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Past Analysis
ANALYSIS
Addressing Past Violence: The New Brazilian Truth Commission
Leonard Ghione
March 30, 2012
Leonard Ghione argues that the Brazilian truth commission has a strong legal mandate to achieve the goal of creating an authoritative historic account of the country’s violent past. Its main challenge will be coping with the limited number of staff and the long period of time it must cover. The goal of national reconciliation in Brazil will require not only the unearthing of the truth but also the unearthing of a conflict that has been systematically negated until now and is part of Brazil’s culture of violence. If the commission succeeds in unearthing this underlying negated conflict, it will increase public pressure against the amnesty law, which may eventually lead to its revocation in the long term, contributing to a less violent society.


Introduction

Photo: AP

In November 2011, Brazilian President Dilma Rousseff signed law Nr. 12.528, which establishes the country’s first truth commission. Until recently, Brazil was considered a country that had not come to terms with its past. The creation of a truth commission seems to represent a change in this respect; a change that has been described as “a shift from a ‘politics of silence’ to a ‘politics of memory’”.[1]

The paper begins with a short description of the background of the truth commission. The following section analyzes the law that establishes the Brazilian truth commission and outlines difficulties and opportunities the Brazilian commission is likely to encounter. Finally, the possible impact of the truth commission’s findings on the human rights situation in Brazil is discussed, followed by conclusions drawn.

The Background of the Truth Commission

The crimes committed by the military regime from 1964-1985 have been decisive for the creation of the truth commission, even though the commission has the mandate to investigate human rights abuses including those committed during the years before the military dictatorship. During its twenty-one year rule, the military regime did not radically change the country’s political and legal framework.[2] Nevertheless, regime forces systematically tortured and assassinated opponents to consolidate power.[3]

Until very recently Brazil had not comprehensively addressed its violent past.[4] The most prominent measure taken concerning its past has been the 1979 amnesty for security forces – and thus, the decision not to address the past. Forces were granted immunity from prosecution for crimes of torture, assassination and disappearance.[5] This amnesty law is still in force.

Within the last years, Brazil has once again started to address its past. President Lula was the first Brazilian head of state to talk publicly about a truth commission. The project, however, encountered strong opposition from the still influential military apparatus.[6] It seems that only the assurance that a future commission will not only focus on crimes allegedly perpetrated by military forces but also by opposition forces eased the military’s opposition.[7] At around the same time, the Brazilian Supreme Court and the Inter-American Court of Human Rights (IACHR) delivered their judgments concerning the Brazilian amnesty law. The Supreme Court of Brazil ruled that the amnesty was a political question and that it could be repealed only in Parliament.[8] The IACHR condemned the amnesty law as inconsistent with the American Convention of Human Rights.

The Brazilian truth commission: truth and reconciliation?

The Brazilian truth commission will be composed of seven commissioners, all of whom will be Brazilian nationals (Article 2).[9] The commissioners must be recognized as competent and their previous conduct must have been ethical. They will be appointed by the President. They must further be known to have promoted democracy, constitutional institutions and the respect for human rights.[10] At the date of publication no commissioners have been appointed. The final composition of the commission will be crucial for the direction and focus of the work and investigations of the commission.[11]

Size and Timeframe of the Commission

The law that establishes the commission requires 14 staff positions for the commission, in addition to the seven commissioners.[12] The commission will analyze human rights abuses committed in a period of 42 years, from 1943 to 1985. It is expected to finish its work within two years.[13]

The law requires very few staff to deal with a high number of human rights violations committed during a relatively long period of time compared with other truth commissions.[14] The limited staffing of the Brazilian commission is counter to the worldwide trend to employ a larger staff.[15] The commissions in Argentina and Chile, for example, employed around 60 staff and covered a significantly shorter period of time. The truth commission of the Democratic Republic of Congo, a more recent model covering human rights abuses during a time period similar to that of the Brazilian commission, is set out to cover 46 years. This commission had a staff of approximately 125 members at its peak times.[16] Notwithstanding the differences between these countries’ histories and events, these examples illustrate that a higher staff-time ratio than that envisioned for the Brazilian truth commission is the norm.

