Land and Transitional Justice in Brazil

Fabricio Teló, Alessandra Gasparotto, Leonilde Servolo de Medeiros, Regina Coelly Fernandes Saraiva

International Journal of Transitional Justice, Volume 15, Issue 1, March 2021, Pages 190–209, https://doi.org/10.1093/ijtj/ijaa035

Abstract

This article explores how Brazilian transitional justice has handled land dispossession suffered by peasants and Indigenous peoples during the dictatorship of 1964–1985. The article contextualizes the repression suffered by social movements fighting for land before and after the 1964 coup. Despite the fact that the National Truth Commission created a Working Group to investigate violence against peasants and Indigenous peoples, land dispossession was not considered a serious human rights violation. We also analyze the difficulties that peasants and Indigenous peoples have faced to access reparation programs implemented by the Brazilian state. Finally, we highlight the setbacks undertaken by the current and former federal governments (of Bolsonaro and Temer) in the field of transitional justice, which contribute to the continuation of violence and impunity in the present.

INTRODUCTION

Shedding light on the authoritarian past of a country is essential for strengthening its democracy. In this process, while there is relative international consensus around policies of memory and reparation regarding physical violence, there are still many doubts surrounding reparations for economic violence, which includes violations of social and economic rights, corruption and looting of natural resources, such as land dispossession. By doing so, Dustin Sharp argues, transitional justice ends up contributing to the conception that socioeconomic rights are mere aspirations.1

In this article, we discuss land rights in rural Brazil, seeking to address both peasant and Indigenous lands that were subject to disputes with large landowners during the civil-military dictatorship of 1964–1985. Although peasants and Indigenous peoples underwent several forms of abuse, we focus on land dispossession, which Bernadette Atuahene considers a form of ‘property-induced invisibility,’ for it removes the victims from the social contract, as if they no longer existed.2 Our question, therefore, is: considering that the dictatorship favored the displacement of thousands of people from the lands where they lived and worked, how has the Brazilian state since redemocratization investigated instances of violations of land rights, and what measures have been adopted to redress the victims of these violations?3

We argue that transitional justice in Brazil has brushed aside victims of land dispossession due to two main factors. The first is a hegemonic understanding of the history of the dictatorship that gives more visibility to the victims who were left-wing activists engaged in opposition against the regime, than to those not engaged in political organizations. The second is the fact that the aim of Brazilian transitional justice has been to address ‘serious human rights violations,’ defined by the Brazilian National Truth Commission (NTC) as arbitrary imprisonment, torture, execution and enforced disappearance, which does not include other forms of violence, such as land dispossession. Our argument leads to the suggestion that the use of the concept of ‘serious human rights violations’ needs to be challenged, so that a wider range of victims can be addressed under the framework of transitional justice. That would include addressing violations of the right to an adequate house, to be protected from displacement and to peacefully enjoy possessions, among other socioeconomic and cultural rights.

More recently, there has been an expansion in the understanding of transitional justice in Brazil, seeking to also address structural violations suffered by ordinary people who were not necessarily engaged in organized forms of resistance against the dictatorship, which is particularly true of peasants and Indigenous people.4 This expansion, although significant, is not enough, since transitional justice policies have been kept the same. Moreover, the setbacks in the field of transitional justice initiated by Michel Temer’s government (2016–2018) and intensified by the current government of Jair Bolsonaro have overturned even the limited accomplishments of the NTC.

One could argue that the authoritarian regime ended 35 years ago and that the democratic transition has already been accomplished, and, therefore, that it is no longer necessary to talk about the civil-military regime’s human rights violations, especially after the conclusion of the NTC’s work in 2014. However, we draw on Matt James and Roger Stanger-Ross, for whom transitional justice is a continuous process to improve the way society deals with a violent past and its consequences in the present. Thus, truth commissions, political apologies and reparations cannot be seen as moments of closure, but as steps towards the constant improvement of democracy, understood as a continuous process of recognition of rights.5

This article is divided into three parts. The first is a historical overview of how the military dictatorship dealt with conflicts regarding peasants and Indigenous lands. Subsequently, we analyze how Brazil has constructed the memory of the agrarian question, with a focus on how Brazilian truth commissions addressed this issue. Finally, we address the forms of reparations for peasant and Indigenous victims of forced displacement and other human rights abuses due to agrarian conflicts.

THE AGRARIAN QUESTION BEFORE AND DURING THE CIVIL-MILITARY DICTATORSHIP

Struggles for Land before the 1964 Coup

During the democratic period of 1945–1964, Brazil’s rural population was able to advance various political demands and secure several social rights. Indigenous peoples, for example, gained the right to demarcate several territories, which came to be called ‘Indigenous Parks’ – the first of which was the Xingu National Park, created in 1961.6 Peasants took important steps towards organizing themselves politically in order to demand access to land and other rights, creating several organizations to prevent arbitrary evictions and to organize occupations of non-used lands by landless peasants.7 The most prominent peasant organizations at the time were the Peasant Leagues, the Union of Farmers and Agricultural Laborers of Brazil and the Movement of the Landless Farmers of Rio Grande do Sul.8

At the beginning of the 1960s, violence against peasants increased and the agrarian question emerged as a central issue on the national political scene. In 1963, then-President João Goulart (1961–1964) decided, among other reform initiatives, to meet some demands of the peasant movements, such as the expropriation of a set of lands occupied by squatters and landless peasants. Goulart also announced the expropriation of 10 km of land on the margins of roads, railways and dams for agrarian reform purposes.9 In addition, he enacted the Rural Worker Statute (Law 4214 of 1963), which guaranteed labor rights and the right to unionization that until then had only been enjoyed by urban workers. As a result, hundreds of pre-existing rural associations were formalized into government-recognized unions.

