Brazil and Spain are two countries that share a curiously similar dilemma these days. One may be tempted to think this has to do with their economies in these times of crisis, or maybe with the high visibility of their leaders. Time 100 has just chosen Brazil’s President Lula da Silva as the world’s most influential politician of the year (Obama reached only the fifth place) and he is a truly beloved leader preparing his succession in a booming country on the global scene. Spain is also on the front pages as it represents EU’s rotating Presidency with a very ambitious program. However, their dilemma is not one about the present or the future, but about their past.
Both countries are democracies for some decades now and as such fully integrated in the international community, but they share a thorny impasse in this month of April 2010 precisely because of the muddled first steps in the new democratic regimes, also significantly similar, by way of negotiations between military leaders and the civilian political elites and a broad amnesty meant to pacify both left and right and thus start from zero.
However, the Brazilian Supreme Court started on 28 April some serious talks about reopening the file of the 1979 Amnesty Law dictated by the Army, a law covering all political crimes of the military and the guerilla groups since 1964. Military leaders announced their resignation if the law will be modified, and some key ministers also oppose any change to the pact between military and civilian elites that paved the way to the steady democratization of Brazil ever since. Moreover, they fear a state of political instability if criminal trials against human rights perpetrators will replace the consensus centered on the formula of “forget and look only forward”. Some generals even mentioned the danger of imitating past similar efforts ending in violent clashes in “neighboring countries” when officers were brought to justice, obviously alluding to the violent military rebellions (carapintadas) in Argentina during the first years after the democratic transition, in Raul Alfonsin’s mandate (1983-1989). Although the Brazilian transition to democracy was one of the most constrained political processes, during which the Army kept a significant veto right in all decisions relating to political institutions, this country made a long way in a short time in strengthening its new (civilian) democratic regime, and this irritable rhetoric of many politicians and officers doesn’t necessarily mean that the Argentina’s violent and messy experience will be repeated. However, these recent events and the decision taken by the Supreme Court will offer the opportunity to test the real degree of institutionalization of the Brazilian army.
Spain is the other current proof of the irony of history, which fights back against elite settlements considered to such a degree set in stone that the Spanish transition got a name of its own, the Spanish way. After Franco’s death, civilian and political elites agreed to completely forget the past and all the egregious crimes of the left and the right starting with the Civil War in the 1930s and an equally thick amnesty law was put at the foundation of the new democracy. However, the Brazilian current process of revisiting the past is very much similar with the initiative taken by human rights activist in Spain and backed by one extraordinary judge, Baltasar Garzón. This Spanish judge is especially famous for the indictment of Pinochet in 1998 for the murder of two Spanish nuns while the Chilean general was in Great Britain. Although Pinochet made it to Chile unharmed, this accusation triggered a wave of a new activism in Chile against the crimes of the Chilean military rule and its legacies in the new, quasi-democratic regime (it is worth quoting the general’s succinct characterization of the military control in politics: “a esta democracia la tenemos atada, bien atada” – we have this democracy tied up, very well tied up – Carlos H. Acuña, in Jon Elster, 2006, p. 208). In 2008 Judge Garzón moved from international cases of crimes against humanity (in Guatemala, Rwanda, Argentina, El Salvador) to a demand made by civil associations in Spain to reopen the dossier of the 1977 Amnesty and indict the perpetrators responsible for crimes against human rights between 1936 and 1952, egregious crimes beyond any amnesty given by national governments.
Spain is a front-runner in this issue of transitional justice and as such it offered a strong example for other countries. Moreover, it encouraged domestic trials of human rights violations in Chile and Argentina and thus contributed to the activism of domestic courts against the impunity of the army, for a long time a veto player in Brazil too. And this is not a small thing. Criminal trials are the most difficult endeavor, in spite of the backing given by international law (the International Covenant on Civil and Political Rights) and international courts (The European Court of Human Rights or the Inter-American Court of Human Rights for Brazil, and of course the UN Human Rights Committee) and the efforts to punish those responsible for the torture, murder and disappearance of Spanish citizens in various authoritarian regimes were mostly the result of an extraordinary activism on the part of judges like Garzón.
