Brazil & Southern Cone - November 2010 (ISSN 1741-4431)

Time is ticking fast for Uruguay's ruling Frente Amplio (FA). The left-wing coalition wants to pass an 'interpretative' bill aiming to repeal three crucial articles of the country's 1986 amnesty law (Ley 15.848 de Caducidad) before the Inter-American court of Human Rights (IACHR) issues the verdict on the case brought against the Uruguayan state by Macarena Gelman [RBS-10-10]. Arguing that the law goes against Uruguay's international commitments such as its 2002 ratification of the Statute of Rome (1998), which created the International Court of Justice, the FA wants to render the law 'inapplicable' - echoing the October 2009 ruling by the Uruguayan supreme court (SCJ) which stated that the 1986 legislation was unconstitutional - rather than repealing the law.

In a test case in October 2009, the SCJ allowed prosecutors to go ahead with an investigation into the murder of a communist militant in 1974, arguing that the passage of the amnesty law had “transgressed the principle of the separation of powers" by excluding the judiciary from investigating acts that may have constituted crimes. On 1 November 2010, the SCJ used the precedent it set in 2009 to declare the law unconstitutional for a second time.

This new ruling came at a crucial time, when the push to pass the interpretative bill has revealed divisions within the FA. It may help to increase the pressure on those legislators who oppose the move on principle. Some FA senators oppose the bill not because of its content but because of the manner in which the party is trying to render the law inapplicable. Uruguay has held two previous public referendums on whether the law should stand or be repealed (1989 and 2009) and on both occasions voted to leave it in place. So, while the dissenting FA senators are in favour of annulling the law, they are against repealing it through a legislative process that appears to go against the desires of the electorate, the ultimate 'authority' of the land.

The latest SCJ verdict affects the cases of 20 homicides committed between 1973 and 1976 for which former members of the armed forces are being investigated. The cases are being pursued in relation to the open dossier regarding the responsibility of former president (1972-1973) and dictator (1973-1976) Juan Marí­a Bordaberry, 82, for these “forced disappearances" and “political homicides". It should be noted that Bordaberry was sentenced to 30 years in prison (to be served under house arrest due to his advanced age)  in March 2010 for violating the Uruguayan constitution during the 1973 coup d'état. That sentenced came on top of another 30 year sentence Bordaberry was already serving for his responsibility in the murder of several Uruguayan lawmakers exiled in Buenos Aires, Argentina, in 1976 as part of Plan Cóndor.

The role of Plan Cóndor (in reverse)
With the exception of Argentina, whose amnesty legislation was repealed in 2005, amnesty laws have remained on the statue books of all the countries that participated in the Plan Cóndor (Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay). However, some trials have still taken place, as legal and human rights advocacy groups find and exploit loopholes in the legislation.

The earliest attempts to seek justice for human rights violations (HRV) in the region were made during the small window provided in the period that elapsed between the end of the military regimes and the subsequent introduction of amnesty laws. This initial 'transitional justice', meant to showcase the new rule of law and demonstrate accountability in the new democratic regimes, has latterly returned to the forefront of the human rights debate, in the form of 'post-transitional justice' or, as its sometimes referred to in the Southern Cone, “late justice".

Plan Cóndor is now playing the reverse role for which it was designed. The military regimes used it to collude with other regional dictators to disappear, torture and murder. Now, it is possible to speak of a “reversal" of the initiative, as human rights activists, academics and legal experts from the region collaborate to find records, locate remains and prosecute those responsible for the disappearances (see box below). The case currently before the IACHR is a Plan Cóndor case.

Macarena Gelman Garcí­a is the daughter of Marcelo Ariel Gelman and Marí­a Claudia Garcí­a Irureta Goyena de Gelman, both detained by the military regime in Argentina in August 1976. Gelman was subsequently killed in Argentina and his body later found and identified, but his heavily pregnant wife was transferred to Uruguay as part of Plan Cóndor, where she delivered a baby girl (Macarena) who was expropriated by a member of the Uruguayan police force. Macarena recovered her identity in 2000 and is now advocates repealing Uruguay's amnesty law to prosecute those responsible for her parents' fate; which is why she turned to the IACHR. Coincidentally, the latest SCJ verdict was issued on the same day it is presumed Macarena was born in a Uruguayan military hospital in 1976.

According to Dr. Leigh Payne of Oxford University, the IACHR often plays a crucial role by increasing pressure on sitting magistrates to allow for the use of these legal loopholes to press on with investigations. This “judicial guilty-conscience" has allowed for certain cases to be investigated, whilst more general judicial reforms, allied to an increase in judicial independence, have also meant that magistrates are now more willing to exploit said loopholes.

Making the judicial information available to the public
The Centro de Estudios Legales y Sociales (Cels) in Argentina pioneered the creation of a database to map the progress of local HRV trials in 2003. Earlier this year, in a process that drew on the input of sociologists, political scientists, lawyers, the relatives of victims and the collaboration of Cels experts, the HRV observatory of the Universidad Diego Portales in Chile launched its own database, allowing the Chilean public to follow the progress of ongoing HRV trials.
Ideally, academics in other Southern Cone countries would create similar databases if and when trials commence in their jurisdictions. Paraguay, where the so-called “terror archives" unveiling the murder of thousands by state actors collaborating across the region were discovered in 1992, and Uruguay are expected to become the next two countries in the Southern Cone where such databases are being developed. Another one is already under construction for Peru. 
 

• Controversial presidential intervention

On 30 October, two former Uruguayan presidents, Jorge Batlle (2000-2005) and Julio Marí­a Sangunetti (1985-1990), published a letter in a national daily in which they described the FA's initiative to amend the amnesty law as “an affront to institutions" and an “insult to the citizens" of Uruguay.  An FA senator, Ernesto Aghazzi, responded by accusing the presidents of being “opportunists" noting that their defence of the results of the two public referendums on the issue looked cynical, as neither man ever called a public consultation when in office

• The case at the IACHR

Macarena Gelman's law suit requests the IACHR to order the Uruguayan state to “adopt the legislative and other types of measures [necessary] to leave the Ley de Caducidad without effect". The problem is that, even if the IACHR rules in Gelman's favour, the court's decisions are generally disregarded by regional governments. The Paraguayan state has effectively ignored two IACHR rulings (2005 and 2006) condemning its violation of the rights of the Xákmok Kásek indigenous tribe. It remains to be seen if the latest ruling has any repercussions on the ground.