As asserted by René Dreifuss, the rural upper class opposed these initiatives, perceiving them as a threat to their land ownership. Interest groups representing large landowners, as well as other sectors of the economic elite, aligned to lobby against Goulart’s policies. Such organizations spread anti-communist propaganda, mainly through the Institute for Research and Social Studies (Instituto de Pesquisas e Estudos Sociais – Ipes) and the Brazilian Institute for Democratic Action (Instituto Brasileiro de Ação Democrática – Ibad), by associating the idea of agrarian reform with communism. A series of protests known as the ‘Marches of the Family with God for Liberty’ was one of the most significant public reactions against the government’s intention to advance a series of housing, agrarian, taxation, banking, educational and administrative reforms. Protesters blamed Goulart for populism, corruption and for accommodating communism, which helped create an environment favorable to his oustering by a military coup in partnership with the civil economic elite.10

The Consequences of the 1964 Coup for Peasants and Indigenous Peoples

With the 1964 coup, the new government repealed most of the agrarian reform initiatives hitherto carried out by the Goulart administration. Peasants who had been occupying lands in order to claim them through the agrarian reforms were violently expelled by the army and police forces. At the same time, rural workers’ unions were either shut down or taken over by new leaders appointed by the government. Most of their former leaders were arrested, including nationally known names such as Gregório Bezerra, Francisco Julião and Manoel da Conceição, as well as local leaders such as José Pureza da Silva, Braulio Rodrigues and Vicente Pompeu da Silva. Others were also victims of forced disappearance, like José Porfirio, José Alfredo Dias and Mariano Joaquim da Silva, or forced to live in anonymity, such as Elizabeth Teixeira and João Sem Terra. In addition, large numbers of militants’ family members were threatened to reveal the whereabouts of militants.11

Regina Novaes12 analyzes the repression suffered by peasants in the northeast due to the widespread activism of Peasant Leagues, highlighting that fear spread so rapidly that no peasant felt safe enough to stay engaged in the organization. According to the author, the term ‘peasant’ itself, due to its political connotation of class confrontation, came to be censored and replaced by other categories, such as rural worker, producer and farmer.

Landowners and land grabbers took advantage of the situation to associate peasants with the so-called ‘subversives’ and ‘communists,’ then under the persecution of the state. They used this association to legitimize their violence and expel squatters with impunity.13 Through a partnership between the state and landowners, the dictatorship favored the expansion of the territorial domains of those who had a close relationship with police forces.14 An example of this process is a case that took place in 1973 at the Campos Novos Farm in the municipality of Cabo Frio in Rio de Janeiro. When the local delegate was called upon to investigate the murder of a squatter on the farm, he refused to do so, alleging that on that farm all squatters were ‘communists and agitators.’ 15 By not acting in the face of the violence inflicted against peasants and Indigenous people, and sometimes acting alongside land grabbers, the state legitimized violence.

In addition to land grabbing and the forced expulsion of squatters, the dictatorship stimulated land concentration by elites, mainly through its agricultural policy of conservative modernization. This policy was stimulated by the Land Statute, approved in November 1964, which established and promoted the rural entrepreneurial model for national development. The government encouraged capitalist development in the countryside through new agricultural technologies, without transforming the existing land distribution structure, in a process that subordinated agriculture to industry. One factor that helps explain this process is the fact that agricultural financing favored the purchase of land with the intention of using it not for agricultural production, but as a reserve of value in view of speculation – thus benefiting medium and large proprietors.16

Further analysis of the Land Statute reveals more diverse views within the government. For instance, at least during the government of Castelo Branco (1964–1967), some representatives, such as Minister of Planning Roberto Campos, were concerned about land distribution. Campos argued that peasant access to land would better stimulate economic development. However, most government officials opposed these ideas, mainly representatives of the agrarian oligarchy of São Paulo, including then Minister of Agriculture Severo Gomes. Moreover, organizations that represented rural patronage strongly opposed the Statute, accusing Castelo Branco of treason. These organizations, such as the National Agriculture Confederation and the Brazilian Rural Association, put pressure on the government and barred Campos’ initial proposals, thus pushing aside the agrarian reform debate.17

A similar process occurred with legislation regarding Indigenous land rights. Some important initiatives were adopted during the civilian-military regime. One such initiative was the inclusion in the 1967 Constitution of an amendment (01/1969) that: 1) declared Indigenous lands as Union patrimony; 2) granted Indigenous peoples the exclusive right to access natural resources on their lands, which gave them (at least legislative) protection against the onslaught of farmers and mining companies interested in exploiting such resources; 3) paradoxically annulled all judicial acts that caused seizures of Indigenous lands; and 4) did not award indemnity to those who would benefit from the judicial acts by extending their territorial dominium. Large landowners criticized this amendment, sometimes even defining it as an ‘attack against private property,’ which was precisely the argument used by coup supporters as a justification to overthrow João Goulart’s government.

Years later, in 1973, the government introduced the Indigenous Statute. The same assimilationist perspective that characterized the relationship with Indigenous peoples throughout Brazilian history pervaded this new legislation, which considered Indigenous peoples “in transit” to becoming non-Indigenous. This developmentist policy agenda adopted by the dictatorship often disregarded the legislation created by the militaries themselves to protect Indigenous lands.

