any denial of accountability – the Court affirmed that it is crucial for Brazil to adopt the necessary measures to bring its legislation on access to information in accordance with the provisions of the 1969 Convention. It also ruled in favour of reparations to the families of the victims involved in virtue of their suffering, including psychological torture, and perhaps even more importantly, it demanded the publication of all information concerning the Araguaia Guerrilla and the human rights violations committed during the military regime in Brazil.

Having that said, in order to overcome this legal obstacle (of law interpretation), the prosecutors now claim that the crime of kidnapping the five guerrillas is permanent[11] as long as the victims (or their bodies) are not found. Therefore the facts related to the case could not be integrated under the Amnesty Law, or fall upon a prescriptive period since the crime is still happening. In fact, the Prosecutor’s Office highly expects that the Supreme Court will keep coherence to its recent decision to extradite two Argentineans for the same charge. Even the United Nations has released a report asking the Brazilian Supreme Court to accept the indictment for it would represent the first step towards ending the on-going impunity that surrounds the period of military regime in Brazil[12].

Indeed the Prosecutor’s Office’ initiative endorsed by the Brazilian Minister of Human Rights Maria Rosário represents a landmark step for the country. Unlike other South American states, such as Argentina and Chile, in which the prosecution of alleged human rights violations during their respective military regimes has existed for years, the accountability for such crimes in Brazil has remained unattainable. The historical debts to the victims ‘families and to the Brazilian society finally have started to be paid. The Supreme Court should not let any legalism prevent the achievement of justice, nor allow a politicization of the process due to political pressure on behalf of the militaries. More than anything, this indictment portrays the engagement of Brazil in solidifying its democracy and can improve its international projection. For this reason, it symbolizes a unique opportunity for the country to show it is also able to play a leadership role in themes related to human rights and democracy, both internationally and domestically.

-Barbara Tigre Maia


[1] To read the news related to the case in English, see: BBC News. Brazil to charge army officer over military rule abuses. Available at: http://www.bbc.co.uk/news/world-latin-america-17371865. To read it in Portuguese, see: O GLOBO. MP vai denunciar Curió por 5 sequestros no Araguaia. Available at: http://oglobo.globo.com/pais/mp-vai-denunciar-curio-por-cinco-sequestros-no-araguaia-4299976. Both accessed on March 15th 2012 at 2h28 PM.

[2] To read on the divergent positions of the Brazilian Supreme Court and its Prosecutor’s Office and have a brief summary of the Guerrilla and the Amnesty Law, see: http://noticias.terra.com.br/brasil/noticias/0,,OI5665854-EI306,00-Ministro+tentativa+de+julgar+militares+gera+inseguranca+juridica.html. Accessed on March 15th at 10h05 PM.

[3] This is an expression in Portuguese that refers to the people who went missing due to political reasons during the military dictatorship period.

[4] An interesting remark here is that President Dilma Rousseff herself was condemned for subversion by the military regime, spending nearly 3 years in prison – from 1970 to 1972. In order to be able to become a member of a political party again she devoted herself in 1979 to the campaign for Amnesty, during the process of political openness coordinated by the militaries still in power. Her official biography is available in Portuguese on the Brazilian government’s webpage at: http://www2.planalto.gov.br/presidenta/biografia. Accessed on March 16th at 2h29 AM.

[5] A good analysis of the Commission established by President Dilma Rousseff with the amendments presented by the Democrats Party (DEM) was published by Rio de Janeiro’s Non-Governmental Organization “Tortura Nunca Mais” (“Torture Never Again”), founded in 1985 by ex-political prisoners. This is available at: http://www.torturanuncamais-rj.org.br/Noticias.asp?Codnoticia=305. Accessed on March 15th 2012 at 9h08 PM.

[6] It’s worth commenting that the Amnesty Law was approved during the military regime, so not only its interpretation but also its own legality should be strongly questioned since there was no democratically elected government at the time of its institution.

[7] For a general understanding of the development Human Rights Advocacy in Brazil, see: CAVALLARO, James L. Toward Fair Play: A Decade of Transformation and Resistance in International Human Rights Advocacy in Brazil. Chicago Journal of International Law, v.3, n.2, 2002. Pp.481-492. For a general overview of the crimes committed during the military regime with special remarks to torture, see: HUGGINS, K. Martha. Moral Universes of Brazilian Torturers. Albany Law Review, v.67, 2003. Pp.527-535.

[8] In the end of 2010, the Inter-American Court of Human Rights in a historical decision determined the international responsibility of Brazil for the forced disappearance of at least 70 peasants and militants of the “Guerrilha do Araguaia” (Araguaia Guerrilla) between 1972 and 1974, during the military dictatorship. This binding sentence was the first against Brazil for crimes committed at that period, which allowed debates concerning the authoritarian heritage of the dictatorial regime in the country. The full sentence of November 24th 2010 (Gomes Lund and Others (“Guerrilha do Araguaia”) vs. Brazil) is available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_por.pdf. Accessed on March 15th 2012 at 7h22 pm.

