WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado

Contextualizing Transitional Justice in Brazil:

Understanding the Lack of Accountability in Brazil and its Consequences for Contemporary Protection of Human Rights

- James L. Cavallaro & Fernando Delgado

Working Draft Paper Presented at the Sanela Diana Jenkins

Human Rights Series, Stanford University

1 WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado

Contextualizing Transitional Justice in Brazil:

Understanding the Lack of Accountability in Brazil and its Consequences for Contemporary Protection of Human Rights

- James L. CavallaroË & Fernando DelgadoÙ

Whoever is opposed to the [democratic]opening, I will jail and tear apart.1

- João Baptista de Oliveira Figueiredo, last of the Brazilian dictators before the 1985

transition

I. Introduction

Two interesting transitional justice developments took place in Brazil at the end of 2010. In the second round of voting on the last day of October, Brazilians elected Dilma Roussef to be the

Ë Clinical Professor of Law, Harvard Law School; Executive Director, Human Rights Program Harvard Law School; founder, former executive director, and current vice president, Global Justice Center, Rio de Janeiro, Brazil. Ù A.B. Princeton University; J.D., Harvard Law School; Alan R. and Barbara D. Finberg Fellow, Human Rights Watch. This paper contains the views of the two authors which may not coincide with those of their institutions. An earlier version of this paper was presented at a conference organized by the United Nations University at Oxford University. 1 “Quem for contra a abertura, eu prendo e arrebento.” “O último dos cinco,” Memória (obituary), Época, Jan. 3, 2000, available at: http://epoca.globo.com/edic/20000103/brasil3.htm.

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first woman president of Brazil. Some six weeks later, in mid-December, the Inter-American

Court issued its ruling in the Julia Gomes Lund (Guerrilha do Araguaia) case against Brazil. Both of these events have significant potential for transitional justice and accountability for gross violations of human rights during the military dictatorship (1964-1985) in Brazil. First, Dilma

Roussef, Inácio ‘Lula’ da Silva’s standout chief of staff and energy minister, is also a former guerrilla leader, who was captured and tortured during the military dictatorship. An April 2009 story in the influential Folha de S. Paulo daily addressed Roussef’s alleged criminal record, a topic that her political opponents sought to exploit. Yet the ‘guerrilla’ angle had relatively little weight with the electorate. Second, the Inter-American Court’s judgment, following a long line of jurisprudence in this area, invalidated the country’s amnesty law. Both these developments suggest that change in Brazil’s approach to accountability for the abuses of the dictatorship might be on the way. Despite three decades amnesty, Brazil might well be at a critical juncture in its transitional justice trajectory.

This paper suggests, however, that rupture is unlikely. One might expect a former guerrilla president might to lead a process to revisit the amnesty law, emboldened by the rebuke of an international court decision to that effect. But the two events may instead demonstrate that

Brazilians are content with an approach that has emphasized forgetting and page-turning without accountability, an approach that values sovereignty over engagement with global human rights standards. Rather than following the increasingly uniform continental trend toward accountability, Brazil may be destined to continue on its own, alternative, ‘exceptional’ path. This path has been characterized by profound official resistance to efforts to question or

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challenge the 1979 Amnesty Law. This resistance to reopening the issue of amnesty and impunity has co-existed with high levels of rejection, in discourse, at least, of the military dictatorship. However, because the discursive rejection of the dictatorship has failed to challenge core elements of the public security framework of the military regime, impunity for state violence that marked the period of exceptional rule, as well as authoritarian elements of

Brazil’s approach to criminal justice, have remained in place.

II. Background

Kathryn Sikkink has observed that Latin America, as a region, has led a global process of accountability for human rights violations over the quarter century from 1979-2004. She further notes an apparent correlation between the extent of accountability, on the one hand, and the advance of democracy and respect for human rights, on the other.2 As she observes, although the region has surpassed others in advancing accountability, within Latin America, there has not been uniformity. One vital Latin American state—Brazil—has lagged behind.

Accountability for the gross violations of human rights committed by agents of the military dictatorship in Brazil (1964-1985) has, on the whole, been extremely limited. We attribute this to a combination of the extended effects of the country’s top-down transition, the relatively low numbers of victims of mass atrocity, at least by Latin American standards, the surge in

2 See, Kathryn Sikkink, “The Politics of Transitional Justice,” draft on file with authors. Sikkink observes that Latin America, the region that has made the most extensive use of trials, is also the region with the “most complete democratic transition of any transitional region.” She also posits, and provides data to support, a link between accountability (measured by years of human rights trials and the existence of truth commissions) and current human rights practices.2

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crime that accompanied the transition to democratic rule and the relative isolation of Brazil.

We suggest, in consonance with Sikkink’s initial conclusions, a causal relationship between this failure of accountability, on one hand, and, on the other, incomplete support for democracy in

Brazil, continued severe human rights abuses in the country, and the legitimacy gap plaguing human rights defenders in Brazil today.

Our argument emphasizes the centrality of the confluence of factors that have led to weak accountability to our understanding of the legacies of authoritarian rule in Brazil today. The policies of the period of authoritarian rule (1964-1985), as well as the inability of democratic leaders to respond effectively to crises in the economy and criminal justice system, helped cause the surge in crime that now undermines public support for human rights and democracy.

Impunity, still the norm for the vast majority of abuses committed by state agents, has thus continued to reinforce itself. Today, Brazil has reached a strange new phase. Public opinion generally opposes the military dictatorship. At the same time, large segments of the Brazilian population question democracy and disdain human rights, while supporting the kinds of rights abuses entrenched by the military government. This decoupling—indeed, paradox—is tied to the lack of accountability for the crimes of the military era, which, in turn, has kept the anti- dictatorship national consensus precarious and toothless. This paper examines the contemporary debates on accountability in Brazil in the context of these legacies of the transition.

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III. Dictatorship, Amnesty, Transition, and Limited Accountability

On April 1, 1964, the Brazilian military ousted democratically elected President João Goulart.3

The coup was the dawn of twenty-one years of military dictatorship.4 While always repressive, the military regime under its first dictator, Humberto de Alencar Castelo Branco, did not reach the levels of extreme violence that characterized the first months and years of authoritarian rule in the post-coup period in Chile after Septemer 11, 1973 or Argentina after March 24,

1976. It was not until December 13, 1968, that the military regime, now under Artur da Costa e

Silva, intensified its repressive apparatus with the presidential decree Ato Institucional 5

(Institutional Act 5, or AI-5). AI-5 allowed the indefinite closing of Congress, suspended habeas corpus for those accused of crimes deemed political, enabled a new strict censorship scheme, curtailed the right to assembly, and established the bases for mass surveillance of the public, among other measures. AI-5, itself a presidential decree, also granted the president the right to legislate by decree.

3 The coup was already underway on March 31,but it wasconsolidated the following day. Anonymous. Brasil: Nunca Mais. São Paulo: Arquidiocese de São Paulo, 1985. 4 The period of military rule in Brazil was one of systematic serious human rights abuses. On the basis of the limited universe of military justice casefiles, Brasil: Nunca Mais (explained later on) reported on the torture of 1,843 persons in the first thirteen years of the 21 year dictatorship. In doing so, it stated that the source material necessarily excluded an “incalculable” number of other cases. In addition, 356 cases of persons murdered and/or disappeared by the military were officially recognized by the Special Comission on Political Deaths and Disappearances. Furthermore, at least 30,000 people were estimated to have been arbitrarily arrested or tortured during the dictatorship period according to two of the lead federal prosecutors in recent court challenges to impunity. Brasil: Nunca Mais, Projeto A, Tomo V, Volume I; Direito à Memória e à Verdade, Commissão Especial sobre Mortos e Desaparecidos Políticos, Secretaria Especial dos Direitos Humanos da Presidência da República, 2007, p. 48; Ofício ao Doutor Juan Mendez (ICTJ) dos Procuradores Marlon Alberto Weichert e Eugênia Augusta Gonzaga Fávero, Procuradoria da República em São Paulo, Ministério Público Federal, No. PR/SP – GABPR12-EAGF- 352/2008, 4 de junlho de 2008.

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AI-5, known as the “coup within the coup,” was a victory for the hardliners within the military government that foreshadowed the importance of denial and non-accountability in the transitional period to come many years later. During the first three years of military rule begun in 1964, when challenged about sporadic incidents of torture and killings, Castelo Branco’s administration publicly denied that the military engaged in such practices. At the same time, his administration failed to ensure prosecution in instances of serious violations that came to its attention. Elio Gaspari explains how this led the hard liners within the regime to intensify their abuses.5 The rise of the hard liners corresponded to the most violent period, the six years following the December 1968 decree. The pattern of official denial, permissiveness, and impunity with respect to human rights violations would be repeated (albeit, with its own specificities) in post-transition Brazil.

For ten years, AI-5 remained in force,6 but the first six years of the decree’s application were the harshest years of military rule. Under Costa e Silva and his eventual successor, General

Emílio Garrastazu Médici, Brazilians suffered a severe curtailment of their civil and political rights, as the military government engaged in systematic torture, killing, disappearing, jailing, exiling, censuring, and harassing of its citizens, particularly those it perceived to be political opponents. In reference to the bullets employed by the repressive forces, the years between

5 Elio Gaspari, A Ditadura Envergonhada (S. Paulo: Companhia das Letras, 2002), 144. 6 Skidmore, Thomas. The Politics of Military Rule in Brazil: 1964-1985. New York: Oxford University Press, 1988: p. 203.