Despite this shortcoming, the Brazilian commission has the potential to make a visible contribution to the country’s reconciliation. The truth commission in Nigeria, for instance, had a similarly limited number of staff (6 commissioners and around 12 staff members) and also covered a relatively long period of time (33 years). This commission has been considered a relative success.[17] It gained considerable public support and interest and reached all levels of society. Its success was based mainly on live broadcast public hearings and the assistance of NGOs requested by the commission.[18] Hence, the shortcomings in staffing seem possible to overcome through sufficient active public engagement and assistance by non-governmental actors.

Furthermore, the Nigerian commission cooperated with law enforcement bodies. Given its limited time-staff ratio, the commission was not able to investigate cases beyond the questioning that took place during the hearings. Instead, the commission forwarded evidence to a special police unit in cases in which prosecution seemed warranted.[19] The Brazilian law precludes such forwarding of evidence. Article 4 § 4 provides that the activities of the commission will not have jurisdictional or prosecutorial character. Hence, the Brazilian commission will not be able to overcome the challenges it faces because of a limited staff-time ratio by receiving the assistance of law enforcement agencies.

Hence, the commission’s cooperation with NGOs that have considerable experience in the field of transitional justice will be crucial in Brazil. Article 4 VII specifically allows for the commission to partner up with public or private, national or international organs and organizations to exchange information, data and documents.[20] Article 4 VIII further provides that the commission may demand assistance from public entities and organs. The explicit exclusion of private organizations in this last provision suggests that potential private partners may support the commission through information (article 4 VII), but must not contribute in any other more active way to the work of the commission (article 4 VIII). NGOs have useful knowledge, for example, in the fields of processing and analyzing data collected by truth commissions.[21]4 VIII may thus further limit the potential impact of the relatively small commission if it is understood to prevent the commission from receiving expertise that is not strictly informational.

The Powers of the Commission

In an initial step, the Brazilian commission will have to decide on its own operating rules. Among other things, it must determine the evaluation procedure for receiving information, its procedural rules, the appropriate bases for its findings, and its preferred relationship with the public.

Article 4 sets out the powers of the commission. The commission can receive voluntarily provided information in the form of testimonies, data, and documents; solicit information from public entities and organs; convoke persons for interviews or testimonies; authorize enquiries to collect or recover information; hold public hearings; request witness protection; partner with public or private, national or international organs and organizations to exchange information and demand assistance from public entities and organs.

In the following section, the issues of public hearings and access to information will be further analyzed, as they are especially relevant for the commission to achieve its goals.[22]

    a. Public hearings

The commission may engage the public through public hearings. The experience of the Nigerian commission has shown that public visibility and support can be key to increasing the impact of a commission with a limited time-staff ratio.

Public hearings of victims’ accounts are likely to bring more public attention to the commission and its work. In addition, the public’s focus will be shifted from the final report, which usually receives most public attention, to the process of finding the truth.[23] Public hearings may also increase public sympathy for the victims and reduce the trivialization of the military rule. Increased public awareness of the crimes committed by the military may also reduce anti-democratic attitudes existing within the military.[24]

Non-public hearings, on the other hand, may be better suited to address concerns regarding the protection of witnesses in some cases. But this can hardly be an argument against public hearings in general, as hearings in especially sensitive cases can be held confidentially even if most other hearings are public. Moreover, Article 4 VI gives the commission the power to ask for witness protection.

Another danger of public hearings is that unfounded accusations may be aired. This problem should be solved by allowing the accused to respond to the accusations in another hearing.[25] The Brazilian law provides the legal basis that could be used for such a procedure in Article 4 § 6. This provision allows any citizen to demand or offer information on a given case revealed or presented by the commission.[26]

In theory, it seems that at least some exemplar cases could be heard publicly in order to promote an active public discourse and give the commission the chance to offer an official and public apology for past abuses committed by the state. However, public hearings are very time and resource consuming. Given the limited staffing and the extended period of time that the commission has to cover, it is unclear how many public hearings the Brazilian commission will be able to hold.

    b. Access to Information

Access to information is a crucial factor for the commission’s impact. The truth commission can reconstruct the past and create the most accurate and objective narrative only if it has the power to access all necessary information.

