The views expressed in this article belong to the authors and do not necessarily represent those of The Argentina Independent.
A couple of weeks ago, we argued in an earlier piece that by transferring Judge Mariana Mota, Uruguay’s Supreme Court of Justice (SCJ) had shown itself determined to derail efforts to deliver justice for the military’s crimes, despite the revocation of a 25-year-old amnesty law in October 2011.
On 22nd February a sentence by the same court regrettably proved our assertion correct. The ruling judged as unconstitutional articles two and three of Law 18,831 – a bill enacted by the Uruguayan Parliament which, for the first time since 1986, allowed the judiciary to freely investigate the widespread and systematic human rights abuses committed by the dictatorship between 1973 and 1985.
With the recent sentence, the SCJ has unmistakably aligned itself with the closing down of all investigations into the atrocities of the dictatorship and, coupled with Mota’s transfer to a civil tribunal, it once again sends a strong signal in favour of impunity.
The Court’s verdict centred on its qualification of the abuses of the dictatorship as constituting ‘common crimes’ as typified under domestic criminal law and not amounting to crimes against humanity, as stipulated by Law 18,831 and numerous provisions in international human rights treaties voluntarily ratified by Uruguay. Due to the labelling as common crimes, the atrocities committed between 1973 and 1985 are again susceptible to the application of statutes of limitations, establishing a cut-off point of 26 years and 8 months by which crimes
could be investigated and brought to trial, that is to say before 1st November 2011. The sentence also invoked the principle of non-retroactivity of criminal law, which guarantees that a person cannot be accused of a crime that was not considered as such when the event took place.
Undeniably, the decision constitutes a significant step back in the struggle for truth and justice, showing a blatant disregard for international legal jurisprudence concerning human rights violations and international treaties to which Uruguay is party.
But beyond this, it represents an unequivocal statement by the Court regarding how it judges the dictatorship’s crimes. At worst, one could argue that it condones such crimes; at best, it serves to downplay their seriousness.
In order to put the decision into perspective, it is useful to reflect on exactly what the SCJ considers ‘common crimes’. First, it does not view as a crime against humanity prolonged torture, which during the dictatorship often involved the electrocution of various parts of the body (including testicles) as well as
sexual violence often in the presence of spouses or partners. Second, it does not consider a crime against humanity the forced disappearance of its own citizens, whose remains – in an unsuccessful attempt to deny not only the victims’ deaths but also their lives – were purposely hidden in unmarked graves or incinerated, never to be found by their families. Nor does the SCJ regard as a crime against humanity prolonged imprisonment, often in solitary confinement for years on end without charge or trial.
Uruguay’s highest legal body does not judge such abuses, committed in a systematic plan to destroy the country’s social fabric, as crimes that will have a profound and lasting effect on the whole of society. Rather, like other ‘common crimes,’ they should be swept under the carpet after a certain amount of time has
elapsed, to be officially forgotten.
The trouble is, as has been evidenced throughout Latin America’s recent history, such crimes are not easily forgotten. Just as the Court’s sentence minimises the abhorrent brutality of the dictatorship’s crimes, it simultaneously negates the legitimacy of victims’ demands for truth and justice. The Court makes no mention of well-recognised guarantees enshrined in international law, such as family members’ right to information about the fate and whereabouts of their loved ones; the right to legal redress and access to justice; and the right to reparations for their suffering.
It is extremely regrettable that the SCJ has delivered such a verdict just months after the infamous Ley de Caducidad was finally repealed. Worse still is the Court’s complete disregard for international human rights provisions since Nuremberg and in particular the condemnation Uruguay received just two years ago from the Inter-American Court of Human Rights regarding the regime’s crimes.
The SCJ is sending a strong message as to its view of the country’s past, its present, and the country’s future. If it continues down this path, Uruguay will find itself on the wrong side of history.
Pierre-Louis Le Goff is a research assistant at the Latin American Centre, University of Oxford, and a member of the committee for Crimes Against Humanity at the Permanent Assembly for Human Rights (APDH), Buenos Aires, Argentina.
Dr Francesca Lessa is a specialist in issues of justice and human rights in Uruguay based at the Latin American Centre and St. Anne’s College, University of Oxford.