Civil Society and the Resurgent Struggle Against Impunity in Uruguay (1986–2012)

The International Journal of Transitional Justice, Vol. 7, 2013, 306–327, doi:10.1093/ijtj/ijt001 Advance Access publication: 1 February 2013 Civil Society and the Resurgent Struggle against Impunity in Uruguay (1986–2012)

y Jo-Marie Burt,* Gabriela Fried Amilivia and Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 Francesca Lessa**

Abstract With the approval on 27 October 2011 of Law 18.831, the Uruguayan parliament voted to overturn the 1986 Expiry Law, a law long criticized by human rights advocates because it prevented the criminal prosecution of human rights abuses committed during the country’s military dictatorship (1973–1985). By overturning what many considered the lynchpin of institutionalized impunity in Uruguay, the new law restores the state’s capacity to prosecute human rights violations. Although a number of factors contributed to this surprising outcome, including a more permissible opportunity structure (the successive election of two left-wing governments) and the willingness of some judicial operators to challenge the Expiry Law, this article argues that the key explanatory variable to understanding these recent developments is the persistent demands of civil society groups over time. Civil society groups developed innovative strategies and incorporated new groups that gave renewed strength to the resurgent struggle against impunity in Uruguay. The article concludes with reﬂections on the signiﬁcance of Uruguay’s renewed accountability efforts for transitional justice debates. Keywords: impunity, civil society mobilization, human rights violations, prosecutions, Uruguay Expiry Law

Introduction In the Southern Cone of Latin America, the Uruguayan experience with transitional justice (TJ) has long been overshadowed by the important and unprecedented developments in Argentina and Chile. These two countries pursued

* Associate Professor of Political Science, Director of Latin American Studies and Co-director of the Center for Global Studies, George Mason University, USA. Email: [email protected] y Assistant Professor, Department of Sociology, California State University Los Angeles, USA. Email: [email protected] ** Postdoctoral Researcher, Latin American Centre, and Junior Research Fellow, St. Anne’s College, University of Oxford, UK. Email: [email protected] We owe an enormous debt of gratitude to the many people in Uruguay who generously gave of their time, experience and knowledge over the course of our research and whose insights helped us reconstruct Uruguay’s transitional justice trajectory. The authors also gratefully acknowledge the helpful suggestions of the IJTJ editors and two anonymous reviewers. Any errors or shortcomings are of course our own.

! The Authors (2013). Published by Oxford University Press. All rights reserved. For Permissions, please email [email protected] The Resurgent Struggle against Impunity in Uruguay 307 distinct paths in their efforts to address the legacy of state terror, yet for a number of reasons both came to represent in the TJ imaginary key models to either emulate or avoid. Although the Argentinean and Chilean processes have been extensively analyzed by TJ practitioners and academics, the case of Uruguay re- mains relatively underanalyzed. This article attempts to address this dearth of scholarship in light of recent and rather unexpected progress in Uruguay, where civil society actors effectively mobilized domestically and internationally to challenge impunity. The article highlights the important lessons for TJ theory and Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 practice of this often overlooked case. Specifically, it seeks to explain and draw lessons from the past 25 years’ efforts, led by civil society, to challenge the institutionalized impunity that surrounded the grave violations of human rights committed during Uruguay’s military dictatorship (1973–1985). Uruguay transitioned to democratic rule in 1985, shortly after its neighbor Argentina. With a highly mobilized civil society demanding truth and justice, Argentina became a pioneer of TJ.1 The first internationally recognized truth commission, the Comisioń Nacional sobre la Desaparicioń de Personas, was created in 1983 to investigate disappearances during military rule between 1976 and 1983. A year later the nine leaders of the military juntas were put on trial and five were convicted for human rights crimes in 1985. Uruguay, like Brazil, followed a distinct path. In both cases, controlled transitions led by conservative and military elites thwarted efforts to engage in truth seeking or criminal prosecutions. Official policies of impunity were successfully sealed and consolidated through the enactment of amnesty laws.2 The ‘no truth, no justice’ formula adopted by Uruguay’s transitional government persisted as official state policy for 15 years. Until the establishment of the Commission for Peace in August 2000, there had been no official inquiry into grave human rights violations; indeed, there was no admission by the Uruguayan state that such crimes had in fact been perpetrated.3 Prosecutions were curtailed by the highly controversial 1986 Ley de Caducidad de la Pretensioń Punitiva del Estado (Expiry Law of the Punitive Claims of the State, hereafter Expiry Law), which granted immunity to military and police officers accused of grave human rights violations and became the cornerstone of state-sanctioned impunity in Uruguay.4

1 Kathryn Sikkink, ‘From Pariah State to Global Protagonist: Argentina and the Struggle for International Human Rights,’ Latin American Politics and Society 50(1) (2008): 1–29. 2 Brazil was condemned by the Inter-American Court of Human Rights, which declared that Brazil’s 1979 amnesty law was incompatible with the American Convention on Human Rights and lacked legal effect. See, Gomez Lund et al. (Araguaia Guerrillas) v. Brazil, Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 219 (26 November 2010). In May 2012, the Comissa˜o Nacional da Verdade was established to investigate human rights abuses that occurred in Brazil between 1946 and 1985. 3 The nongovernmental organization Servicio Paz y Justicia (SERPAJ) published a well-researched investigation of state terrorism in Uruguay in 1989. See, Servicio Paz y Justicia, Uruguay, Nunca Ma´s (1989). In the mid-1980s, two parliamentary commissions investigated the 1976 Buenos Aires murders of legislators Zelmar Michelini and He´ctor Gutie´rrez-Ruiz, and cases of disappearances, but with limited results. 4 For the text of the Expiry Law (Law No. 15.848), see, http://www.parlamento.gub.uy/Leyes/ Ley15848.htm (accessed 18 January 2013).

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 308 J.-M. Burt, G. F. Amilivia and F. Lessa

Two major civil society campaigns in 1989 and 2009 failed to overturn the Expiry Law. In recent years, however, efforts by human rights lawyers and activists to circumvent the law – along with a slightly more receptive judiciary and a more favorable political climate – have made possible important human rights trials resulting in high-level prosecutions, including of former dictators, ministers and high-ranking military ofﬁcers. This resurgent civil society campaign against impunity was bolstered in early 2011 by an international ruling that challenged the law’s validity and gave civil society actors a new tool to convince politicians of the Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 need to overturn the Expiry Law, which was accomplished on 27 October 2011. A decade ago, academics argued that Latin America was at the forefront of a ‘justice cascade’ – a ‘rapid shift toward recognizing the legitimacy of human rights norms and an increase in international and regional action to effect compli- ance with those norms.’5 However, many of the region’s amnesty laws remained intact, and elites in several countries, including Uruguay, Brazil, El Salvador and Guatemala, successfully resisted public mobilization against impunity.6 We contend that although Uruguay illustrates the justice cascade in action, the sinuous evolution of its TJ experience cannot be fully understood without a bottom-up, grounded approach that highlights domestic conditions and especially the role of civil society in such processes, as opposed to an overemphasis on international or transnational norms, settings and agencies and on state practices.7 This article focuses on the mobilization of civil society to overturn the Expiry Law across three decades. We trace the paths that led to a dramatic shift in Uruguay from being a ‘sanctuary of impunity’ – in the words of writer Eduardo Galeano8 –to joining a regional trend in Latin America, in which several countries have successfully overturned or circumvented amnesty laws that prevented the criminal prosecution of those responsible for grave human rights violations committed in the recent past. Civil society actors adopted creative legal and political strategies in pursuit of truth and justice, and these efforts have contributed decisively to overturning one of the region’s longest-standing impunity laws. The article is divided into four sections. The ﬁrst provides a brief historical background on Uruguay’s military rule, the nature of human rights violations and the democratic transition. The second section discusses the origins and major features of Uruguay’s impunity regime, focusing on the Expiry Law. The third