The law that establishes the truth commission provides the commission with significant powers concerning access to information. Article 4 II provides that the commission can demand information, data and documents from any public entity or organ regardless of the document’s classification. The commission will thus be able to consider any documents it may find useful without limitation. This prescription is consistent with the IACHR judgment concerning the Brazilian amnesty law, which asserts that authorities must not declare documents as secret in cases of human rights violations.[27] Furthermore, Article 4 III assigns the commission subpoena powers, and Article 4 § 3 clarifies that it is obligatory for every public servant or member of the military to cooperate with the commission.

The Brazilian truth commission thus has considerably greater powers compared to its counterpart in Chile, for instance.[28] In the Chilean case, the absence of subpoena powers to call hostile witnesses and to demand documentation from uncooperative state organs was a crucial reason behind the commission’s inability to provide a detailed report beyond the description of rather general patterns.[29] Similarly, the Argentine truth commission had no subpoena powers.[30] Consequently, the military did not cooperate with the commission even though the executive had ordered it to do so.[31] These governments assigned only limited powers to truth commissions, at least partly out of fear to provoke an unwanted confrontation with the military.[32] Whether the Brazilian military will cooperate with the commission is uncertain. The fact that the Brazilian government has given the commission subpoena powers indicates, however, that the government is willing to confront the military and force it to cooperate with the commission.

Despite its strong mandate concerning access to information, in practice the Brazilian truth commission may have too small of a staff to analyze all the information that it can theoretically access.

The Objectives of the Commission

The objectives of the Brazilian truth commission set out in Article 3 are: to shed light on facts and circumstances of grave human rights violations; to identify the structures and institutions that have a connection to these rights abuses; to collect information; to help locate the bodies of the disappeared; to cooperate with public institutions to provide education concerning human rights violations; to recommend measures to prevent such violations; to foster national reconciliation and reconstruct the history of these violations, as well as to assist the victims. [33]

  1. Provisions of Article 3, Law 12.528

The catalogue of Article 3 establishes a broad mandate with specific guidance. Article 3 I orders the commission to inspect cases of grave human rights violations. This includes abuses perpetrated by government forces as well as nongovernmental forces. Article 3 II provides a list of cases that constitute such grave violations in all instances. Hence, cases of torture, forced disappearances, and the hiding of corpses shall always be investigated, even if they occurred abroad. Where the case involves the hiding of corpses, the law requires a finding as to the actors involved in the hiding. In addition, Article 3 IV requires that the commission collect all information available from public organs to locate and identify the mortal remains of the disappeared.

Article 3 II, III require the commission to identify and publish the structures, locations, institutions and circumstances behind human rights violations. They explicitly call upon the commission to investigate in which ways state organs and society were involved in the perpetration of crimes.

The last two paragraphs of Article 3 contain key provisions that define the commission’s task. The commission shall recommend measures that will prevent future human rights abuses and boost effective national reconciliation.[34] Furthermore, the commission shall reconstruct the history of grave human rights violations and ensure that assistance will be provided to the victims.

    b. Analysis of Article 3 of Law 12.528

These provisions offer some peculiarities and valuable insights. Like most truth commissions, the Brazilian commission will limit its work to grave human rights violations and will not focus only on killings.[35] Leaving cases of torture, for example, outside of the mandate of the commission would have ignored the particular Brazilian situation. The military regime killed relatively few people, whereas the cases of state sponsored torture are very high. The law addresses this need to find an official narrative for broader categories of victims.

The explicit inclusion of human rights abuses that took place abroad takes into account the transnational nature of operation Condor. In this operation military dictatorships of the Southern Cone (Argentina, Uruguay, Paraguay and Brazil) cooperated across borders to persecute, torture and execute opponents.

