Marcelo D. Torelly has served as adviser on issues of Transitional Justice to the Brazilian Ministry of Justice and as manager of the Transitional Justice Exchange and Development Program (a joint project of Brazil’s federal government and the UN Development Program). Additionally, he has taught law at Brasília Catholic University and is currently a visiting researcher at Harvard Law School. On December 4th, 2013, Mr. Torelly visited Tulane University to give a presentation that contextualized Brazil’s Transitional Justice process and analyzed its current challenges and possibilities. Patrick Duffy, Undergraduate Research Assistant for Tulane University’s Portuguese Department, met up with Mr. Torelly the following morning to interview him about the future of Transitional Justice in Brazil.
Patrick Duffy: In your lecture at Tulane you outlined the current state of Transitional Justice in Brazil and how the country got to where it is today, but could you talk a bit about where you see it heading in the future with the National Truth Commission coming to a close (especially in light of the Commission’s criticisms)?
Marcelo Torelly: We’re currently living, in Brazil, through a moment which Professor Paulo Abrão and I define as the third stage in the struggle for amnesty. In the first stage we have civil society struggling for an “amnesty as liberty” for the political persecuted—we’re talking about the 70s—and in the second moment we have a strong idea of “amnesty as reparation” during democracy, after the ’88 Constitution established reparation as a constitutional right. And we have the work of the Special Commission on Deaths and Disappearances and the Amnesty Commission kind of working as the lynchpin for the institutional process of Transitional Justice, as the players that answer to the claims of the victims that are mobilized to push forward the agenda.
Now we are living through a third moment in which the struggle is for truth and justice—not that truth and justice weren’t in the agenda before. If you consult, for example, the Gomes-Lund case, you’ll see that the victims went to the Inter-American Commission of Human Rights in ’95. But in the current moment, especially from 2008 on, we have broad civil society organizations—not only the victims—engaging in truth and justice movements. And it’s in this context that the National Truth Commission appeared as one more of the several agencies and institutions that are now struggling with the idea of truth and justice. It’s surely the most important one.
The very idea of the criticisms of the National Truth Commission that you mentioned is important to understand what we’re experiencing now. The debate around the National Truth Commission is to decide whether its main goal is to mobilize society to take a step forward especially toward justice (not only to achieve truth), or if the key issue is to have a final report that will be strong, very consolidated, and will serve as a huge reference for future work. In both cases I understand that the goal of the National Truth Commission—be it by directly mobilizing society through public audiences and exposing violations, or by the impact that the final report could have—is to move the Transitional Justice agenda forward.
So what I expect for the Post-National-Truth-Commission moment is that whatever the National Truth Commission produces as a result will be appropriated by civil society—and actually, to be more precise, reappropriated because the National Truth Commission itself is the outcome of a civil society movement. And so in a way it’s working for something that will be reappropriated by civil society in the coming years and will help to set a new agenda. If the National Truth Commission is able enough to propose institutional reforms in its final report (for example reforms on police, on security, or on the way in which the military receives training in Brazil), it can open the floor for new debates on Transitional Justice that are now blocked because Brazil is still pushing a very traditional agenda of “reparations, truth and memory.” It can liberate the energy for new debates such as institutional reforms, the need to improve democracy, democratic mechanisms, and transparency in public administrations. So I believe the Post-National-Truth-Commission moment will be characterized by these new agendas that Transitional Justice is generating.
This of course means that I don’t see the Truth Commission as the last step in our Transitional Justice process, but as one more step in a process that began with the Amnesty Law in ’79, then with the constitutionalization of reparations in the ’88 Constitution, the publication of Brasil nunca mais by the Catholic Church and the World Council of Churches, and also the work of the Special Commission on Deaths and Disappearances as well as the Amnesty Commission. This is only to mention institutions that worked in the topic in a broad way, and not all the civil society movements that also during this time were supporting—and criticizing—the work of those institutions in order to move the agenda forward.
What I expect for Brazil in the coming years is a debate over prosecutions for those that are identified as the perpetrators of those violations that both the Death and Disappearances Commission and the Amnesty Commission had already recognized, which now the National Truth Commission has amazing powers to investigate and move forward on.