The intensification of highway construction through the hinterlands also resulted in the dispossession of thousands of peasants and Indigenous peoples. In the case of Rio de Janeiro, for example, the 1970 Brazilian Tourism Company’s plan engendered the construction of the Rio-Santos highway (BR-101), which resulted in several human rights abuses of local communities. The tourism plan legitimized land grabbing and the expulsion of local residents.18

The Transamazônica highway (BR-230), linking the Northeast Region to the Amazon, had similar consequences. Developmentism also caused the extermination of various Indigenous peoples. One of the most well-known cases is that of the Waimiri-Atroari group, which between 1972 and 1977 had its territory violated by three main projects: the construction of the highway BR-174 crossing the Amazon Forest, the installation of a tin mine and the construction of a hydroelectric plant. Thousands of Waimiri-Atroari were killed for refusing to accept the proposed ‘pacification’ policy for these development projects.19

The aforementioned projects were part of the National Integration Plan, consolidated by Decree 1,106/70, which envisaged the creation of infrastructure needed for the occupation of the country’s ‘empty areas,’ especially the Amazon, where border settlement was considered necessary to preserve ‘national sovereignty.’ This perspective was allied to the strongly anti-communist National Security Doctrine, which saw as an enemy any social group that represented an obstacle to the expansion of capitalism in Brazil.20

Forced displacement was often accompanied by other kinds of violence. The Krenak people, for example, suffered three different types of violations: the creation of an Indigenous Rural Guard, with the aim of suppressing the Indigenous people, which was made up of members of the Indigenous group themselves; the installation of a prison (called the Krenak Reformatory) where people of various ethnic groups from all over the country were taken; and forced displacement (along with 23 other ethnic groups) to a farm (named Guarani Farm) that served as an arbitrary detention center for Indigenous people after the Reformatory was abolished.21

Violent practices against rural populations during the dictatorship did not occur without resistance. As Moacir Palmeira points out, demobilizing does not mean an absence of conflicts or political articulations.22 In the late 1970s and early 1980s, within the process of political opening and redemocratization, Indigenous and peasant movements organized themselves again, and revived their struggles for land. Local resistance against land expulsions increased. Segments of the Catholic Church, influenced by Liberation Theology, played an important role in this process through the Indigenous Missionary Council, created in 1972, and the Land Pastoral Commission, created in 1975. Nonetheless, due to the reaction of owners and deed-falsifiers, violence remained a constant threat and reality for rural populations. During the same period, the number of assassinations increased due to a resurgence of land conflicts: between 1979 and 1985, the annual death average was 72 assassinations, compared to only 28 between 1969 and 1979.23

Brazil of the late 1970s and 1980s was marked by an amnesty on political prisoners, the return of political exiles, campaigns for direct elections, new political organizations, the presentation of a national plan for agrarian reform and the new Federal Constitution of 1988. With the new Federal Constitution, Indigenous peoples were no longer treated in an assimilationist way, at least from a legal point of view. In addition, they achieved the permanent and exclusive right of usufruct of their lands demarcated by the State, as well as other guarantees. Peasants also successfully pressured lawmakers to include in the new constitution the concept of the social function of property, which was already envisaged in the Land Statute but had been systematically ignored: lands that did not achieve a minimum level of production and respect for labor rights and the environment could be subject to expropriation for agrarian reform purposes. Along with the aforementioned transformations, several initiatives were adopted in order to identify and work with the memory of victims of the dictatorship, as we discuss hereinafter.

TRUTH COMMISSIONS AND LAND: DISPUTES FOR MEMORY

Initiatives Prior to the National Truth Commission

The first major initiative to systematize information on the repression suffered by civilians during the dictatorship was the project ‘Brazil: Never Again,’ coordinated by Archbishop Paulo Evaristo Arns and the pastor of the Presbyterian Church of Brazil, Jaime Wright. Initiated in 1979, the project only published its report in 1985, after the end of the dictatorship. At the same time, the Torture Never Again Group, a non-governmental organization dedicated to investigating dictatorship crimes, was created in order to advocate for the punishment of perpetrators and policies of memory and reparation for the victims.

The transition to a civilian regime was negotiated with the military, and the first years after the military’s departure were marked by political instability. The first civilian president, José Sarney, who took office after the death of the democratically elected president Tancredo Neves was formerly an ally of the military regime. During this transitional period, until the 1994 election of Fernando H. Cardoso who was himself exiled by the dictatorship, transitional justice initiatives did not gain political prominence.

In 1995, the Torture Never Again Group published a dossier prepared by the Commission of Relatives of the Political Dead and Missing.24 This study was fundamental for the approval of a law by which the Brazilian state recognized persons who had disappeared during the dictatorship as dead, and assumed responsibility for their supposed assassination (Law 9,140/1995).25 The law also envisaged the creation of a special commission to carry out the work of official recognition of victims and to guarantee reparations. We will return to this point in the next section.

The Brazilian state published a list of 136 dead and disappeared persons in 1995 as an Annex of the 9.140/1995 law. In 2007, it published a book entitled Right to Memory and Truth, where a short biography of 339 people officially recognized as victims of the state up to that time is presented (the number acknowledged by NTC to date is 434).26

With regards to the countryside, one of the first reports from civil society was the 1981 publication The Peasant Struggles in Brazil, organized by the National Confederation of Rural Workers’ Unions.27 In 1986, the Landless Rural Workers’ Movement published the book Murders in Rural Areas: Crime and Impunity (19641985).28 Even though these publications did not use the vocabulary developed by the field of transitional justice, they sought to give value to the memory of victims of violence due to agrarian conflicts and argued for reparation for victims and punishment to the perpetrators, which reminds us of the fact that transitional justice is not the only way to address a violent past.

In relation to state-owned initiatives, in collaboration with academics, the first publication was Portraits of Political Repression in the Countryside, which presents an overview of the main forms of violence suffered by peasants during the dictatorship, as well as in the years prior.29 Later, another important study published by the Special Secretariat for Human Rights of the Presidency of the Republic compiled a list of 1,196 peasants and their supporters killed due to agrarian conflicts.30 It also drew attention to the exclusion of peasants from the reparation policies envisioned by transitional justice.

The Creation of the NTC and Other Truth Commissions

In November 2010, the Inter-American Court of Human Rights convicted the Brazilian state for failing to investigate 60 cases of forced disappearance committed by the military in the early 1970s. This conviction propelled the country to finally create an official National Truth Commission (Law 12,528 of 2011), which was active from 2012 to 2014, during the government of Dilma Rousseff, who was herself arrested during the dictatorship. Among the countries that had gone through dictatorships in Latin America, only Brazil had not yet adopted such an initiative.

