Dr. Anthony Pereira is a professor of Political Science and director of Brazilian Studies at King’s College in London. He is the author of Political (In)justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina (2005). His research interests include violence, human rights, and democracy in the Southern Cone of Latin America. We had the chance to speak with him about transitional justice processes in Brazil and the Southern Cone, as well as about the possibility of criminal prosecutions for human rights abuses under the military dictatorship in Brazil.
Allison Fisher: How would you compare the transitional processes in Brazil with those in Chile and Argentina?
Anthony Pereira: I think the striking thing about Brazil is that very little was done officially for a very long time after the transition in Brazil, whereas in Argentina there was an immediate reaction from the civilian government that came after the military. Argentina’s congress immediately annulled the amnesty that the military had given itself, and under Raúl Alfonsín they had trials, then a truth commission: the Sábato Commission. So there was a lot of activity immediately after military rule, where the government assumed responsibility for violations of human rights and the government tried to address these violations through well-known mechanisms. Chile is a little more subdued, but a truth commission was formed right away—the Rettig Commission. Trials didn’t come in the initial period, but there was a judicial reinterpretation of the Amnesty Law in the 1990s that led to some trials. So in Chile (maybe to a lesser extent than in Argentina) to a considerable extent there is this commitment to addressing human rights issues, coupled with the official mechanisms of transitional justice put into place.
What you get in Brazil is this very informal pact that was really created when Tancredo Neves was campaigning for the presidency in ‘84—a pact basically not to do anything. I don’t want to give the impression that there was no transitional justice in Brazil in that early phase, but it was all coming from outside the state. For example, there is a kind of quasi-truth commission. There’s a book published in the spring of ‘85 called Brasil Nunca Mais (which is the same title as the Argentine report), but Brasil Nunca Mais is entirely done by the Church and by the World Consulate of Churches. It was the Church’s own investigation based on the military court trials of the 1960s and 70s, and it got a lot of publicity and sold well as a book. But with respect to the government: there was nothing the government said, no truth commission, no trials, no real pronouncement.
It’s really not until 1996, with the Fernando Henrique Cardoso administration, that you get something. You get a Ministry of Justice, investigations of the dead and disappeared, but these measures took, you know, about ten to twelve years after military rule to be implemented. So the really interesting question about Brazil is: Why is it so different? There are lots of different theories about that. I guess another thing that I would point to in Brazil (and maybe this confirms what some people say), is even if you completely ignore these issues, they never go away. The other point is how salient these issues still are in Brazil. President Dilma just signed into law last October the creation of a truth commission, so the State created a truth commission, and now they have to appoint the people who will serve two years on the commission. So I would call Brazilian mechanisms late justice, not transitional justice. The transition is over, and has been for a long time. So, there’s a lot of interesting work on why Brazil is different, but that is what it is: different.
AF: As you point out, the truth commission is being instituted almost thirty years after the transition to democracy. What, in your opinion, are the implications of such a lengthy delay?
AP: It’s less likely that this kind of commission will lead to any trials because of the age of the people involved and the time gap. Argentina has probably gone the farthest with trials; there are some effective trials in Chile as well. This came up at a conference on the quality of democracy in Brazil that I attended in London last October. We brought the Minister of Justice, José Cardoso (who didn’t say this), but some of the commentators said that if the Truth Commission produces reliable information on human rights abuses, with specific information on the perpetrators, someone could try to charge those individual perpetrators. Now, the Supreme Court has upheld the amnesty, so that might be shot down; it might not go anywhere. These trials could try to effect various changes, but the scope for that possible change is more limited than, say, if had been done 20 years ago. You’re talking about people who were very young in the 1970s; they’re going to be older than me, so they’re going to be old. They’re not particularly plausible defendants, so the whole process is going to be limited. I think another interesting thing to note about the Truth Commission, though, is the time period selected for investigation is a compromise. It’s not 1964 or 1961 but it’s ’45, I believe. So the commissioners could go back to purges in the armed forces in the 1950s over ideological issues, where there’s a lot to investigate. I have a feeling they won’t, but they could.
AF: Given that Brazil is already a consolidated democracy, does it make sense to speak of transitional justice in this case, since Brazil is no longer in transition? And to what extent is Brazil atypical from a transitional justice standpoint?
AP: I think it’s probably fair to call it late justice, but in some ways this term is semantic: no term would be completely satisfactory because justice delayed is justice denied. So if it’s late justice it’s not really justice. We therefore have a problem as to what to call this.
