Artigo Revista Curitiba

8/16/2019 Artigo Revista Curitiba

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The on-going case: getting around amnesty laws by seeking justice for the disappeared

O Contorno da lei da anistia na busca de justiça: uma comparação das abordagens no

Brasil e no Chile sobre os desaparecidos

Paulo Gustavo Pellegrino Correa 1

Debrin Foxcroft2

Abstract

Internationally the amnesty laws of Chile and ra!il have been deemed invalid" but they theyhave been u#held locally$ %his #a#er see&s to com#are the a##roaches in each country to usethe disa##eared to challenge the amnesty legislation and also s&etch out the #otentialinternational conse'uences for ra!il" if it remains steadfast in its refusal to address the

(ustice issues of the #ast$

)ey*words+ Chile, ra!il, Amnesty -aws$

.esumo

Internacionalmente as leis de anistia do Chile e do rasil foram considerados inv/lidas" maslocalmente elas foram mantidas$ 0ste trabalho visa com#arar as abordagens em cada #as aoutili!ar os desa#arecidos #ara desafiar a anistia e tambm esbo3ar as #otenciaisconse'u4ncias #ara o rasil" se caso ele continue firme em sua recusa em abordar as 'uest5esde (usti3a do #assado$

Palavras*Chave+ Chile, rasil, Anistia$

ntro

International law and norms have long established that amnesty laws for crimesagainst humanity 6 systematic state s#onsored violence against its own #o#ulation includingtorture" &idna##ing and murder 6 are invalid$ ut a number of these laws still stand"

challenged but intact$ In ra!il" the self*a##ointed Amnesty -aw that was #assed as #art of the country7s move towards democracy stands" des#ite international #ressure and domesticcriticism$ 0ven with the advent of the country7s new %ruth Commission" there may be aclearer understanding of what ha##ened between 189: and 18;niversidade Federal do Ama#/ ?>@IFAP and PhD candidate at

the >niversidade Federal de =Bo Carlos Political =cience Programme$2 PhD candidate at the >niversity of ai&atos Political =cience Programme $


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%his #a#er is an attem#t to s&etch out the different ex#eriences of ra!il and Chile inusing the Eon*going case doctrine and to ex#lore what it will mean for ra!il bothdomestically and internationally if the Amnesty -aw stands and the #eo#le are offered truth

but no (ustice$

Chile

n =e#tember 11" 18H Chilean Air Force Jaw&er*Junter fighters bombed -aKoneda" the #residential #alace in the centre of =antiago$ >shering in the military (unta under the leadershi# of General Augusto Pinochet" the attac& also mar&ed the end of the nation7svolatile foray into socialism$ efore the sun set on that day" the socialist leader =alvador Allende was dead" the congress was dissolved and the constitution eliminated$ A systematicand brutal #rogramme of re#ression followed" resulting in the #olitical assassinations"disa##earances" im#risonment and exile of thousands of Chilean citi!ens" as well aswides#read torture$ %he cou# reflected the #olari!ation between the left and right under theleadershi# of Allende$ For some" the events of that day were an unacce#table interru#tion of democracy, others saw the military7s move as necessary to #revent im#ending civil war $

Five years after the bombing of -a Koneda" Pinochet #assed a #residential decreegranting amnesty to those involved in criminal acts from 18H 6 18H;$ %hat Amnesty -awstill stands" three decades after it was #assed and 22 years after the return to democracy$ Chileserves as an im#ortant exam#le of a country that has maintained its amnesty legislationinstituted during undemocratic times while allowing some of the (ustice needs of democracy$ut it has not been an easy road for those see&ing the reversal of a #residential decree thathas" for over L years" #rotected members of the armed forces that are accused of significanthuman rights violations$

