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The past in the present

Researchers try to understand how the State has dealt with the legacy of serious human rights violations

Montage of faces of those who died or disappeared

National Truth CommissionMontage of faces of those who died or disappearedNational Truth Commission

Recent years have brought advances in what is known about Brazil’s 1964 coup and the subsequent military dictatorship. But in addition, Brazilian researchers have been devoting themselves lately to understanding how the State, down through various administrations, has handled the legacy of grave human rights violations committed under military rule. Until the mid-1980s, the topic had barely been studied by social scientists or by any scholars of the humanities in general, not even outside Brazil. In 1995, the United States Institute of Peace published Transitional justice: how emerging democracies reckon with former regimes, a three-volume work edited by Neil Kritz. It was only then that a wider audience became familiar with this conjunction of two distinct notions – transition + justice – and the correlate field of study.

Dictatorship special issue

Although authors like Norwegian philosopher Jon Elster believe that the idea of transitional justice is as old as democracy itself,1 its origins in modernity are tied to the two world wars and its development linked to the trials of former members of the military juntas in Greece, in 1975, and in Argentina, in 1983.2 The creation of the International Criminal Court (ICC) and the 2012 establishment by the United Nations of a Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence are also considered milestones. The term “transitional justice” does not refer to a distinct form of justice but rather to a broad form in effect during a given political transition, for example, from a military dictatorship to a democracy. Further, it involves the idea that implementing a democratic regime leads to the replacement of the rule of force by the rule of law, in turn implying that every citizen is responsible for his or her actions. “In only a few years,” states Argentine attorney Juan Méndez, visiting professor at American University in Washington D.C., “the international community has made considerable progress toward the recognition that a legacy of grave and systematic violations generates obligations that the State owes to the victims and to society.” 3

This means that States today have the duty to offer reparations, afford justice and truth, and render institutions like security forces democratic. It should be underscored that the main focus is on the rights and needs of the victims. In the case of Brazil, fulfillment of these obligations has compelled such initiatives as the opening of the dictatorship archives and the creation of the National Truth Commission. For scholars of the Brazilian case, the research agenda thus covers topics like the Amnesty Law, the absence of punishment for torturers, the institutional arrangement that has guaranteed impunity for State agents, the reparation laws enacted in 1995, the role of the Armed Forces, and the millions of official documents on the 1964 dictatorship that have been declassified by the Brazilian government or by countries like the United States, Great Britain, and Germany.

Interdisciplinary by definition, this field has attracted the interest of political and social scientists, philosophers, historians, jurists, and scholars of international relations who would like to understand such matters as the participation in truth commissions and international criminal courts by institutions belonging to the U.N. system, as well as the role that nongovernmental human rights organizations play in these processes of settling accounts. The approaches adopted in these efforts are not exclusively judicial in nature but seek to broadly incorporate the various dimensions of justice that can contribute to social reconstruction, that are based on a belief in the universality of human rights, and that take support from international human rights and humanitarian law. The endeavor makes a lot more sense than what is possibly suggested by common sense, which has generally classified forays into the past as useless archeological exercises or, even worse, as ways of seeking retribution.

In the view of Ruti Teitel, an Argentine professor at New York Law School, transitions are by definition a time for contesting historical narratives: “Transitions thus present the potential for counter-histories.”4 Above and beyond the endeavor to make the narratives of the victims and survivors of this period part of the country’s recent history, in the Brazilian case this means asking what the initial emphasis on the obligation to offer economic reparation to the victims of the dictatorship tells us about questions like the quality of the democracy under construction since 1985, its institutions, and the persistence of torture and forced disappearances – in short, what does this tell us about how the past is reflected in the present.

Méndez believes reconciliation is a fundamental goal of any transitional justice policy, because we do not want the conflict to repeat itself. He thus feels that everything we do in the realm of justice, truth, and reparation measures must be inspired by reconciliation – but by true reconciliation and not the false form that was sought in Latin America as an excuse for impunity. As Méndez sees it, “true reconciliation” requires that facts be recognized; furthermore, it cannot be imposed by decree and it must be constructed in the hearts and minds of all members of society through a process that recognizes the value of each and every human being and his or her dignity.5

Progress by Brazil’s National Truth Commission
Attorney Pedro Dallari, professor at the University of São Paulo (USP) Law School and coordinator of Brazil’s National Truth Commission, says the commission’s work has been responsible for significant progress. One example, which he classifies as an “unprecedented fact, a watershed event,” is the Brazilian Armed Forces’ agreement to investigate acts of human rights violations perpetrated on its premises during the military dictatorship, an announcement made in April 2014. “This is a very good attitude on the part of the Armed Forces,” says Dallari.

Established in 2011 and up and running since 2012, the National Truth Commission has been investigating the human rights violations that took place in Brazil from 1946 to 1988. Its current phase of work is focused on compiling all initial information sourced from research on the documents stored at public archives and from eyewitness reports and hearsay evidence for inclusion in its final report, scheduled for submission on December 10, 2014, International Human Rights Day. In the research area, the commission is divided into 13 work groups.

So far, the commission has released four partial reports, which deal with more specific cases or events under the dictatorship. These include the imprisonment, torture, death, and disappearance of Federal Representative Rubens Paiva in January 1971 and the operation of the “Death House” in Petrópolis, a clandestine torture site that the Army Information Center maintained in the early 1970s in the mountain region outside the city of Rio de Janeiro. Other partial reports will be completed by year end.

Dallari points out that none of the information released by the commission to date has been contested. “Inquiries into what happened under the dictatorship did not begin with the Truth Commission and will not end when our work is done. We aren’t going to exhaust the topic. New information can always emerge in the future,” states Dallari.

Marcos Pivetta

Notes
1. ELSTER, Jon. Closing the books: transitional justice in historical perspective. New York: Cambridge University Press, 2004.
2. TEITEL, Ruti G. Transitional justice. New York: Oxford University Press, 2000; and BICKFORD, Louis. Transitional justice. In: HORVITZ, Leslie Alan and CATHERWOOD, Christopher. Macmillan encyclopedia of genocide and crimes against humanity. New York: Facts on File, v. 3, pp. 1,045-47, 2004.
3. MÉNDEZ, Juan E. Accountability for past abuses. Human Rights Quarterly (Baltimore, MD), v. 19, no. 2, May 1997, p. 255.
4. TEITEL, Ruti G. Transitional justice genealogy. Harvard Human Rights Journal (Cambridge, MA), v. 16, Spring/2003, p. 69.
5. MÉNDEZ, Juan E. Interview given to doctoral candidate Glenda Mezarobba by the former political prisoner, human rights activist, former member of the Organization of American States’ Inter-American Commission on Human Rights, and President Emeritus of the International Center for Transitional Justice (ICTJ). New York, Mar. 20, 2007.