Author Speaking: An interview with Lucia Elena Arantes Ferreira Bastos, author of Transitional Justice in Brazil: Walking the Tightrope, Part 1

In this exclusive interview, we interview Lucia Bastos about her book Transitional Justice in Brazil: Walking the Tightrope, published as part of Intersentia’s Series on Transitional Justice. The first part of this interview discusses the political history of Brazil and the cultural and legal implications of holding the past dictatorship to account.

How does a state balance the need for reparations with the need for political and economic stability? 

In general, when a dictatorship ends, the transition to democratic rule poses one crucial question: whether the new government has a duty to investigate and to punish the crimes of its predecessors. In the Brazilian case, an amnesty law was enacted in 1979, during the authoritarian regime, meaning that it was voted on in a Congress yet controlled by the Army, in a thwarting of democratic process. The amnesty issue had first been introduced into the public agenda by relatives of the victims of the regime and civilian committees, who campaigned for the return of political exiles and the annulment of penalties imposed by military courts throughout the 1970s. However, during the voting process, the government inserted some topics connected to its own interest, which subverted the initial proposition presented by the civilians. With the revision of the bill, it was understood at that time that crimes committed by agents of the state against opponents of the regime were also covered by the amnesty. In this way, the legacy of the Brazilian amnesty law in the initial years following the dictatorship may be understood as the regime’s effort to appear democratic and stable, despite its reliance on dictatorial methods, leading to a “democratic façade”. Consequently, in the Brazilian case, at the very beginning of the democratic rule of law, under the guise of ensuring the political and economic stability of the country, impunity was the price charged by the military regime for resigning its governance. 

The questions raised following the end of the dictatorship were not only ones of justice, but also of prudence: how will competing moral imperatives be balanced? How do we reconcile legitimate claims for justice with equally legitimate claims for stability and social peace? How do we foster the relationship between justice for crimes of the past and a fairer political order in the present?

Despite the discussions that took place in 1979, the image that became fixed in civil society was that, following amnesty and the return of political exiles, the pacification of radically differing political and social ideologies was really possible. The amnesty granted to state agents was seen as a justifiable evil in the name of political transition. Amnesty was also used as a representation of the ideals of pacification and conciliation, which helped to reinforce the argument to forget the past. However, at the beginning of the Brazilian democracy, from 1985–1994, the other important pillars of transitional justice, such as reparations, truth and memory, were overshadowed.

A transition to democracy usually raises several critical questions that must be answered, such as “Who was there?” and “Who will be held accountable?”. However, in the foreground of such a debate, the threat to the stability of the democratic regime that such actions of reparations and retribution might pose is always present. The questions raised following the end of the dictatorship were not only ones of justice, but also of prudence: how will competing moral imperatives be balanced? How do we reconcile legitimate claims for justice with equally legitimate claims for stability and social peace? How do we foster the relationship between justice for crimes of the past and a fairer political order in the present?

Do laws punishing agents of a dictatorship, or holding their crimes to account, expire? Should they expire?

Traditionally, the ability to uphold criminal liability and pursue conviction becomes defunct for several distinct reasons. Firstly, there are practical considerations, such as when, after a long period of time without investigations, it becomes difficult or even impossible to establish evidence of the crime. Secondly, there are moral/political considerations, when forgiveness may facilitate reconciliation. 

Even if one has chosen the lesser evil, it continues to be an evil. With the passage of time, the tendency is for the public to forget this fact. The risk of forgetting that an evil was committed, even if on a small scale, is where danger lies.

However, the proposition that an amnesty law could dispense with responsibility for crimes against humanity largely resembles the so-called “theory of the lesser evil”, as mentioned by Hannah Arendt. Such moral justifications to avoid criminal liability relies on the argument that, in the face of two evils, everyone must always opt for the lesser of the two. If applied to the question of amnesty after a violent political regime, the theory of the lesser evil would tend to mandate that, faced with either (i) forgetting the crimes that were committed or (ii) enduring a violent political transition, the best option would be to forget, which would be considered the lesser evil. The use of such an argument, however, is questionable. Even if one has chosen the lesser evil, it continues to be an evil. With the passage of time, the tendency is for the public to forget this fact. The risk of forgetting that an evil was committed, even if on a small scale, is where danger lies.

In the face of events such as mass extermination in concentration camps during World War II and other major crimes of the 20th century, the aforementioned reasons for limiting criminal liability seemed too cruel and oversimplified. Thus, international law progressively established the non-applicability of statutory limitations to international crimes, as in the case of the Moscow Declaration of 1943 and the London Agreement of 1945. Moreover, with the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968, the principle of non-expiration of such crimes was formally recognised, as the community of States was convinced that the effective repression of those crimes would be an important element of prevention, protecting human rights and fundamental freedoms.

Consequently, there is an increasing unfavourable trend towards amnesty laws that are too general and unrestricted when applied in matters of war crimes and crimes against humanity, to the point that States are beginning to review their Constitutions and accept the limits of their sovereignty by renouncing the amnesty of such crimes, as in the Argentina case.

In the Brazilian context, it was only in 2016 that the Inter-American Convention on Forced Disappearances of 1994 was promulgated. This Convention expressly excluded the statute of limitations for cases of forced disappearances, in consideration of the fact that such acts are crimes against humanity. 