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AI-5 in 1968 and the end of Médici’s rule in 1974 are popularly known as the anos de chumbo

(years of lead).7

The military government established repressive structures to ensure its capacity to suppress all forms of opposition (armed resistance, intellectual dissent, labor organization, student protest, etc.). Security agents forcibly disappeared and executed hundreds, most after A1-5.8 These forces also tortured political detainees as a matter of routine.9 While police had used torture and other forms of severe mistreatment against suspects of ordinary crime for years, the dictatorship transformed sporadic, unprofessional violence into an institutional practice. They perfected torture methods and exported them to neighbors after democratically elected governments in those countries had been toppled in the southern hemisphere course of the

Cold War. As Marie-Monique Robin documented, as the first South American Cold War anti- communist dictatorship, the Brazilian military regime was instrumental in spreading methods learned from the French and the Americans throughout Latin America. As Robin explained, the

7 See, e.g. Brasil: Nunca Mais, Projeto A, Tomo IV, p. 27-42; Jornal do Senado, Edição Comemorativa dos 180 do Senado Federal, May 8-16, 2006, p. 11, available at: http://www.senado.gov.br/comunica/180anos/jornal.pdf. 8 In this regard, two clear trends are worth noting. First, the numbers of dissidents killed or disappeared in the first five years of military rule are relatively low compared with other countries in Latin America. Second, after AI-5, military leaders increasingly employed enforced disappearance as the preferred means of eliminating opponents. As Elio Gaspari observes, while security forces killed 58 from 1964-1969, they murdered 249 from 1970-1974. Similarly, while only four enforced disappearances were recorded from 1964 to 1969, 119 were registered from 1970-1974. In that last year, 1974, the number of enforced disappearances, 52, matched the number of political killings. See, Elio Gaspari, A Ditadura Derrotada (S. Paulo, Editora Schwarz Ltda., 2003), pp. 388-389. 9 See, e.g. Brasil: Nunca Mais, Projeto A, Tomo V, Volume 1; Direito à Memória e à Verdade, Commissão Especial sobre Mortos e Desaparecidos Políticos, Secretaria Especial dos Direitos Humanos da Presidência da República, 2007, p.89-430.

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Brazilian military regime “established a training center in Manaus, ‘a copy of Fort Bragg.’” 10

According to Robin, Manuel Contreras, chief of the secret police under Pinochet in Chile, acknowledged that Chilean political police trained at the Manaus school in the 1970s. Brazilian agents also played an active role in Operation Condor, a deadly international assault on dissidents coordinated by the region’s military dictatorships from 1975.11 Having never been held accountable, after the end of the dictatorship, Brazil’s security forces, including ordinary police, would continue to torture thousands of detainees. They would also continue to execute hundreds summarily. As was the case prior to the dictatorship, the victims of torture were no longer political dissidents, but instead, ordinary detainees in the criminal justice system and the victims of summary executions, mostly suspects in poor, outlying shantytowns.

One dictatorship era measure also worthy of note was Decree-Law 1.001 of 1969 which expanded the jurisdiction of military courts to cover all offenses committed by military police

(in Brazil, the vast majority of ordinary police on the streets are military police). The transfer of jurisdiction over incidents of abuse committed by police served, in practice, to guarantee impunity not only for crimes perpetrated during authoritarian rule, but also for those committed years after Brazil’s transition to democracy.12 .

10 Robin, Marie-Monique. “Counterinsurgency and Torture: Exporting Torture Tactics from Indochina and Algeria to Latin America.” Torture: A Human Rights Perspective. New York: The New Press, 2005 (published in conjunction with Human Rights Watch): p. 49-53. 11 Ibid. 12 See, e.g. Final Justice: Police Death Squad Homicides of Adolescents in Brazil. Human Rights Watch/Americas, 1994: p. 41-47. Although in 1996, Law 9.299 shifted jurisdiction over intentional homicides committed by military police back to ordinary courts, crimes classified as unintentional killings, severe non-lethal physical abuse, and other, lesser offenses continue to be investigated and prosecuted within the specialized military courts. One study of the universe of killings from 1993 to 1996 in Rio de Janeiro located 301 investigations in the military justice system. Of the 301 cases located, 295 had been dismissed without any judicial proceedings; the remaining six

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The slow transition: In 1974, more moderate elements within the military took control of the presidency and the direction of the Brazilian government. Ernesto Geisel assumed the presidency that year, and began a gradual process of liberalization, somewhat easing censorship, restrictions on labor organizations, and the intensity and frequency of the worst forms of abuse. After banning parties on the left, the military government under Geisel allowed elections in 1974, largely won by the authorized opposition, the Movimento

Democrático Brasileiro (MDB). The military still controlled the executive and dominated a pliable legislature. But unlike its Southern Cone neighbors, Brazil engaged in a process of gradual opening of political spaces. This would have important consequences for the effectiveness of measures seeking accountability.

The 1979 Amnesty Law: In March 1979, João Baptista de Oliveira Figueiredo assumed the presidency having promised to seek reconciliation and reestablish democracy in Brazil.

Figueiredo oversaw the liberalization process initiated by Geisel, reducing censorship and removing more limits on political participation. The most important measure adopted related to (non-)accountability in this period was the Amnesty law, approved in August 1979.13 The law ensured immunity from prosecution for security forces and dissidents who had engaged in political violence. The Amnesty Law promulgated by the military government was intended by

were dismissed on motions by the prosecutors once the judicial process began. Not a single case led to any criminal sanction of the police officers involved in killings civilians. Ignacio Cano, The Use of Lethal Force by Police in Rio de Janeiro (Rio de Janeiro: ISER, 1997). 13 Lei Nº 6.683, Aug. 28, 1979.

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them to shield state torturers and killers from prosecution without any conditions, such as truth-telling, as was required in certain other states, most notably years later in South Africa.

However, as originally conceived, amnesty was not intended to benefit state security forces.14

The amnesty sought by Brazilian civil society was of the sort that inspired the creation of

Amnesty International: forgiveness for political dissidents that had been, or still were punished for their political views by an oppressive regime.15 The president of the Brazilian Amnesty

Committee, attorney Eny Raimundo Moreira spoke out in 1978 against the idea of amnestying state agents, “because [their] crimes were never punished and a person who was never punished cannot be amnestied.”16

Not able to contain the popular movement, the government advanced a proposal for legislation containing an amnesty for its own crimes and those of its agents, while amnestying many, but not all, of the crimes of the military’s political opponents.17 A negotiated document that

14 As recounted by Homero de Oliveira Costa, a member of one of the first popular Brazilian Amnesty Committees, the idea for an amnesty emerged in 1978 from popular mass protests against political imprisonment and other forms of legal and quasi-legal repression. The demonstrations united various opponents of the dictatorship including students, clergy, artists, intellectuals, and family members of the disappeared, all seeking amnesty for those who had been prosecuted and persecuted under the dictatorship’s laws and policies. Costa, Homero de Oliveira, “Incursões na História das Anistia Políticas no Brasil,” Enciclopédia Digital e Direitos Humanos, 2º Ed. Natal: DH Net – Rede de Direitos Humanos e Cultura, 2002, CD-ROM, available at: http://www.dhnet.org.br/direitos/anthistbr/redemocratizacao1988/homero_anistia.html#Homero. 15 See “The History of Amnesty International,” Amnesty International. Homepage. Accessed on October 5, 2008, available at: http://www.amnesty.org/en/who-we-are/history. In other words, civil society was demanding amnesty for the roughly 200 political prisoners, 128 opponents who had been banished, 10,000 exiles, 4,877 government officials fired on account of “excessive acts,” and 263 students expelled from university because of a military decree. See Costa, op. cit. 14; see also Anonymous. Brasil: Nunca Mais. São Paulo: Arquidiocese de São Paulo, 1985 (recounting very similar, though slightly different, numbers). 16 “Não podemos falar em anistia para os acusados da prática de torturas...porque tais crimes nunca foram punidos e não se pode anistiar quem não chegou a ser punido.” “A Anistía em Julgamento,” Veja, Mar. 1, 1978. 17 Costa.

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changed several times following failed votes on versions that more closely resembled the demands of the Brazilian Amnesty Commission, the eventual Amnesty Law of 1979 was controversial, passing Congress by a narrow margin of 206 to 201.18 Only later, through a ruling by the Supreme Judicial Military Tribunal, was the amnesty interpreted as extending to all government political opponents.19

Today, the government continues to cite the Amnesty Law as a justification for its failure to prosecute those allegedly responsible for rights abuses during the dictatorship.20 Since the

Amnesty Law of 1979, there have been gradual advances promoting access to information and reparations for certain victims of some of the abuses of the dictatorship. A civil trial court ruled in 2008 in favor of a claim based on the right to access information, as we discuss below.

However, there has been no change, in practice, in the lack of criminal prosecutions.21

18 While Congress voted, a packed audience chanted “the fight will continue,” and “united, the people, will never be defeated.” “A luta continua” and “o povo, unido, jamais será vencido,” respectively. Cantanhêde, Eliane, “Os Anistiados no Poder,” Folha de São Paulo, Op-Ed column, Sep. 1, 2004. 19 Junior, Tercio Sampaio Ferraz, “Revisão para Ficar Tudo como Está?” Nov. 2006, accessed on May 10, 2008, available at http://www.torturanuncamais-rj.org.br/sa/Artigos.asp?Codigo=38. 20 Examples include the incidents of torture and killings in response to a guerilla movement in the Amazon region. The Inter-American Commission on Human Rights deemed admissible a petition challenging state failure to investigate these crimes that had been filed by, among others, families of tortured and disappeared members of the Araguaia guerrilla, an armed opposition group in the early 1970s: With respect to the petitioners' allegation that comprehensive reparation of the violation requires the investigation thereof and punishment of the perpetrators, the State alleges that such punishment is rendered impossible by the existence of the Amnesty Act enacted in 1979, which remains in force. Guerrilha de Araguaia, Julia Gomes Lund e outros v. Brasil, Admissibility Decision of the Inter-American Commission, para. 33. 21 As is discussed later, the Federal Prosecutorial Ministry (Ministério Público Federal) recently initiated a criminal investigation into a dictatorship-era crime in Rio Grande do Sul. However, this cannot be said yet to signal a change in the government’s posture. As we explain below, the presidential position regarding amnesty has not changed though certain groups within the government (most notably the Minister of Justice, the Special Secretary for Human Rights and certain members of the autonomous Federal Prosecutorial Ministry) do support prosecutions.

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A Policy of Non-Disclosure and Sanctioned Forgetting: While foreclosing criminal prosecution, the Brazilian government has also consistently refused to disclose information about violations.

