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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.

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