PD: Speaking of prosecution, in light of the Gomes-Lund case, what do you see as the possibility of one day having, in Brazil, trials and prosecutions like those in Chile and Argentina?
MT: Analyzing the Gomes-Lund (or the Guerrilha do Araguaia) case as a whole is very interesting, because usually people (especially people who are unfamiliar with the Inter-American system of human rights) believe that the final decision of the court is the key moment in the process. Actually what happens is that all the processes of litigation in the Inter-American system form a very constructive process to improve human rights in the countries that are being charged of any kind of violations.
The Gomes-Lund case helped to push the agenda of Transitional Justice in Brazil forward in several ways, because while at the domestic level we have the Ministry of Justice and the Special Secretariat for Human Rights starting a debate on accountability in 2008, we also have on the international level the Gomes-Lund case being sent from the Inter-American Commission on Human Rights to the Inter-American Court of Human Rights. And it was very obvious for anyone familiar to the system that Brazil would be condemned in that case, because all the jurisprudence of the Court was already set in the sense that we can’t have amnesty for gross human rights violations. So that created a very good momentum (because we had pressure on the domestic and international level) for prosecutions and for new ways to move forward with the Transitional Justice agenda.
This is the moment when we start to have in the debate on having a National Truth Commission as the answer not only to some of the things that were stated in the Gomes-Lund case that are going to be tried in a few more months, but also the claims that are generally wide-spread in civil society in Brazil—not only of that specific group that went to the Inter-American Court but also those of several other politically persecuted associations.
When we think about the Gomes-Lund case, we cannot only think about prosecutions, we have to think first of all of the processes that were generated prior to the sentence itself. After the sentence, Gomes-Lund had already produced a lot of effects: Brazil now has a working group in the Araguaia region trying to locate the remains of the guerrilha members that were disappeared—with very little progress—but in a way, if you think in democratic terms, the very fact that we have this working group operating with military personnel involved, it’s a huge issue. If you think that about 20 years ago in the domestic prosecution, the Ministry of Defense denied the existence of the guerrilha do Araguaia, and now they are widely engaged in a very expensive mission that involves the Ministry of Human Rights, Ministry of Defense, the General Attorney and several other institutions that the Ministry of Human Rights coordinated in order to try to locate the remains—this itself is a great thing. And also, for all the new generations in public service working on this topic, it’s very important.
But to focus specifically on prosecutions, I believe the main result of the Gomes-Lund case, to date, was to change the historical position that the Federal Public Ministry has held on this topic, because historically there have been very few initiatives from the Public Ministry in regards to the topic. We have honorable exceptions, especially in São Paulo State, and also in Rio Grande do Sul, Pará and other States where some federal prosecuters decided to move forward with investigations, understanding that the Amnesty Law never explicitly stated that any crime of State personnel was granted amnesty, and it was only an interpretation that amnesty was bilateral; thus there was no trouble in moving forward with investigations.
In São Paulo they tried civil litigation several times (in a more symbolic way like Juicio por la verdad in Argentina) but always failed, and the head of the institution has never bought the idea of prosecution. So in 2008, when the Public Ministry went to the Supreme Court as the Bar Association moved for a new interpretation of the Amnesty Law, the head of the federal prosecutors said that the amnesty was bilateral, was a political agreement, and so the interpretation that it was bilateral shouldnt be changed.
After the Gomes-Lund case there was a huge internal debate inside Brazil’s Public Ministry on how to implement the sentence, because the democratic people inside the institution realized that Brazil has an international duty in the Inter-American system and that it’s very important that Brazil actually comply with the decision. After several internal debates, the federal prosecutors, the Ministry of Justice and the International Center for Transitional Justice worked together in a workshop that happened in 2011 whose topic was to draw up a strategy to implement the sentence. The results of this workshop are public; they have been published in Documento Numero 2 2011., from the 2nd Criminal Chamber of the Federal Prosecutors. Therein, the Public Ministry decided to do something similar to what happened in Chile. In Chile they never overturned the amnesty law, but the Supreme Court started to make an interpretation that some kinds of violations, some kinds of crimes, couldn’t be protected by that law—that they crossed human rights violations for example—and this opened the floor to prosecutions.