In 2005, a federal law signed by President Lula determined that certain government documents could remain classified virtually in perpetuity.22 More recently, the Lula administration has resisted judicial efforts to force disclosures of military documents from the dictatorship era, including a public civil suit brought by the Federal Public Ministry (Ministério Público Federal) seeking the release of files relating to the São Paulo secret police unit created at the beginning of the anos de chumbo period.23

Law 9.140: Compensation without investigation: As noted, the Amnesty Law has effectively barred efforts at state-led accountability. It would not be for some fifteen years—with the drafting of Law 9.140 on compensation for the most serious rights abuses—that the

22 Lei Nº 11.111, República Federativa do Brasil, May 5, 2005. 23 Ação Civil Pública, Ministério Público Federal, Vara da Seção Judiciária de São Paulo – Capital, 12 de maio de 2008, (Procuradora da República Eugênia Augusta Gonzaga Fávero, Procurador Regional da República Marlon Alberto Weichert, Procuradora da República e Procuradora Regional dos Direitos do Cidadão Adriana da Silva Fernandes, Procuradora da República Luciana da Costa Pinto, Procurador da República Luiz Fernando Gaspar Costa, e Procurador da República Sergio Gardenghi Suiama), available at: http://www.prsp.mpf.gov.br/cidadania/Inicial%20ACP%20Mortos%20e%20Desap%20-%20Final.pdf; Contestação à Ação Civil Pública, Advocacia-Geral da União, Procuradoria-Regional da União da 3ª Região-SP/MS, Processo no. 2008.61.00.011414-5, 8ª Vara Federal Civel de São Paulo – 1ª Subseção Judiciária do Estado de São Paulo, 14 de outubro de 2008 (Adovagada da União Lucila Piato Garbelini, e Procurador-Regional da União da 3ª Região e Advogado da União Gustavo Henrique Pinheiro Amorim), available at: http://www.estadao.com.br/ext/especiais/2008/10/cont_agu.pdf. See Ação direta de inconstitucionalidade (ADI) 3987, Conselho Federal da Ordem dos Advogados do Brasil, Supremo Tribunal Federal, 14 de novembro de 2007 (Presidente do Conselho Federal da Ordem dos Advogados do Brasil Cezar Britto), 14 de novembro de 2007, available at: http://www.stf.jus.br/portal/peticaoInicial/fazerDownload.asp?classe=ADI&processo=3987; and see Ação direta de inconstitucionalidade (ADI) 4077 , Procurador-Geral da República, Supremo Tribunal Federal, 19 de maio de 2008, (Procurador-Geral da República Antônio Fernando Souza), available at: http://www.stf.jus.br/portal/peticaoInicial/fazerDownload.asp?classe=ADI&processo=4077. “Justiça suspende processo do MP,” Correio Braziliense, Nov. 14, 2008, available at: http://www.go.trf1.gov.br/setoriais/biblioteca/clipping%5Cclipping_2008_11_14.doc.

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government would in 1995 engage seriously with the issue of gross violations committed during the dictatorship. Even, then, the engagement would focus on financial payments to victims: limited investigation would occur only to the extent necessary to establish a basis for recovery; the Amnesty Law would not be formally questioned or reopened. No one would be prosecuted criminally.24

Although not designed to create an historical record, the Commission established by Law 9.140

(Special Commission on Political Deaths and Disappearances), received significant documentation from the families and representatives of those forcibly disappeared or politically killed by the dictatorship’s security forces. In 1999, Nilmário Miranda, who had presided over the Special Commission, published a book based on its findings jointly with journalist Carlos Tibúrcio.25 The Special Commission, after an eleven-year study, produced an official report on the use of disappearances by the dictatorship.26 That commission, however, was not able to clarify fully most of its cases, as key documents remained undisclosed even to this legislatively-created body.27 Another consequence of Law 9.140 was the impetus it created for state legislatures to pass legislation authorizing compensation for other abuses committed

24 See Direito à Memória e à Verdade, Commissão Especial sobre Mortos e Desaparecidos Políticos, Secretaria Especial dos Direitos Humanos da Presidência da República, 2007. 25 Nilmário Miranda e Carlos Tibúrcio, Dos filhos deste solo: mortos e desaparecidos políticos durante a ditadura militar: a responsabilidade do Estado (1999). 26 Direito à Memória e à Verdade, Commissão Especial sobre Mortos e Desaparecidos Políticos, Secretaria Especial dos Direitos Humanos da Presidência da República, 2007. 27 Direito à Memória e à Verdade; UPR Submission, Human Rights Watch, Nov. 2007, p. 5.

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during the dictatorship.28 Further official efforts at providing financial compensation for different forms of political persecutions followed somewhat similar models.29

IV. Civil Society Efforts at Accountability

Remarkably, the most significant organized civil society effort at accountability occurred during the military dictatorship. Spearheaded by Cardinal Paulo Evaristo Arns, for a period of several years, an anonymous group of religious leaders, lawyers, and activists diligently gathered tens of thousands of pages of documents from Brazilian military courts. Systematically, and one case at a time, the team secretly photocopied military court records, cataloguing violations, detailing the particular abuses committed, the locales, the institutions responsible and the individual participants involved. Their work led to a widely disseminated publication, Brasil:

Nunca Mais.30 Though unofficial, the book relied on official records. For years, this civil society work served as the closest Brazil would come to producing a truth commission report.

The Brasil: Nunca Mais project created an authoritative list of 444 state agents who had participated in torture during the period of authoritarian rule. The list has served as a vital resource for civil society groups in the years since the transition to democratic rule. When authorities have sought to name someone on the list or involved in repression during the dictatorhip to a position of importance or a promotion, rights groups have mobilized in

28 [ADD CITE ] 29 In this regard, see, for instance, the work of the Ministry of Justice’s Amnesty Commission at http://www.mj.gov.br/anistia/. 30 Anonymous. Brasil: Nunca Mais. São Paulo: Arquidiocese de São Paulo, 1985. For an excellent account of the extraordinary efforts that went into the production of the Brazilian shadow truth report, see Weschler, Lawrence. A Miracle, A Universe: Settling Accounts with Torturers. Chicago: University of Chicago Press, 1990.

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opposition.31 Another tactic employed by memory groups has been to seek to decertify professionals, primarily doctors, before licensing boards based on unethical conduct in support of severe rights abuse during the dictatorship period.32

V. Rising Crime and Human Rights in the Transition Period

The military oversaw the process of political transition, allowing elections for state executive positions in 1982. In Brazil’s most important states, voters elected reformers—Leonel Brizola

(who had returned from exile with the passage of the Amnesty Law) in Rio de Janeiro and

André Franco Montoro in São Paulo. Both promised democratic change and respect for fundamental human rights. At the same time, Brazil, like the rest of Latin America, plunged into a decade of economic recession set off by the 1982 debt crisis.

In both Rio de Janeiro and São Paulo, the new governors took measures to restrict police practices widely viewed both as responsible for grave rights abuses and for violent forms of crime control. Police—and many in society—viewed new policies intended to protect human rights as crippling their efforts to battle crime. Significant resistance developed within the police forces in both Rio de Janeiro and São Paulo, leading many officers to adopt inaction as a response to efforts at oversight and external control.

31 One such example involved efforts before the UN Committee Against Torture in 2001, at which rights advocates, and the Committee itself, raised the issue of participation by then Rio de Janeiro security chief Josias Quintal in repressive bodies operating during the dictatorship. Although not one of the 444 listed, Quintal’s role with repression prompted media interest and some public condemnation. 32 See, e.g., Amnesty International, Brazil: Human Rights Violations and the Health Professions, (Oct. 1996).

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In this context of recession and police inefficiency, crime spiked in both Rio and São Paulo during these democratic, pro-human rights administrations, and for a decade into the broader democratic transition. The homicide rate in Brazil doubled over the sixteen year period from

1980 to 1996, from 11.7 per 100,000 residents to 23.7. Over that same period, the rate of killings by firearms rose from 5.1 per 100,000 residents to 14.0. In Rio de Janeiro, a small decrease in crime over the period 1979-82 was followed by a sharp increase after 1984.33

Popular response to the surge in crime tended to blame the new democratic authorities, as well as the human rights discourse and those who defended it. As in other transitional states facing surging crime, though perhaps in more intense fashion, civilian authorities faced a “security vacuum:”

One of the first acts of new governments is often to dismantle the old security apparatus, often leading to a security vacuum. This gap leads to wide-spread appeals for more effective order maintenance, especially by people who have been victimized and who attribute their victimization to this vacuum. . . . Such collective anger shapes the nature of the request for more effective order maintenance, frequently through increased demands for retributive justice. . . . [T]hese demands result in the mobilization of repressive responses, that is, measures designed to crack down on crime through police sweeps, raids, and similar tactics. . . . 34

33 Edmundo Campos Coelho. “A Criminalidade Urbana Violenta.” Série Estudos No. 60. Rio de Janeiro: Instituto Universitário de Pesquisas do Rio de Janeiro, 1987. 34 James Cavallaro & Mohmmad-Mahmoud Ould Mohamedou, “Public Enemy Number Two?: Rising Crime and Human Rights Advocacy in Transitional Societies,” 18. Harv. Hum. Rts. J. (Geneva: International Council on Human Rights Policy, 2002) 146-47 (this analysis comes from a paper by Clifford Shearing and Janet McCarthy for a project on crime, public order and human rights directed by the International Council on Human Rights Policy).

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In Brazil’s major urban centers, this “security vaccum” led to an unfortunate combination of citizen support for brutal policing methods and rejection of human rights discourse and practice.

The following anecdote from an International Council study on human rights defense in transitional societies afflicted by crime is indicative of this popular sentiment:

In August 2002, Wladimir Reale, President of the Rio de Janeiro Police Association (Associação dos Delegados do Rio de Janeiro) appeared on Fantástico, a popular Sunday night television programme viewed by a large cross section of Brazilian society. Reale was interviewed alongside Ignacio Cano, a sociologist from the State University of Rio de Janeiro (Universidade Estadual do Rio de Janeiro). The two proposed opposing strategies for dealing with crime. According to Reale, “the police must exercise their legally conferred right to kill,” to which Cano retorted, “such a right does not exist”.… At the end of the interviews, Fantástico conducted a telephone poll asking viewers which of the two views on crime did they favour. … Approximately seventy-five percent voted for the police officer.35

This anti-human rights sentiment would have important consequences for the shape of accountability efforts in the country.

