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 NOT FOR CITATION.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 NOT FOR CITATION.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. 2 WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado 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 3 WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado 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 4 WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado 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. 5 WORKING DRAFT. NOT FOR CITATION. Paper presented in the Sanela Diana Jenkins Human Rights Series, Stanford University. - James L. Cavallaro & Fernando Delgado 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