The special focus on finding the human remains of the disappeared is also notable. This provision is common in Latin American truth commission laws and reflects the IACHR position on the topic.[36] As comments by Minister of Human Rights Maria do Rosário confirm, the commission has the authority to investigate the authorship of all grave human rights violations.[37] This does not necessarily mean that the names of those involved in human rights abuses will be published by the commission. The “naming of names” is not explicitly prohibited by the law, which states simply that the activities of the commission will not have jurisdictional or prosecutorial character (Article 4 § 4). The El Salvadoran commission published the names of perpetrators against the will of the government because it deemed that this would be the only way to achieve justice.[38] The agreement that led to the establishment of the Guatemalan commission explicitly excludes the possibility to attribute responsibility to individuals.[39] Generally, the publication of the names of perpetrators is relatively rare.[40] The main reason for this is that truth commissions regularly do not have the capacities to adequately protect the due process rights of the accused.[41] This will be especially true for the Brazilian commission. It must also be kept in mind that the unofficial report Brasil: Nunca Mais already published 444 names of perpetrators of human rights abusers.[42] It is thus likely that the Brazilian commission will refrain from publishing names and focus on assigning institutional responsibility and outlining the structures that allowed for systematic human rights abuses.[43]

The commission’s relatively broad mandate and the explicit task of revealing the general structures of violations and the institutions and sectors of society involved, together with its strong powers to access information, give the Brazilian commission a good basis for the creation of an authoritative history. The degree of detail will be essential for a wide acceptance of this history.[44] Given the time-staff ratio, it will, however, be challenging to produce very detailed results and generate wide public support.

    c. Reconciliation and Authoritative History

National reconciliation and the creation of an authoritative historic account of the human rights abuses committed during the period examined by the commission are the central objectives of the commission. The Brazilian commission has been incorrectly reduced to a mere effort to provide an official account of the past that does not aim at national reconciliation or political transition.[45] The Law explicitly provides otherwise. Reconciliation is a goal of the Brazilian commission and is not only mentioned in Article 3, which establishes the commission, but also figures prominently in Article 1, where it is mentioned as one of the two main objectives of the commission, together with the establishment of an official history. Furthermore, the recommendations that the commission is set out to deliver can be interpreted as acts that help to reconcile Brazilian society. These recommendations shall include the formulation of policies to prevent future human rights violations. Hence, the commission has the task of contributing to a new course in Brazilian human rights policy.

As argued above, the commission is legally well equipped to achieve the goal of creating an authoritative historic account if it succeeds in overcoming the difficulties concerning the time-staff ratio. The investigation of human rights abuses of nongovernmental forces during the military regime and into abuses perpetrated during the years before the military regime assumed power are other aspects that can increase the commission’s likelihood of success if they are addressed thoroughly. The reporting on crimes committed by nongovernmental forces during the military dictatorship will be key to generating acceptance for the commission’s report in conservative and military circles today. On the other hand, the inclusion of crimes perpetrated by actors other than the military regime risks blurring an important dividing line between human rights violations by a regime in power and by an opposition group.[46] Violence by opposition groups and state sponsored violence are functionally different because of the state's monopoly on the use of force.

Achieving the goal of national reconciliation is likely to become a longer and more difficult process in Brazil. What is necessary to achieve the goal of reconciliation is the recognition of an existing conflict and opposed positions on the subject. For reconciliation to become a reality it must first be admitted that a public confrontation exists. In Brazil, it seems that the conflict between those who advocate for the responsibility of the state for past abuses and those sectors who do not admit state sponsored crimes has been systematically negated until recently.[47] The most visible measure perpetuating this negation is the Brazilian amnesty law. The Brazilian Supreme Court did not dare to touch on the subject, and the Brazilian Parliament seems unwilling to do so.

Court rulings such as the IACHR ruling in the case of Gomes Lund vs. Brazil, the political debate and pressure surrounding instances like the recent developments that led to the creation of the truth commission, as well as polemic media contributions on the subject underline the existence of this conflict in Brazilian society.[48] The truth commission will thus have to prepare the ground for reconciliation and confront the public with this negated conflict.

The Truth Commission and Respect for Human Rights in Brazil

The Brazilian truth commission has the task of making recommendations for future policies with a view to preventing human rights abuses (Article 3 VI). In Brazil, security forces still engage in regular human rights violations.[49] Hence, the commission’s recommendations can potentially have a real impact on society.

