During the military dictatorship, no investigation concerning human rights violations was ever initiated. Even after the implementation of the 1988 Constitution, the Federal Prosecution Service (MPF) continued to avoid any discussion or action related to the military regime’s crimes. In the paper published Fighting Against Impunity: the Federal Prosecution Service and the Gomes Lund Case, in the issue 1/2017 of Revista Brasileira de Relações Internacionais (Volume 60 – N. 1), the author aims to reconstruct a recent process of institutional change within the MPF regarding the agenda of individual criminal accountability for human rights violations committed by the Brazilian military regime.
Until 2011, the MPF’s institutional position was contrary to filing criminal lawsuits concerning human rights abuses perpetrated by the dictatorship. However, from 2011 onwards, as a direct result of the condemnatory ruling against Brazil issued by the Inter-American Court of Human Rights (IACtHR) in the Gomes Lund case (Guerrilha do Araguaia) that declared the Brazilian amnesty law invalid, establishing an obligation to investigate and punish perpetrators of human rights violations, there has been a change in the institutional behavior of the MPF, with the creation of a working group on transitional justice responsible for opening twenty-six criminal lawsuits in Brazilian courts until September 2016.
The paper draws from the recent literature on domestic mechanisms of impact of the international human rights regime developed specially by Beth Simmons in order to discuss how the ruling on the Gomes Lund case has changed the power balance within the MPF in favor of a more progressive group of pro-compliance prosecutors, favorable to the agenda of individual criminal accountability. Using such theoretical inputs, the article focuses on the instrumental dimension of the IACtHR’s ruling and the legal tools and tactics derived from it. Thus, the article investigates how the human rights regime and its international norms may offer space and resources for domestic actors and groups to litigate against their own state at the local level, based on the rights recognized in the treaties and rulings of international tribunals. The international legal obligations to which states are bound may thus transform into important components of domestic law, i.e., enforceable legal obligations at the domestic level, based on which social actors’ demands and judicial decisions can be formulated. This dynamic offers new litigation tools for individuals and groups in local courts as well as new juridical-legal resources for progressive judicial actors.
In this sense, the paper analyses the legal shifts within the MPF that were triggered by the effects of the IACtHR’s Gomes Lund ruling, unraveling how the condemnatory sentence empowered certain groups rather than others in the MPF. At the end of the 1990s, as part of their struggles for justice and truth, family members of the dead and disappeared for political reasons during the military regime contacted a few federal prosecutors. In 2007, fully convinced of the international legal reasoning banning amnesties and supporting imprescriptibility in cases of crimes against humanity, federal prosecutors Marlon Weichert and Eugênia Gonzaga became two institutional innovators fighting against impunity. During such process, the juridical-legal arguments underpinning the IACtHR’s ruling on the Almonacid Arellano case against Chile were fundamental for the construction of their first criminal representations.
Initially very isolated within the MPF, Weichert and Gonzaga were rapidly defeated by other federal prosecutors in 2008. Consequently, in this first moment, the efforts towards criminal sanctions were not successful even within the MPF, mainly due to the obstacles posed by statutes of limitations. In 2010, as a result of the trial concerning the Claim of Breach of Fundamental Precept (ADPF) 153, the Supreme Federal Court (STF) affirmed the constitutionality of the amnesty law, portraying it as a broad and foundational bilateral historical pact that had been responsible for triggering the redemocratization process. During the trial, as highest representative of the MPF, the Prosecutor General of the period, Roberto Gurgel, endorsed such legal interpretation.
However, in 2011, as a direct result of Brazil’s condemnation in the Gomes Lund case, there was a change in the institutional behavior of the MPF, particularly in the 2nd Chamber of Criminal Coordination and Review, a sectorial collegiate organ responsible for integrating and monitoring the MPF’s activities related to criminal matters that was headed by the Associate Federal Prosecutor General of the Republic, Raquel Dodge. The previously minority group of prosecutors which was more progressive and open to international human rights law was able to harness the IACtHR’s ruling as a new juridical-legal empowering resource in order to ground and legitimate their struggle against the hegemonic interpretation on the effects of the amnesty law.
The paper argues, therefore, that, by fixing a clear and international legal obligation for the organ to comply with, the IACtHR’s ruling has hindered both the possibilities of vetoing the agenda of individual criminal responsibility within the MPF and the strength of pro-status quo prosecutors. Moreover, besides yielding this new juridical-legal power resource, the ruling has also reduced the margin of discretion in the interpretation and enforcement of the amnesty law. Thus, it has stipulated arguments, legal typologies and juridical formulations such as the non-applicability of statutes of limitations for serious human rights violations and the illegality of amnesty laws, which veto the instrumentalization of the amnesty law as a pro-impunity shield for state agents responsible for grave violations. This has offered a clearer path for the prosecution process that involves the obligation to overcome not only the amnesty law’s representation as a bilateral pact but also legal and procedural internal obstacles, such as rules of limitations and the principles of legality, res judicata and non-retroactivity of the criminal law.
The paper concludes by reaffirming the importance of studying the domestic impact of international human rights norms and decisions. The implementation of these decisions depends on the capacity and agency of domestic actors and institutions, and, in particular on the political struggles between pro- and anti-compliance actors. On the specific case of the Gomes Lund sentence, the legal dispute concerning the amnesty law is far from over. Had it not been for the IACtHR’s ruling, the MPF’s fight against impunity in Brazilian courts would have been impossible.
Read the article
Bernardi, Bruno Boti. (2017). Fighting Against Impunity: the Federal Prosecution Service and the Gomes Lund Case. Revista Brasileira de Política Internacional, 60(1), e015. Epub November 13, 2017.https://dx.doi.org/10.1590/0034-7329201700106
About the author
Bruno Boti Bernardi – Universidade Federal da Grande Dourados, Faculdade de Direito e Relações Internacionais, Dourados – MS, Brazil (firstname.lastname@example.org)