5 Ellen Lutz and Kathryn Sikkink, ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America,’ Chicago Journal of International Law 2(1) (2001): 4. 6 Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Oxford: Hart, 2008); Jo-Marie Burt, ‘Challenging Impunity in Domestic Courts: Human Rights Prosecutions in Latin America,’ in The Transitional Justice Handbook for Latin America, ed. Felix Reategui (Brasilia: Brazilian Amnesty Commission, Ministry of Justice and International Center for Transitional Justice, 2011). 7 A similar approach is argued for in Cath Collins, ‘Grounding Global Justice: International Networks and Domestic Human Rights Accountability in Chile and El Salvador,’ Journal of Latin American Studies 38(4) (2006): 711–738. 8 Speech by Eduardo Galeano delivered at the burial of Ubagesner Cha´ves Sosa, the ﬁrst disappeared, whose body was found buried on Uruguayan soil in 2005. ‘Abracadabra,’ Pa´gina12, 17 March 2006.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 309 examines the main challenges brought against the law from its passage in 1986 to the present, concentrating on the latest wave of domestic and international attempts to overturn the law since 2005. The fourth section analyzes Uruguay’s TJ process, especially unpacking the core argument on the fundamental role played by civil society in driving the anti-impunity mobilization to successfully overturn the chief obstacle to criminal prosecutions. Finally, we conclude with an analysis and reflection on the significance of Uruguay’s latest turn in TJ for the field.

In terms of methodology, we have engaged in extensive data analysis to examine Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 the key developments in Uruguay’s TJ trajectory from 1986, when the Expiry Law was passed, to 2011, when new legislation overturned it, removing the principal legal obstacle to prosecution of dictatorship-era crimes. Data analysis has drawn upon primary and secondary sources, including extensive fieldwork and interviews with key actors, which allowed us to reconstruct the history and the specific historical events that shaped Uruguay’s TJ process and to weigh different explanatory variables. In terms of secondary sources, we examined the existing academic literature on Uruguay’s transition and the Expiry Law. We also generated original primary data through extensive fieldwork conducted over a period of several years, which included participant observation, semistructured extended interviews and archival work. We then engaged in a collective process of data analysis drawing on these two data sets. Our grounded approach involves a naturalistic observational, event-based and historical analysis, with a process of hypothesis formation and explanatory variables based on an extensive immersion in the field and drawing on the lived experience of those who traditionally have been left out of the analysis and marginalized from the TJ process: human rights activists and victim-based groups and individuals who have mobilized for decades but who, until very recently, had no access to participation in policy making regarding the abuses.9 This perspective deepens our understanding of how social mobilization ultimately came to shape the surprising political outcome toward an opening of the accountability agenda in Uruguay.10 Each author has been engaged in research on human rights and TJ issues in Uruguay over a long period of time and has been in intensive contact with the different actors involved in the process. Because field interviews are a key source of our data, a brief discussion of this aspect of our methodology is necessary. We each conducted semistructured interviews, with open-ended questions, of key actors in Uruguay’s TJ process, including politicians, lawyers, judges, prosecutors,

9 See, Kathy C. Charmaz, ‘Shifting the Grounds: Constructivist Grounded Theory Methods,’ in Developing Grounded Theory: The Second Generation, ed. Janet M. Morse, Phyllis Noerager Stern, Juliet M. Corbin, Barbara Bowers, Kathy C. Charmaz and Adele E. Clarke (Walnut Creek, CA: Left Coast Press, 2009); Barney G. Glaser, Basics of Grounded Theory Analysis: Emergence vs. Forcing (Mill Valley, CA: Sociology Press, 1992). 10 We here build on Sandra Harding’s notion of ‘strong objectivity’ and Patricia Hill Collins’ stand- point epistemology. See, Sandra Harding, ed., Feminism and Methodology (Bloomington, IN: University of Indiana Press, 1987); Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Boston: Unwin Hyman, 1990).

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 310 J.-M. Burt, G. F. Amilivia and F. Lessa victims, human rights activists, trade union leaders and university students, with ongoing follow-up via formal and informal communication. We carried out and collectively analyzed more than 150 interviews between 2007 and 2012 and engaged in extended fieldwork on TJ in Uruguay during several trips over that time period.11 Uruguay’s Military Rule, Repression and Transition Uruguay was known as the Switzerland of Latin America, a label underscoring the Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 country’s exceptional democratic tradition in comparison with the turbulence and authoritarianism of neighboring countries. By the late 1970s, against the backdrop of the Cold War, Uruguay faced mounting economic problems, increased social polarization and rising levels of political violence. On 27 June 1973, President Juan Marıá Bordaberry dissolved parliament with the backing of the armed forces, inaugurating a military regime that combined economic mis- management with political terror. No longer the exception in the region, Uruguay earned a new nickname, the torture chamber of Latin America, reflecting the regime’s particular genre of repression: prolonged imprisonment and the system- atic use of sophisticated methods of physical and psychological torture.12 The Uruguayan dictatorship was ‘the closest approximation in South America of the Orwellian totalitarian state.’13 The human cost was unprecedented. Between 1973 and 1977, Uruguay had the highest percentage of political detainees per capita in the world, with more than 60,000 detained and an estimated 6,000 long-term political prisoners. Approximately 200 Uruguayans were forcibly disappeared, mostly in Argentina within the framework of Plan Condor, but also in Uruguay itself.14 Several children, detained with their parents or born in captivity, were taken away from their relatives to be illegally and clandestinely adopted by

11 Lessa conducted 29 interviews in Montevideo in August 2007 and September 2008, with follow-up interviews in October 2009 and March 2012 (9 and 30, respectively) while researching TJ in Uruguay. Fried carried out 25 interviews and ongoing ethnographic fieldwork during 2009–2010 while based in Uruguay studying the 2009 plebiscite and TJ developments, with follow-up fieldwork in November–December 2011 and July–August 2012. Burt conducted 24 interviews on efforts to overturn the Expiry Law and promote criminal prosecutions in May and June 2007, 15 additional interviews with activists involved in the 2009 plebiscite as observer of the plebiscite in October 2009 and follow-up interviews in June 2010 and July 2012 (8 and 16, respectively) in Uruguay. Fried and Lessa jointly conducted several interviews with central public figures, analysts, lawyers and prosecutors on the civic struggles against impunity, now reflected in the first book on this topic. See, Gabriela Fried and Francesca Lessa, eds., Luchas contra la impunidad: Uruguay 1985–2011 (Montevideo: Trilce, 2011). 12 Jenny Pearce, Uruguay: Generals Rule (London: Latin America Bureau, 1980). 13 Mara Loveman, ‘High-Risk Collective Action: Defending Human Rights in Chile, Uruguay, and Argentina,’ American Journal of Sociology 104(2) (1998): 503. See, also, Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (Chicago: University of Chicago Press, 1998). 14 Plan Condor was a secret transnational network of intelligence and counterinsurgency operations set up in the mid-1970s by the military dictatorships of Argentina, Chile, Uruguay, Paraguay, Bolivia and Brazil, targeting political opponents who had sought refuge or gone into exile in neighboring countries. See, John Dinges, The Condor Years: How Pinochet and His Allies Brought Terrorism to Three Continents (New York: New Press, 2004).

