Brazil’s Supreme Federal Court ruled last month that the amnesty law of 1979 will remain unchanged and former officials won’t be prosecuted for human rights violations committed under the 1964-85 dictatorship.
Stijntje Blankendaal, São Paulo
Court reporter Eros Grau, himself a victim of torture in the 1970s, stated that the amnesty was a political agreement, decided by lawyers and opponents of the regime, after being thoroughly discussed within Brazilian society.
Seven out of nine voting court members decided to leave the past in peace. The law was brought up for discussion by the Order of Brazilian lawyers. They based their argument on the claim that torturing, murdering and making bodies disappear could never be considered political crimes and therefore shouldn’t be covered by the amnesty law.
According to the Geneva Conventions of 1949, as well as the Brazilian constitution of 1988, torture is considered a crime against humanity. But in Brazil no one has ever been convicted for crimes committed during the dictatorship, when around 350 people were killed and 20
thousand people arrested and tortured.
Certain military archives from that period have never been opened. Even after the election of president Luiz Inácio Lula da Silva, - who, as a labour union leader spent a month in prison in 1979 - nothing changed. Although Lula’s former minister of justice, Tarso Genro and minister of human rights, Paulo Vannuchi, have pronounced themselves in favour of pursuing suspects from that era, Lula’s minister of defense, Nelson Jobim, has strongly opposed what he calls this ‘revanchist’ idea.
President Lula himself prefers conciliation. Even a proposed truth commission will not pursue prosecutions. But this is in keeping with how Brazilians like to see themselves: peaceful and avoiding conflicts. During last month’s hearing, Supreme Court chairman Cezar Peluso said that only societies with “strong feelings of solidarity” are able to forgive:
“If it’s true that every people, according to its own culture, solves its own historical problems in its own manner, then Brazil has chosen the way of harmony.”
But in an analysis in the Brazilian newspaper Folha de São Paulo, journalist Fernando Rodrigues stated that it’s more about “fear to lay hands on the shameful episodes of the past.” Brazil has always given a certain legitimacy to its the dictatorship - the longest in Latin America after Cuba. Even during the military regimes, the congress functioned most of the time, as a kind of puppet government, where dictators were ‘elected’ by members of the congress.
According to opponents of the amnesty law, this law was the military regime’s last action, in which they wanted forgiveness from society without restrictions, even for its torturers. The law was approved by the then congress, made up of the Arena and MDB parties, who
had always collaborated with the military.
But according to the members of the Supreme Federal Court, the amnesty was an essential step towards democracy, and at the time it was introduced its supporters included the Order of Brazilian Lawyers – the body now trying to overturn it.
Court reporter Grau:“Nobody doubts that we all have a deep aversion against deeds as
torture or kidnapping, in the past or today, done by militaries or civilians.”
Rodrigues concludes: “Brazilians are united in their tradition of harmony and disgust with confrontation. Torturers are regarded with repugnance, but not judged.”
Brazil is an outsider
With this ruling, Brazil has become an exception within South America, without a single case being brought against members of the military dictatorship (1964-1985).
In Argentina in 2001, a federal judge overturned various ‘laws of pardon’ – a decision later confirmed by higher courts. The country’s High Federal Court rejected these laws definitively in 2005. The governments of Nestor and Christina Kirchner have given support to the
courts of justice since 2003 and several military officials are being prosecuted.
In 2009, Uruguay’s amnesty law was ruled unconstitutional by the country’s High Federal Court, but voters rejected the ruling referendum on the issue last October. Then president Tabaré Vázquez, however, had already made it possible to prosecute military officials who served under the dictatorship.
In Chile, an amnesty introduced by former Chilean dictator Augusto Pinochet in 1978 still stands but military crimes can be prosecuted according to international law.