Encouraged by the NTC, several other commissions were created in states, municipalities, universities and trade unions. Non-mandated commissions created by civil society organizations were not considered official, as was the case of the Peasant Truth Commission (PTC), created in August 2012 after a unitary conference of rural social movements in Brasília. Their goal was to form a group of academic experts in agrarian conflicts and representatives of peasant movements to draw the NTC’s attention to the importance of addressing not only the repression suffered by militants engaged in the struggle against the dictatorship (mostly from the cities), but also that suffered by ordinary people who, although not having engaged in organizations that opposed the dictatorship, were still victims of violence. The PTC worked between 2013 and 2015, initially in partnership with the NTC, as a support group. The PTC finally submitted an independent report, delivered to the NTC and later published by the Human Rights Commission of the Federal Senate.31

Although an Indigenous Truth Commission was not created at the national level, a specific ethnic group (the Aikewara, also known as the Surui of Pará) formed their own Truth Commission, wrote a report and delivered it to the NTC. In addition, much like the PTC, a group of researchers from different entities led by Marcelo Zelic from the Torture Never Again Group of São Paulo, prepared a document to support the NTC entitled Indigenous Peoples and Military Dictatorship: Subsidies to the NTC.32 Their research was fundamental to the NTC since they found critical sources, such as the ‘Figueiredo Report,’ which detailed a wide range of atrocities committed against Indigenous peoples.

In the case of both Indigenous and peasant populations, civil society organizations worked to investigate repression and thus contributed to broadening the range of human rights abuses covered by the NTC, shedding light particularly on land dispossession and related violations.

Comparing the National Truth Commission and the Peasant Truth Commission

Seeking to meet the demands of civil society to address the repression in the countryside, the NTC created a Working Group dedicated to such human rights violations.33 Although it represented a step toward a wider approach to identify victims, it did not necessarily mean a move toward a more adequate understanding of the nature of violations in the countryside. The Working Group was supposed to ‘clarify facts, circumstances and authorship of cases of serious human rights violations, such as torture, death, forced disappearance, concealment of corpses (…).’34 [TS: Please add note marker after corpses (…).’, and add footnote as follows: NTC Resolution 5, Official Gazette of the Union, 11 May 2012.] Therefore, the NTC did not recognize as objects of investigation a series of human rights abuses that caused intense suffering for rural populations, such as land dispossession, forced displacement, destruction of crops and infrastructure improvements, house fires, grounding of water sources and emptying of water reservoirs.

The NTC focused on the identification of situations of human rights abuses in which there was a direct intervention by state agents. In rural areas, however, the abovementioned violations were mostly practiced by private agents (gunmen, deed-falsifiers, henchmen etc.), encouraged by the certainty of impunity. By adopting this perspective, the NTC contributed to the invisibilization of these other kinds of violence marking Brazilian history which are more difficult to prove.

In turn, the PTC argued that state action refers not only to those cases in which state agents acted directly, but also to situations of omission, collusion, cover-up and even ‘privatization of state action,’ in which latifundiários (large-scale landowners) functioned as a private arm of the civil-military dictatorship of 1964.35 The NTC, instead, adopted another approach, evident in its final report, where it affirms that one of the PTC’s objectives was ‘to give more visibility to the subjects of the countryside who have been badly victimized by the state and its agents’ (emphasis added), thus moving away from the discussion about the indirect responsibility of the state.36

The NTC report shows the hegemonic understanding of the ‘ideal type’ of victim in Brazilian transitional justice: militants who underwent human rights abuses because of their engagement in left-wing organizations. If the reason for the abuse is different, it usually receives less importance, even when those directly responsible for the abuses were state agents. For example, the report’s chapter on violations against peasants presented a list of peasants and lawyers killed as a result of agrarian conflicts. Most of these names, however, were not included in the official list in the third volume of the report. The NTC does not justify this choice, which can be read as an implicit sign of a certain hierarchy among victims. It is likely that the NTC commissioners did not choose intentionally to give less importance to peasants. However, their decision not to include most of the names of peasants murdered in the official list reinforces our thesis about the understanding that has guided transitional justice in Brazil toward prioritizing activists engaged in the opposition to the dictatorship to the detriment of those not engaged. Marcelo Zelic presented a similar interpretation when analyzing the treatment of the Indigenous question in the Commission, since some of the NTC members did not agree that the dictatorship was responsible for the violence suffered by Indigenous peoples.37

This observation suggests that if the treatment of the violations of the civil and political rights (the ones prioritized by the NTC) of peasants and Indigenous peoples was already limited, the treatment of socioeconomic and cultural rights, such as violation of the right to land and territory, was even more restricted. Obviously, the short time that the NTC had to carry out the research needs to be considered, since a reasonable list of all victims of eviction, for example, would require a greater investment of time and resources as many cases are poorly documented and almost always rely on the oral testimony of survivors.

As reported by the coordinator of the NTC Working Group on Peasants and Indigenous Peoples, the psychoanalyst Maria Rita Kehl, NTC members debated the creation of the specific Working Group within the commission structure because it would assign a level of significance to peasants and Indigenous peoples that not all members felt was justified.38 Marcelo Zelic adds: ‘The environment in the [National Truth] Commission has always been an environment that suggested that violence against Indigenous people was not a violence of the dictatorship.’39

In part, the reluctance of some NTC commissioners to create a working group on repression against peasants and Indigenous people stems from the fact that the NTC based its work on the concept of ‘serious violations of human rights.’ Pádua Fernandes argues that, by following this approach, the NTC emphasized civil and political rights abuses to the detriment of economic, social and cultural ones. According to him, a hierarchy was established among the kinds of rights abused, whereas the 1993 Vienna Declaration recognized all human rights, not just civil and political ones, as ‘universal, indivisible, interdependent and interrelated,’ and with equal significance.40

In state truth commissions, where civil society organizations usually had more channels of participation, despite also facing internal disputes, a broader approach to human rights abuses was more readily advanced. States like São Paulo, Rio de Janeiro, Minas Gerais, Pernambuco and Paraíba created truth commissions whose reports included economic violence and went further in their analyses of land dispossession experienced by peasants and Indigenous peoples.41 The PTC played an important role in broadening the scope of transitional justice by identifying land dispossession as a human rights abuse.