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 311 military and police families, having their identity stolen and altered in secret. Some 250,000 Uruguayans were forced into exile.15 Uruguay’s transition to democracy was sealed by the Navy Club Pact of August 1984. These secret negotiations held between the three commanders of the armed forces and representatives of the Colorado, Civic Union and Frente Amplio political parties restored the preexisting political system and the 1967 constitution.16 It is still debated whether immunity from prosecution for state agents accused of human rights crimes was agreed upon in these negotiations. Regardless, impunity Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 would soon be sealed with the adoption of the Expiry Law. The Expiry Law In the early days of transition, the new government of President Julio Marıá Sanguinetti of the conservative Colorado Party addressed several pressing legacies of military rule through the 1985 National Pacification Project. Nearly all political prisoners were amnestied and released, and mechanisms were adopted to facili- tate the reintegration of returning exiles and to reinstate public employees un- fairly dismissed during the dictatorship to their previous jobs.17 The 1985 amnesty for political prisoners explicitly excluded from its provisions immunity from prosecution for state agents responsible for human rights violations. But following Sanguinetti’s logic that ‘we should not have eyes in the back of our heads,’ his government not only did not investigate or seek to prosecute those responsible for human rights violations but also actively sought to obstruct those cases moving forward in the courts.18 As early as April 1985, victims of human rights violations and/or their relatives began presenting their cases before the courts, alleging that specific members of the security forces were responsible. By December 1986, 734 such cases were under investigation.19 The military became increasingly restless. The head of the armed forces, General Hugo Medina, openly defied the judiciary, stating that no military officer would comply with judicial summons to appear in court. The executive portrayed this situation as an institutional crisis that could potentially lead to another military coup. Just hours before military officers were due to appear in court, on 22 December 1986, parliament enacted the Expiry Law.20 The law abrogated the state’s ability to

15 Jose Pedro Barran, Gerardo Caetano and Alvaro Rico, eds., Investigacio´n Histo´rica Sobre la Dictadura y el Terrorismo de Estado en el Uruguay, 1973–1985 (Montevideo: Universidad de la Repu´ blica, 2009). 16 General Hugo Medina, the main architect of transition, continued as head of the army in 1985. In 1987 he was named minister of defense by the government of Julio Marı´a Sanguinetti. 17 Alexandra Barahona de Brito, Human Rights and Democratization in Latin America: Uruguay and Chile (Oxford: Oxford University Press, 1997). 18 Francesca Lessa, ‘No hay que tener los ojos en la nuca: The Memory of Violence in Uruguay, 1973–2010,’ in The Memory of State Terrorism in the Southern Cone: Argentina, Chile and Uruguay, ed. Francesca Lessa and Vincent Druliolle (New York: Palgrave Macmillan, 2011). 19 Barahona de Brito, supra n 17. 20 Weschler, supra n 13.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 312 J.-M. Burt, G. F. Amilivia and F. Lessa criminally prosecute crimes committed by military and police officials between 27 June 1973 and 1 March 1985 either for political reasons or in fulfillment of their functions and obeying orders from superiors. The law further ordered the courts to seek the opinion of the executive as to whether denunciations of human rights abuses fell within the law’s scope. If the executive considered that the law applied, courts had to archive the case(s); otherwise, judicial proceedings would be allowed to proceed. Lastly, the law instructed the executive to investigate cases 21 of enforced disappearances. Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 Impunity in Uruguay has many faces. However, the Expiry Law, the purpose of which was to block the possibility of bringing perpetrators to justice, became the defining symbol of impunity for dictatorship-era crimes, no less because it was sanctioned by parliament. The Expiry Law has shaped the trajectory of TJ in Uruguay, constituting both a real and a symbolic obstacle to achieving accountability for past crimes. The law, referred to by its critics as the ‘impunity law,’ has been contested on a number of grounds. Critics deemed it unethical for denying survivors and relatives of victims the right to truth and justice and for allowing prosecutions for crimes involving economic motives but not for torture or murder. Others challenged the law’s constitutionality, as by requiring judges to consult the executive on human rights cases before opening an investigation, it attributed a judicial power – whether to pursue criminal prosecution – to the executive, thus under- mining the separation of powers and judicial independence. Finally, international human rights bodies, including the Inter-American Commission on Human Rights (IACHR) and the UN Human Rights Committee (UNHRC), questioned the law’s validity as it violated international law.22 Challenges to the Expiry Law, 1986–2012 Since its enactment, successive governments have pointed to the Expiry Law as key to Uruguay’s successful transition and democratic consolidation. Yet, there has been massive and sustained opposition to the Expiry Law, spearheaded primarily by civil society groups who consider it to be the lynchpin of institutionalized impunity in Uruguay. The following section examines the most significant national and international efforts to revoke the law during the past three decades.

21 Francesca Lessa, ‘Barriers to Justice: The Ley de Caducidad and Impunity in Uruguay,’ in Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives, ed. Francesca Lessa and Leigh A. Payne (Cambridge: Cambridge University Press, 2012). 22 Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Inter-Am. Comm’n H.R., Report No. 29/92 (2 October 1992), http://www.cidh.oas.org/annualrep/92eng/Uruguay10.029. htm (accessed 18 January 2013); Rodrı´guez vs. Uruguay, UN Human Rights Committee, UN Doc. CCPR/C/51/D/322/1988 (9 August 1994); Concluding Observations of the Human Rights Committee: Uruguay, UN Doc. CCPR/C/79/Add.19 (5 May 1993); Concluding Observations of the Human Rights Committee: Uruguay, UN Doc. CCPR/C/79/Add.90 (8 April 1998).

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Initial Domestic and International Challenges, 1986–2004 Immediately after the law’s adoption, the Association of Mothers and Relatives of the Disappeared (Madres y Familiares de Desaparecidos) decided to seek the revo- cation of the Expiry Law via a referendum.23 In alliance with opposition legislators primarily from the left-wing coalition Frente Amplio, Familiares presented a recourse of unconstitutionality to the Supreme Court of Justice (SCJ), contending that the Expiry Law violated the separation of powers and judicial independence. The National Pro-Referendum Commission, established in January 1987 to Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 coordinate the campaign, was led by Familiares representative Marıá Esther Gatti, whose daughter, son-in-law and granddaughter were missing, and Elisa Dellepiane and Matilde Rodrı´guez Larreta, the respective widows of murdered legislators Zelmar Michelini and Hećtor Gutie´rrez-Ruiz. The commission included representatives from all existing associations of survivors and relatives of dictatorship victims; human rights groups; cultural figures, such as Eduardo Galeano and Mario Benedetti; and other civil society actors, most notably the national confederation of trade unions, Plenario Intersindical de Trabajadores – Convencioń Nacional de Trabajadores (PIT-CNT), and the University Student Federation (Federacioń de Estudiantes Universitarios del Uruguay, or FEUU). The Frente Amplio also supported the referendum, with important political figures playing a key role.24 The SCJ’s 3–2 split decision of May 1988 upholding the Expiry Law’s constitutionality gave greater urgency to the campaign. More than 634,700 signatures – gathered for several months door-to-door by civil society volunteers – were submitted to the electoral court. Despite efforts to obstruct the referendum, the ballot was eventually scheduled for 16 April 1989. However, the initiative failed, with 57 percent of Uruguayans voting to retain the Expiry Law and 43 percent to revoke it. The referendum campaign made accountability a central issue of public debate for months and produced a broad social mobilization of civil society groups promoting truth and justice. However, for many Uruguayans, the referendum results sealed the issue of past human rights violations legally and politically. Moreover, the fact that the majority had voted to maintain the law would become a powerful argument to legitimize institutionalized impunity for decades. The defeat of the referendum was especially devastating to the human rights movement, which would take years to recover and resume the anti-impunity struggle. ‘It was terrible,’ said Luisa Cuesta, a leading Familiares member.

23 Article 79 of the Uruguayan constitution allows citizens to challenge a law via referendum if 25 percent of the electorate so requests within a year of the law’s promulgation. 24 Jo-Marie Burt, El Pueblo Decide: A Brief History of the Referendum against the Impunity Law in Uruguay (Montevideo: Servicio Paz y Justicia, 1989); Maria Martha Delgado, Marisa Ruiz and Rau´ l Zibechi, Para que el pueblo decida: La experiencia del referendum contra la ley de impunidad en Uruguay (1986–1989) (Washington, DC: International Human Rights Internship Program, 2000).