VI. Contemporary Efforts at Accountability

Events since December 2007 have reignited national discourse in support of truth and justice for the abuses of the dictatorship in Brazil. Yet they also make clear the entrenched and sustained nature of impunity. Major new opportunities and pressure-points emerged that

35 James Cavallaro, Crime, Public Order and Human Rights (Geneva: International Council on Human Rights Policy, 2002), 66.

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favored pro-accountability advocates. Yet, despite initial breakthroughs, in each case pushes toward truth and justice have been successfully resisted thus far with the exception of one civil trial, which is being appealed. At the international level, an important victory has been registered at the Inter-American Court. Still, official response to the decision has challenged the enforceability of the Court’s decision.

A Trial Victory in Civil Court: Among the more significant advances in 2008 was a landmark

October trial court judgment in a civil case in São Paulo against Ustra brought by five torture survivors, Criméia Alice Schmidt de Almeida, César Augusto Teles, Maria Amélia de Almeida

Teles, and César and Maria’s children, Janaina de Almeida Teles and Edson Luis de Almeida

Teles.36 Judge Gustavo Santini Teodoro found Ustra responsible for torturing three of the plaintiffs (César, Maria, and Criméia), and dismissed the case against the other two (Edson and

Janaina, underage children of César and Maria at the time). The accounts of torture presented by plaintiffs and witnesses narrated several techniques; the most commonly cited of these were electric shocks and beatings, including Criméia’s account of Ustra beating her unconscious when she was pregnant.37

36 Sentença. Processo No. 583.00.2005.202853-5, 23a Vara Cível do Estado de São Paulo, Poder Judiciário, 7 de outubro de 2008. 37 In his opinion, Judge Teodoro referenced the testimony of several witnesses corroborating the accounts of César, Maria, and Criméia, witnesses who themselves alleged they were tortured—sometimes personally by Ustra—and who had been with the victims immediately after sessions of torture and recalled seeing the corresponding injuries on their bodies. Reports of beatings and electric shocks are the most commonly cited forms of torture in the judgment. The dismissal of the claims brought by Edson and Janaina was based on what the judge perceived to be a lack of evidence that they had been directly tortured or had actually seen their parents injured post-torture. Sentença. Processo No. 583.00.2005.202853-5, 23a Vara Cível do Estado de São Paulo, Poder Judiciário, 7 de outubro de 2008. Merlino, Tatiana. “Brasil Nunca Mais: A ditadura no banco dos réus,” Brasil de Fato, 25 de novembro de 2006, available at: http://www.brasildefato.com.br/v01/impresso/anteriores/194/nacional/materia.2006-11-25.0017820696.

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The Almeida case marked the first time a Brazilian court had ever found any military official liable for dictatorship-era human rights violations. The ruling was also remarkable in its extensive citing of international human rights law and its finding that the Amnesty Law did not protect Ustra from civil liability, giving some hope to victims seeking reparation or, as in the

Almeida case, recognition of having been wronged. Only a few weeks prior to the Almeida decision, a São Paulo appeals decision dismissed a declaratory judgment suit against Ustra brought on behalf of Luiz Eduardo da Rocha Merlino, a journalist tortured to death inside

Ustra’s DOI-Codi unit in 1971.38 As of this writing, the Almeida decision, appealed by Ustra, remains the only court judgment against a dictatorship-era human rights abuser [UPDATE]. As important as the Almeida verdict was, it is limited in scope, stemming from a private civil case against a torturer in his personal capacity. The state has yet to be held civilly liable in court, and no one has been held criminally accountable for state-sanctioned abuse during the military regime.

38 The suit was reportedly dismissed on standing grounds regarding a dispute as to whether one of the plaintiffs had proven she had been in a stable union with Merlino at the time of the events. The case never reached the merits. One witness who reported seeing Merlino seriously injured after being tortured was Paulo Vanucchi, the current Special Secretary for Human Rights leading the charge for accountability who is himself a former political prisoner and torture victim. Macedo, Fausto, “TJ retoma julgamento de processo contra Ustra,” O Estado de São Paulo, Sep. 13, 2008, available at: http://pfdc.pgr.mpf.gov.br/clipping/setembro-1/tj-retoma-julgamento-de- processo-contra-ustra/. Faria, Thiago. “Família de vítima da ditadura critica ‘vacilo’ de Lula para punir torturadores.” Folha Online, Dec. 4, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u475393.shtml; “TJ-SP extingue ação contra ex-comandante do DOI-Codi,” Folha Online, Sep. 23, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u448109.shtml. “TJ-SP extingue proesso contra coronel acusado de matar jornalista na ditadura,” Portal Imprensa, Sep. 23, 2008, available at: http://portalimprensa.com.br/portal/ultimas_noticias/2008/09/23/imprensa22794.shtml.

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Italian arrest warrants: Given the Amnesty Law, it is no surprise that the first major recent effort to hold agents of the Brazilian dictatorship criminally liable for abuses came from abroad.

On December 24, 2007, Italian judge Luisanna Figliolia issued an extradition request for 140 former agents of dictatorships from throughout Latin America for, among other crimes, the killing of 25 Italian citizens in the course of Operation Condor in the 1970s and 1980s.39 Among those targeted by the court were eleven Brazilians reportedly implicated in two killings in 1980, the year after the promulgation of the Amnesty Law.40 The day after the request was announced in the press, Minister of Justice Tarso Genro stated that Brazil would oppose the request given the constitutional prohibition against extraditing (natural-born) citizens.41

However, he did state that it might be possible to begin investigations domestically.42 Several months later, prosecutors from the Ministério Público Federal in São Paulo formally requested that domestic criminal inquiries be opened in connection with the Italian court’s request.43 In

January 2009 federal prosecutor Ivan Cláudio Marx in southern Rio Grande do Sul prepared to file the first ever criminal charges regarding dictatorship abuses, specifically the 1980 Operation

Condor-enabled disappearances of Italian-Argentine citizen Lorenzo Ismael Viñas and Argentine

39 “Itália pede prisão de 140 por Operação Condor,” BBC Brasil, Dec. 25, 2007, available at: http://www.bbc.co.uk/portuguese/noticias/story/2007/12/071225_condor_dg.shtml. 40 “Itália anula pedido de prisão de acusado na Operação Condor,” BBC Brasil, 18 de janeiro de 2008, available at: http://www.bbc.co.uk/portuguese/reporterbbc/story/2008/01/080118_operacaocondor_vr.shtml. Soon after the Italian warrants were issued, Spanish judge Baltasar Garzón—known primarily for his role in the detention of Chilean dictator Augusto Pinochet in the United Kingdom in 1998—also requested the extradition of Brazilians involved in Operation Condor. “Tarso Genro admite processo contra acusados na Operação Condor,” BBC Brasil, Jan. 11, 2008, available at: http://www.bbc.co.uk/portuguese/reporterbbc/story/2008/01/080111_tarsocondor.shtml. 41 “Para Tarso, lei impede extradição de acusados da Operação Condor,” O Globo, Dec. 26, 2007. 42 See “Para Tarso, lei impede extradição de acusados da Operação Condor,” O Globo, Dec. 26, 2007; see also “Tarso Genro admite processo contra acusados na Operação Condor,” BBC Brasil, Jan. 11, 2008, available at: http://www.bbc.co.uk/portuguese/reporterbbc/story/2008/01/080111_tarsocondor.shtml. 43 “MPF/SP pede investigação de mortes e seqüestros cometidos durante a ditadura,” Assessoria de Comunicação, Procuradoria da República em São Paulo, Jun. 24, 2008, available at: http://noticias.pgr.mpf.gov.br/noticias-do- site/criminal/24-06-08-2013-mpf-pede-investigacao-de-mortes-e-sequestros-cometidos-durante-a-ditadura/.

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priest Jorge Oscar Adur.44 As of this writing, no charges had been filed [UPDATE], but the Rio

Grande do Sul criminal investigation is an important milestone. However, given that the case dates from after the scope of the 1979 Amnesty Law, it remains to be seen is what effect, if any, this prosecution might have on impunity for abuses during other portions of the dictatorship, like the systematic torture during the military regime.

Outspoken ministers: On July 31, 2008, the Special Commission established by Law 9.140 held a public hearing at the Ministry of Justice at which Special Secretary for Human Rights Paulo

Vanucchi and Minister of Justice Tarso Genro spoke, both defending the thesis that the

Amnesty Law did not protect torturers since it only covered “political crimes.” As Genro explained:

From the moment in which an agent gets that prisoner and takes him to the basement and tortures him, he goes outside of even the laws of the military regime. Therefore, his crime is not a political crime. It is the crime of torture. He becomes a torturer just like any other torturer that humanity recognizes.45

Comments by both Vanucchi and Genro made national news on all major outlets. Gilmar

Mendes, the president of the Supreme Federal Tribunal declared his opposition to the debate on what he called “revision” of the Amnesty Law, a surprising declaration given that the

Supreme Federal Tribunal was likely to hear such a challenge in the near future (and indeed is resolved a key challenge to the Amnesty Law less than two years after Mendes’ statement).

44 The prosecutor was reportedly considering supplementing his case with evidence from Italian prosecutors. Flor, Ana, “Procuradoria vai denunciar militares por sequestros durante ditadura,” Folha de São Paulo, Jan. 22, 2009. 45 Scolese, Eduardo, “Tarso defende punição para quem torturou na ditadura,” Folha de S. Paulo, August 1, 2008.