I had an interesting encounter once with José Gregori, who is a human rights activist from Brazil. He was Secretary of Human Rights and, in the book I published in 2005, I had a chapter comparing transitional justice in Chile, Argentina, and Brazil. It’s a very mechanistic chapter in which I just take this checklist and say, we’ve got these major mechanisms: we’ve got truth commissions, trials, reparations, etc. So we take those items on the list and say Chile and Argentina have more of those, while Brazil has almost nothing except for reparations. In fact, this is something interesting about Brazil. I think it’s been about ten years, and [the reparations] are phenomenal. I think Brazil has spent more money on reparations than any other country. So that is the outstanding feature of their transitional justice process. But if you just look at the checklist, Brazil comes out very low. José Gregori told me we didn’t make the transition to democracy in a classroom; history was happening all around us, we had to make decisions, we had to craft the best kind of democracy we could, and we thought the compromise on amnesty was worth it. So Gregori defended the transition, even though he valued human rights. Probably in an ideal world he would have wanted a little more accountability, but he was defending the way it was done in Brazil. He didn’t say this—but I suppose he would have—that the scale of human rights abuses was lower, at least in terms of lethal violence, maybe not torture.
What I tried to argue in my book is that, unlike Chile and Argentina, in Brazil the government’s opponents were usually dealt with—a lot of them were dealt with—through the legal system and military courts, but that certainly doesn’t explain all the idiosyncrasies and the Brazilian way of doing transitional justice. So even if people were picked up and tortured, if they were considered a serious suspect, they were tried in military courts in a system that was a hybrid system involving civilian judges and appealed to the civilian Supreme Court. This was seen as continuous with Brazilian traditions because this military justice system had existed way before. Created in the 1930s, its jurisdiction had been amplified by the second institutional act in ‘65, but this was a very formalistic, legalistic way of dealing with this, and yes, some people were illegally and clandestinely disappeared, but their number is quite small in Brazil compared the number prosecuted in courts.
What you have then is an establishment, a justice system—at least part of the justice system and the military—that is committed to this official record of what happened. I argue this created a bias after the transition to the status quo, because both the military justice system and the armed forces were invested in these institutions and defended the way these institutions worked. They defended them right into the 80s and 90s saying they had done a good job dealing with the subversion, whereas in Chile, for example, there was this sense in the Concertación—the coalition government that came in during the 90s—that the judiciary had badly let Chile down. They had gone along with torture and killing, the Supreme Court had had the right to challenge the military court to proceeding what Pinochet used and never did—the court never reviewed a single case. So there was this sense in Chile that they had to reform the judiciary, that the judiciary had been seriously remiss. In Argentina, they had that same feeling. In Argentina, they actually replaced the entire Supreme Court, as in all the other transitions.
So I do believe there is an institutional story to be told and that it explains some of the inertia in Brazil, because you had a repression that was legalistic, and I think it did provide some control—it controlled the security apparatus quite a bit. The flip side of that coin is that it was difficult to reform it, to disentangle it, to point the finger and say there was a failure here in terms of protection of human rights, and this failed apparatus must reform. Really all that happens in 1979 is the military courts no longer have that jurisdiction anymore, but at least by ’85 the courts go back to simply trying crimes committed by the military and carry on. The legal validity of those cases was never overturned. For me, to the extent that I identify myself theoretically in the social sciences, institutionalism makes a lot of sense. If you look at those institutions, they are different and they really do perform differently. Argentina was probably the least institutionalized; they really just went around the judiciary. The regime had no interest in trying its opponents; it just “disappeared” them; they simply decided they were going to use extralegal means. Chile is sort of between Argentina and Brazil in that respect, but I do think the institutional history gives you some insight, although it doesn’t explain everything.
AF: In the absence of criminal trials, a few families have initiated civil suits requesting declaratory sentences against accused perpetrators, like the Almeida Teles suit against Colonel Carlos Alberto Brilhante Ustra. What is the purpose of these civil suits?