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‘We felt as if Uruguayan society had turned its back on us.’25 However, even when significantly reduced in membership, Familiares carried on with the search for missing loved ones, focusing on locating missing children inside Uruguay, and remained active in the Latin American Federation of Associations of Relatives of Disappeared Detainees.26 Following the defeat of the referendum initiative, the issue of past human rights abuses faded from the domestic political agenda, and challenges to the law shifted to the international sphere. In October 1992, in response to eight petitions filed Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 between 1987 and 1989 by the Institute of Legal and Social Studies of Uruguay (Instituto de Estudios Legales y Sociales del Uruguay, or IELSUR), the IACHR declared the Expiry Law incompatible with Uruguay’s international obligations to respect the right of victims of human rights abuses to a fair trial and judicial protection.27 This was the first time an intergovernmental body directly addressed the question of the compatibility of an amnesty with a state’s obligations under international human rights law.28 However, at a time of public silence following the referendum, this historic decision had little impact inside Uruguay. In 1994, the UNHRC criticized the Expiry Law for contributing ‘to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations.’29 These concerns also appeared in the UNHRC’s periodic reports on Uruguay in 1993 and 1998.30 Although these pronounce- ments had no immediate effect, Uruguayan courts would cite them more than a decade later in their rulings against the Expiry Law.31 A chain of events began to shake up the postreferendum inertia in the mid-1990s, giving way to a renewal of civil society-based anti-impunity efforts. Inspired by developments in neighboring Argentina, where military confessions broke the wall of silence surrounding human rights violations and led to renewed calls for accountability, including ‘truth trials’ and other initiatives, Uruguayan senator Rafael Michelini and Familiares convoked the first March of Silence on 20 May 1996, which met with massive public response.32 Shortly thereafter,

25 Personal interview (author Burt), Luisa Cuesta, Montevideo, Uruguay, June 2007. 26 Carlos Demasi and Jaime Yaffe´, Vivos los llevaron ...Historia de la lucha de Madres y Familiares de Uruguayos Detenidos Desaparecidos (1976–2005) (Montevideo: Trilce, 2005). 27 Inter-Am. Comm’n H.R., Report No. 29/92, supra n 22. With the support of Americas Watch, IELSUR argued that the Expiry Law violated the American Convention on Human Rights for denying ‘judicial protection from the courts’ (para. 10) and an ‘impartial investigation of the human rights violations’ (para. 9). 28 Louise Mallinder, ‘Uruguay’s Evolving Experience of Amnesty and Civil Society’s Response,’ Working Paper No. 4, in Beyond Legalism: Amnesties, Transition and Conflict Transformation, Institute Of Criminology and Criminal Justice, Queen’s University Belfast, March 2009. 29 Rodrı´guez vs. Uruguay, supra n 22 at para. 7. 30 UN Doc. CCPR/C/79/Add.19, supra n 22; UN Doc. CCPR/C/79/Add.90, supra n 22. 31 Supreme Court of Justice, Unconstitutionality Sentence No. 365, 19 October 2009, on file with authors. 32 Personal interview (author Burt), Familiares members Luisa Cuesta and Amalia Gonzalez, Montevideo, Uruguay, June 2007. Since 1996, the March of Silence has endured as the largest civic mobilization, encompassing thousands of silent marchers as an annual civic ritual that has attracted the attention of public figures, social organizations and analysts alike.

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Argentine poet Juan Gelman launched an international campaign demanding that the Uruguayan government disclose the fate of his missing granddaughter, Macarena Gelman, born during her disappeared mother’s illegal detention in 1976. Gelman appealed directly to Sanguinetti during his second presidency and mobilized international artists and notables to the cause. Gelman’s campaign helped reignite the national debate on the need to investigate past human rights crimes and was a key factor in the decision of Sanguinetti’s successor,

Jorge Batlle, to establish the Commission for Peace to investigate the fate of Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 the disappeared. Gelman’s granddaughter – raised by a police officer and his wife – was located in 2000 alive and living in Montevideo, causing a huge public impact, not least because Sanguinetti had denied that she was living in Uruguay.33 The legacy of the Commission for Peace is a subject of some debate in Uruguay. Its sources remained classified, and it normally disclosed information about the disappeared to individual family members only (who were required to keep the information secret) rather than producing a public accounting of what happened to the disappeared. Additionally, it produced information that later proved to be false. For example, the Commission for Peace stated that Simoń Riquelo, the son of Sara Meńdez, was dead, but in 2002 he was found in Argentina.34 Nevertheless, the fact that the Uruguayan state felt obliged to reckon with the issue of the disappeared helped validate civil society demands to further investigate the crimes committed during the dictatorship and gave further impetus to demands to reopen debates on truth, memory and justice in Uruguay.35 At about this same time, human rights activists and lawyers began to seek ways to circumvent the Expiry Law. This strategy had been successful in Argentina and Chile and was applied in Uruguay with important results. Activists recruited labor lawyer Pablo Chargon˜ia to litigate the case of disappeared teacher Elena Quinteros.36 In December 1999, Chargon˜ia presented a recurso de amparo (a remedy for the legal protection of rights and freedoms) on behalf of Elena’s mother Tota Quinteros, seeking to assert her right to access information regarding her daughter’s fate.37 In May 2000, Judge Estela Jubette accepted the amparo request and ordered the executive to investigate the case. The appellate court later

33 President Jorge Batlle saw the creation of the Commission for Peace as a way to distance himself from his predecessor. In a public response to Gelman, Sanguinetti wrote, ‘There are no missing children in Uruguay.’ See, La Repu´blica, 29 January 2000. 34 Personal interview (author Burt), Sara Me´ndez, Montevideo, Uruguay, June 2007 and July 2012. 35 Gabriela Fried, ‘Remembering Trauma in Society: Forced Disappearance and Familial Transmissions after Uruguay’s Era of State Terror (1973–2001),’ in Sociology of Memory: Papers from the Spectrum, ed. Noel Packard (Cambridge: Cambridge Scholars Publishing, 2009). 36 Personal interview (author Burt), Pablo Chargon˜ia, Montevideo, Uruguay, June 2007. 37 ‘Almeida de Quinteros Maria del Carmen C/Poder Ejecutivo (Ministerio de Defensa Nacional) Amparo,’ Ficha 216/99, Sentence No. 28 (10 May 2000), http://elenaquinterospresente.blogspot. com/2000/05/100500-fallo-de-la-jueza-stella-jubette.html (accessed 18 January 2013); Pablo Chargon˜ia, email messages to author Lessa, 16 and 17 September 2011.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 316 J.-M. Burt, G. F. Amilivia and F. Lessa upheld the ruling.38 The administrative investigation into Elena Quinteros’ fate produced no significant findings, however, and in November 2000, Chargon˜ia requested that the previously closed criminal investigation be reopened based on the innovative argument that the Expiry Law did not apply to civilians.39 Judge Eduardo Cavalli accepted this argument and on 18 October 2002 charged former Foreign Minister Juan Carlos Blanco with the aggravated deprivation of the liberty of Elena Quinteros.40 This was the first time anyone had been indicted 41 and detained for dictatorship-era crimes in Uruguay. Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 Resurgent Domestic Challenges to Impunity, 2005–2012 These legal and political developments forced the accountability issue back onto the public agenda. With the historic victory of Tabare´ Va´zquez of the Frente Amplio in the 2004 presidential elections, activists saw new political opportunities to advance the accountability agenda. The Va´zquez government openly stated it would not seek to overturn the Expiry Law. But in a nod to its constituents, who anticipated a break from past impunity policies, the Va´zquez government presented a bill to parliament in November 2005 designed to restrict the law’s application and therefore allow some investigations to move forward. The 2005 draft law outlined specific instances in which prosecutions could take place: crimes committed by civilians or high-ranking military or police officers, crimes perpetrated abroad, the illegal appropriation of children and crimes perpetrated to obtain economic benefits.42 Intense criticism by the armed forces and pressure from the traditional political parties led the Va´zquez administration to abandon the draft law.43 Nevertheless, it began to adopt these very criteria in practice when the courts consulted with the executive before pursuing investigations into human rights cases, as mandated by the Expiry Law.44 As a result, since 2005, judicial proceedings moved forward in approximately 25 cases of past human rights crimes involving close to 60 victims. Some important convictions have been handed down. In April 2010, Juan Carlos Blanco was sentenced to