Human Rights in Brazil and the Recommendations of the Truth Commission

Since the transition to democracy, cases of torture and unlawful killings by security forces have remained high or have increased.[50] Torture also remains a contentious issue.[51] These practices are rarely punished. Instead, state agents who engage in such violations are frequently transferred or even promoted.[52] The commission can help to weaken the existing culture of violence and impunity in Brazil by recommending steps to reform Brazilian political and security institutions.

Truth commissions in the past have recommended political and institutional reforms. Examples include reforms of the judiciary, reforms of the armed forces, measures to instill a human rights culture (e.g. through human rights education), apologies from officials and the punishment of perpetrators.[53] Even though some civil society groups may have already advanced such proposals, their endorsement by the official truth commission would give such propositions greater political weight, making them more likely to be implemented.

The law that establishes the commission does not make the commission’s recommendations binding. Their implementation will thus depend on other – political – forces.[54]

The Truth Commission as a First Step to Retributive Justice

The mandate of the commission explicitly excludes any jurisdictional or prosecutorial capacity. The establishment of the commission has therefore no legal implication for the Brazilian amnesty law. This is the compromise that made the creation of the commission possible.

The commission may, however, start a process that culminates in a future revision of the amnesty law. An authoritative account of the human rights abuses that took place during the military dictatorship may mobilize society for retributive justice.[55] This development seems possible if the work of the commission succeeds in changing the current perception of the military dictatorship. In Chile, the work of the commission prepared the ground for a gradual change which finally led to the partial revocation of the Chilean amnesty law.[56]

The South American experience over the last decade or more has shown that blanket amnesties that practically hinder the investigation of alleged human rights abuses by state agents are not stable instruments of transitional justice.[57] These amnesties have eventually been challenged in national and international courts or have been revoked by parliaments.[58] Trials and punishment for human rights abuses can take place long after their perpetration and after a country’s transition to democracy. Accountability can be an ongoing process.[59]

Despite the relatively small number of victims in Brazil, it was stressed by the IACHR in Gomes Lund vs. Brazil that a demand to hold individuals accountable for past acts still exists, and that this demand does not simply fade over time. The Bolivian example illustrates well that a small number of victims does not preclude the lifting of a blanket amnesty. There, former military leaders were punished for human rights abuses notwithstanding the fact that “only” less than 200 people disappeared during the rule of the military.[60] If the Brazilian commission succeeds in overcoming the suppression of the conflict, it may create the momentum for an increasing pressure on the amnesty law as well. The revocation of the Brazilian amnesty law may seem unlikely but until a short time ago the creation of a Brazilian truth commission seemed unlikely, too.[61]

Conclusion

This paper has outlined the background of the new Brazilian truth commission. It has shown that the commission has been equipped with a strong legal mandate to create an authoritative historic account. The powers to access information are particularly noteworthy. The commission is likely to face considerable practical challenges because it has limited staff to cover human rights abuses during a relatively long period of time. To be successful, the commission will have to garner broad support from public and private institutions, as well as from the general public. The commission may contribute considerably to national reconciliation if it succeeds in bringing the conflict surrounding past human rights abuses to broad public attention.

The truth commission may be a first step to overcoming the amnesty law. The commission does not have the mandate to circumvent the Brazilian amnesty law of 1979. However, it seems possible that the commission’s work is a development that may ultimately lead to a revocation of the amnesty. This will depend on the impact of the commission’s report on Brazilian society.



[1] Nina Schneider, Breaking the ‘Silence’ of the Military Regime, Bulletin of Latin American Research, Vol. 30, No. 2, 198, 207.

[2] Pereira, “Authoritarianism and the Rule of Law in Brazil, Chile and Argentina” 63. The relative continuity of the political system is exemplified by the fact that popular elections were held regularly and military presidents were formally elected by Congress - although under severe legal and paralegal restrictions. See: Lamounier, “Brazil: The Hyperactive Paralisis Syndrome,” 168.

[3] Most of the human rights abuses took place during the first ten years of the military regime and were mainly carried out by police and military officers. The military rule in Brazil led to an estimated fifty thousand imprisonments for political reasons and twenty thousand cases of torture. Ten thousand people went into exile. See for further discussion: Pereira, “Authoritarianism and the Rule of Law in Brazil, Chile and Argentina” 68; Skidmore, “The politics of military rule in Brazil, 1964 – 85”, 25. For further information on the background of the military coup, see Skidmore, “Politics and Economic Policy Making in Authoritarian Brazil, 1937 – 71”, 4.