AP: I think they identify the perpetrator, and there’s a sort of shaming that comes along with that. I am not familiar with what these declaratory sentences say but they certainly receive coverage in the press, so in the same way that the trials of the dissidents and the opponents under the military dictatorship tried to kind of shame those defendants and make an official story about what they had done, these kinds of judgments may go some way towards teaching people in the society at large what happened. That there were these human rights abuses, and there have been these perpetrators identified. That’s another thing. I don’t want to imply that because there hasn’t been a lot of official transitional justice, at least when it comes to the Truth Commissions and trials, that that means there hasn’t been some justice. For example, Brazil Nunca Mais named about four hundred perpetrators. These kinds of civil trials also identify perpetrators. That’s important: we don’t want to reify the State and say only the State can make a difference in these issues. It is just as important what people do on the civil side, what people do in their organizations. Dilma Rousseff, the new president—or she’s been in power since 2011—forbade the military from commemorating the coup in the military corps, for the first time, in 2011. That is an example. It’s a form of justice in that it doesn’t allow the commemoration of that event anymore. And I don’t think it was widely applauded in military clubs, but they obeyed it, so that’s important. That was a symbolic stepping forward.
AF: In 2010 the Supreme Court decided by a 7-2 vote that the Amnesty Law should continue to extend to security agents. In your opinion, does this ruling permanently foreclose the possibility of criminal prosecution?
AP: Like I said, I don’t think so. I mean we know that in Chile there was a creative interpretation by some judges where they decided that crimes of disappearance, because they constituted an ongoing crime, were not counted by the amnesty. So someone can try that in Brazil.* The most famous case we have of disappearance is the case of the Araguaia disappearances. There were about fifty-nine or sixty of them, and I think very few if any of their remains have been found. So you could have that kind of ruling. Some jurists in Brazil cite international law, and argue that even though the Supreme Court has upheld the amnesty, it still has no standing in international law. So the amnesty could still be challenged at some level either in Brazil, or more likely outside of Brazil, in the Inter-American Court of Human Rights. For example, there was a ruling, I think it was the Inter-American Commission, in a case from Araguaia, where the commission decided that Brazil had not done enough to try to identify the remains. I think it was Gomes Lund and was decided on a year ago. There is a working group: I know Paulo Abraão, who’s number two in the Ministry of Justice in Brazil, he has a commission where he’s working with the armed forces and the Ministry of Justice to respond to this Gomes Lund case, to try to find his remains. So I don’t think it precludes judicial action. There is an interesting MA thesis by a guy called Marcelo Torelli (who’s also at the Amnesty Commission with the Ministry of Justice in Brazil) and in this thesis he tried to criticize the judicial reasoning in this Supreme Court case. I’m not a legal scholar—so I’m not sure how many other people share his view—but it does seem plausible to me that a lot of people don’t really agree with the reasoning of amnesty. But I think it’s ultimately a political decision. The Supreme Court members don’t want to overturn it, and don’t want responsibility for opening that can of worms. It doesn’t mean that it couldn’t be challenged. There’s an interesting article by Kathryn Sikkink called the “Justice Cascade,” and what she argues is that the important changes in transitional justice come about partly when actors in a country are willing to go outside. So the Pinochet extradition, for example, and there have been civil cases in the U.S. and people accused of torture in Latin America, and what happens is that when something happens outside, it sometimes forces action inside the country.
This happened with Pinochet, when he was originally detained in London. People were saying this will destabilize Chilean democracy, please don’t do this, because this will lead to polarization in Chile. In fact what happened was the exact opposite: he was finally released, the Senate stripped him from his seat for life, a judge investigated him, the rightwing party didn’t want to have anything to do with him anymore (and that was partly because they found out he had a bank account in Washington). So something outside can lead to change in the inside. And you can kind of play with those different levels of jurisdiction. So if there is a challenge it might first go outside, and then see if there’s a reaction inside. I argue with some of my lawyer friends because I think at this stage, there is a tendency for people to think “well, if the trial is the ultimate force, when someone in the DOPS is being prosecuted or accused of human rights abuse [then we’ll have justice].” Yet I think that if Brazil never gets to that place, if it never has trials, it doesn’t mean that something meaningful hasn’t taken place, and I don’t think we should make that a litmus test for credible transitional justice. It depends what the country is going through and I think that there are other things to be done that would be a lot more meaningful than trials. For example: if they can get information of Araguaia, which is a big missing link in our understanding of the oppression in Brazil, that would be very meaningful. In some ways, to me, that is more valuable than a particular old guy getting prosecuted. In Brazil too, I think there may be limits to what you can do for prosecuting these people.
* Note: This interview was conducted before federal prosecutors filed charges against Colonel Sebastião Curió Rodrigues de Moura using precisely the argument that Pereira mentions here, that of ongoing crimes (crimes continuados).