The NTC Recommendations on Land Issues

In spite of its limitations, the NTC contributed to the valorization of the memory of victims of human rights abuses due to agrarian conflicts and elaborated important recommendations to overcome land concentration and to combat rural violence. The NTC recommended, for example, that agrarian reform policies be strengthened; that the Brazilian state publicly apologize to Indigenous peoples for the lands they had been robbed of; that a collective reparatory process be implemented for these peoples, including the environmental recovery of degraded lands; that invaders of Indigenous lands be removed in order to return these lands to Indigenous people; that the political and genocidal character of repression suffered by them be acknowledged by the Amnesty Commission; and that a new Truth Commission be created with a specific focus on the violations suffered by Indigenous peoples in order to continue the investigations that the NTC could not cover.

However, unlike truth commissions in Colombia, Paraguay and South Africa, the Brazilian NTC recommended land restitution only implicitly to Indigenous lands (by suggesting that irregular invaders should be removed) and left peasant lands aside, with a generic reference to agrarian reform policies.42 By addressing land issues only superficially in its recommendations, the NTC missed an opportunity to stimulate public debate on the importance of reparation for victims of forced displacement and the socioeconomic invisibility they endure.

In spite of its inadvertence regarding land issues, the NTC’s recommendations have been systematically ignored,43 especially in the wake of the political crisis initiated soon after their publication in December 2014. The 2015–2016 protests against Rousseff’s government were motivated in part by the creation of the NTC, which was strongly opposed by the military and right-wing parties.44 Slogans emerged such as ‘1964 is back,’ ‘Long live the dictatorship’ and ‘The people support the Armed Forces,’ among others. These public protests have gained intensity under the presidency of Jair Bolsonaro, known for his pro-dictatorship statements and for challenging the legitimacy of the NTC by accusing it of revanchism. As a Federal Deputy in 2016, he voted in favor of Rousseff’s impeachment, paying tribute to the memory of Brilhante Ustra, the most prominent torturer during the dictatorship and torturer of Rousseff herself.45 In this way, Brazil not only ignored the NTC’s recommendations, but it also started to witness the rise of anti-human rights discourses and the jeopardizing of transitional justice policies. Land issues have lost even more importance in the human rights agenda compared to the new risks that Brazilian democracy is facing, which include threats of a new military coup.46

STATE REPARATIONS AND THE VICTIMS OF VIOLATIONS DUE TO LAND CONFLICTS

The Two Federal Reparation Commissions

In Brazil, reparations to victims of human rights abuses and/or their family members began before the creation of a Truth Commission. The Special Committee on Political Deaths and Disappearances (SCPDD) was created in 1995 and the Amnesty Commission in 2002 to provide financial reparations and recognition of political amnesty to other victims of abuses during the dictatorship, not only for the relatives of the dead and disappeared.

Danyelle Gonçalves analyzed these various steps taken by Brazilian transitional justice to redress victims and shows how the meaning of political amnesty has changed over time. In 1979, within the Amnesty Law, the amnestied were framed as ‘those who committed political crimes.’ Not all persecuted militants fit this category, however. Those who had committed ‘blood crimes’ and received the label of ‘terrorist’ were not considered political actors by the military. The Amnesty Law also pardoned the military for the crimes they had committed against the activists they persecuted.47

In 2002, with the creation of the Amnesty Commission, the category of victims started to include those ‘harmed by persecution,’ and the right to reparations was extended to those previously excluded. This change in the way victims were framed by the state, from a criminal person to a persecuted person, reflects the political process that took place around disputes over which memories of the civil-military regime would be officially recognized and how. Moreover, this process demonstrates how what is considered political is changeable. This observation is important when considering the priority given by the process of transitional justice to civil and political rights, passing over socioeconomic and cultural rights. If the understanding of political amnesty has changed once, it can be further expanded to include reparations for victims of forced displacement, for example.48

The Special Secretariat for Human Rights of the Presidency of the Republic counted 1,196 peasants and supporters who died or disappeared between 2 September 1961 and 5 October 1988.49 From this set, only 51 submitted applications for reparations to the SCPDD, of which only 29 had their rights recognized. No Indigenous people received reparation from the SCPDD. The main reasons presented were: ‘no proof of participation of State agents in death and disappearance; no proof of political militancy; application filed outside the legal deadline.’50

These numbers show a significant disparity in rural people’s access to reparations, since the great majority did not even make the request for it either because they did not know about the process or because they lacked sufficient financial resources and legal knowledge and documentation to properly submit the petition. According to Maria do Rosário Nunes, Minister of Human Rights of 2011–2014, the advancements made by the SCPDD were ‘not enough to understand the complexity of political repression in the countryside and ended up not being able to include hundreds of cases of dead and missing peasants that were eligible to receive reparation as well.’51

In the Amnesty Commission, because it is supposed to provide reparation to a broader range of human rights abuses, a higher number of petitions were accepted, although that did not mean that it facilitated reparations for victims of forced displacement. Between 2002, when the commission began its work, and February 2020, the Amnesty Commission received 78,589 requests for redress. Among them, 2,413 (3%) were made by peasants. Of these, only 263 (10%) were processed. Another 851 were rejected, 348 were filed and 950 were pending as of February 2020. The number of applications submitted by Indigenous people was even lower: only 102 (0.1%), of which only 15 were granted (15%). Two were rejected, 12 were filed and 74 were awaiting consideration as of February 2020. Overall, the proportion of deferrals is higher: 38,966 (50%) requests were accepted and 28,748 (37%) rejected or filed. The other cases are still awaiting consideration (Amnesty Commission, e-mail message to the authors, 29 May 2020).