38 Elin Skaar, ‘Legal Development and Human Rights in Uruguay: 1985–2002,’ Human Rights Review 8(2) (2007): 52–70. 39 Chargon˜ia asserted that the Expiry Law did not provide immunity from prosecution to high-ranking members of the armed forces or civilian leaders of the dictatorship because Article 1 only mentions military and police officers who committed crimes ‘while following orders.’ Personal interview (author Burt), Pablo Chargon˜ia, Montevideo, Uruguay, June 2007. 40 Amnesty International Report 2003 – Uruguay (28 May 2003), http://www.unhcr.org/refworld/ publisher,AMNESTY,ANNUALREPORT,URY,3edb47e216,0.html (accessed 18 January 2013). 41 See, Pablo Chargon˜ia, ‘Avances, retrocesos y desafıós en la lucha judicial contra la impunidad,’ in Fried and Lessa, supra n 11. 42 ‘Proyecto de ley interpretativa de la Ley de Caducidad,’ Espectador.com, 14 November 2005, http://www.espectador.com/1v4_contenido.php?id=55990&sts=1 (accessed 18 January 2013). 43 Mallinder, supra n 28. 44 Va´zquez also established a commission of historical inquiry, known as Investigacioń Histo´rica sobre Detenidos Desaparecidos, led by well-respected academic A´ lvaro Rico and mandated to investigate the fate of the disappeared.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 317

20 years for the murder of Elena Quinteros.45 Two former dictators have been convicted: Juan Marıá Bordaberry was condemned to 30 years in prison in February 2010 for leading the 1973 coup as well as for a number of politically motivated killings, and retired army general Gregorio A´ lvarez was sentenced to 25 years of imprisonment for 37 aggravated murders.46 In June 2011, Bordaberry and Blanco also were sentenced to 30 years’ imprisonment for the ordering and top-level coordination of the homicides of opposition politicians and human rights advocates Zelmar Michelini and Hećtor Gutie´rrez-Ruiz and of former Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 guerrilla members Rosario Barredo and William Whitelaw. Despite these important changes, a range of civil society actors believed that the measures adopted by the Va´zquez government were insufficient. Although the prosecution of several emblematic cases represented significant progress in anti-impunity efforts, these groups sought to have the Expiry Law annulled out- right.47 The Frente Amplio had a majority in parliament, they argued, and could nullify the law, but there was no consensus within the governing party to do so.48 Twenty years after the 1989 referendum, a broad coalition of civil society groups launched another grassroots initiative to overturn the Expiry Law. The National Coordinating Committee for the Nullification of the Expiry Law, established in November 2006, encompassed the PIT-CNT, human rights organizations, victims’ groups and cultural and public figures, including prominent human rights lawyers such as Oscar Lo´pez Goldaracena and Frente Amplio legislators such as Rafael Michelini and Felipe Michelini. The committee argued that the Expiry Law continued to prevent justice in hundreds of cases. Furthermore, it maintained that the law was invalid since its inception because it violated fundamental principles of constitutional and international human rights law. The committee proposed a constitutional reform project to nullify the law, which required the signatures of 10 percent (more than 250,000) of registered voters. More than 337,000 signatures, collected by civil society volunteers, were submitted to the electoral court. The plebiscite was scheduled for 25 October 2009 to coincide with national elections.

45 According to a recovered foreign ministry memo, Blanco, the foreign minister of the dictatorship in 1976, participated in the high-level cabinet meeting where the decision to eliminate Quinteros was made despite pressure from the Venezuelan embassy. See, Sara Meńdez and Raul Olivera, Secuestro en la embajada: El caso de la maestra Elena Quinteros (Montevideo: Ca´tedra de Derechos Humanos ‘Toto Quinteros’ de FUCVAM, 2003). 46 Mauricio Pe´rez, ‘Justicia confirmo´ condena al “Goyo” Alvarez y a Larcebeau,’ La Repu´blica,28 August 2010. Bordaberry admitted responsibility for the coup in a public letter and was convicted of ‘crimes against the constitution’ in a historic ruling. He subsequently died, while under house arrest, on 17 July 2011 before confirmation of his sentence by the SCJ. 47 Burt participated in a meeting at the PIT-CNT offices in which these issues were debated among representatives of several civil society groups, Montevideo, Uruguay, June 2007. 48 The Frente Amplio’s leading faction, Movimiento de Participacion Popular, held a different view of the past and was unwilling to raise accountability questions regarding its former ‘combatant enemies’ (i.e., the military) because of their guerrilla ties. Other factions, whose nonviolent mili- tants were disproportionately targets of disappearance, favored increased accountability. Personal interview (author Fried), anonymous interviewee, August 2009.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 318 J.-M. Burt, G. F. Amilivia and F. Lessa

Some activists opposed this initiative. For some, the ‘will of the people’ mani- fested in the 1989 referendum had to be accepted. Others argued that the right to justice for victims could not be circumscribed by a popular vote and, thus, a plebiscite on the matter made little sense. Nevertheless, once the plebiscite campaign was launched, many agreed it had to be supported.49 It is ironic that although the Frente Amplio’s plenary had historically afﬁrmed full accountability for dictatorship-era crimes, once in power, political concerns became a priority.

Indeed, officially, the Frente Amplio remained unsupportive of the plebiscite Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 campaign, and future president Jose´ Mujica, at that point still a candidate, expressed support reluctantly and only at the very end of his campaign. Less than a week before the vote in October 2009, the SCJ issued a verdict in the case involving Nibia Sabalsagaray, initiated by her sister, Stella, in 2004, ruling that the Expiry Law was unconstitutional – a remarkable departure from its previous 1988 constitutionality decision.50 Despite this ruling and a massive national campaign that was both innovative and dynamic, the plebiscite was endorsed by only 47.98 percent of voters, falling just a few points short of the required quorum of 50 percent plus one vote.51 There has been as yet little substantial discussion in Uruguay on the significance of or explanations for the failure of the 2009 plebiscite. In our interviews, several relevant explanatory factors emerged. One major issue was the political context: the plebiscite was overshadowed by the national presidential and parliamentary elections. The Frente Amplio was mainly preoccupied with ensuring a presidential and parliamentary victory for Mujica and its representatives in parliament. In addition, the Frente Amplio’s support for the plebiscite was lukewarm at best, which many viewed as central to its defeat. Another factor was its unusual procedure: voters who favored the nullification had to include a pink ‘yes’ slip with their ballot, whereas those who opposed the law had to do nothing; therefore, those who had no opinion on the matter were actively tabulated as a ‘no’ vote against the initiative. According to one poll taken the day after the plebiscite, of the 52 percent who did not submit the pink slip, 37 percent actively opposed overturning the Expiry Law, while 16 percent said that they had no opinion.52 Thus, a different mechanism for tabulating the vote may have resulted in a different outcome. Moreover, although the human rights issue seemed to resonate among a significant percentage of the population, and especially among the younger generations, it did not manage to sufficiently transcend political