-i&e many of the neighbouring regimes" the Pinochet military (unta went throughstages of re#ression$ %he intensity of re#ression was greatest during the first years of thedictatorshi#$ ith time" the re#ression became more selective" not due to a greater res#ect of human rights but due to the decrease of legitimacy of the Pinochet regime" the need for efficiency and international and economic #ressures:$ In total well over LLL #eo#le were&illed or Mdisa##eared7 during the military (unta$ %housands more were tortured$ In 18H;"Decree law @o$ 2$181 ?1; A#ril" 18H; introduced a blan&et amnesty for crimes committedduring the first five years of the dictatorshi#$ Article 1 of Chile7s amnesty legislation #rovidesthat+ EAmnesty shall be granted to all individuals who committed criminal acts" whether as

#er#etrators" accom#lices or accessories after the fact" during the state of siege in force from=e#tember 11" 18H to Karch 1L" 18H;" #roviding they are not currently sub(ect to legal

#roceedings or have been already sentenced


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criminal acts$ =ome crimes were excluded from the amnesty" including infanticide" armedrobbery" ra#e" incest" fraud" embe!!lement" dishonesty" and drun& driving$ Jowever" murder"&idna##ing" and assault were not$ %he language of the decree covered both the military andits o##onents" but in reality the law benefited the military the most because of the magnitudeof criminal acts committed by the armed services and because most of the o##osition had

been murdered" disa#eared or exiled$9 Niolence against citi!ens continued after the amnestydecree" though they were increasingly s#oradic towards the later #eriod of the regime$ %heim#unity afforded to the agents of the regime continued more or less uninterru#ted untilPatricio Aylwin too& office as Chile7s first democratically elected leader in 188L$ Des#ite

#romises to the contrary by a succession of Chilean #residents" the amnesty law of 18H; hasremained largely untouched$ %he #oliticians" for their #art" have been unwilling to challengethe military and insist on accountability$

Challenges to the Decree law 2$181" both domestic and international" have #ivoted onthe efforts of civil society grou#s and on changes in the to# level of the (udiciary$ %he shift inthe ma&e*u# of the Chilean =u#reme Court has been fundamental to the acce#tance of cases

#unching through the loo#holes of the amnesty decree$H

It must be noted that Pinochet7samnesty law does not #revent investigations into human rights abuses but it gives the courts #ower to close cases and investigations before indictments are handed down$;

In the face of #olitical unwillingness to remove the blan&et amnesty" the mostsignificant #rogress has been made by #rosecutors and victims wor&ing to get around thelegislation$ y describing disa##earances as an on*going crime" lawyers were able to claimthat the amnesty law" with its strict time limit" could not be a##lied$ Chile7s (uris#rudence hasgone through a number of #hases that set the groundwor& for the acce#tance of this challengeto Pinochet7s Amnesty Decree$

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argues that there have been three #hases in Chilean accountability (uris#rudence$ Phase I ?188L * 8H is defined by the vestiges of authoritarianism and mar&edin #articular by the =u#reme Court7s decision in Insunza Buscuñán. .e#resenting HLdisa#earences" #etitioners challenged the constitutionality of the amnesty legislation$.e(ecting the #etition" the Court elevated the amnesty law above other constitutional norms atthe time of its a##lication as well as international agreements such as the Geneva Convention$According to the Court" Ethe decleration of amnesty is a use of legislative #ower whichsus#ends a decleration of criminality 6 essentially extinguishing the criminal character of anact$?#$9$ A handful of cases not covered by the time limits of the amnesty legislation weresuccessful before the courts" most noteably the 188< #rosecution of former secret #olice chief Kanuel Contreras for the bombing assasination of rlando -etelier and his >= assistant in

ashington in 18H9$1L

Oudicial reform and ideological shifts in the ma&eu# of the Court were mar&ers for change in the way the =u#reme Court handled challenges to the amnesty law$ =te#s towards

(ustice in the second #hase of Chilean accountability (uris#rudence were made along two

>aomi Roht-6rria?a and "a%ren @i/son, ‘The eveo0in# &%ris0r%dence on 6mnesty!,

Human Rights Quarterly, 2( '14), 4+3*445 Cath Coins, Post-transitional Justice: Human Rights Trials in Chile and El Salvador 'Penn