The forced disappearance of a person is considered a permanent or continuing crime, as long as there are no revelations related to the fate or whereabouts of the missing person. However, in Brazil, we are still awaiting the approval of a bill that will consolidate the crime of forced disappearance into the Brazilian Penal Code. Moreover, the Brazilian Supreme Court hasn’t yet finished its judgement about the broad scope of the amnesty law.

How does the role of civil society and the concepts of truth and memory factor into the law, aside from prosecution or reparation? 

The field of transitional justice began to emerge in the late 1980s, as a consequence of new practical conditions that human rights activists faced in countries where authoritarian regimes had been replaced by more democratic ones. Since that time, the focus on political change representing a “transition to democracy” helped to legitimise those claims to justice that prioritised legal–institutional reforms and responses, such as punishing leaders, vetting abusive security forces, and replacing state secrecy with truth and transparency. Although early transitional justice measures were framed in terms of how a succeeding regime ought to respond to abuses perpetrated by the state, such challenges, as Ruth Teitel remarked, also engaged nonstate actors and required a changing of norms within society. 

Concerning the so-called transitional “dilemmas” (prosecutions, truth-telling, reparations, political stability, and so on), at the very beginning of Brazil’s transition, various governments had no sensitivity to the practices typical of transitional justice, such as commissions of inquiry, prosecutions, explanations of past atrocities, purges of liable actors or restitution or reparations programmes. The immediate answer to past abuses in Brazil was amnesia. Thus, it was only in the mid-1990s and the beginning of the 2000s that a movement towards establishing a reparations programme attempted to strike a balance between redressing the abuses of former governments and integrating victims into a post-conflict society.

With these previous instances in mind, it is worth noting that the amnesty for the crimes committed during the dictatorial regime of 1964–1985 by opponents of the regime, and those then in exile, arose from a demand of civil society. This is because, at the same time that the government continued denying that torture was a state policy in Brazil, civilians began to mobilise in response; therefore, amnesty required a wider social base. For example, we may recall initiatives like the creation of the Women for Amnesty Movement in São Paulo in 1975, initiated by Therezinha Zerbini, an attorney whose husband had been forced to retire from his activities as a soldier due to his resistance to the 1964 coup. Additionally, in 1975, 8,000 people gathered at the Sé Cathedral, in the center of São Paulo city, for an ecumenical act to remember and honour the journalist Vladimir Herzog, who was killed in the Army's basements. There were also significant mobilisations in protest of the death of the worker Manuel Fiel Filho, which occurred in a context similar to that of Herzog, in 1976. There was also the launch of a document named “Letter to Brazilians” in 1977, which was guided by the jurist Goffredo Telles Júnior, as well as student protests against the imprisonment and torture of political prisoners, when approximately 10,000 students gathered for a march in front of the University of São Paulo Law School in 1977. 

The immediate answer to past abuses in Brazil was amnesia. Thus, it was only in the mid-1990s and the beginning of the 2000s that a movement towards establishing a reparations programme attempted to strike a balance between redressing the abuses of former governments and integrating victims into a post-conflict society.

Despite intense mobilisation among the Brazilian population, the democratic process was not revolutionary nor radical. That is, the process of democratisation that began with the restoration of civilian government in 1985 was not the product of a rupture with the old order. This resulted in a so-called “slow, gradual, and safe opening” into democratisation and the reconstruction of the political system through compromise and the merging of old and new practices. Nevertheless, we shall never forget that this “pacification” included the fact that, over the course of the dictatorial period, approximately 10,000 people were forced to live in exile; 4,862 had their political offices and rights revoked; 245 students were expelled from university; 800 people were taken as political prisoners; and approximately 434 people had been identified as dead or disappeared for political motives. Among these, 191 people had been subject to summary and illegal execution as the result of torture perpetuated by agents of the state.

In relation to the concepts of truth and memory, civilian mobilisation represented the majority of the efforts made to adhere to these core transitional justice principles.

In relation to the concepts of truth and memory, civilian mobilisation represented the majority of the efforts made to adhere to these core transitional justice principles. An example of this is the data collection and monitoring phase represented by the 1985 Brazil Never More Report and the efforts towards the exhumation of the clandestine gravesite in Perus in São Paulo. Next followed a period of representation and advocacy with the Araguaia and Herzog cases brought before the InterAmerican Court of Human Rights and the civil claims initiated by the Teles and Merlino families before the local courts. Finally, the latest phase of civilian action has been one of intervention and education, with the occurrence of escrachos and artistic movements, described as public protests designed to shame the former oppressors, similar to marches. As a form of festive occupation of the public space, the escrachos represent an innovative tactic in a new political symbology. Public denunciation in the squares, in the streets and in front of the homes of the perpetrators, through noise-making, music, posters and dramatisations, make audible and visible what had been an undisclosed memory or a private pain. So, although the legal mobilisation of human rights activists or civilians has not been the only or even the most decisive factor contributing to the recent efforts in the implementation of transitional justice in Brazil, it nevertheless has played an important role in bringing political pressure on the formulation of relevant policies.

Transitional Justice in Brazil

This book offers a Transitional Justice framework in the Brazilian case by assessing the mechanisms associated with truth, memory, and justice, but also including a holistic approach covering the role of civil society, reparations for indigenous people, initiatives on gender, and complicit corporations.

Lucia Elena Arantes Ferreira Bastos

May 2023
ISBN 9781839703270