Interview with Professor Márcia Bernardes

Dr. Márcia Bernardes is a professor of law with the Center for Human Rights at the PUC-RJ. While her primary specialty is on gender rights, she has closely followed the transitional justice process unfolding in Brazil, and the role of the Inter-American Court of Human Rights in particular. On 23 January 2012, she delivered a public lecture at Tulane University on “Transitional Justice in Brazil.” In this interview, which took place the following day, Dr. Bernardes speaks about the Brazilian Supreme Court decision to uphold the Amnesty Law, the impact of the IACHR ruling on Brazil’s transitional justice process, and the Cumpra-se (compliance) movement.

Allison Fisher: The Brazilian Supreme Court recently upheld the prevailing interpretation of the Amnesty law. Does this ruling permanently foreclose the possibility of criminal trials of military and police torturers in Brazil?

Márcia Bernardes: This is a very good question. Brazil is a latecomer to the Inter-American system, so we have very few decisions by the court against the country. We haven’t tested strongly how we should implement the decisions, because the best decisions did require the judiciary system to be faster and more diligent in terms of investigation. But this is the first time we have a Supreme Court decision that is an obstacle to the implementation of an international decision. We don’t know exactly how this will play out. What we know from kinds of off-stage information is that the Supreme Court is very resistant to changing its ruling at this moment. But this is just something being said. Formally we can think of two things. The easiest thing to happen would be for congress to pass a new law, but that is unlikely. The other possibility: the Supreme Court overrules its past decision, which many view as unlikely. There are some strategies being considered, like having other convictions in lower courts, and seeing if the Supreme Court somehow changes its ruling. But it’s very complicated—it is a political process with legal impacts. It’s hard to foresee. There are no doubts, however, that Brazil will be in violation of International Law until we start serious, impartial and effective investigations and trials related to the grave human rights violations perpetrated in the country during the military regime. International Law is very clear that domestic obstacles, such as our Supreme Court’s decision, cannot be used as an excuse not to comply with our obligations.

AF: Could you briefly explain the IACHR ruling, and its significance to Brazil’s transitional justice process?

MB: Well, this is controversial. From my perspective, it was absolutely pivotal. Not everybody knows about this decision. It forced some key government actors to address the question of dictatorship-era rights abuses and they had to respond in a more consistent way to the demands made from the IACHR on Brazil—not only regarding the decision but the process as well. Approximately a year before the decision was released, the government, in an effort to avoid conviction, took certain steps, such as speeding up initiatives [i.e. the truth commission] that had been moving very slowly up until that point. Lula was a very democratic actor, he had no role during the military regime, he was not a political dissident as much as others were- I mean, he was very involved in the workers’ demands, not marginally involved in the fight against the military regime as such. Still, he didn’t want to be perceived as a president that supported the amnesty. He was actually pretty silent about the amnesty.

AF: To what extent does the National Truth Commission respond to the IACHR recommendations?

MB: It doesn’t respond to the court’s recommendations. The court says it’s good that we have initiatives to find out about the past—which we haven’t done as a society so far, but the decision is very clear about demanding that the state take steps in the direction of justice. This means instating criminal responsibilities for the crimes against humanity that were perpetrated during the regime.

AF: Could you explain the history and objectives of the Cumpra-se movement? Who is leading and participating in this movement? How large is it?

MB: The Cumpra-se movement pressures the government to abide by the IACHR ruling. It is lead by basically the same people that were already involved in the struggle, so there are some family members associations. There are some human rights NGOs as well. The movement has increased a little bit because the bar association has been a latecomer- it had a very prominent role during the military regime but in this final stage, the fight for transitional justice, they’ve just recently come along. It’s picking up. It’s not too large yet, but it’s picking up.

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