State Press, 2(11)4 Roht-6rria?a and @i/son, 4+3*445

Re7%a, *1(1( Cath Coins, Prosecuting Pinochet: Late ccountabilit! in Chile and the Role o" the

#Pinochet Case! 'Center $or @o/a St%dies, 2(()


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#arallel #aths" one globally significant while the other made most headway within confines of domestic courts$11 In Oanuary 188;" the Communist Party submitted a com#laint for thedeaths of #arty leaders &illed in the secret extermination #rogramme called MCalleConferencia7$ A few days later families of those that died in the infamous MCaravan of death7also submitted a similar com#laint$ oth named the former #resident Pinochet as at least

#artly res#onsible$ In a first for the court" these com#laints were acce#ted for investigation$ In=e#tember of the same year" the Court decided on the unrelated Poblete Cordova case$ %heCourt finally acce#ted that disa##earance amounted to &idna#" a so*called Mongoing crime7until remains were found or the victim7s whereabouts otherwise #roven$ 12 %he Court7sfindings in the Poblete Cordova case became established doctrine in disa##earance cases andmar&ed a turning #oint in Phase II of (uris#rudence in Chile$ 1 %he verdict also affirmed thatthe Mstate of internal war7 decreed by the dictatorshi# in 18H was sufficient to trigger GenevaConvention #rotections for #risoners$ %his would eliminate the use of amnesty altogether for certain crimes" regardless of when they were committed$1: %his case was also significant inthe Court7s acce#tance of the hierarchical su#eriority of international law 6 in this case theGeneva Conventions 6 over domestic law$ %he court found though" that for officials to meet

the re'uirements of international treaties it might be sufficient to sim#ly investigate the facts before a##lying the amnesty law$ %hat said" in the second #hase of the (udicial develo#mentin Chile" there was a mar&ed #reference in the =u#reme Court to deal with dictatorshi#*eracases a##lying solely domestic legislation" rather than international treaties and norms$ 1


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%he continuing existance of the Amnesty -aw in Chile has been deemed incom#atable withinternational agreements$ hile the Chilean =u#reme Court has focused on domestic law toget around the Decree 2$181" the Inter*American Court of Juman .ights" of which Chile is

a signatory" ruled in 2LL9 that the Amnesty -aw is incom#atable with the right to truthafforded by the American Convention$ %his decision increased the #ressure on Chilean #oliticians to address why this law still stands$ %he government7s res#onse to criticism isthat while they have denounced the legislation" it could not revo&e constitutionally basedlegislative #rocess and" though it may not always agree with the =u#reme Court" the court isautonomous$ .egionally" at least" Chile and its =u#reme Court is considered incontravention of the ACJ.$

Bra!il

%he dictatorshi# in ra!il began with a military cou# of Karch 1st" 189: that ousted #resident OoBo Goulart and lasted until the election of %ancredo @eves in 18;


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to truth" to em#hasi!e the res#onsibility of the =tate and recommend #ossible reforms andreduce conflict" and ultimately contribute to (ustice and re#aration$ Achieving theseob(ectives" #articularly the last one is a significant hurdle for the ra!ilian %ruthCommission$ %he Commission does not have the sco#e nor legitimacy to #ass (udgement of guilt for the crimes committed by the state during the dictorshi#$ Jowever" history has shown

that the final re#orts of a number of commissions for (ustice were used to initiate civil actionsand S or criminal #roceedings against the #er#etrators ?Center for the Preservation of theKemory Politics" 2L11$

%he debate on the revision of the Amnesty -aw in ra!il is being #ushed by bothinternal and external #ressures$ Domestically" organi!ations li&e Gru#o Tortura $unca %aisand the &rder o' (a)*ers o' Brazil +&AB" have sought to raise #ublic awareness and initiatelawsuits that 'uestion the inter#retation of the Amnesty -aw$ 0xternally" the ra!ilian state"as much as the Chilean state" has received criti!ism at a number of levels+ the Inter*AmericanCommission on Juman .ights ?IACJ. * #art of the rgani!ation of American =tates ?A=* grou#s li&e Amnesty International ?AI" and the >nited @ations through the Jigh >nited