Of the total of 2,413 peasant applications, 1,938 were related to the Araguaia conflict (1967–1974), a rural guerrilla war, one of the most emblematic conflicts of the dictatorship, between militants of Brazil’s Communist Party and the army. Among the 15 successful Indigenous claims, 14 of them were Aikewara, who received reparations due to the violence they suffered when they were coerced into helping the military search for guerrillas in that same conflict.52 One of the reasons why the Araguaia case had more peasant applications was that the Amnesty Commission went to the region to hear peasants’ testimonies about the violence they had undergone. The Commission organized public events called ‘Amnesty Caravans,’ in which its representatives officially apologized in the name of the Brazilian state for the crimes committed during the dictatorship. The focus on the Araguaia case is an expression of the hegemonic historical interpretation that prioritizes violence undergone by opponents of the dictatorship and has guided Brazilian transitional justice.

The Aikewara were the first Indigenous people in the country to receive reparations from the Amnesty Commission in 2014, but the compensation was monetary and individual. According to Orlando Calheiros, the fact that the reparation was given individually did not address the Aikewara’s main claim: the demarcation of their lands. Moreover, due to the significant amount of money the 14 individuals received (values similar to those received by the other amnesty claimants), they began to have a different standard of living, distancing themselves from the collective of the tribe. Calheiros does not criticize the financial reparations granted to the Aikewara, but points out certain limitations of transitional justice regarding the recognition of human rights abuses against original peoples, which go beyond physical violence and, in most cases, cannot be repaired financially.53

Peasants and Indigenous people face additional hardships when trying to receive compensation for violence practiced by private agents, such as the loss of land, since the laws that regulate reparation programs do not include victims of violations carried out by non-state agents. Even when the violence was performed by the state, peasant applicants have been met with opposition. For example, in September 2009, a federal judge in Rio de Janeiro granted an injunction barring peasants from their right to reparations.54 The injunction was revoked only in November 2011, following appeals from lawyers of the Association of Those Tortured in the Araguaia Guerrilla (ATAG). This incidence exemplifies the dispute over memory, which extends to non-peasant and non-Indigenous victims of the regime: reparations are challenged on the assumption that the dictatorship acted legitimately, since its opponents were ‘terrorists.’

Similarly to cases in the SCPDD, one of the main reasons for the rejection of reparation petitions from countryside dwellers in the Amnesty Commission was the fact that they usually did not have documentation to present, since in rural areas there was no way to register abuses. Victims often did not know who to turn to for help. Furthermore, the law that regulates the Amnesty Commission stipulates that only victims of direct state action can be redressed. Because most of the abuses in rural areas were perpetrated by private agents sanctioned by state negligence, most peasants and Indigenous victims of forced displacement do not have the right to reparations.

In addition, the decision to accept or reject reparations depends on the profile of the Amnesty Commission members, who are appointed by the government. When a governmental change occurs, the profile of the Commission members also changes, which affects decisions on who deserves to be redressed, or not. According to Ana Maria Oliveira, the government of Michel Temer replaced most of the Commission members, leading to a more restrictive understanding of reparation criteria, and further hampering the chances of peasants to be redressed.55 Such dependency could be avoided if members were appointed not by the government, but by civil society organizations committed to human rights advocacy, as recommended by Amerigo Incalcaterra, based on the Paris Principles.56

Since the 2019 inauguration of Jair Bolsonaro, a political project rejecting transitional justice has emerged.57 The Bolsonaro government appointed military personnel to the Commission, and moved the Commission from the Ministry of Justice to the Ministry of Women, Family and Human Rights, thereby curtailing the scope of transitional justice in government. Moreover, the new President of the Commission is João Henrique Nascimento de Freitas, a lawyer known for his activism against reparations to victims of the dictatorship and responsible for filing legal suits challenging this right for several victims, including the Araguaia peasants.58

Besides rejecting most of the petitions (85% in 2019), the Amnesty Commission is being used to promote principles in opposition to the very law that created it: instead of promoting respect for human rights, the new Commission members espouse a narrative supporting military repression against those who fought against the regime because the repression was a way ‘to save the country from communism.’59 If the possibility of redressing victims of forced displacement was already low due to legal constraints, the current far-right government has made it even more out of reach.

The Role of the Federal Public Prosecutor’s Office

Brazilian transitional justice hit a significant milestone in 2013, when the Federal Public Prosecutor’s Office created a Working Group on Transitional Justice and Indigenous Peoples. One of the initiatives of this group was to suggest to the Amnesty Commission to provide collective reparations to ethnic groups that had suffered human rights abuses. In the Krenaks case, for example, the proposal was based on the understanding that the victim was the very culture of the Indigenous group, which the prosecutors characterized as a ‘collective being.’ In this sense, rather than thinking of individual reparations, decision makers started to support the demarcation of Indigenous lands and the importance of assuring to Indigenous peoples the indispensable means for the realization of their way of life.60 As reported by Ana Maria Oliveira, a member of the Amnesty Commission from 2003 to 2018, the Commission had started to discuss the possibility of providing collective reparations, but the discussions did not advance due to the replacement of members by the Temer administration (2016–2018).61

Public prosecutors also filed several public civil action claims against entities that committed violence against Indigenous peoples, including state bodies such as Funai and the Union and private entities such as Ruralminas Company, as well as individual military personnel. In the case of Waimiri-Atroari, for example, the prosecutors requested that the Federal Court order the Federal Government and Funai to rectify decree 97,837 of 1989 that excluded the Waimiri-Atroari from their territories for the construction of highway BR-174. In other words, they requested the restitution of the area. As a response, the Federal Court of Amazonas determined that any mining activity or installation of hydroelectric plants would need the consent of Indigenous peoples. On the other hand, the Court did not grant the request for rectification of the decree that removed the highway area from the Waimiri-Atroari territory. This example shows the difficulties faced in attempts to promote reparations with greater transformative potential, like land restitution.

