By Jo-Marie Burt, WOLA Senior Fellow and Director of Latin American Studies, George Mason University; and Francesca Lessa, postdoctoral researcher, Latin American Centre and St. Anne’s College, University of Oxford, UK.
“I am participating in this protest because I am outraged,” writer Eduardo Galeano told La República newspaper. “The Supreme Court of Justice seems quite supreme, but in matters of injustice.” Galeano was one of thousands of Uruguayans who took to the streets this past Monday, February 25, to express their outrage regarding a Supreme Court decision handed down three days earlier. The ruling declared the unconstitutionality of two articles of Law 18.831, passed in October 2011, which effectively restored the ability to fully investigate and prosecute human rights violations committed during Uruguay’s dictatorship (1973-1985). After more than two decades of impunity under the 1986 Expiry Law, Law 18.831 was seen as a crucial step forward in meeting the demands of survivors and relatives of victims for truth and justice. The ruling came on the heels of the arbitrary and still unexplained decision by the same court to transfer judge Mariana Mota to a civil tribunal, leaving the more than 50 cases of dictatorship crimes in her docket vulnerable to yet further delay.
The Supreme Court ruling constitutes a new and worrying obstruction to the investigation and punishment of crimes against humanity—including disappearances, assassinations, torture, and illegal detentions—perpetrated during the dictatorship. According to the UN High Commissioner for Human Rights Navi Pillay, the sentence “could restore the shadow of impunity in a country that had just begun to reconcile itself with truth and justice.” The verdict by the Supreme Court was greeted by a wave of national and international condemnations, including by the UN, Amnesty International, the Center for Justice and International Law (CEJIL), and Uruguay’s recently established National Human Rights Institute.
The systematic human rights violations were shrouded in complete impunity for more than 30 years, during the period of military government and later on during the four democratic administrations between 1985 and 2005. Unlike Argentina and Chile, where truth commissions were established to investigate the crimes of the dictatorships and challenge the “official story,” in Uruguay, democratic governments promoted a policy of “forgive and forget,” institutionalizing impunity through the enactment in 1986 of an amnesty law that prevented all criminal investigations from going ahead. As former Uruguayan President Julio María Sanguinetti famously said shortly after Uruguay’s return to democracy, it is better “not to have eyes in the backs of our heads.”
The ruling surprised human rights observers because of its blatant disregard of human rights law provisions and its contempt for Uruguay’s international obligations. Just two years ago, Uruguay received its first international condemnation by the Inter-American Court of Human Rights in the Gelman v. Uruguay case (February 2011). The Court determined that the Uruguayan state was obligated under international law to investigate the illegal appropriation of Macarena Gelman, as well as the disappearance of her mother. Prompted by this ruling, as well as persistent pressure by human rights groups, survivors and relatives of victims, and other civil society actors, Parliament finally passed Law 18.831, which removed all obstacles that, as ordered by the Inter-American Court, “could hinder the investigation and possible sanction of those responsible for serious human right violations.”
By a 4-1 vote, on February 22 the Supreme Court, invoking the principle of non-retroactivity of criminal law (ex post facto), declared articles two and three of Law 18.831 unconstitutional. These articles established that no statute of limitations or other legal instruments could be applied to the period between 1986 and 2011 during which the amnesty law was in force, and declared the crimes of the dictatorship to constitute crimes against humanity in line with human rights treaties ratified by Uruguay. The verdict is likely to result in the closure of all criminal investigations into the atrocities of the dictatorship, since it defines them as common crimes—not crimes against humanity—and therefore subject to statutes of limitations as in domestic criminal law. This is wholly out of step with international jurisprudence and represents a major setback for Uruguay’s efforts to come to terms with the human rights violations of the past.
The ruling makes a selective use of human rights provisions and particularly does so to guarantee the rights of individuals accused of carrying out torture, murder, and disappearances; it is noteworthy that there is no mention of the well-recognized rights to truth, access to justice, and reparations of the victims and relatives of victims of the dictatorship. The ruling cites obscure and superseded criminal codes from Tuscany and Italy of 1853 and 1888 to justify its stance, but makes no mention of international criminal law and international human rights law that has developed since the Nuremberg trials.
Only the dissenting opinion of Judge Ricardo C. Pérez Manrique, who rejected the unconstitutionality appeal, makes reference to relevant international and regional human rights provisions ratified by Uruguay. In particular, Pérez Manrique cites international criminal law to acknowledge that crimes such as those perpetrated during the Uruguayan dictatorship already amounted to crimes against humanity at the time of their commission. In particular, he rebuts the majority argument of non-retroactivity of criminal law by citing several human rights instruments, noting that this principle is suspended in cases of crimes against humanity as recognized by the community of nations in several treaties, including Article 15 of the International Covenant on Civil and Political Rights.
With this verdict, Uruguay has slipped backward toward the situation of near total impunity that characterised its approach to transitional justice for three decades. The transfer of Judge Mota and the unconstitutionality verdict by the Supreme Court of Justice raise serious concerns about the stance of the judiciary, which many view as restoring the impunity of the past. Without a doubt, the decision puts Uruguay in breach of its international human rights obligations to guarantee truth and justice for victims once again.
Photo: Uruguayans take to the streets in protest of the court's decision. Kristel Mucino, WOLA.
"Judge’s Removal Causes Concerns over Human Rights Investigations in Uruguay" (Jo-Marie Burt, February 20, 2013)
"Uruguay Must Overcome Impunity: CEJIL and WOLA express deep concern over transferring of Judge Mota to civilian court" (WOLA and CEJIL, February 15, 2013)
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