49 These views are represented widely in personal interviews conducted in Montevideo during June–July 2007 and July–October 2009 by the authors in a survey of human rights community leaders and activists and Frente Amplio supporters on the 2009 plebiscite. 50 The SCJ is empowered to declare the unconstitutionality of a law only in relation to the case presented. Two additional unconstitutionality sentences were dictated in November and December 2010. See, Lessa, supra n 21. 51 ‘No a la anulacio´n: La´grimas y desconsuelo,’ La Repu´blica, 26 October 2009. 52 Results are from the CIFRA polling ﬁrm, as reported in La Repu´blica, 26 October 2009.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 319 sectarian affiliations into a wider ethics-based civic imagination. Furthermore, it was evident that many people were not well informed about the plebiscite.53 Unlike the 1989 referendum defeat, which ushered in a period of silence and hopelessness, the 2009 plebiscite had different effects. First, it put the issue of accountability squarely on the public agenda and reinvigorated civil society mobilization. Second, it demonstrated that the human rights issue was neither closed nor settled but, rather, remained a highly contentious matter. Third, it inspired the creation of new civic groups against impunity, especially among younger Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 generations. This included the revitalization of Hijos (the Uruguayan association of children of the disappeared), established in the late 1990s, and other groups whose members were not themselves related to victims of the dictatorship, such as Iguales y Punto (Equal Period), Todos y Todas Contra la Impunidad (Everybody Against Impunity) and a new student movement that organized a campaign of public denunciations of dictatorship-era crimes in police stations.54 International Challenges, 2006–2012 The Expiry Law was concurrently facing international scrutiny. Given their inability to obtain justice in Uruguay, Juan and Macarena Gelman lodged a com- plaint against Uruguay with the IACHR in 2006 with the support of international nongovernmental organization (INGO) Center for Justice and International Law. The Gelmans asserted that the Expiry Law obstructed any investigation into the disappearance of Macarena’s mother Maria Claudia Garcıá de Gelman and the circumstances of Macarena’s birth and illegal appropriation, as well as the prosecution of those responsible. In 2010, the case was referred to the Inter-American Court of Human Rights (IACtHR),55 which ruled on 24 February 2011 in favor of the Gelmans. Following its own previous jurisprudence establishing that amnesties guaranteeing impunity to human rights violators breach the American Convention on Human Rights and therefore lack legal validity,56 the IACtHR affirmed that the Expiry Law lacked legal effect and ordered the Uruguayan state to guarantee that it would no longer constitute an obstacle to investigation of the case and prosecution of those responsible, in the Gelman case as well as all other similar instances of human rights violations.57

53 Findings are from 25 personal interviews with community-based participants from a snowballing sample. Follow-up ethnographic and poll data support these findings (Fried 2010 plebiscite research project). 54 Personal communication (author Fried) with organizers, 21 October 2011. 55 Inter-Am. Comm’n H.R., ‘Application to the Inter-American Court of Human Rights in the Case of Juan Gelman, Marıá Claudia Garcıá Iruretagoyena de Gelman y Marıá Macarena Gelman Garcıá Iruretagoyena (Case 12.607) against the Oriental Republic of Uruguay’ (21 January 2010). 56 See, Barrios Altos v. Peru, Fund, Inter-Am. Ct. H.R. (ser. C) No. 75 (14 March 2001); Almonacid Arellano et al. vs. Chile, Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 154 (26 September 2006); Gomez Lund et al. (Araguaia Guerrillas) vs. Brazil, supra n 2. 57 Gelman vs. Uruguay, Merits and Reparations, Inter-Am. Ct. H.R. (ser. C) No. 221 para. 312.11 (24 February 2011).

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Uruguay’s response to the Gelman sentence was contradictory and ambivalent. A handful of Frente Amplio legislators, in alliance with anti-impunity civil society groups, sought to enact legislation that would have nullified provisions of the Expiry Law to allow criminal prosecutions to move forward before the IACtHR handed down its ruling. The effort collapsed after months of intense debate.58 The bill, which was approved by the House of Representatives in October 2010, was tied up in the Senate, where three Frente Amplio senators opposed it, claiming the bill transgressed the popular will expressed in the 1989 referendum and 2009 Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 plebiscite upholding the Expiry Law. After months of debate and revisions, the bill was approved by the Senate in April 2011, after the IACtHR ruling.59 The bill was returned to the House of Representatives for final endorsement, but the polarization only intensified. Then, in an unprecedented move, President Mujica interrupted parliamentary debate on the bill to warn the Frente Amplio parliamentarians of the political costs of passing the bill. Congressman Victor Semproni alone among Frente Amplio deputies abstained from voting, resulting in a 49–49 split vote. The proposed law hit a total impasse. The executive and the Frente Amplio-led parliament had failed to prevent international condemnation in the Gelman case, and after the IACtHR’s ruling, they also failed to pass legislation that would allow Uruguay to at least comply with the verdict. Future prospects of overturning the Expiry Law appeared bleak. Several Frente Amplio parliamentarians asserted that nothing more could be done because ‘their hands were now tied.’60 The momentum gained by anti-impunity sectors seemed lost. President Mujica’s intervention in the legislative process played a decisive role in the collapse of the proposed law to overturn the Expiry Law. Yet, a few months later, on the date of the 38th anniversary of the 1973 coup, he announced a decree that retrospectively cancelled all previous administrative acts in application of the Expiry Law, declaring them incompatible with human rights treaties and international sentences. This effectively removed the obstacles to prosecution in 88 cases that had been archived between 1986 and 2005, which were subsequently transferred to the courts for investigation.61 Human rights advocates saw this as significant but still insufficient. Any new cases that were brought before the courts could be blocked by the continued

58 The bill codiﬁed several guarantees, including the rights to life and to equal access to justice, to enable domestic courts to directly apply international human rights law. It also declared the Expiry Law unconstitutional and inapplicable, allowing for the reopening of all cases previously archived, and made provisions to preempt statutory limitations. Ca´mara de Representantes, Anexo I al Repartido N. 379, October 2010, http://www.parlamento.gub.uy/htmlstat/pl/pdfs/repartidos/ camara/D2010100379-01.pdf (accessed 18 January 2013). 59 See, Ca´mara de Representantes, Anexo II al Repartido N. 379, April 2011, http://www.parlamento. gub.uy/repartidos/AccesoRepartidos.asp?Url=/repartidos/camara/d2011040379-02.htm (accessed 28 June 2011). 60 Personal communication (author Fried), Felipe Michelini, 21 May 2011. 61 Personal interviews (authors Lessa and Fried), Brenda Falero, Association of Former Political Prisoners, 25 October 2011, and Mirtha Guianze, public prosecutor, Montevideo, Uruguay, 27 October 2011.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 321 existence of the Expiry Law. In addition, if past human rights violations continued to be adjudicated as ‘ordinary crimes’ (i.e., homicide or kidnapping), they could be subject to statutory limitations, which would presumably take effect on 1 November 2011.62 The debate over whether or when the statute of limitations would apply remained unresolved, and time was running out. Given the weakened parliament and the executive’s ambivalence, the matter seemed to rest in the hands of judges as to whether, and how, to prosecute these crimes.

Public Prosecutor Mirtha Guianze asked the SCJ to explicitly declare that all Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 dictatorship-era crimes constituted crimes against humanity precisely so that statutory limitations would not apply, but the Court refused to do so on technical grounds. Although in July 2011 the appellate tribunal accepted for the first time the categorization of enforced disappearance as a crime in its own right in the cases involving Gustavo Inzaurralde and Nelson Santana, this did not establish clear domestic jurisprudence to unequivocally categorize state terrorism crimes as ‘crimes against humanity.’63 The statutory limitations deadline of 1 November 2011 acted as a sort of pressure cooker on the entire anti-impunity debate. The IACtHR decision in the Gelman case catalyzed further the already intense debates over the Expiry Law and ultimately influenced the executive’s decision to pass the June decree law to reopen previously shelved prosecutions. But this did not satisfy the anti-impunity movement. Emboldened by the IACtHR decision, anti-impunity groups came together in the Coordinadora Contra la Impunidad, a broad coalition comprising Familiares; the CRYSOL Association of Former Political Prisoners (Asociaciońde Ex Presas Polı´ticas del Uruguay); NGOs, including the Peace and Justice Service (Servicio Paz y Justicia); the PIT-CNT; and community and youth groups. They launched a public awareness campaign and sustained lobbying efforts with sympathetic allies in the executive, legislative and judicial branches to challenge the Expiry Law. Some legislators, including Felipe Michelini, Jorge Orrico and Luis Puig – themselves veterans of civil society anti-impunity mobilization – began to work side by side with these groups to develop legislation to resolve the issue once and for all. After deliberations on as many as seven different legislative bills prepared by representatives of Frente Amplio sectors, the opposition and the human rights movement, momentum surprisingly built up within the government toward reaching a consensus. On 25 October 2011, the Senate approved a bill addressing