The Debate on Land Restitution

To some authors, such as Chris Huggins and Liz Wily, the policy of land restitution is not always the best option because it can expose people to new threats or intensify social tensions. On the other hand, authors such as Barbara McCallin argue that, for the reconciliation and peacebuilding processes to be sustainable, land restitution should be at least a reparation option for victims.62 In Brazil, as well as in several other countries, a challenge to land restitution claims is the fact that most of the victims of forced displacement do not have a title deed, making it more difficult to prove their land ownership. In spite of these difficulties, authors like Liane A. Silva argue in favor of land restitution, especially for Indigenous peoples.63

When asked her opinion on the possibility of undertaking a policy of land restitution, the NTC commissioner Maria Rita Kehl added another argument challenging the practicality of this policy. To her, it would be impossible to return lands currently occupied by other people: ‘How could it be done? (…) There are whole cities built on Indigenous territories. (…) I am not against it, but I find it totally infeasible.’64 Her proposal is to defend only the demarcation of the lands currently occupied by Indigenous people, which is already a difficult process due to disagreements over the criteria used to define the lands as traditionally occupied by Indigenous peoples.65 Although the difficulties pointed out by the commissioner are pertinent, they reveal how far the Brazilian transitional justice process is from other international experiences, such as the South African or the Colombian ones, where policies of land restitution have started to be implemented, albeit with numerous obstacles.

Paulo Sergio Pinheiro, another NTC commissioner, had previously written the ‘Pinheiro Principles’ as a set of guidelines for ‘housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.’66 Although Brazilian peasants and Indigenous peoples fit within this description, Pinheiro did not propose to the NTC the use of these principles, which he had proposed to the United Nations. When asked why, he responded that the NTC did not have the authority to invoke such principles and that they could not be used retroactively, since the dictatorship ended in 1985 and the Pinheiro Principles were proposed in 2005. While we recognize the legal constraints that limited the NTC’s work, we also believe that the Commission could have recommended with more emphasis the implementation of reparation programs for victims of forced displacement. The response given by Pinheiro illustrates how a law-based approach has influenced the way most policy makers involved in transitional justice have been framing their work.67

CONCLUSIONS

The arguments presented in this article shed light on the importance of the agrarian question in Brazilian history, and may motivate social actors engaged in transitional justice and human rights struggles to stimulate related public debates. We draw attention to the way the military dictatorship was responsible for increasing land concentration and violence by neglecting, and sometimes reinforcing, the violation of the right of numerous people to land or territory. We also argue that, because land dispossession was not considered a serious human rights abuse and reached mainly people not engaged in political organizations, Brazilian transitional justice did not include victims of such violations.

As Erin Daly argues, real transformation depends on social participation.68 In Brazil, a significant part of the population is unaware of the fundamental role played by land grabbing mechanisms in legitimizing arbitrary evictions, which leads to an assumption that such violence does not constitute a human rights abuse. This limited understanding of the agrarian question has also affected transitional justice policy makers, often influenced by an urban-centered perspective. By not considering land dispossession a serious human rights abuse, they disregarded reparation to victims of such violence. In addition, the hegemonic belief that reduces the victims of the dictatorship to left-wing activists may have led to the misleading assumption that those not engaged in political organizations could not be victims of political repression.

The creation of the Working Group on peasants and Indigenous peoples in the NTC has been a step in the right direction. However, by guiding its work through the concept of ‘serious violations,’ the NTC disregarded a series of abuses such as land dispossession, and indirectly contributed to the continuity of what Atuahene calls the property-induced invisibility of the victims of such abuses. Moreover, the focus on civil and political rights to the detriment of cultural and socioeconomic rights has reproduced what Dustin Sharp calls mainstream transitional justice, i.e., a set of policies that follows the liberal paradigm, prioritizing the individual over the collective and not leading to overcoming the structural causes of human rights violations.

What does the Brazilian case tell us about transitional justice vis-à-vis housing, land and property? 1) It reinforces the importance of carrying out transitional justice initiatives immediately after the end of a repressive regime or conflict. Because Brazil took too long to develop those initiatives, some stolen lands are now part of urban areas that cannot be returned easily to their original owners. 2) It shows that the connection Indigenous peoples have with their territories is so strong that some groups have upheld the struggle to retake their lands even four decades after displacement. For this reason, and despite not being addressed by reparation laws, some Indigenous groups gained the support of the Federal Prosecutor’s Office to sue the state for land restitution. 3) The setbacks promoted by the Temer and Bolsonaro governments in transitional justice reinforce the importance of developing stronger mechanisms to protect transitional justice policies from the whims of Brazil’s polarized political climate. The enactment of two federal reparation commissions was not enough to guarantee their independence, as expected.

Finally, greater attention to socioeconomic rights and more effort to strengthen policies of memory to acknowledge the violence suffered by rural populations would advance the debate on reparations with greater transformative potential, such as land restitution. They are also needed to address more effectively the structural violence still rampant in Brazil despite redemocratization.

1. Dustin Sharp, ‘Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice,’ Fordham International Law Journal 35(3) (2012): 780–814.2

2. Bernadette Atuahene, ‘From Reparation to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility,’ Southern Methodist University Law Review 60(4) (2007): 1419–1470.3

3. Comissão Camponesa da Verdade, Relatório Final – Violações de Direitos no Campo, 1946 a 1988 (Brasília: Senado Federal, 2016); Ana Carneiro and Marta Cioccari, Retrato da repressão no campo: Brasil, 1962–1985 – Camponeses torturados, mortos e desaparecidos (Brasília: MDA, 2011); Clifford A. Welch, ‘Camponeses, a verdade e a história da ditadura em São Paulo,’ Mundos do Trabalho 6(11) (2014): 57–78; Leonilde S. Medeiros, Ditadura, Conflito e Repressão no Campo. A resistência camponesa no estado do Rio de Janeiro (Rio de Janeiro: Consequência, 2018); Ana V. Araújo, ‘Terras Indígenas no Brasil: Retrospectiva, avanços e desafios do processo de reconhecimento,’ in Terras Indígenas e Unidades de Conservação da natureza: O desafio das sobreposições, ed. Fany Ricardo (São Paulo: Instituto Socioambiental, 2004); A Política de Genocídio contra os Índios no Brasil (Associação de Ex-presos Políticos Antifascistas, 1974) (this book was written by a group of anthropologists who did not put their names to it due to security reasons at the time of the dictatorship).4