[4] Other examples for cautious measures adopted by Brazilian authorities regarding its past are the habeas data provision in the 1988 constitution that allows individual citizens to access data that government agencies had gathered about them during the military rule, or the indemnification of victims’ families in 1996 paid after the first official commission examined 360 cases of state crimes. The findings of this commission were never published. Concerning earlier measures to address the past, see: Pereira, “An ugly democracy?” 226 and “Commission of Inquiry: Brazil,” usip.org, http://www.usip.org/publications/commission-inquiry-brazil, accessed 29.10.2011.

[5] The amnesty included regime opponents convicted of political crimes. Mart'nez-Lara, “Building Democracy in Brazil,” 31.

[6] The Defense Minister, together with the three commanders of the Brazilian Armed Forces, threatened to resign if the proposed truth commission were to be created to investigate merely military violations. “Brazil only country that retains 1979 Amnesty law dictated by the military”, http://en.mercopress.com/2011/03/28/brazil-only-country-that-retains-1979-amnesty-law-dictated-by-the-military, accessed 29.10.2011.

[7] “Don't look back”. The Economist. http://www.economist.com/node/15213769, accessed 17.12.2011.

[8] “IACHR Court holds Brazil accountable for forced disappearances in Araguaia,” conectas.org, http://www.conectas.org/en/institutional/iachr-court-holds-brazil-accountable-for-forced-disappearances-in-araguaia, accessed 29.10.2011.

[9] All Articles referred to are articles of the law Nr. 12.528 that establishes the Brazilian truth commission.

[10]2 of the law 12.528 reads: “[…] brasileiros, de reconhecida idoneidade e conduta ética, identificados com a defesa da democracia e da institucionalidade constitucional, bem como com o respeito aos direitos humanos.”

[11] It remains to be seen if members of the military forces will be summoned as commissioners along with former regime opponents or if a commission of neutral experts will be established.

[12]Art. 9 law 12.528.

[13]Art. 1 and art. 11 law 12.528. Most modern truth commissions work in a similar timeframe. Longer timeframes risk losing attention and focus: shorter timeframes will unnecessarily constrain the commission. Priscilla Hayner describes an operating period of two years as ideal in most circumstances. Unspeakable Truths, 2nd ed. 2011, 285.

[14] The IACHR constrained itself to the exhortation that Brazil should provide enough resources for the truth commission to carry out its task effectively. IACHR, Gomes Lund vs. Brazil, 24.11.2010, 108. Glenda Mezzarobba, a political scientist involved in the legislation that established the commission, stated that the long period to be investigated is not a problem. Mezzarobba continued, however: “At least the whole dictatorial period is included. And in Brazil we had no commission and no trials, but we had Brazil Nunca Mais.” This suggests that rather than not seeing a problem in the long timeframe, Ms. Mezzarobba is glad that a truth commission to investigate the military will be installed at all. Cited by Lindy Janssen, Brazil: champion of late truth in Latin America, accessed on 20.12.11 at:

http://www.rnw.nl/international-justice/article/brazil-champion-late-truth-latin-america.

[15] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 213.

[16] Most of these members worked in the “provincial committees” of the commission. Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, Appendix 2, Chart 4, 272.

[17] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, Appendix 2, Chart 4, 270.

[18] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, Appendix 1, 250.

[19] Around 35 cases were forwarded to the police by the commission. Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, Appendix 1, 250.

[20] The exchange of data, information and documents of human rights abuses is a common procedure between NGOs and truth commissions. See: Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 224-225.

[21] An example for this is Benetech, an NGO that specialized in data management http://www.benetech.org/.

[22] The goals of the commission will be outlined in the next chapter.

[23] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 218.

[24] Eric Wiebelhaus-Brahm, What Does Brazil Have to Gain From a Truth Commission After Two Decades of Democracy? Paper presented for the International Conference on the Right to Truth, University of São Paulo, São Paulo, Brazil, October 19-20, 2009, 16.

[25] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 220. The Nigerian truth commission allowed the accused to directly challenge the accusations in front of the commission and the accuser. Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 219.