[9] The American Convention on Human Rights, also known as Pact of San José (Costa Rica), was signed on November 1969 and came into force on July 1978 – although Brazil only ratified it in 1992, seven years after its re-democratization. For the full text of the Convention, see: http://www.oas.org/juridico/english/treaties/b-32.html. Accessed on March 15th 2012 at 7h38 PM.

[10] In this case, the international norm would clash with Brazilian Penal Law, which cannot retroact: torture was only recognized as a specific crime by the country in 1997.

[11] According to Brazilian Law, a crime is considered “permanent” when the action of the crime has initiated but it hasn’t finished. In this case, five people were kidnapped but since there has been no evidence of their whereabouts and no victim has been found, dead or alive, the prosecutors consider that the crime is still happening and therefore could not apply to the Amnesty Law.

[12] To read the news in Portuguese, see: O GLOBO. ONU pede Brasil para levar a frente denúncia contra Curió. Available at: http://oglobo.globo.com/pais/onu-pede-para-brasil-levar-frente-denuncia-contra-curio-4326330. Accessed on March 16th at 5h46 PM.

So Sue Me: Kiobel v. Royal Dutch Shell and the Implications of Reparations

In Ben Kurland on March 2, 2012 at 4:36 pm

There is a long standing debate in human rights law as to the effectiveness of enforcement mechanisms. As many point out, international regimes often have very few means at their disposal to back up the law and actually get the bad guys. Effectiveness itself can be considered a loaded term academically because it can contain several notions of what it means to be effective. It depends on whether your goal is punishing offenders, truth and reconsolidation, or the restructuring of a broken system.

There is a significant avenue of effectiveness that is undergoing serious development: reparations. This means the ability for human rights victims to actually receive compensation of damages for their loses. For example, within the International Criminal Court’s (ICC) founding document, the Rome Statute, article 75 states, “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” This manifested itself in the Trust Fund for Victims which aims to bring reparations and general assistance to victims of crimes under the ICC’s jurisdiction.

While Human Rights law is often seen as belonging to the realm of international institutions, like the ICC, there is an interesting parallel under development in domestic courts and specifically the United States. Last Tuesday, the United States Supreme Court heard the case Kiobel v. Royal Dutch Shell. Kiobel is Esther Kiobel, the wife of one of the “Ogoni Nine” who were executed by hanging in 1995 along with Nigerian environmental and indigenous rights activist Ken Saro-Wiwa. She is suing Royal Dutch Shell, on behalf of a group of similar Nigerian nationals, alleging that the company aided and abetted the Nigerian government in the torture and extrajudicial killing of their relatives. This case has intense implications for U.S. domestic human rights law and involves serious questions about the development of human rights law in general.

The legal question of significance in this case is whether corporations are liable for torts committed in the violation of international law. This is a packed question so I will break it down.

At the crux of the argument is the Alien Tort Statue (ATS) (28 U.S.C. § 1350). Adopted in 1789, it has perplexed legal scholars and judges since for the mere fact that its sweeping impactions are only matched by its ambiguity. It is one line long and reads, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  There are several interesting pieces to this minute statute. Under its auspicious, aliens (non-U.S. citizens not extra-terrestrials) are allowed to file civil suits in the U.S. for violations of the “law of nations”. The statute neither defines who can be sued nor does it elaborate on what counts as a “violation of the law of nations”.

Under this statute in 1980, the Court of Appeals for the 2nd Circuit decided in Filártiga v. Peña-Irala that a national of Paraguay could sue another national of Paraguay for an act of torture committed in Paraguay in U.S. civil court. Filártiga was the family of seventeen-year-old Joelito Filártiga who sued Américo Norberto Peña-Irala, the then Inspector General of Police in Asunción, for Joelito’s kidnap, torture, and murder in 1976. The court found that it had subject matter jurisdiction (i.e. the right to hear the case) because, “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” [Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)]

This was a case between individuals, however. No international or domestic court has found that a corporation can be held accountable for human rights violations. Individuals within corporations can be found liable, but not the corporations themselves. As even the Nuremburg judgment states, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The majority opinion of the Court of Appeals for the 2nd Circuit which originally dismissed Kiobel’s suit even cited this line as a reason why they could find that, “the principle of individual liability for violations of international law has been limited to natural persons — not “juridical” persons such as corporations — because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.”

Where is the catch? As many will remember from the public outcry, the Supreme Court recently found in the Citizens United v. Federal Election Commission (No. 08-205) that corporations are individuals enough to receive the protection of the First Amendment when it comes to campaign financing. Now the question at hand seems to be: if corporations are individual enough to have the protection of free speech, are they individual enough to be sued for human rights violations? If so, they will then be liable, under the ATS, for civil litigation by aliens for crimes committed abroad.