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Notably, Mendes shunned other regional examples, stating, “[t]he inspiration of our co- brothers in Latin American is not the best; so much so that they have not produced institutional stability.”46 Representatives of the military provided an even stronger negative response. The

Minister of Defense Nelson Jobim flatly declared that, “there will be no change in the Amnesty

Law,” adding “let us look to the future.” At a highly publicized protest in Rio with several hundred military personnel in attendance, General Gilberto Figueiredo, president of the

Military Club of Rio de Janeiro, called the remarks by Vanucchi and Genro a “disservice to the country.”47

In response, President Lula insisted that the issue was one for the courts. This position rang hollow, though, given that the president still had to decide what instructions to give to the solicitor general at the Advogacia Geral a União (AGU) who was due to file a brief on his behalf in October 2008 in the Ministério Público Federal’s suit against Carlos Alberto Brilhante Ustra

46 Mendes’s statement perfectly captures the belief that the Amnesty Law was vital to the consolidation of democracy. As argued below, the opposite is true. Ferreira, Flávio, “Presidente do STF defende fim do debate sobre revisão da Lei de Anistia,” Folha de São Paulo, Aug. 11, 2008. 47 It is worth noting that generals in the High Command reportedly informally discouraged members of the military from going to the Military Club event. Nevertheless, it was well attended. At the event, one of the organizers, General Sérgio Augusto de Avellar Coutinho, read from intelligence files gathered on Vanucchi and Genro’s oppositionist guerrilla activities during the dictatorship. In response, the two ministers called for all such files to be released, with Genro adding as to his own past, “this is news to nobody...it is an open record, and I am proud of it.” Vanucchi also caught the military protestors on a crucial point: if such files existed, then the military—despite repeated denials—must indeed have an unrevealed archive from the dictatorship period. Santos, Pedro Figueira, ”A Lei de Anistía em Discussão,” Clube Militar do Rio de Janeiro, Revista, Oct. 2008, available at: http://www.clubemilitar.com.br/site/pres/revista/430/26.pdf; Zahar, André, “Militares chaman discussão de Tarso sobre Lei da Anistía de desserviço ao país,” Folha Online, Aug 7, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u430895.shtml. Brandt, Ricardo, “Em reação a militares, Tarso afirma ter orgulho de sua ficha,” Estado de São Paulo, Aug. 5, 2008; Belchoir, Luisa, “Vanucchi diz ter antecipado à AGU posição de secretaria sobre crime de tortura,” Folha Online, Aug. 8, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u431402.shtml. “Exército mobiliza-se para esvaziar ato de militares da reserve contra Tarso,” Folha Online, Aug 7, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u430609.shtml.

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and Audir Maciel, two former chiefs of the secret police unit operating in São Paulo known as the Information Operations Detachment - Center of Internal Defense Operations (DOI-Codi). 48).

Eager to avoid the issue, President Lula reportedly instructed Vanucchi and Genro to refrain from engaging in the intense public debate any further.49 Vanucchi accepted Lula’s demand, though with somewhat less deference than Genro.50 When eventually the AGU, President

Lula’s official court representative, did file briefs in Amnesty Law-related cases in the months that followed, it asserted that the state torturers from the dictatorship period were immune from prosecution.51

Challenging the Amnesty Law at the Supreme Court: After much anticipation, the AGU submitted a brief in October 2008 at the trial court level in the civil public suit brought by the

Ministério Público Federal against Ustra and Maciel.52 Contrary to expectations that had been

48 Giraldi, Renata, “Lula tratará punição de torturadores como questão técnica e não política,” Folha Online, Aug. 11, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u432151.shtml; 49 According to Genro, Lula made clear to him that the issue was to be left to the judiciary. On August 13, 2008, two weeks after the hearing at which Vanucchi and Genro had made their remarks on the Amnesty Law, Genro announced he would no longer comment on the matter “as far as the Justice Ministry is concerned.” See Andrea Michael and Eduardo Scolese, “Ministros dizem ser impossível colocar um ponto final no debate sobre tortura,” Folha de S. Paulo, August 13, 2008. 50 He stated that, “yes, the judiciary is the place in which to ultimately work, protest about, move along, arbitrate, and decided this [issue].” However, he added, “the secretary for human rights of whatever party of whatever government of whatever country shall cease to be the secretary for human rights if he accepts the notion that the topic of torture is not to be worked on.” Ibid. 51 Nota AGU/SGCT/No 1 –DCC/2009, Arguição de Descumprimento de Preceito Fundamental (ADPF) 153, Supremo Tribunal Federal, 30 de janeiro de 2009 (Advogada da União Ana Carolina de Almeida Tannuri Laferté e Advogado da União Henrique Augusto Figueiredo Fulgêncio), available at: http://conjur-s1.simplecdn.net/dl/anistia-agu.pdf; Contestação à Ação Civil Pública, Advocacia-Geral da União, Procuradoria-Regional da União da 3ª Região-SP/MS, Processo no. 2008.61.00.011414-5, 8ª Vara Federal Civel de São Paulo – 1ª Subseção Judiciária do Estado de São Paulo, 14 de outubro de 2008 (Adovagada da União Lucila Piato Garbelini, e Procurador-Regional da União da 3ª Região e Advogado da União Gustavo Henrique Pinheiro Amorim), available at: http://www.estadao.com.br/ext/especiais/2008/10/cont_agu.pdf. 52 Contestação à Ação Civil Pública, Advocacia-Geral da União, Procuradoria-Regional da União da 3ª Região- SP/MS, Processo no. 2008.61.00.011414-5, 8ª Vara Federal Civel de São Paulo – 1ª Subseção Judiciária do Estado de São Paulo, 14 de outubro de 2008 (Adovagada da União Lucila Piato Garbelini, e Procurador-Regional da União

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raised in the media,53 the AGU October 2008 brief provided a wholehearted defense of the

Amnesty Law coupled with a rebuttal of the calls to disclose dictatorship archives. The rejection of the brief by Genro and Vanucchi was quick and complete, (Vanucchi called the

AGU’s position a “brutal error”) intensifying internal conflicts within the Lula government.54

The entire Special Commission on Political Deaths and Disappearances created by reparations

Law 9.140 threatened to resign en masse,55 as did part of the Ministry of Justice entrusted with awarding reparations to persons persecuted under the dictatorship.56 For good measure, so did

Vanucchi.57

Negotiations began on a possible redraft of the AGU brief on the Amnesty Law. Media sources reported that Lula would request that the AGU send a neutral brief to the Supreme Federal

Tribunal.58 Around the same time, the Brazilian Bar Association (Ordem de Advogados

da 3ª Região e Advogado da União Gustavo Henrique Pinheiro Amorim), available at: http://www.estadao.com.br/ext/especiais/2008/10/cont_agu.pdf. 53 “Lula avalia punição a oficiais do Alto Comando do Exército,” Folha Online, Aug. 10, 2008, available at: http://www1.folha.uol.com.br/folha/colunas/brasiliaonline/ult2307u431573.shtml; Giraldi, Renata, “Lula tratará punição de torturadores como questão técnica e não política,” Folha Online, Aug. 11, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u432151.shtml. 54 See e.g. “Vannuchi acusa AGU de cometer ‘equívoco brutal’ Correio Braziliense, Oct. 30, 2008, available at: http://www.correiobraziliense.com.br/html/sessao_3/2008/10/30/noticia_interna,id_sessao=3&id_noticia=44667 /noticia_interna.shtml. 55 “Comissão de anistía ameaça renúncia,” O Popular, Oct. 30, 2008, available at: http://pfdc.pgr.mpf.gov.br/clipping/outubro-2008/comissao-de-anistia-ameaca-renuncia/. See also Nota da Comissão Especial sobre Mortos e Desaparecidos Políticos, Oct. 30, 2008 (expressing its “indignation with respect to affirmations made by the Advocacia Gerald a União (AGU)…“The Union, having been invited to position itself alongside the Prosecutorial Ministry, preferred assuming a posture that benefits the torturers.”). 56 Ibid. 57 Rocha, Leonel, “Vanucchi diz que tem aval de Lula,” Correio Braziliense, Oct. 31, 2008, available at: https://conteudoclippingmp.planejamento.gov.br/cadastros/noticias/2008/10/31/vanucchi-diz-que-tem-aval-de- lula. 58 See, e.g. Recondo, Felipe,“Lula pede parecer neutro da AGU em ação contra anistia no Supremo,” Estado de São Paulo, Nov. 8, 2008, available at: http://www.estadao.com.br/estadaodehoje/20081108/not_imp274439,0.php. Giraldi, Renata,“Conselho politico de Lula vai discutir responsabilização dos crimes de tortura,” Folha Online, Nov. 11, 2008, available at: http://www1.folha.uol.com.br/folha/brasil/ult96u466485.shtml.

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Brasileiros or OAB) filed a petition in the Supreme Federal Tribunal challenging the Amnesty

Law’s application to dictatorship-era state torturers.59 The OAB challenge fell to Supreme

Federal Tribunal Minister Eros Grau to serve as rapporteur.60 Grau is himself a former political prisoner and was nominated by President Lula, another former political prisoner.61 It was months before the Lula government finally stated its position, and when it did, the result was again heavily criticized by accountability advocates, including the OAB.62 The AGU brief, which formally speaking represents the views of the president, was not neutral. It reiterated its view that the Amnesty Law fully covered government torturers.63 However, five other government institutions also submitted briefs: the Defense Ministry and the Foreign Relations Ministry in support of the blanket amnesty interpretation and the Ministry of Justice, the Human Rights

Special Secretariat, and the Chief of Staff (a ministerial post in Brazil) in favor of accountability.64 The approach of allowing the filing of six different governmental briefs demonstrates the incoherence of the Lula government on the issue of accountability. In what might have been a legacy-making historical moment, Lula opted out, leaving Brazil as the outlier in the continental shift away from impunity.