[26] “Qualquer cidadão que demonstre interesse em esclarecer situação de fato revelada ou declarada pela Comissão terá a prerrogativa de solicitar ou prestar informações para fins de estabelecimento da verdade”

[27] IACHR, Gomes Lund and others vs. Brazil, 24.11.2010, 78.

[28] El Salvador and Guatemala had confidential hearings in which the identity of the witness was concealed in order to obtain information from reluctant institutional actors. Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 98.

[29] Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 97.

[30] Americas Watch Report, Truth and Partial Justice in Argentina, 1991, 14, accessed on 20.12.11, at: http://www.hrw.org/sites/default/files/reports/argen914full.pdf.

[31] Commission Nacional sobre la Desaparici-n de Personas, Nunca Más, Buenos Aires 4th ed. 1984, 453.

[32] Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 97.

[33] Article 3 reads: São objetivos da Comissão Nacional da Verdade: I - esclarecer os fatos e as circunstâncias dos casos de graves violações de direitos humanos mencionados no caput do art. 1o; II - promover o esclarecimento circunstanciado dos casos de torturas, mortes, desaparecimentos forçados, ocultação de cadáveres e sua autoria, ainda que ocorridos no exterior; III - identificar e tornar públicos as estruturas, os locais, as instituições e as circunstâncias relacionados à prática de violações de direitos humanos mencionadas no caput do art. 1o e suas eventuais ramificações nos diversos aparelhos estatais e na sociedade; IV - encaminhar aos -rgãos públicos competentes toda e qualquer informação obtida que possa auxiliar na localização e identificação de corpos e restos mortais de desaparecidos pol'ticos, nos termos do art. 1o da Lei no 9.140, de 4 de dezembro de 1995; V - colaborar com todas as instâncias do poder público para apuração de violação de direitos humanos; VI - recomendar a adoção de medidas e pol'ticas públicas para prevenir violação de direitos humanos, assegurar sua não repetição e promover a efetiva reconciliação nacional; VII - promover, com base nos informes obtidos, a reconstrução da hist-ria dos casos de graves violações de direitos humanos, bem como colaborar para que seja prestada assistência às v'timas de tais violações.

[34] The nature of the recommendations of the truth commission will be analyzed below.

[35] On the contrary, the Nigerian truth commission, for example, had only very broad terms of reference which led the commission to include even cases of dismissal from employment without due compensation in the mandate of the commission. After realizing that this led to an extreme increase in submissions, the commission refocused on gross human rights violations. Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 249. Contrarily, the Chilean Rettig commission was heavily criticized for just focusing on killings. Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 96.

[36] IACHR, Gomes Lund vs. Brazil, 91.

[37] Dilma terá encontro com familiares de desaparecidos pol'ticos, oglobo.com, accessed on 20.12.11 at: http://oglobo.globo.com/pais/dilma-tera-encontro-com-familiares-de-desaparecidos-politicos-3345567#ixzz1hAY18pbW.

[38] Chandra Lekha Sriram, Confronting Past Human Rights Violations, Oxon 2004, 9.

[39] This was done with the experience of El Salvador in mind, Rainer Grote, The United Nations and the Establishment of a New Model of Governance for Central America, 265. The Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer is available at: www.un.org/Depts/minugua/paz6.htm.

[40] Eric Wiebelhaus-Brahm, Truth Commissions and Transitional Societies, Rutledge 2010, 160-161.

[41] See for example for the Chilean Commission, Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 105.

[42] The report was compiled secretly by a group of church collaborators and documented the systematic use of torture by regime forces. It is the only publicly accessible account of state crimes in Brazil. The unofficial report was produced by the Archdiocese of São Paulo. Louis Bickford, Unofficial Truth Projects, Human Rights Quarterly 29, (2007): 994-1035.

[43] Bronwyn Leebaw argues for a strong emphasis on a political judgment in the context of systematic human rights abuses and the attribution of institutional responsibility to institutions, Bronwyn Leebaw, State-Sponsored Violence, Imagining Political Change, Cambridge 2011, 174-177. It will be interesting to see, whether the Brazilian commission follows this approach.

[44] Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 96.