The reason this is so important for international law as a whole is because U.S. Courts are effective and do have the means to enforce their decisions where international courts fall short. For example, the Court of Appeals for the 9th Circuit found that the estate of ex-Filipino dictator Ferdinand Marcos was liable for acts of torture, summary execution, and disappearances that were committed by his order or with his knowledge in Hilao v. Estate of Marcos (No. 95-16779). Why is this case especially important? The victims in the case actually got checks in the mail. So, if the Supreme Court finds in favor of Kiobel it would significantly expose large corporations to civil litigation and most of all the recovery of damages.

The debate goes both ways. Those arguing that corporations should be liable emphasize that it is important that these companies be held responsible for their actions. As Professor Oona A. Hathaway of Yale University points out, “there is usually no recourse available in the country where the abuses took place, often because the government participated.” As Susan Farbstein and Tyler Giannini of Harvard Law School claim, “In the defendant’s view, even a corporation that decided to establish a torture center to assist a dictatorship, or began trading slaves for profit, could not be held liable.” For proponents, human rights abuses are not isolated to individuals but often corporations either cooperate or commit violations themselves. It is important than in the interest of stopping such violations and recovering damages that there is an effective court mechanism to litigate such abuses.

On the other hand some, in the words of the Cato Institute’s Ilya Shapiro, argue, “Congress never gave U.S. courts the power to entertain lawsuits alleging corporate malfeasance involving foreign actors abroad.” The Constitution gives Congress the power to determine the extent of the Court’s jurisdiction. Allowing the Court to expand its own jurisdiction, according to Shapiro, would amount to a “democracy gap” which would be particularly problematic in such cases because, “foreign affairs…are appropriately the province of the political branches.” In the classical sense, international law is the realm of states with each state deciding by contract (treaty) which rules it would submit to in the international system. This according to Shapiro is the proper understanding of “the law of nations” as it would have been defined at the adoption of the ATS in 1789. International Human Rights law which represented an extension of international law to the protection of the individual rather than the state did not develop until the aftermath of World War II. Simply put, “the law of nations” did not apply to corporations in Congressional thought circa 1789. There is also the argument that allowing such lawsuits would lead to a huge influx of cases essentially cramming the U.S. judicial system. Just look at the backlog of the European Court of Human Rights.

Now, I do not really have the legal background to call this case strictly on its merits. I also do not want to engage in guessing at the individual tenor of each justice and which way they may vote. Although, after observing the justices during oral arguments Tuesday, Lyle Denniston of the SCOTUSblog.org seemed to draw a particularly pessimistic outlook if you are in favor of corporate liability saying, “a majority of the Justices looked notably unconvinced.” As but a lowly Masters student in International Relations I can merely comment on the implications this case has on international relations and leave the law aside.

First of all, if the court were to side with Kiobel, it would significantly increase corporate liability globally. Corporations are the big jackpot when it comes to civil suits because often times they are the ones with the coffers to pay up. If an avenue of litigation were to be made available in a court with the means to effectively award damages, like the United States, it would be a huge victory for those seeking reparations for human rights violations. Companies would in fact have to be more vigilant of their practices abroad especially in weak states or states that participate in human rights violations where they would formerly have been effectively immune. The argument that allowing such cases would cause huge backlogs is also fairly weak. These sort of large class action law suits are not easily put together. It requires a lot of time, money, and effort which frankly not many can coordinate. Also take into account that most cases get solved out of court in settlements and rarely see an actual trial. The incentives to settle will still remain the same.

A decision for Kiobel would present several challenges to the foreign policy of the United States. While the Federal government did submit an amicus brief on behalf of Kiobel, there can be little doubt that such law suits would severely limit the federal government’s ability to operate in such situations. This could either be good or bad considering your view of the role of politics in law. The fact remains is that allowing foreign nationals to bring such suits in domestic courts can be seen as a violation of another country’s sovereignty. The practice of comity dictates that states are supposed to respect each other’s laws, judicial decisions, and institutions. Allowing such law suits without a mechanism like the ICC’s “unwilling or unable” restriction would certainly be a violation of comity (according to article 17 of the Rome Statute the Court cannot accept a case unless “the State is unwilling or unable genuinely to carry out the investigation or prosecution”). As Justice Stephen G. Breyer pointed out during oral arguments, “there is no United States Supreme Court of the World.”

So, where does that leave us in the end of the analysis? Like most cases, the Supreme Court will most likely try to decide somewhere in the middle on this case; neither granting full immunity to companies nor placing itself as the Supreme Court of the world. What form these restrictions will take I do not know. I am not a lawyer and even if I was I cannot read minds let alone nine of them. In the end I can only suggest that the court establish corporate liability but create legal stipulations as to the types of crimes that can be brought and the level of material connection to the United States needed to justify jurisdiction. If such provisions are met, the world may have a new effective way to recover damages for human rights victims.

-Ben Kurland