It’s unexpected that Brazil will have something like Argentina, with many generalized prosecutions, especially because of the Supreme Court ruling. Even if the Supreme Court decided to change that ruling, it’s hard to imagine that the result will be something so extensive as it was in Argentina—by many factors. But I still have hope (and hope is the best word to define my feeling) that Brazil will find a solution similar to the Chilean one, which is to say that even if the Amnesty Law is constitutional as the Supreme Court states, a conventional review (which reviews the compatibility of the law with the American Convention of Human Rights) will reveal an exception to that very same constitutional law. So you don’t have a problem of incompatibility of legal systems, but just the opposite: you have one specific set of rules creating an exception to another; and this may open the floor to prosecutions, using the Gomes-Lund case as the leverage to make things move forward.
PD: In what position is Brazil today to have issued its handbook on Transitional Justice* for all of Latin America? What are the specific goals of a regional handbook?
*(for a PDF of the English version, click the hyperlink “inglês” at the bottom of the page)
MT: The idea of a handbook was the byproduct of a longtime cooperation that the Amnesty Commission established with the UN Program for Development, the Brazilian Cooperation Agency and the International Center for Transitional Justice. Basically the goal of this program (which I had the honor to manage from 2008 until the middle of this year) was to develop an exchange of Transitional Justice policies, considering the position Brazil occupies in the region and in the world.
Brazil is a growing economy, it is a stable democracy, but it still has several issues of Transitional Justice that have to be advanced. If you compare it with countries like Argentina and Chile, Brazil has much to do. It’s hard to measure progress on these issues, but it’s clear we have some pending issues to be resolved. But if you compare Brazil with other countries and regions where it could help establish cooperation (like El Salvador, Central America, or even Portuguese-speaking Africa), you realize that Brazil has a lot of lessons to share on reparations and democracy-building.
This project, during the 6 years I was in the Ministry of Justice, worked with around 35 different countries from the region, but also from the North and from Africa and Asia. The goal of the handbook was, in a way, to put together a lot of information that could help people—people in Brazil but also people in Latin America—to understand the Latin American experience.
In the handbook Brazil, has no intention to teach anything to anyone. This is the reason why the editor we selected for the handbook is not a Brazilian lawyer but a Peruvian social scientist. And this is why we don’t have many Brazilian authors in the handbook, but mostly people from the region, people from different academic fields and from civil society that were working together to improve the Transitional Justice mechanisms in Latin America. We tried to share, for example, the best practices that we found in reparations, that we found in justice, that we found in institutional reforms, in order to allow people that are just beginning their Transitional Justice process or are trying to make their Transitional Justice process better, to have a reliable source of information in order to share lessons.
The idea is much more to make the knowledge that has been produced across the region available than to teach any specific thing. But especially, from the domestic perspective, the handbook is the result of the same cooperative processes that also produced a lot of different materials, including a thematic report on Truth Commissions; and it’s the same program that supported the development of Revista Anistia, which is a biannual journal in Portuguese on Transtional Justice.
The main idea domestically was to help Brazil to improve its Transitional Justice process, because being such an important country in the region, and being the last country in the region to establish a National Truth Commission, Brazil is facing a lot of international attention on how it will deal with these topics. It’s fair to say that, if in Argentina we didn’t have a lot expectations for its Truth Commission two decades ago, in Brazil we do.
So it’s very important that the Brazilian National Truth Commission is able to be as successful as, for example, the Amnesty Commission has been in reparations; and it’s important that the legal system will be able to be as successful in promoting justice as the Amnesty Commission was in reparations and as the National Truth Commission is in promoting truth, in order for Brazil to reinforce the position of Latin America as a leading region in promoting human rights and consolidating democracy.
So the handbook—just as all the cooperative projects that the Brazilian Federal Government, by the Amnesty Commission, the UN Development Program, and the Ministry of Foreign Affairs via the Brazilian Agency of Cooperation decided to put together—aims to share lessons for regional improvement, helping countries that are now engaging in their Transitional Justice process to improve. But especially, the idea is to build a capacity for Brazil to actually meet, in an appropriate way, all the expectations that people have of its late Transitional Justice process.