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Prosecuting the Political Crimes of Brazil's Military Dictatorship

JURIST Guest Columnist Caio Abramo, LL.M. candidate at the Graduate School of Law, Economics and Governance at the University of Utrecht, is currently doing preliminary studies in international public law. He discusses Brazil's obligation to prosecute political crimes committed during the rule of the military dictatorship...

In 1964, a military coup d'état led by the higher tier of Brazil's military deposed President João Goulart, setting up a dictatorship that would officially last until 1985. With the promulgation of the new Constitution in 1988, a new democratic order was finally initiated. However, despite the new order, the dictatorship's mark was noticeably left on both the government and civil society. The commission of political crimes, which are sadly commonplace in all authoritarian regimes, against the civilian population under the guise of protecting the state and maintaining "institutional order" severely impacted all levels of society. Far from being limited to arbitrary detentions and restrictions of basic rights, such as freedom of movement, association and speech, state organs went further, abusing those in their custody and abusing their monopoly on force. The story of this 21-year period is marked not only by political arrests, but also by torture committed against those in state custody, forced disappearances, summary executions and the hiding of corpses. As is to be expected, offenders have not yet been brought to justice.

In its autumn, the military regime passed a self-amnesty law, Lei N° 6683/79, which, while removing the criminal status of former "enemies of the state," allowing them to reintegrate into society, also gave a get out of jail free card to all government agents involved in the torture and murder of civilians. Chief among these individuals are, of course, high ranking military officers and civilian politicians, who not only condoned the acts or looked the other way, but effectively planned and put violent, repressive measures into practice.

Self-amnesty laws are widely regarded in international doctrine as an invalid legal recourse. Not only are they generally passed by authoritarian regimes themselves, thus without the necessary democratic participation to ensure legitimacy, they are often an attempt to shield persons who committed international and domestic crimes. Such crimes, being of exceptional gravity, are not eligible for pardon or amnesty.

In view of this, a Direct Action of Unconstitutionality, which is an instrument that allows the Supreme Federal Court of Brazil to judge the constitutionality of acts passed by the National Congress, was recently brought before the Court in an effort to invalidate the self-amnesty law as incompatible with the 1988 constitution. The invalidation of the law would, among other things, allow for the criminal prosecution of members of the former military government for their participation in extrajudicial killings, torture and rape. In a rather remarkable decision, the Court ruled 7-2 that the 1979 amnesty law was constitutional. With the law still intact, prosecution of individuals for political crimes committed during the military dictatorship is still out of reach. Related to this, the Court also determined that the crimes would fall under Brazil's extremely short statute of limitations. The justices of the Court, known as ministers in Brazil, widely commented that even if the amnesty law were to be considered invalid and incompatible with the new Constitution, domestic penal law and customary law would also prohibit prosecution.

Even though the decision itself may have surprised some, this sort of reasoning falls in line with mainstream criminal doctrine in Brazil. Positive law is also very strict, giving ample rights to suspects and imposing strict temporal obligations on the state. In trying to prevent abuses, statutory limitations are radically enforced, and have been pointed out by many as a source of impunity.

Therefore, the doors to any sort of domestic prosecution seem to be closed. Are these crimes then to fall into oblivion and their perpetrators allowed to walk free forever? A closer look at the nature of these crimes is necessary. Are they common crimes or are they violations of international and international customary law?

The answer is clear. Torture, extrajudicial killings, forced disappearances and other similar abuses are part of a special class of crime. Their gravity sets them apart from ordinary crimes, and their particularly grave nature warrants not only special treatment under national legislation, but also a place in international law. Such crimes are considered, in fact, international crimes, which are a part of jus cogens; unavoidable duties of states to the international community.

Given the international character of this situation, and the stagnation of domestic measures, what recourse is available to bring the perpetrators of these crimes to justice?

One such measure is recourse to the International Criminal Court (ICC). The establishment of an international permanent tribunal with special jurisdiction over penal offenses was long awaited by the international community of jurists. The main reason is that international crimes, as defined by modern doctrine, are of the most serious and abhorrent in nature, causing shock to the collective mentality of humankind, threatening an individual's most fundamental rights and securities, and even endangering the species as a whole, as is most obvious in the case of the crimes of aggression and genocide.

The history of international criminal trials is long, with cases dating back to the late Middle Ages. Special ad hoc tribunals have been set up since the mid-20th century, the most notorious of which was the Nuremberg Military Tribunal, set up by the Allies after World War II to bring Nazi criminals to justice, and its sister court the Tokyo Military Tribunal. After the creation of three courts under the auspices of the UN, with limited powers and duration in time, the need for a permanent court became part of the international agenda. The Rome Statute, which established the ICC, finally came into effect on July 1, 2002. It gave the ICC jurisdiction over the most serious offenses, including genocide, violations of fundamental human rights and war crimes.

A number of criteria must be met in order to bring a case before the ICC, some of which are common to the majority of the world's justice systems and others of which are unique. The next question is naturally whether Brazil's case fulfills them.