62 Uruguayan judges have treated crimes of the dictatorship as common crimes, not crimes against humanity, with defendants generally sentenced for aggravated homicide, even in cases of disappearances. Consequently, prosecutions for past crimes could be terminated through application of the statutory limitations applicable to homicide. A statute of limitation of 20 years applies in cases of homicide, though the time frame for dictatorship crimes was increased by one-third, to 26 years and eight months. The statutory limitations, effective as of March 1985, would then take effect on 1 November 2011, halting all future judicial proceedings. See, Mirtha Guianze, ‘La Ley de Caducidad, las luchas por la Justicia y la Jurisdiccioń Universal de los Derecho Humanos en Uruguay,’ in Fried and Lessa, supra n 11. 63 Lourdes Rodrı´guez, ‘Tribunal de Apelaciones acepto´ la figura de desaparicioń forzada en el caso Calcagno,’ La Diaria, 29 July 2011.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 322 J.-M. Burt, G. F. Amilivia and F. Lessa the Expiry Law, statutory limitations and the category of crimes against humanity. After heated debate, the bill was also approved in the Chamber of Representatives along strict party lines, with only Frente Amplio legislators voting in favor. The executive promulgated Law 18.831 two days later, legally eliminating the Expiry Law, the main barrier to criminal prosecution of dictatorship-era crimes. The law restores the state’s ability to legally prosecute and punish crimes and clearly establishes that statutory limitations do not apply to dictatorship-era crimes, 64 which are now categorized as ‘crimes against humanity.’ Law 18.831 effectively Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 cancels all the provisions contained in the Expiry Law, including the need for executive referral for cases and executive interference in judicial cases. In the face of persistent civil society pressure, the Frente Amplio-led government passed legislation that after 25 years of institutionalized impunity removed the pivotal obstacle preventing criminal prosecutions of dictatorship-era crimes in Uruguay. Key to getting this new legislation passed was the ability of civil society activists to connect with actors within the legislative and executive branches who themselves had long participated in civil society organizing against impunity. One of the law’s co-authors was Javier Miranda, head of the National Human Rights Office at the Ministry of Education and Culture and a longtime member of Familiares (his father, Fernando Miranda, was disappeared in 1975). Undoubtedly, the Frente Amplio government created a new set of opportunities in which civil society could push forward the anti-impunity agenda. However, as this brief review demonstrates, neither the first nor the second Frente Amplio government took the lead on promoting accountability for dictatorship-era crimes. As we have shown, it was the persistent mobilization of civil society and its ability to directly influence key actors within the state that made the crucial difference in 2011 – six years after the Frente Amplio first took national power in Uruguay.65 The Role of Uruguayan Civil Society in the Anti-Impunity Struggle The TJ developments between 1985 and 2012 analyzed in this article point to the fundamental role played by civil society in the fight for justice and accountability for dictatorship-era crimes in Uruguay. Throughout the previous section, we described how civil society mobilized to challenge the Expiry Law on many fronts, including at the national and international levels, and identified several variables that over time contributed to generating the momentum that eventually

64 For the text of Law 18.831, see, http://archivo.presidencia.gub.uy/sci/leyes/2011/10/cons_min_ 400.pdf (accessed 18 January 2013). 65 Human rights organizations were actively preparing legal cases to submit before the 1 November ‘deadline.’ On the day Law 18.831 was passed, more than 90 new human rights cases involving crimes never before denounced (including torture, political assassination and sexual violence) were ﬁled in courts. Preliminary hearings are under way in approximately 30 cases. Personal interviews (author Fried), Brenda Falero, CRYSOL, Montevideo, Uruguay, 28 October and 23 November 2011.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 323 led to the derogation of the Expiry Law in October 2011. Indeed, we contend that a principal factor in Uruguay’s success in overturning its long-standing amnesty law was largely the product of the long-term, sustained mobilization of a broad coalition of civic groups who opposed impunity and persisted in this struggle for more than 25 years, eventually managing to persuade the political establishment toward its view. To sustain our argument regarding the centrality of civil society to explain

Uruguay’s TJ trajectory, we examined alternative and counterfactual explan- Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 ations. Arguments correlating, for instance, constitutional reforms and increasing judicial independence to the likelihood of human rights prosecutions by judges that may have explanatory weight in some cases, such as Chile, are unconvincing in the case of Uruguay.66 First, there has been little inclination toward judicial reform in Uruguay, and all attempts to reform the SCJ and the criminal procedure code have failed to date.67 Although Uruguay is generally considered to have high levels of judicial independence, there has actually been a long tradition of pressure by the executive and political parties on the courts, especially on the SCJ.68 Moreover, as reviews and promotions are conducted by the judiciary itself (with the SCJ ministers calling the shots), attempts by judges to challenge the mainstream conservative jurisprudence have been extremely limited. In fact, the few Uruguayan judges who tried to defy impunity and produce progressive jurisprudence have consistently faced political pressure. Some were even transferred to different tribunals, in what critics perceive to be an attempt to quash investigations into human rights cases. A recent case in point of this observed pattern is the SCJ’s threat to sanction Judge Mariana Mota following her public declarations to the Argentine press after her participation in a symposium in Buenos Aires in March 2012.69 This is not to downplay the important role some prosecutors and judges have played in this process, but it does challenge the idea that judicial reform should be considered a key explanatory variable for the ultimate political struggles that led to the overturning of the Expiry Law. Explanations pointing to leadership preferences are similarly unpersuasive in the Uruguayan case.70 While it is true that the changes observed occurred in the

66 Elin Skaar, Judicial Independence and Human Rights in Latin America: Violations, Politics and Prosecution (New York: Palgrave Macmillan, 2011). 67 Elin Skaar, ‘Un ana´lisis de las reformas judiciales de Argentina, Chile y Uruguay,’ Ame´rica Latina Hoy 34 (2003): 147–186. 68 Mariana Sousa, ‘A Brief Overview of Judicial Reform in Latin America: Objectives, Challenges and Accomplishments,’ in The State of State Reform in Latin America, ed. Eduardo Lora (Stanford, CA: Stanford University Press, 2007); Carlos Moreira Betancor, ‘Estado de derecho, gobernabilidad y democracia en Uruguay: Presente y escenarios futuros,’ Anuario Colombiano de Historia Social y de la Cultura 36(2) (2009): 149–173. 69 Other sanctions against judges involved Judge Reyes in 1997 and Judge Jubette in 2000. On Judge Mota, see, Constanza Moreira, ‘Presiones al Poder Judicial, o disparando contra la jueza Mota,’ Brecha, 12 April 2012. 70 David Pion-Berlin, ‘To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone,’ Human Rights Quarterly 16(1) (1994): 105–130; Terence Roehrig, ‘Executive Leadership and the Continuing Quest for Justice in Argentina,’ Human Rights Quarterly 31(3) (2009): 721–747.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 324 J.-M. Burt, G. F. Amilivia and F. Lessa context of two left-wing governments, it would be a mistake to claim that these changes were driven by the executive. These changes were adopted by political elites only after civil society groups introduced new and innovative strategies to challenge the Expiry Law, effectively marshaling international law to their cause. The grounded approach we applied to our analysis of the key events and players, together with a historical and process analysis, shows that this was not a foregone conclusion. It was by no means inevitable that the Mujica administration would abide by the Gelman sentence. The government was quite reluctant to overturn Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 the Expiry Law and sought an ad hoc solution. The executive under both Frente Amplio administrations was disinclined to overturn the Expiry Law and re- sponded to civil society demands for an end to impunity by adopting piecemeal modifications that permitted some prosecutions to move forward but allowed the basic structure of impunity to remain intact. However, these changes emboldened civil society groups to push further for a full overturning of the law. It was the strategic use of legal and political strategies by civil society to challenge the Expiry Law – including appeals to former civil society activists now working in the legislative and executive branches – that made the difference. In particular, a handful of key civil society actors had recently been elected to parliament and from that positionality continued the anti-impunity struggle, even when they were not supported by the Frente Amplio government. Luis Puig, formerly of the PIT-CNT and a key figure behind the 2009 plebiscite, is a good example. Elected in 2009 to parliament, Puig continued to work tirelessly with civil society groups and other legislators and figures in the executive with close ties to civil society who in some cases were themselves survivors or relatives of victims of the dictatorship, such as the head of the National Human Rights Office, Javier Miranda, or congressman Felipe Michelini. Thus, the nexus between anti-impunity civil society groups and crucial allies in the political sphere, and strategic lobbying efforts by the former vis-a`-vis the latter, contributed to the ultimate overturning of the Expiry Law. In the struggle over whether to maintain the Expiry Law, the balance tipped in favor of civil society demands. A final alternative explanation might focus on the power of the 2011 international verdict in the Gelman case. Although it could be stated that this is a text- book case of the justice cascade in action, it is important to recall that Uruguay was an outlier of the justice cascade for years. Indeed, neighboring countries, including Argentina and Peru, had brought numerous cases before the Inter-American system, providing domestic civil society groups with important leverage to pressure their governments to comply with obligations to investigate, prosecute and punish grave human rights violations. After the 1992 IACHR report urging the repeal of the Expiry Law, several cases were brought by Uruguayan civil society before the IACHR during the 1990s, but none prospered. It was not until the Gelman case that the IACtHR became relevant to Uruguay’s TJ process. Given the domestic impasse, particularly after the failure of the 2009 plebiscite, civil society groups placed great hope in the Gelman case. Fully cog- nizant of the Court’s previous rulings on the incompatibility of amnesties for

