By Tracey Begley
Hours after President Luiz Inácio “Lula” da Silva of Brazil announced plans in December 2009 to set up a truth commission that would investigate crimes committed during the military dictatorships, Brazil’s top military officials threatened their resignations if Lula did not retract the proposal. Lula, however, told the UN Human Rights Council in Geneva in early March 2010 that the country had created a National Truth Commission. Military officials are concerned about opening military archives to the commission because hundreds of Brazilians are alleged to have been tortured, kidnapped, disappeared, and murdered by the military government between 1964 and 1985. To assuage his officials’ concerns, Lula has set up a working group of representatives from the justice department, homeland affairs, the human rights department, the military and civil society. The group will have to agree on the workings of the truth commission, as Lula promised that the commission will not judge people, but will seek to understand the truth of what happened from 1964 to 1985.
The Brazilian government has been hesitant to create a truth commission because of its 1979 law providing amnesty to military and political officials who committed political or electoral crimes from 1961 to 1979. The amnesty law, however, may violate the American Convention of Human Rights (ACHR), which Brazil ratified in 1979, because it prevents judicial proceedings for and investigations of serious violations of non-derogable human rights such as the right to life. In 2001, the Inter-American Court on Human Rights (IACtHR), a body whose jurisdiction Brazil recognized when it ratified the ACHR, held that Peru’s failure to investigate and punish crimes relating to the military’s massacre of alleged Sendero Luminoso members violated the Convention. The Peruvian government refused to investigate the crime because of its law providing amnesty to police and military officials who committed crimes during the period from 1980 to 1995. In Barrios Altos v. Peru, the IACtHR found that the Peruvian amnesty law violated the government’s duties under international human rights law, and held that “all amnesty provisions . . . for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, [are] prohibited because they violate non-derogable rights recognized by international human rights law.”
Because the Brazilian amnesty law has been interpreted to protect people who have committed torture, a non-derogable right under the ACHR, the law is incompatible with the Court’s decision under Barrios Altos. Brazil’s amnesty law should therefore be repealed and should not bar the creation of a truth commission.
Truth commissions are meant to be non-judicial investigations into past periods of violence during which human rights violations were systematically committed. They are part of a process to end impunity for serious rights violations and can lead to justice and reparations for victims and their families. Some truth commissions are granted subpoena power from the legislature, while others rely specifically on voluntary participation. It is unclear what type of powers the Brazilian truth commission would have, but it would certainly need access to military archives and testimony to have a clear picture of what happened in the past. But since the 1979 law provides amnesty for political crimes and politically motivated crimes, the commission might have difficulty accessing information. By assisting in the investigation of crimes, truth commissions help uphold citizens’ right to know about the past. The IACtHR’s decision in Barrios Altos recognized and protected the right to know by declaring the non-investigation of abuses a violation of the ACHR. Despite Brazil’s national laws, it too has the obligation to end the impunity for crimes committed during the dictatorships and ensure its citizens know about past crimes. Brazil cannot use its amnesty law as an excuse not to create a truth commission.
Most of Brazil’s neighbors with similar histories have gone beyond the creation of truth commissions and have begun prosecuting individuals who committed serious violations of international human rights law. Although a small group of six representatives is currently discussing how the Brazilian truth commission will function, it is important for victims to participate in the process to ensure the commission addresses their needs. Furthermore, the government should create a truth commission through the legislature to ensure that the commission has the appropriate authority and funding to investigate crimes and preserve evidence for later prosecution. Given the evolution of international law over the past ten years, Brazil can no longer hide behind its amnesty law as an excuse for perpetuating the state of impunity. It must follow its neighbors in creating a truth commission that will investigate past human rights abuses and eventually prosecute those responsible for serious violations of international law.