59 Arguição de Descumprimento de Preceito Fundamental (ADPF) 153 , Conselho Federal da Ordem dos Advogados do Brasil (OAB), Supremo Tribunal Federal, Oct. 21, 2008, (Advogado Fábio Konder Comparato e Advogado Maurício Gentil Monteiro), available at: http://www.oab.org.br/arquivos/pdf/Geral/ADPF_anistia.pdf. 60 “Eros Grau relatará ADPF da OAB contra tortura na ditadura,” JusBrasil Notícias, Oct. 22, 2008, available at: http://www.jusbrasil.com.br/noticias/148461/ministro-eros-grau-relatara-adpf-da-oab-contra-tortura-na- ditadura. 61 “Tortura: Suprema Decisão,” Published on the homepage of Tortura Nunca Mais-RJ, Nov. 9, 2008, available at: http://www.torturanuncamais-rj.org.br/artigos.asp?Codartigo=57&ecg=0. 62 See, e.g. “OAB critica parecer da AGU: Opiniões divergentes de órgãos do próprio governo,” O Globo, Feb. 6, 2009, available at: http://oglobo.globo.com/pais/mat/2009/02/06/oab-critica-parecer-da-agu-opinioes- divergentes-de-orgaos-do-proprio-governo-754294266.asp. 63 Nota AGU/SGCT/No 1 –DCC/2009, Arguição de Descumprimento de Preceito Fundamental (ADPF) 153, Supremo Tribunal Federal, 30 de janeiro de 2009 (Advogada da União Ana Carolina de Almeida Tannuri Laferté e Advogado da União Henrique Augusto Figueiredo Fulgêncio), available at: http://conjur-s1.simplecdn.net/dl/anistia-agu.pdf. 64 “AGU defende Lei de Anistia em parecer ao Supremo,” Consultor Jurídico, Feb. 2, 2009, available at: http://www.conjur.com.br/2009-fev-02/agu-lei-anistia-perdoou-todos-crimes-tortura-ditadura.

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Decision in Brasilia, Decision in San José: On April 29, 2010, the Brazilian Supreme Court rejected, by a 7-2 vote, the OAB challenge to the Amnesty Law. Rapporteur Justice Grau, writing for the Court, concluded that the Amnesty Law represented a step towards reconciliation and redemocratization in the country. Grau wrote that the Amnesty Law was a manifestation of a political agreement that resulted in a legal norm which could only be reviewed by the Legislature. The Supreme Court thus deemed itself powerless to alter normative texts conceding amnesties.65 For defenders of the Amnesty Law and the Brazilian approach to transitional justice, the Supreme Court’s decision buried the issue. But by now, the challenge to the Amnesty Law had moved well beyond the control of the Brazilian judiciary. A parallel challenge to Brazil’s Amnesty Law had been advancing through the Inter-American human rights system and was moving quickly to final decision in the Inter-American Human

Rights system.

The Guerrilha do Araguaia case: In 1995, several NGOs filed a petition with the Inter-American

Commission challenging the failure of the Brazilian state to provide information and to investigate a series of seizures, forced disappearances and summary executions of a group of guerilla combatants in the Amazon region in the early 1970s known in Brazil as the Guerrilha do

Araguaia.66 The case, captioned as Julia Gomes Lund and Others v. Brazil, wound it way through the Commission over the next decade. Eventually, the Commission would find Brazil

65 Vote of the Ministro Relator en the Acción de Incumplimiento de Precepto Fundamental No. 153, Supremo Tribunal Federal, April 29, 2010.

66 One of the authors, James Cavallaro, was counsel and petitioner on behalf of the Center for Justice and International Law and Human Rights Watch/Americas in the initial filing with the Inter-American Commission.

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responsible for violations of its duty to investigate grave violations of human rights by virtue of the application of the 1979 Amnesty Law to the Araguaia litigation in Brazil. In May 2009, the

Commission filed an application to the Inter-American Court, alleging violation of several articles of the American Convention on Human Rights.

While the Araguaia case proceeded through the Commission, the Inter-American Court had addressed the legality of amnesty provisions in Peru (Barrios Altos), Chile (Almonacid), El

Salvador (Sisters Serrano Cruz), Suriname (Moiwana Village) and Guatemala (Dos Erres). With each successive decision, the Court established and then entrenched its jurisprudence deeming invalid any and all amnesty laws, as well as other measures designed to restrict investigation and prosecution of human rights violations, such as statute of limitations.

Not surprisingly, by the time the Guerrilha do Araguaia case made its way to the Court, a decision invalidating the Amnesty Law was all but certain. Nonetheless, the Brazilian state vigorously defended the Amnesty Law, relying on the particular nature of its historical context and measures it had taken, such as payment of indemnification to victims, in response to the abuses of the military regime.

On December 14, 2010, the Inter-American Court, issued its sentence in the Gomes Lund

(Guerrilha do Araguaia) matter against Brazil. In the decision, the Court applied its case law on continuing violations and amnesty laws, holding the state of Brazil responsible for the forced disappearance of 62 people between the years 1972 and 1974 in the Araguaia region of

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northern Brazil. (The continuing violation doctrine allows the Court to hold states responsible for violations that begin prior to the temporal jurisdiction of the Court, to the extent that these continue beyond the date on which a given state recognizes the Court’s jurisdiction). The Court analyzed, among other issues, the compatibility of Brazil’s Amnesty Law (Law No. 6.693 of

1979) with the American Convention on Human Rights and the Court’s extensive jurisprudence on legislation purporting to restrict the state’s duty to investigate grave violations of human rights. The Court concluded that the provisions of the Amnesty Law that prevent the investigation and sanction of grave rights violations are incompatible with the Convention and thus are of no effect. As a result, they cannot present an obstacle to the investigation of the facts of this case, nor of the identification and punishment of those responsible for the disappearances. The Court also held Brazil liable for the violation of the right to personal integrity of the relatives of the victims due to the suffering caused by the lack effective investigation into the fate of the victims, as well as for violation of the right to freedom of thought and expression.

The sentence of the Inter-American Court provoked a clash of public statements by political authorities, rights advocates and other commentators similar to those triggered by domestic challenges to the amnesty law and impunity for abuses of the dictatorship.

The response of Brazilian authorities to the Inter-American Court sentence continued along the fault lines staked out in the lead up to the Supreme Court decision. Minister of Defense Nelson

Jobim asserted that the decision would not produce any legal effect Brazil. The decision of the

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Brazilian Supreme Court, Jobim asserted, was the final word in the matter. The Ministry of

Foreign Relations issued a carefully worded statement to the effect that Brazil had implemented much of what the system had ordered and would take efforts to work toward compliance. Rights activists and progressive commentators, as well as the relatives of those killed and disappeared in the Guerrilha do Araguaia campaign, emphasized the state’s duty to comply with the decision by the Inter-American Court by releasing information, opening archives and prosecuting rights violators. So too, in somewhat more nuanced language, did the incoming human rights secretary. What remains far less clear than the tension between and among these positions, however, is which will carry the day with relevant actors involved in reviewing and applying the amnesty law moving forward.

VII. An Overall Assessment of Failed Accountability

Despite these recent developments, the overall Brazilian record on accountability has been poor in comparative perspective. In the table below, we assess, in approximate terms, the extent of engagement in Brazil with each of the major accountability mechanisms employed in transitional justice processes. The table below does not purport to include all possible mechanisms tried to date, much less all possible measures that might be tried. It does, however, present the most frequently employed transitional justice mechanisms. Note that some of these assessments were not analyzed in significant measure in this text. The table is meant to provide a quick, relatively comprehensive assessment of the engagement of accountability mechanisms in Brazil.

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Accountability Measure (Degree of Engagement) High Moderate Limited/None

PROSECUTIONS67

Domestic X

Foreign X

International X

OTHER LITIGATION

Domestic, civil litigation X

Regional or Universal Human Rights litigation68 X

LUSTRATION69 X

OPENING OF FILES70 X

TRUTH COMMISSION X

CREATION OF MEMORY SITES71 X

67 Sikkink divides prosecutions into three groups: domestic, foreign, and international. The first category are those that occur within the territory and preformed by the courts of a particular state. The second, foreign prosecutions are those in which the judiciary of another state or states are involved. The most well known example of foreign criminal proceedings involved the arrest and house detention of Chilean dictator Augusto Pinochet in London, based on a Spanish warrant. The third type, international prosecutions, involve supranational bodies, such as the International Criminal Tribunal for the Former Yugoslavia. 68 By this, we refer to use of international human rights regimes that focus on state liability, such as the Inter- American system, the European Court system or the African system (regional), or the United Nations system (universal). 69 By lustration, we refer to the process by which particular individuals are barred by law from engaging in government based on their participation in human rights violations during the prior regime. This form of transitional justice mechanisms has been most widely employed in Eastern European states transitional from communist to more open regimes. In [this volume], Nadya Nedelsky discusses lustration in the context of the Velvet Revolution in the Czech Republic, as does [Monika Nalepa] in assessing lustration as a means of developing trust in Poland. Lustration, as such, has not been employed in Brazil. However, as noted, civil society groups have sought to press authorities to deny particular positions to those known responsible for human rights abuse. This has been done in a non-systematic, extra-legal fashion. 70 The paradigmatic case of the opening of files and release of information held by repressive regimes involves the access provided to Stasi files in East Germany. While there have been some efforts to open some files held by repressive authorities in Brazil, the record of openness has, on the whole, been dismal.

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SOCIAL OSTRACISM72 X

REPARATIONS X

DELICENSING73 X

VIII. Explaining Limited Accountability

Transitional justice, one commentator has written, may be defined as the way in which

“societies ‘transitioning’ from repressive rule or armed conflict deal with past atrocities, how they overcome social divisions or seek ‘reconciliation,’ and how they create justice systems so as to prevent future human rights atrocities.”74 Another leading figure in the field, Priscilla

Hayner, has noted that the “basic question [of transitional justice is] how to reckon with massive state crimes and abuses.”75 Recent scholarship has sought to broaden the perspective to include not only official, primarily legal measures, but also grass roots and civil society efforts

71 By creation of memory sites, we refer to efforts to transform centers of repression and rights abuse into museums or spaces for public memory recovery and recognition of policies of state sanctioned violence. One clear example, cited in another chapter in this book, is the transformation of the Navy Superior Mechanic School (Escuela Superior de la Marina, ESMA) into a museum in Buenos Aires, Argentina. Again, while some success has been achieved in this regard in Brazil, the overall record is poor, compared to Latin American neighbors. 72 Here, we refer to civil society efforts to shame human rights perpetrators through targeted public actions, typically in their neighborhoods. The modality most widely known is the “escrache,” an Argentine process in which human rights advocates meet at the residences of human rights violators to promote social condemnation of the particular individual. See Carolina Smulovitz, “In Search of the Snark: Accountability and Justice for Past Human Rights Violations in Argentina,” IN UN/OXFORD VOLUME, p. 76 (of materials distributed in October). In Brazil, civil society groups have pushed some limited efforts to publicly embarrass rights violators, mostly through the media. 73 This refers to efforts, generally initiated by civil society groups, to de-license medical professionals based on their participation in rights abuses. We discuss this briefly in this piece, supra. 74 Charles T. Call, Is Transitional Justice Really Just?, BROWN J. WORLD AFF., Summer/Fall 2004, at 101. 75 Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions, 11 (2002).