@ations Jigh Commissioner for Juman .ights 6 JCJ.$ >nli&e most of -atin America"ra!il has ta&en more than two decades to establish a %ruth Commission and continues to beresistant to any review of the amnesty law$

In 2LL8" L years after -aw no$ 99; was introduced" the A filed a lawsuit on areview of the Amnesty -aw$ %his was re(ected by the =u#reme Court the following year by Hvotes to 2 s#lit$ According to the arguments of those who voted for re(ection of the revisionof the Amnesty" the law was a bilateral #act$ Chief Oudge" 0ros Grau argued that the efforts

by the A attac&ed a Qhistoric agreement that has #ervaded the struggle for a broadamnestyQ and held that the (udiciary would not have Q#ermission to rewrite the history of theAmnesty -aw$Q Oudge Carmen -ucia considered that Eeven the re#ulsion that is due to torture

#revents recogni!e that the full range that is loaned to the criminal neglect of that dar& #eriodof our history can contribute to the general disarmament" with the desirable ste# forwardtowards democracyQ and that Qit was consolidated from that agreement fixed by rder of -awyers of ra!il itself" that all acts" including the most heinous and deserving of utter disgust and abomination #racticed in the recesses of #olitical re#ression" were includedamong those #ardoned$Q In the same way" Oudge 0llen Gracie said Qyou do not ma&e a

#eaceful transition from authoritarian rule and democracy without reci#rocal concessionsQ$%he only two (udges who voted in favour of the A were .icardo -ewandows&i and CarlosAyres ritto$ %hey stressed the monstrosity of torture and lac& of clarity of the Amnesty -awand concluded that the Act could not forgive and similar heinous crimes1H$

As signatory to a number of international agreements and treatees" ra!il has not beenallowed to have the debate on Amnesty alone$ %he JCJ. has clearly #ointed out the needfor for revision of the ra!ilian amnesty legislation$ In a statement that #raised the creation of the %ruth Commission in ra!il" the Jigh Commissioner for Juman .ights" @avi Pillay"clearly attac&ed the maintenance of the Amnesty -aw by ra!il7s Federal =u#reme Court$Pillay argued that the country should Qado#t additional measures to facilitate the #unishmentof those who were res#onsible for human rights violations in the #ast QandQ include theado#tion of new legislation to re#eal the Amnesty -aw and to declare it ina##licable" becauseit im#edes the investigation and end to im#unity for serious violations human rights$Q Pillay

#oints to the role of ra!il as an emerging global #layer and says that Qbeing an emerging

1 KariTngela Gallucci" =%F re(eita revisBo da -ei da Anistia" L de abril de 2L1L Dis#onvel em+htt#+SSwww$estadao$com$brSnoticiasSim#resso"stf*re(eita*revisao*da*lei*da*anistia"


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economic and #olitical #ower" recognition from ra!il is an im#ortant event for both theregion and to the worldQ

Amnesty International" the largest and most res#ected non*governmental organi!ationthat defends the human rights" also #uts the maintenance of the Amnesty -aw as an

international embarrassment for ra!il$ =usan -ee" Amnesty Internationals Director for theAmericas" states that Qra!ils Amnesty -aw is against all national and internationalcommitments have ta&en the government to u#hold human rights$ It must be declared voidand those res#onsible for human rights abuses brought to (ustice without delay" Qand says thatra!il is lagging behind in relation to its neighbors$ -ee says that Qby u#holding the law %hatAllows crimes such as torture and murder to go un#unished" is falling behind ra!il other countries in the region have made efforts to deal with serious issues such as these$Q 1;

y maintaining the Amnesty -aw" ra!il is in violation of a number of internationaltreaties that challenge the right of a state to grant Amnesty for crimes against humanity$ Ooceli=cremin da .ocha18 argues that the ineligibility of crimes against humanity for amnesty is

mandatory rule yet to be ado#ted in the ra!ilian (urisdiction$ %he lawyers argument is that

crimes against humanity do not admit the institute criminal #rescri#tion$ %heim#rescri#tibility is a #rinci#le of international law was recogni!ed by the >@General Assembly" #rior to a##roval of the Convention on the im#rescri#tibilityof war crimes and crimes against humanity" established in 189;$ And with this

