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Tuesday, December 6, 2016
- At very different paces, Argentina, Brazil, Chile and Uruguay advance down the path towards annulling or at least neutralising the laws that protected those responsible for human rights crimes committed under their dictatorships in the 1970s and 1980s. “The political processes and legal systems of each country are very different,” Argentine Víctor Abramovich, executive secretary of the Institute of Human Rights Public Policies of Mercosur (Southern Cone Common Market), told IPS.
It is preferable to “analyse the advances of each one, without comparing or ranking them,” added the jurist, who served as vice-president of the Inter- American Commission on Human Rights and was recently elected to head this new Institute of the Mercosur bloc, comprising Argentina, Brazil, Uruguay and Paraguay, with Venezuela in the process towards full membership.
Abramovich served as director of the non-governmental Centre for Legal and Social Studies (CELS) in 2001, when Argentine judges began to declare unconstitutional the “full stop” and “due obedience” laws, which in the mid- 1980s had suspended the lawsuits against the officials and hundreds of people responsible for the torture and forced disappearances of the 1976- 1983 dictatorship.
Argentina’s Supreme Court of Justice upheld the unconstitutionality of those laws in 2005.
The jurist explained that in the case of Argentina, the international human rights treaties, which establish that crimes against humanity cannot be immune from punishment, were incorporated into the Constitution in the 1994 reforms.
The legal system also relies on a favourable political environment, in Abramovich’s opinion. Prior to the Supreme Court decision and at the request of the government of then-President Néstor Kirchner (2003-2007), Congress also annulled the so-called pardon laws.
The pardons of the dictatorship’s leaders had been granted soon after Carlos Menem took office as president (1989-1999). But once the old laws were declared unconstitutional and the pardons were annulled, the cases for crimes against humanity were reopened.
Forced disappearance was rampant during Argentina’s “dirty war.” There are documents and witnesses to some 10,000 disappearances during the de facto regime, but human rights organisations say the real figure is around 30,000.
The latest report from the attorney general’s office is that 654 of those accused of human rights crimes under the dictatorship are facing trial, and 110 have been convicted.
The situation is different in Chile, Brazil and Uruguay, where amnesty laws still stand — but they do not always stand in the way of justice.
“There is a common pattern, but the international treaties do not hold the same authority in the internal legal system of each country,” said Abramovich.
In Brazil, the incorporation of those international norms “needs development,” he said. Brazil’s 1964-1985 dictatorship sanctioned an amnesty law in 1979 that remains in force today, and the executive and judicial branches of government are reticent to revisit it.
The leftist government of President Luiz Inácio Lula da Silva argued that it would not review the amnesty because the law brought “conciliation and pacification.” Instead it is working to create a truth commission, but it faces strong resistance from military leaders.
Abramovich did note that the debate over the creation of a commission to determine the fate of the Brazilian dictatorship’s victims is a positive step. “These are processes that permit gradual progress,” he said.
Brazil’s judiciary is still not very keen on delving into the nation’s past. In 2008, the Order of Attorneys of Brazil was unsuccessful in bringing a case before the Federal Supreme Tribunal that would annul the amnesties in cases of torture and forced disappearance.
Given such obstacles, the families of the disappeared in the Araguaia cases – – a guerrilla force that operated in the Brazilian Amazon in the late 1960s — turned to the Inter-American Commission on Human Rights, which turned the case over to the Inter-American Court of Human Rights, both attached to the Organisation of American States (OAS).
The attorney for that case, Beatriz Affonso, of the Centre for Justice and International Law, explained to IPS that the OAS tribunal does not issue sentences during electoral campaigns, but there could be a ruling immediately after Brazil’s general elections in October.
In Chile, the amnesty decreed in 1978 by the dictator himself, Augusto Pinochet (1973-1990), remains in force. According to official figures, the dictatorship “disappeared” 1,163 people, murdered 2,023, and jailed and tortured more than 27,000.
Despite that record, Abramovich maintained that the judiciary in Chile is increasingly receptive to international human rights standards. “It’s slower than in Argentina, Colombia or Peru, because the tribunals don’t function in the abstract, but there is progress,” he said.
He was referring to the Chilean Supreme Court rulings that declared the amnesty unconstitutional and maintained that the crime of forced disappearance is not covered because, until the victim is found, it must be considered an ongoing crime.
Chile must also respond to the Inter-American Court, which condemned the state for failing to investigate or pursue those responsible for the 1973 murder of Luis Almonacid, an activist with the Communist Party. Former president Michelle Bachelet (2006-2010), who was in office when the court issued the decision, pledged to heed the ruling, but did not do so before the end of her term.
Even so, 783 of those responsible for human rights crimes under the Chilean dictatorship have faced trial, and 296 have been convicted, according to official reports. Chile’s new conservative President Sebastián Piñera promised in July that he would not apply the amnesty for humanitarian reasons that the Catholic Church hierarchy had requested.
Uruguay has also come up against roadblocks in dealing with its past, but is finding ways around them. Its Congress passed a law in 1986 which set an expiration date for pursuing justice for the human rights crimes committed during the 1973-1985 dictatorship. It effectively kept military and civilian perpetrators out of the courts.
After an intense campaign to gather signatures, civil society organisations and the leftist coalition of parties known as the Broad Front (Frente Amplio, now in government) were able to bring a referendum on overturning that law. That effort failed to earn the 50 percent of the votes required, as did a repeat attempt just last year.
Nevertheless, there are some gaps in the “expiration” law. It does allow investigations — though not official charges — in clarifying the events surround human rights violations. The amnesty does not protect civilians, it does not cover economic crimes, or crimes against children, and it leaves it up to the Executive Branch to decide whether a case is covered by the law or not.
It was through these cracks that 10 of the most notorious dictatorships officials were brought to trial, many of whom are now serving sentences, as are the two former dictators who are still living, Juan María Bordaberry and Gregorio Álvarez.
About 30 Uruguayans have been confirmed as cases of forced disappearance inside this country, but a much greater number is under investigation, as well as about 100 in Argentina in the context of Plan Condor, through which the Southern Cone dictatorships coordinated their efforts to go after their mostly left-wing opponents and dissidents.
In its 12 years of de facto rule, Uruguay had the worst record in Latin America when it came to political prisoners, with about one out of 30 citizens spending time behind bars, where sexual violence and all kinds of torture were practiced systematically.
“Today, there is a consultation mechanism in which the judges ask the Executive if the cases presented are covered in the 1986 law,” said the government’s Human Rights Director, Javier Miranda, whose father is among the disappeared.
“Interpretation is discretional,” he told IPS. Since 2005, when the centre-left Broad Front coalition won the presidency, “the Executive has systematically communicated that the cases are not covered,” Miranda said. That means the cases can go forward, even with a law that in principle is intended to stop them.
Meanwhile, debate continues. In 2009, Uruguay’s Supreme Court of Justice unanimously declared the 1986 “expiration” law unconstitutional. The governing coalition is now drafting a bill that would strip the law of any legal power.
On another front, families of the dictatorship’s victims see a shortcut in the Inter-American Court, which in 1992 ruled that amnesty is incompatible with international law, and recommended that the Uruguay government annul it. But the law has remained in force.
In 2006, Macarena Gelman, granddaughter of the famed Argentine poet Juan Gelman, brought before the Inter-American Court the refusal of justice in her country for the case of her mother, who was detained in Argentina and disappeared in Uruguay. She is awaiting a ruling from the court in October
* With additional reporting by Daniela Estrada in Santiago, Leonel Plügel in Rio de Janeiro, and Raúl Pierri in Montevideo.