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to gain a “thicker” understanding of the process of reckoning.76 This process—both official and civil society efforts—may also be understood through the concept of accountability, as this volume seeks to do across a range of transitional societies. In Brazil, the process of transition and the experience of non-accountability results from a number of factors. We highlight four factors below: the nature of the transition, the number of victims, the role of surging crime and its impact on human rights, and the relative isolation of Brazil.

Top-Down, Gradual and Controlled Transition

Since the inception of what Samuel Huntington termed “the third wave”77 of democratization, scholars have recognized that the nature of the transition constrains post-transition options in important ways. Huntington himself classified the third wave of transitions into three groups, each of which would have consequences for the future democracies established. The three transitional processes he highlighted were: replacement, transformation and transplacement.78

David Rustow wrote of overthrow, reform and compromise.79 The first involves clear victory of new forces over the authoritarian regime. The second, transformation or reform, is driven by reformers within the authoritarian regime, and is largely controlled by them. The third

(transplacement or compromise) involves joint action between the departing regime and democratizing forces.

76 See, Kieran McEvoy and Lorna McGregor, eds., Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford: Hart, 2008). 77 See Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press: Norman and London, 1991). 78 Samuel P. Huntington, The Third Wave; Democratization in the Late Twentieth Century (University of Oklahoma Press, Norman and London) 1991. 79 David Rustow, “the Surging Tide of Democracy,” 3 J. Democracy 119, 119 (Jan. 1993).

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Scholars of democratization and transitional justice have consistently argued that the relative power of new elites—a function of the nature of the transitional process itself—is a key determinant in the nature of the transitional justice mechanisms employed. When new elites are strong and flush with power, one may expect vigorous transitional justice mechanisms, such as criminal prosecutions, to be the norm. By contrast, when the power of new elites is constrained by other forces (such as the military), one may expect limited accountability measures. The nature of the transition is vital in this regard. To the extent a transition is uncontrolled, abrupt, and involves loss of legitimacy of the prior regime, new elites will be well situated to promote aggressive transitional justice mechanisms, such as criminal trials. By contrast, where transitions are controlled entirely by authoritarian leaders, who maintain power and legitimacy, or when they result from negotiations, one should expect limited capacity to engage justice mechanisms.

As one scholar has written, synthesizing the relevance of transition to accountability options:

The widest scope for prosecutions and punishment arises in the case of overthrow. Almost no political limits exist. Full priority can be given to the thirst for justice and retribution. But a totally different situation comes up if the transition is based on reform or compromise. In that situation the forces of the previous order have not lost all power and control. They are to a certain degree able to dictate the terms of the transition. The new elites have only limited options. They may be forced to grant the outgoing authorities a safe passage in return for their total or partial abdication….The successor government and its democracy is too vulnerable to discard clemency.80

80 Luc Huyse, “Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past,” Law and Social Inquiry (1995), p. 76.

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Unlike Argentina, for example, the Brazilian military was not driven from office but instead conducted a long, controlled transitional process. Prior to assuming the presidency in 1979,

General Figueiredo promised to continue liberalization and lead Brazil to democracy. He would remain in office six years before ceding power through indirect elections. The role that the military played in the process allowed it to exercise control over the existence (or not) of accountability mechanisms at the time of the transition and beyond. In contrast to Argentina, where an unsuccessful war and an economic downturn led to the collapse of the regime, the

Brazilian military left power on their own terms. The gradual, controlled nature of the transition undermined efforts to develop political momentum around accountability efforts.

For example, by the time of the first post-Constitution direct presidential elections in 1989, the

Amnesty Law was already a decade old and had become part of the accepted legal landscape in the country. In Brazil, the nature of the regime change and the relative weakness of democratic authorities resulted in significant constraints on transitional justice possibilities in the early years of the transition. In addition, the political strength of the military and of their self-serving discourse have remained remarkably resilient, as demonstrated in the section above on the most recent clashes between pro-accountability ministers and military spokespersons.

What is interesting to observe now—more than two decades after the transitions in the

Southern Cone—is the continued power in the national psyche and politics of the initial transition type. In Argentina, military authorities are largely absent from debates about transitional justice and human rights. When their voices are heard, they are those of desperate, defrocked defendants, rather than respected public figures. In Brazil, as events in

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2008 and early 2009 have shown, the military view not only continues to be significant in the public debate, it has been decisive in the decision-making process. More than two decades after their controlled, top-down exit, the Brazilian military has still managed to carry the day on the issue of accountability for their crimes.

Number of Victims: While the military engaged in widespread abuse, institutionalizing torture and impunity through specialized courts, the total number of victims was significantly lower, in relative terms, than in other Latin American dictatorships. This, too, may be attributed to the length of time over which the military exercised power, as well as the gradual intensification of repression and gradual transition to democratic rule. Regardless of the causes, the total number killed or disappeared for political reasons was much lower than in Argentina or Chile, for example, particularly in light of the size of Brazil. Argentina’s dirty war—in a period of seven years—killed at least twenty and possibly sixty times as many as in Brazil. Per capita, the

Argentina security forces killed between fifty and two hundred times as many as their counterparts in Brazil. In Chile, security forces killed six times as many in absolute terms and sixty times as many in per capita terms.81

One important consequence of this difference concerns the human rights movement that arose during and after the authoritarian periods in these countries. The numbers of victims affected directly or through close family members and friends in Chile and Argentina were far superior

81 The figures employed for these comparisons are those of the Truth Commissions in Argentina (Rettig) and Chile (Rettig). For Brazil, we used the figures from the Special Commission.

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to those in Brazil. Though other factors contribute as well, this factor should not be overlooked in assessing the strength of civil society and the capacity of those seeking justice to structure official and extra-official accountability mechanisms. The sheer numbers of those directly affected by the dirty war in Argentina, for example, has helped ensure that the issue of accountability has remained on the agenda of civil society groups, regardless of the legal restraints in effect at any given point over the past quarter century.82

The Role of Crime in Stifling Accountability: As noted above, the gradual transition to civilian rule occurred in the midst of a severe recession and surging crime. Democratically elected governors in Rio de Janeiro and São Paulo promised return to the rule of law, including police forces that respected the limits imposed by democracy. This understanding quickly came to be associated—wrongly or not—with surging crime. Thanks as well to political manipulation by reactionary forces, the defense of human rights came to be caricatured as the defense of criminals and, worse still, of criminality. In this context, human rights lost space in national and local debates. Rather than advocates who sought to protect Brazilians from further abuses, human rights defenders were increasingly seen as part of the new problems that citizens faced on a daily basis.

The Role of External Actors: Unlike its Southern Cone neighbors, Brazil has remained relatively unaffected by global pressures promoting accountability for past abuses. Here, a few examples demonstrate the point. First, while it is clear that the arrest of General Augusto Pinochet in

82 [ADD CITE HERE to relevant portions of Smulovitz chapter.]

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London in 1998 sent shock waves through Chilean society, it is important to note that his detention produced a similar result in Argentina as well in many other Latin American countries that had recently transitioned to civilian rule.83 The Pinochet process intensified ongoing efforts to file suits based on universal jurisdiction against Argentines, Chileans, Uruguayans,

Guatemalans and others in Europe. Brazil remained largely on the sidelines (with the exception of cases focusing on Operation Condor that included Brazilians as well). Second, the Inter-

American Court’s decision in the Barrios Altos case against Peru, holding amnesty laws to be in violation of the American Convention on Human Rights, led to the eventual repeal of amnesty laws in Argentina and promoted similar processes in other parts of Latin America. In Brazil, the decision went largely unnoticed.

The relative isolation of Brazil, and in particular, its human rights community, from its Latin

American neighbors, unfortunately, has longer roots. While networks between and among

Spanish-speaking Latin American rights and solidarity groups have been strong for decades, it is only in the past decade with the advance of modern communications that Brazilian groups have engaged more fully. One sign of Brazil’s lag in this regard comes from its involvement in the

Inter-American system for the defense of human rights. As recently as 1994, while activists were filing and litigating scores of cases against almost every other state in Latin America, only two cases were pending against Brazil.84

83 See, Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia, 2005). 84 James L. Cavallaro, “Toward Fair Play: A Decade of Transformation and Resistance in International Human Rights Advocacy in Brazil,” 3 U. Chi. L. Rev. 481, 83 (2002).

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IX. The Consequences of Failed Accountability: Continued State Violence, Public

Indifference, and Thin Support for Human Rights and Democracy

The Police and military apparatus has been highly prejudiced by … agents accustomed to living in the shadows of and above the law….the origins of [the lack of subordination of the police] to the law and the rest of society dates back to the period in which the repressive apparatus had license to kidnap, kill and torture without so much as filing a police report…. the maintenance of torture as an instrument of police investigation [still] exists, targeting, brutally, the most vulnerable sectors of the population, without consequence. The amnesty of agents of the state has extended, without limit, to today.

- Maria Inês Nassi, Political Analyst, December 16, 2010, Valor Magazine, commenting on

the Inter-American Court decision in Julia Gomes Lund.

The failure of accountability efforts in Brazil is a significant factor in the creation and maintenance of severe challenges to democracy, the rule of law and human rights. In particular, we focus on three aspects below. First, many of the abuses characteristic of the military dictatorship have continued (and increased) and still typically result in impunity.

Second, support for democracy and the rule of law is low compared with other countries in the region. And third, broad sectors of the population reject human rights discourse and human rights defense.