Matters of jurisdiction are clear enough, as the ICC has universal jurisdiction. Once a country becomes a party to the Rome Statute, it will fall under the jurisdiction conditions set forth in Article 12. Brazil signed this instrument on February 7, 2000, and ratified it on June 20, 2002. Further strengthening the case, the 1988 Brazilian Constitution, which is considered to mark the birth of the new Republic, expressly states in Article 5, paragraph 4, that "Brazil submits to the jurisdiction of any international penal tribunal to whose creation it has expressed adherence." As the crimes were committed by Brazilian nationals, in Brazilian territory, both criteria of Article 12 of the Rome Statute are satisfied.

Furthermore, the crimes themselves fall precisely within the scope that prompted the creation of the court in the first place. They include murder, torture, rape, sexual violence and the forced disappearance of persons, among others. All of these crimes are listed in the Rome Statute's Elements of Crimes [PDF], a an essential condition for prosecution, as per Articles 12 and 22.

Certain procedural requirements must also be fulfilled. The ICC must be complimentary to, and not a substitute for, domestic judicial systems. It is, therefore, a rule of the Office of the Prosecutor that only after the exhaustion of national remedies that a case can be referred to the ICC. Article 17, however, allows for two particularly interesting alternatives. It allows for cases to be referred to the ICC if the state in question is: 1) unable to prosecute due to failures in its own judicial system and 2) unwilling to genuinely prosecute.

The second criterion includes, according to doctrine, cases in which a state has purposefully shielded individuals from prosecution. It is widely acknowledged that self-amnesty laws fall under such a description. The presence of other certain domestic legislation that completely bars the taking of judicial measures could also apply; the enforcement of statutory limitations, for example, could be such a case.

It seems as though Brazil would be hard-pressed to escape this particular avenue. It has exhausted all judicial avenues; the Supreme Federal Court itself passed the burden of changing the necessary laws to the legislative body, if it is willing. Furthermore, the unyieldingly strict enforcement of statutory limitations and the application of the non-retroactive principle to these political crimes clearly show an unwillingness to prosecute. Could the ICC then be the last recourse for the victims and relatives of those who suffered under the repressive regime?

The answer must be no. Even though this was hotly disputed in the preparatory works preceding the final version of the Rome Statute, a strict non-retroactive rule was added. As per Article 22, nullum crimen sine lege, and Article 24, non-retroactivity ratione personae, the ICC may only exercise its jurisdiction over crimes committed after the Rome Statute's entry into force, which occurred in 2002, while the crimes in question occurred between 1964 and 1985, thus making the the statute inapplicable.

However, this impediment is not absolute. Although the direct intervention of the ICC is not possible, both doctrine and customary international law impose a duty on Brazil to take judicial measures to address these crimes. The well known principle, made famous by Hugo Grotius, of aut dedere aut judicare, that is, either extradite or prosecute, is almost unanimously acknowledged as a benchmark for the judicial behavior of states. From this principle it stems, following among others M. Cherif Bassiouni, that there is an obligation to investigate international crimes committed within a state's jurisdiction; it forms jus cogens, a duty that cannot be derogated, and is therefore not possible to waive. It is also clear that states may not attempt to circumvent this duty by recourse to national legislation, including amnesty laws. This would, among other things, conflict with Article 27 of the Vienna Convention on the Law of Treaties [PDF].

The nature of these crimes are very clear vis-à-vis the sources of international law. It has been a major point, ever since the failed attempt to try crimes from WWI, and more particularly so after the conclusion of the Nuremberg Military Tribunal, that these types of abuses would be considered crimes under international customary law, and no undue recourse to the nullum crimen sine lege principle would be admitted. In addition, they were expressly defined as crimes in a large number of treaties, agreements, statutes and the like, sufficing to mention the Geneva Conventions.

Persons suspected of having committed crimes against humanity and war crimes during Brazil's last military dictatorship may not be brought to justice through the ICC due to the non-retroactivity rule that binds the tribunal. Nevertheless, Brazil is still bound, under both positive and customary international law, to bring these persons to justice without undue recourse to the nullum crimen sine lege principle. Failure to do so may result in sanctions imposed by the international community of nations, through the UN or other bodies and organizations. The recent creation of a Truth Commission with ample powers, which must present a final report by 2014, but which is yet to start its activities, may be a step in the right direction. However, it is impossible, at this point, to guess what the result will be.

Caio Abramo will pursue an LL.M. in public international law at the Graduate School of Law at Utrecht University. He holds a B.Phil. in Philosophy from the Universidade de Brasília, and has worked as a Legal Project Assistant for Transparência Brasil, an NGO focused on fighting corruption through access to public information.

Suggested citation: Caio Abramo, Prosecuting the Political Crimes of Brazil's Military Dictatorship, JURIST - Dateline, Feb. 10, 2012, http://jurist.org/dateline/2012/02/caio-abramo-brazil-dictatorship.php.

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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