His initiative in this matter triggered a harsh response from the Spanish government and now he stands accused of ignoring the Amnesty Law. His case is now under the attention of the Supreme Court and, if he will be found guilty, Baltasar Garzón will no longer be able to continue his activity as a judge. Human Rights Watch* warned last week against the potentially disastrous effects of such a ruling for the credibility of the entire European Union and its current efforts to establish justice and accountability in some troubled regions of the world, especially in Africa. Now, it is precisely this blunt double standard that menaces the prestige and the authority Spain gained in the last two decades during which the courts actively fought for the punishment of crimes, irrespective of the nationality of the criminals, that no amnesty law should ever exempt.
Spain’s transition to democracy through a ruptura pactada was definitely a smooth path out of authoritarianism, it prevented major violent conflicts and helped the quick integration of the left in the new democratic game, but this is not and could not be an argument for the current conflicts between the government and the judges willing to prosecute cases of torture and murder dating back to the 1930s. In a similar manner, Brazil also made its transition to democracy after protracted negotiations between elites, but the army kept a foothold in the new democratic polity and influenced some major political decisions at the very beginning of this process (from the organization of the first elections to institutional choices). If Brazilians could still invoke the fear of political instabilities once old wounds will be reopened and dangerously reluctant army officers will have to appear in courts, Spain is far from these apprehensions of military mutinies, its army is a highly institutionalized body and its democracy a consolidated one.
Both countries have to deal with a difficult tension between the judiciary and the government and also, and most significantly, with a tension inside the judiciary, with vocal proponents of either continuing the amnesia and the amnesty or punishing the guilty at last. The civil society in both countries plays a major role in the solution of these cases, but the recent and ongoing experience of Argentina with criminal trials illustrates the essential role of the judicial system in pushing for criminal trials. Despite military rebellions during Alfonsin’s mandate and executive obstacles during Menem’s presidency, such difficulties never stopped the courts from prosecuting and punishing human rights criminals and this process goes on even in Kirchner’s present mandate. This last observation is crucial for the Brazilian case and also for other Latin American countries dealing with legacies of past military regimes. Being the first country to seriously discuss the possibility of criminal trials very fast after the transition in 1983 and also having set an exemplary pattern with its Truth Commission Nunca mas, Argentina is an example that puts pressure on neighboring countries, governments and civil society alike.
Brazil’s current predicament is just another episode of a phenomenon that still puts great pressures on the political actors in all Latin America in a very much singular style when compared with most European countries. Criminal trials are still a major variable in the process of consolidating the political regimes in South America and deals with such urgent issues like the extrication of the military from civilian affairs. In this sense, Brazil might have much more to fear from this reconsideration of the former military regime’s crimes than Spain, thus making the latter’s recent attack against an honest judge more than an embarrassing act for a European state engaged in African cases of crimes against humanity. The efforts to neutralize Baltasar Garzón are a denial of all that Spain stood for when it demanded for Pinochet to account for its crimes and made from the Dirty War an international issue.
I will leave the last words to another truly courageous colleague of Baltasar Garzon, Luis Moreno Ocampo, who started his career as a lawyer and prosecutor of genocide and other crimes against humanity after the end of the Argentine Dirty trial, and at times a collaborator of judge Garzón:
“Garzon opened the first case of universal justice. He enjoys an international prestige for having requested the extradition of Pinochet. This was an essential case for the end of impunity. He is a man who seeks to set limits to power and this is always hard. A judge doesn’t have friends. (…) But the notion of impunity is finished. Leaders perpetrate massive crimes until they realize they might end up in prison.” (my transl.)
* Here is an excerpt from HRW’s call to defend Garzón’s legitimacy in eluding the 1977 Amnesty law: “ In 2008, the UN Human Rights Committee, in charge of monitoring compliance with the ICCPR, called on Spain to repeal the 1977 amnesty law and to ensure that domestic courts do not apply limitation periods to crimes against humanity. In 2009, the Committee against Torture also recommended that Spain “ensure that acts of torture, which also include enforced disappearances, are not offences subject to amnesty” and asked Spain to “continue to step up its efforts to help the families of victims to find out what happened to the missing persons, to identify them, and to have their remains exhumed, if possible.”