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 325 human rights violations with the American Convention, Uruguayan civil society groups expected the Court to rule in favor of the Gelmans. Once it did so, domestic groups could wield this sentence as a new weapon in their battle against impunity. While this might lead some to interpret that it was the international ruling that prompted change in Uruguay, the stonewalling on the part of the executive and the legislature in the months following the Gelman ruling and the failure to pass legislation to overturn the Expiry Law in May 2011 suggest that the relationship between international rulings and domestic political change Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 is neither automatic nor linear. Indeed, without the sustained activism of civil society groups, this sentence may have had far less impact on accountability practices. The anti-impunity movement strategically deployed the Gelman decision to generate further momentum in the quest for justice, pushing the government to adopt one of its key demands: the elimination of the Expiry Law. Thus, although the Gelman ruling may have been an enabling factor, it was not the pivotal one. The decisive factor was, rather, the push-back of civil society groups and their ability to deploy this international ruling to legitimate and advance their long-standing claim that it was necessary to move beyond the piecemeal approach and fully overturn the Expiry Law. Conclusions Uruguay offers important lessons for the study and practice of TJ processes. As in Argentina and Chile, Uruguay’s anti-impunity movement has demonstrated that efforts to ‘settle accounts’ via policies of amnesty and amnesia may be untenable in the long term as survivors and relatives of victims, human rights groups and other sectors of civil society continue to seek and widen public demands for redress. The anti-impunity movement has consistently refused to accept successive governments’ policies of impunity and has effectively ushered in a new wave of challenges, opening up new prospects for public debate, investigation and accountability. In addition, the Uruguayan case provides support for contemporary scholarship advocating the need to pay close attention to domestic developments to understand shifts in TJ processes. Existing TJ models, rooted in legal theory and international relations theory, emphasize the interactions between the international and the local as central to understanding change (Margaret Keck and Kathryn Sikkink’s ‘boomerang theory’).71 Such models underline the way domestic actors, thwarted in their efforts in the local sphere, may seek to leverage international alliances to effect change domestically. As we have noted, this dynamic is important to understanding some of the shifts in Uruguay’s process, but we argue for the need for a grounded analysis of speciﬁc TJ developments to develop more nuanced understandings and arguments about the relative weight of international/transnational initiatives on the TJ process and the relationship

71 Margaret E. Keck and Kathryn Sikkink, Activists without Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998).

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 326 J.-M. Burt, G. F. Amilivia and F. Lessa between domestic actors and international/transnational networks or bodies.72 The boomerang effect observed by Keck and Sikkink did come into play in the Uruguayan case, but it was the creative and sustained efforts of civil society that ultimately eliminated a key obstacle to accountability – the Expiry Law – and opened the path for renewed efforts toward truth and justice in Uruguay. This leads to another issue that has broader theoretical implications: the enduring and powerful denial narratives in Uruguay remain understudied and poorly understood. Denial narratives, in which the armed forces and its civilian allies Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 negated any involvement in or the occurrence of grave human rights violations, were perpetuated during 12 years of military rule and nearly two decades of democratic government. Successive democratic administrations consistently refused to engage in an official inquiry into the abuses of the past and supported the ‘official story’ handed down by the military and conservative civilian elites, contributing to the persistence of entrenched and opposing memories of Uruguay’s recent past. In contrast with other cases, in Uruguay the absence of an official inquiry during the transition left the official denial narrative largely intact. Even the work of the Commission for Peace, by focusing on a fraction of abuses (only enforced disappearances in a country where the chief mode of state repression was prolonged detention as well as physical and psychological torture) and owing to its substantial shortcomings, cannot compare to officially sanctioned truth commissions in neighboring countries. There also has been insufficient consideration of the long-term impact of fear in postdictatorship societies such as Uruguay. Although democratic freedoms have been restored and democracy seems fully consolidated in Uruguay, the enduring veto power of the military over these questions – until recently – may have influenced wide sectors of society to believe that it is better not to ‘rock the boat’ on this issue to avoid upsetting the armed forces. Such arguments appeal to the deep-seated fear that took hold during military rule in Uruguay, the most totalitarian of the dictatorships that ruled the region in the 1970s. With no institutional reform of the armed forces, this has undoubtedly been a key factor in perpetuating for decades denial narratives and impunity in Uruguay. Although Uruguay has taken bold and important steps forward in the promo- tion of accountability for dictatorship-era crimes, this culture of impunity persists and continues to play itself out in the political and legal realms. Military officers convicted of human rights violations maintain a website from their prison cells where they criticize criminal prosecutions and reassert denial narratives.73 Judges, on the whole, remain timid, conservative and unwilling to apply international law even after all the changes described above, as recent 2012 appellate rulings overturning progressive jurisprudence on some emblematic human rights cases show.

72 See, Jo-Marie Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Grave Violations of Human Rights,’ International Journal of Transitional Justice 3(3) (2009): 384–405. 73 See, for example, ‘Gavazzo por gavazo: “Yo apretaba el gan˜ote” hasta tener una respuesta (autobiografı´a),’ La Repu´blica, 28 September 2012.

International Journal of Transitional Justice, Vol. 7, 2013, 306–327 The Resurgent Struggle against Impunity in Uruguay 327

A public prosecutor, Enrique Rodrı´guez, recently argued before the SCJ that Law 18.831 is unconstitutional.74 Important political ﬁgures from both traditional parties publicly repeat narratives from the Sanguinetti era suggesting that after a battle between two armed groups, it is best to forgive and forget rather than revive old wounds by attempting to prosecute past crimes. Lawyers for the military persist in their claims that any crimes committed during the dictatorship are not crimes against humanity but ordinary crimes subject to statutory limitations.

Fear is deeply etched in Uruguayan society and decades of institutionalized im- Downloaded from https://academic.oup.com/ijtj/article/7/2/306/722995 by guest on 24 September 2021 punity cannot be erased with the stroke of a pen or the passage of a law. The defeat of the Expiry Law was an absolutely essential step forward in the struggle against impunity and toward establishing truth and justice for victims of human rights violations, but challenges for the future implementation of Law 18.831 loom large and bear close monitoring. As a key union leader and human rights activist told us recently, ‘We have ﬁnally eliminated the Expiry Law, but impunity persists in Uruguay.’75

74 In regard to cases involving Horatio Ramos and Aldo Perrini, retired colonel Walter Gulla and retired general Pedro Barneix were released from custody on appeals to the fourth appellate court in August 2012. See, Samuel Blixen, ‘Sen˜al de interferencia,’ Brecha, 24 August 2012; ‘Fiscal planteo´ inconstitucionalidad de la ley que anulo´ la caducidad,’ El Observador, 24 September 2012. 75 Personal interview (author Burt), Rau´ l Olivera, Human Rights Commission of the PIT-CNT, Montevideo, Uruguay, 3 August 2012.

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