#ro# #rinci#le of international law =tates has a duty to #rosecute and #unish theofficials res#onsible$ %hat said" the failure to ratify the Convention on theim#rescri#tibility of war crimes and crimes against humanity does not relieve the=tates obligation under discussion" given that the rules of that institute resort to a

#rinci#le of law that was already in #lace #rior to its a##roval $$$ .e#eat that theobservance of humanitarian #rinci#les of international law that reinforce the legalinstitution of im#rescri#tibility" erga omnes obligation is extended to all =tates"irres#ective of any firma3Bo conventional act$ And" based on these #rinci#les"ra!il is obliged to #rosecute and #unish crimes against humanity committed inits territory and committed by state agents ?#$


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against the reserve colonel and former head of the DI*CDI Carlos Alberto right >straand Civilian Police officer Gravina Dirceu for the &idna##ing of a militant leftist Alu!ioPalhano Vuarry Ferreira$ %he com#laint is based on the same arguments being used againstKa(or Curio" that the disa#eared are victims &idna##ing" an ongoing crime and therefore"

beyond the time limits of the Amnesty -aw2L$

%he KPF attem#ts to use the disa#eared to challenge the Amnesty -aw were allre(ected by the federal court$ %he arguments behind re(ections were focused on validating theAmnesty -aw of 18H8$ Oudge toni de Katos #resided over the com#laint against Ka(or Curio" noted that E%o try after more than three decades to dodge the amnesty law to reo#endebate on crimes committed during the military dictatorshi# is a mista&e which" in addition tolac&ing legal su##ort" fails to ta&e into account the historical circumstances" which in a ma(or

bid for national reconciliation led to its #assage$ In the case against Gravina >stra K/rcioKillani .ached" the Criminal Federal Court in =Bo Paulo" says that Qwe can assert that thecrimes committed during the military regime were #ardoned" not only those #er#etrated bywho fought the regime with force" but also those committed by those who sought to maintain

them$ Q21

Conclusion

%he non*revision of the laws of amnesty in Chile and ra!il has significantim#lications at the domestic" regional and international levels$ y acce#ting that torture"&idna##ing and other human rights violations are crimes that can be covered by their laws of amnesty" ra!il and Chile undermine their res#onsibilities as states and #ut into 'uestion thelegitimacy of democracies built on in(ustice$ As an administrative and #olitical a##aratus thatholds the mono#oly of legitimate violence within a given territory" the classic definition of Kax eber in Politics as a Nocation" a state that #ardons aforementioned crimes ris&s the

citi!en7s individual belief in the =tate legitimacy$ From the international #ers#ective" theratification of agreements that then do not a##ly to s#ecific signatories challenges thelegitimacy of those agreements and #otentially encourages non non*com#lience from other states" ris&ing the internationally led #rotection of individuals and societies from humanrights abuses$

%he use of loo#holes by Chilean #rosecuters ensures that at least some of thedictatorshi# era crimes are #unished" something that has thus far remained elusive in ra!il$Jowever" even in the face of limited convictions" the re#eal or revision of the amnesty law in

both countries is about the #osition these states have ta&en in relation to these heinous crimescommitted by former leaders aswell as their future commitments to their societies$ %o date

Chile and ra!il can be considered violators of treaties they signed$ %he economic #rogressthat these countries have ex#erienced in recent years is in contrast with the obligations that

both have$ %he challenge of legitimacy in the face of im#unity is es#ecially relevant in ra!il"as it aims to consolidate itself as a great #ower in the region and #ossibly in the world$

Bibliography

2L KP #ede W Ousti3a 'ue reconsidere #rocesso contra rilhante >stra" %atiana Farah Publicado+ 28SL


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AGY@CIA 0=%AD$ "ustiça #ederal rejeita den$ncia contra %stra" Publicado em2SL

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