[45] Manuela Picq, Building truth in Brazil, aljazeera.com, accessed on: 19.12.11 at: http://www.aljazeera.com/indepth/opinion/2011/12/2011125101215630312.html.

[46] Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice, Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), 79, 98.

[47] Bruno Comparato, The amnesty between memory and reconciliation in Brazil, 2010, accessed on 18.12.11 at: http://saopaulo2011.ipsa.org/sites/default/files/papers/paper-1100.pdf 18.

[48] For polemic media contributions on the subject see: Nina Schneider, Breaking the ‘Silence’ of the Military Regime, Bulletin of Latin American Research, Vol. 30, No. 2, 198, 207-208.

[49] This indicates that unearthing the truth about the past through a commission does not seem to be a necessary step to establish a functioning democracy, Eric Wiebelhaus-Brahm, Truth Commissions and Transitional Societies, Rutledge 2010, 78. However, it can be pointed out that Brazilian democracy suffers from ongoing violence and human rights abuses by security forces, Anthony Pereira, “Public Security, Private Interests, and Police Reform in Brazil,” Democratic Brazil Revisited. Kingstone, Peter R. and Timothy J. Power, eds (Pittsburgh: University of Pittsburgh Press, 2008) 186. Political democracy does not necessarily generate nor should it assume a democratic rule of law, Teresa P.R. Caldeira and James Holston, “Democracy and Violence in Brazil,” Comparative Studies in Society and History, Vol 41, no. 4 (October 1999) 695.

[50] See for example: United States Department of State, Secretary for Democracy and Global Affairs - Bureau of Democracy, Human Rights, and Labor, 2008 Human Rights Report: Brazil, 2008 Country Reports on Human Rights Practices, (2009) available at: www.state.gov/g/drl/rls/hrrpt/2008/wha/119150.htm> 4/22/09.

[51] Bruno Comparato describes torture as the currency in the police stations and the prisons, The amnesty between memory and reconciliation in Brazil, accessed on 20.12.11, at: http://saopaulo2011.ipsa.org/sites/default/files/papers/paper-1100.pdf .

[52] Eric Wiebelhaus-Brahms, Truth Commissions and Transitional Societies, Routledge 2010, 75.

[53] Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 192.

[54] The recommendations of the El Salvadoran commission and of the commission for Sierra Leone were mandatory. Such powers are, however, problematic as they force other independent (and maybe democratically legitimized) institutions to act, Jo Pasqualucci, The Whole Truth and Nothing but the Truth, 12 Boston University International Law Journal 1994, 321, 340. Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 192. Hayner puts forward the idea that governments should at least explain their non compliance with truth commission’s recommendations, ibid. The commission’s recommendations will have a greatest chance of being considered if they are formulated in a short and precise manner, Priscilla Hayner, Unspeakable Truths, 2nd ed. 2011, 193.

[55] Manuela Picq, Building truth in Brazil, aljazeera.com, accessed on: 19.12.11 at: http://www.aljazeera.com/indepth/opinion/2011/12/2011125101215630312.html.

[56] Eric Wiebelhaus-Brahms, Truth Commissions and Transitional Societies, Routledge 2010, 77.

[57] On blanket and other more limited types of amnesties see: William Burke-White, Reframing Impunity, 42 Harv. Int’l L. J. 2001, 467-533.

[58] Such developments have, for example, taken place in Uruguay or Argentina.

[59] Kathryn Sikkink and Carrie Walling, The Impact of Human Rights Trials in Latin America, Journal of Peace Research 2007 44, 427, 442.

[60] Tricia Olsen, Leigh Payne & Andrew Reiter, Transitional Justice in Latin America, International Studies Review (2011) 13, 554, 561.

[61] Mario Drumond Coelho, a Brazilian professor of law and international relations declared in a paper published in 2011 the creation of a truth commission to be improbable, Transitional justice in Brazil, Univ. Rel. Int., Bras'lia, v. 9, n. 2, p. 207-237, jul./dez. 2011, 228.


Leonard Ghione is a Masters of Arts candidate in Law and Diplomacy at the Fletcher School of Tufts University. Previously, he studied law in Heidelberg, Madrid and Freiburg.
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