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Authoritarian-type abuses and impunity continue: Most of the torture methods recounted in

Brasil: Nunca Mais are deployed by police, prison guards, and others throughout the country.85

The same is also true of disappearances, a preferred method of repression employed by the dictatorship that is still used by security forces in Brazil post-transition.86 Figures on killings by state agents demonstrate that the police are as violent as ever: in 2008, police in the state of

Rio de Janeiro killed 1,137 people, while 26 officers were killed in alleged confrontations.87 São

Paulo police killed 484 people that year in alleged confrontations.88 By contrast, police killed

391 people in alleged confrontations that same year in all of the United States (U.S.), a country with a vastly greater population and more overall homicides than the Rio de Janeiro and São

Paulo combined.89 War-like attitudes within the police force encourage violence. The main Rio de Janeiro special forces unit of the police, the Batalhão de Operações Policiais Especiais

(BOPE), prominently features a piracy-inspired skull logo on their website, uniforms, and

85 See, e.g., Rodley report, Appendix I (detailing 348 cases of torture documented as part of his visit to Brasil in 2000); Report on Brazil Produced by the Committee under Article 20 of the Convention and Reply From the Government of Brazil, United Nations Committee against Torture, CAT/C/39/2, Jul. 28, 2008, available at: http://www2.ohchr.org/english/bodies/cat/docs/AdvanceVersions/cat.c.39.2.doc (reiterating Rodley’s finding of torture to be “‘widespread and systematic” in Brazil). 86 See, e.g., Report of the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Asma Jahangir, Mission to Brazil, Jan. 28, 2004, E/CN.4/2004/7/Add.3, paras. 40, 44, Appendix. 87 Resumo do Estado do Rio de Janeiro, Instituto de Segurança Pública, Secretaria de Segurança, Governo do Estado do Rio de Janeiro, Janeiro – Dezembro 2008, available at: http://urutau.proderj.rj.gov.br/isp_imagens/Uploads/200812totalestado.pdf. 88 Mortos por Policiais Militares – 2008, Secretaria de Segurança Pública do Estado de São Paulo; Mortos por Policiais Civis – 2008, Secretaria de Segurança Pública do Estado de São Paulo 89 Crime in the United States, Federal Bureau of Investigations, 2007, Table 13 – Justifiable Homicide by Weapon, Law Enforcement, 2003-2007; Resumo do Estado do Rio de Janeiro, Instituto de Segurança Pública, Secretaria de Segurança, Governo do Estado do Rio de Janeiro, Janeiro – Dezembro 2008, available at: http://urutau.proderj.rj.gov.br/isp_imagens/Uploads/200812totalestado.pdf; “São Paulo fecha 2008 com redução recorde de homicídios,” Secretaria de Segurança Pública do Estado de São Paulo, Jan. 30, 2009, available at: http:www.ssp.sp.gov.br/home/noticia.aspx?cod_noticia=15330.

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vehicles90 and, until recently, also displayed a quotation on their official website from a now- former commander proclaiming: “To see the eyes of the enemy is important, but we should be prepared to make them close.”91 A significant percentage of police killings in alleged shoot-outs are actually instances of summary execution. A study released in 2004 by the human rights organization Justiça Global detailed 349 cases of summary executions by state security forces throughout Brazil over a six year period.92 In addition to killings by uniformed police, those committed by “extermination groups”, many of which involve off-duty police constitute a serious problem in the country. Two of the witnesses with whom United Nations (U.N.) Special

Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Asma Jahangir spoke during her visit in 2003 were killed within days of their interviews, the first while Ms. Jahagir was still in the country.93 Nilmário Miranda, then Secretary for Human Rights in Brazil, described the killings as

“an open challenge [by the death squads] to demonstrate that they are untouchable.”94 More recently, Philip Alston, the current United Nations Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions issued a damning report on police killings in Rio de Janeiro,

São Paulo, and Pernambuco. As he noted in his summary:

The people of Brazil did not struggle valiantly against 20 years of dictatorship, nor did they adopt a federal Constitution dedicated to restoring respect for human rights, only in order to make Brazil free for police officers to kill with

90 Homepage of the Batalhão de Operações Policiais Especiais (BOPE), Polícia Militar do Estado do Rio de Janeiro, accessed on May 10, 2008, available at: http://www.boperj.org/. 91 “Ver os olhos do inimigo é importance, porém devemos estar preparado para fazê-los fecharem-se.” Ten. Cel. PM RG 34.681 Fernando Principe Martins. Homepage of the Batalhão de Operações Policiais Especiais (BOPE), Polícia Militar do Estado do Rio de Janeiro, accessed on Mar. 14, 2006. 92 Execuções Sumárias no Brasil – 1997-2003, Justiça Global, Sep. 2003, p. 7. 93 “Killing of witnesses show death squad problem in Brazil – UN rights office,” UN News Service, Oct. 10, 2003, available at: http://www.un.org/apps/news/story.asp?NewsID=8518&Cr=brazil&Cr1=. 94 “Second witness shot in Brazil,” BBC News, Oct. 10, 2003.

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impunity in the name of security.95

Impunity, perhaps the principal enabler of human rights violations, remains prevalent in Brazil.

In the first five years after the domestic criminalization of torture in 1997, Brazilian prosecutors brought 524 cases charging torture, a number suggesting a very high incidence of the crime throughout the country given general trends of underreporting and scarce investigatory and prosecutorial resources. Of those 524, just fifteen had gone to trial as of May 2003, and only nine had resulted in convictions.96 The reality is similar with respect to other abuses. For instance, in the 349 cases documented by Justiça Global of summary executions by state security forces from 1997 to 2003, in 202 of them, prosecutors had not even started investigations by September of 2003.97

As already noted, this pattern of impunity is not new. The Amnesty Law continues effectively to bar prosecutions of dictatorship –era crimes. Brazil’s failure to break with the repressive ways of its past derives, at least in part, from this lack of accountability regarding the dictatorship.98 While Brasil: Nunca Mais managed to expose fundamental “truths” about the dictatorship, it did not spur successful calls to revisit the Amnesty Law of 1979. As Wechsler describes, when the book’s producers released a list of 444 torturers on November 21, 1985,

“for the most part those whose names appeared on the list retained their positions [in

95 Mission to Brazil, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, A/HRC/11/2/Add.2 future, Aug. 29, 2008, p. 2, available at: http://www2.ohchr.org/english/issues/executions/docs/A_HRC_11_2_Add_2_English.pdf. 96 Direitos Humanos no Brasil 2003, Centro de Justiça Global, May 2004, p. 38. 97 Execuções Sumárias no Brasil – 1997-2003, Justiça Global, Sep. 2003, p. 7. 98 For a discussion of the link between the dictatorship and present repression, situating it as one of many important factors, see Relatório Rio: Violência Policial e Insegurança Pública, Centro de Justiça Global, Oct. 2004, p. 12.

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government] and, thanks to the amnesty, had little more to endure than the public’s contempt.”99

Noting that, “there has been no full official accounting for the crimes committed by [the military] regime,” U.N. Special Rapporteur on Torture Sir Nigel Rodley recommended in 2001 that Brazil take effective action to rid its contemporary security forces of torturers, adding “[a] start could be made by purging known torturers from the period of the military

Government.”100 Aside from the numerous military regime holdovers still in government, not even the most elementary steps toward justice have been fully taken. Mechanisms for truth- seeking and reparations have been , at best, incomplete. Brasil: Nunca Mais along with the work produced by the Special Commission on Political Deaths and Disappearances have been able to establish some record of atrocities. Yet many aspect of the truth remain elusive even after over two decades.

Thin Support for Democracy: In post-transition Brazil, broad segments of society have grown increasingly disillusioned with democratic rule, in significant part due to the perceived inability of elected leaders to control ordinary crime. In a 1996 Latinobarómetro poll, only 50% of

Brazilians questioned responded affirmatively to the statement “[d]emocracy is preferable to any other type of government.” That figure placed Brazil next-to-last in terms of support for

99 Weschler, p. 75-76. 100 Rodley report, para. 158, 169(j).

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democracy among eighteen Latin American countries surveyed.101 In 2007, support for democracy in Brazil had fallen further, to just 43%.102 While these data alone do not demonstrate a certain link between lack of accountability mechanisms and weak support for democracy, they should, at least, be a cause for concern.

Distrust for Human Rights: In addition, Brazilians on the whole demonstrate relatively little support for human rights and their defenders in large part because of the close association in popular consciousness between rights defense and surging crime. Many Brazilians believe that human rights organizations focus excessively on the rights of criminals and criminal defendants.103 The flash poll run by the TV Globo network cited above, in which viewers were asked to choose between two views of public security (one which supported the “right” of the police to kill, the other based on the rule of law and human rights) is illustrative of general anti- human rights sentiment in the country. In that poll, three quarters of those polled, in effect, voted against human rights as a paradigm for guiding law enforcement.

101 The Latinobarómetro Poll: A Warning for Reformers, THE ECONOMIST, Nov. 17, 2007, at 45-46, cited in James L. Cavallaro, “Looking Backward to Address the Future?: Transitional Justice, Rising Crime, and Nation Building, 60 U. Maine L. Rev. 462, 71 (2008). 102 Ibid. 103 See, generally, International Council on Human Rights Policy (James L. Cavallaro, author, Mahmoud Mohamedou, editor), Crime, Public Order and Human Rights (Versoix, Switzerland 2003).

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X. Concluding Thoughts

For those who support accountability, the Brazilian experience provides a disheartening, but vital case study. Despite the consistent absence of official efforts to prosecute crimes of the dictatorship, civil society groups have found limited success in pursuing avenues to press for investigations and non-criminal sanctions. The meta-narrative of the Brazilian transition has been one of top-down, military control of the transition, exacerbated by the relative isolation of the country’s civil society and the surge in crime and accompanying loss of prestige of the human rights discourse that occurred in the first years of democratic change. The recent victory at the Inter-American Court of Human Rights and the election of a former guerrilla as president of the Republic, may represent important steps in the Brazilian transitional justice experience. But official refusal to implement the Court’s judgment combined with broad societal indifference suggest continuity of Brazil’s exceptional approach to transitional justice.

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