4. Johan Galtung, ‘Violence, Peace, and Peace Research,’ Journal of Peace Research 6(3) (1969): 167–191.5

5. Matt James and Roger Stanger-Ross, ‘Impermanent Apologies: On the Dynamics of Timing and Public Knowledge in Political Apology,’ Human Rights Review 19 (2018): 289–311.6

6. Until that time, the paradigm for dealing with Indigenous land issues was determined by a federal agency – the Indigenous Protection Service (Serviço de Proteção aos Índios) – which was supposed to protect Indigenous peoples. However, the agency ended up allowing settlers to occupy Indigenous lands and commit human rights abuses against Indigenous persons. According to an Investigation Commission of the Ministry of the Interior, officials issued false statements attesting that there were no Indigenous people in territories where there were, in order to legitimize their displacement. The Commission also described situations of torture, assassination, imprisonment, poisoning, deliberate dissemination of diseases and Indigenous enslavement that occurred between the years 1940 and 1960. See Relatório da Comissão de Investigação do Ministério do Interior (Brasília: Relatório Figueiredo, 1967. The creation of Indigenous Parks, however, also had side effects, such as the aggregation of different ethnicities, sometimes opponents, which had to live together.7

7. Until 1961, labor legislation created in the 1930s neglected rural workers, who underwent a high degree of exploitation, often legitimized by personal relationships of dependence and favor.8

8. Clifford Welch, The Seed Was Planted: The São Paulo Roots of Brazil’s Rural Labor Movement, 1924–1964 (Pennsylvania: Penn State University Press, 1999); Fernando Azevedo, As Ligas Camponesas (Rio de Janeiro: Paz e Terra, 1982); Cordula Eckert, ‘O Master e as ocupações de terra no Rio Grande do Sul,’ in Lutas camponesas contemporâneas: Condições, dilemas e conquisas, ed. Bernardo Mançano Fernandes, Leonilde Servolo de Medeiros and Maria Ignez Paulilo (São Paulo: Unesp, 2009).9

9. This announcement was made at a large rally on 13 March 1964, which became known as the Central Rally, for having happened in Central do Brasil (the main station connecting trains, subways and buses in Rio de Janeiro). The political impact was so significant that the military coup came soon after, on 31 March 1964.10

10. René A. Dreifuss, 1964: A conquista do Estado. Ação política, poder e golpe de classe (Petrópolis: Vozes, 1981).11

11. Carneiro and Cioccari, supra n 3; Comissão Camponesa da Verdade, supra n 3; Medeiros, supra n 3.12

12. Regina Novaes, ‘Lembranças camponesas: repressão, sofrimento, perplexidade e medo’, in Fazendo Antropologia no Brasil, ed. Neide Esterci et al. (Rio de Janeiro: DP&A, 2001).13

13. Mário Grynszpan, ‘Mobilização camponesa e competição política no estado do Rio de Janeiro (1950–1964)’ (Masters diss., Federal University of Rio de Janeiro, 1987); Medeiros, supra n 4.14

14. Marta Cioccari, ‘Reconstruindo memórias traumáticas: Camponeses e o regime militar,’ Retratos dos Assentamentos 18(2) (2015): 135–164.15

15. Jornal do Brasil, ‘Briga por terra em Cabo Frio temmais um posseiroferido,’ 5 March 1978.16

16. José Graziano da Silva, A modernização dolorosa (Rio de Janeiro: Zahar, 1982).17

17. Roberto Campos, A lanterna na popa. Memórias (Rio de Janeiro: Topbooks, 1994).18

18. Iby M. Silva, ‘Turismo, ação empresarial e conflitos por terra no litoral sul fluminense,’ in Ditadura, conflito e repressão no campo: Resistência camponesa no Estado do Rio de Janeiro, ed. Leonilde Medeiros (Rio de Janeiro: Consequência, 2018).19

19. Stephen Baines, O Território dos Waimiri-Atroari e o Indigenismo Empresarial (São Paulo: Hucitec e Anpocs, 1993).20

20. André L. Araújo, ‘O movimento de apoio à resistência Waimiri-Atroari: Ecos de uma ação indigenista católica contra os grandes projetos (1976–1988)’ (Masters diss., Federal University of Amazonas, 2014).21

21. Gustavo Simi, ‘Reformatório e política indígena: A experiência de fardamento e disciplina dos índios durante a ditadura’ (Masters diss., Catholic Pontifical University of Rio de Janeiro, 2017). Celeste Ciccarone, ‘The Guarani Farm: Indigenous Narratives About Removal, Reclusion and Escapes During the Military Dictatorship in Brazil,’ Vibrant 15(3) (2018): 1–22.22

22. Moacir G. Palmeira, ‘Desmobilização e conflito: Relações entre trabalhadores e patrões na agroindústria pernambucana,’ in Lutas camponesas contemporâneas: Condições, dilemas e conquistas, vol. 1: O campesinato como sujeito político nas décadas de 1950 a 1980, ed. Bernardo M. Fernandes, Leonilde S. Medeiros and Maria I. Paulilo (São Paulo: Editora UNESP; Brasília: Núcleo de Estudos Agrários e Desenvolvimento Rural, 2009).23

23. It is necessary to take into account here the problem of underreporting of the cases during the 1970s, a time of huge censorship and greater difficulty in recording such facts. See more in Gilney Viana, Camponeses mortos e desaparecidos: Excluídos da justiça de transição (Brasília: SDH, 2013).24

24. Comissão de Familiares de Mortos e Desaparecidos Políticos, Dossiê dos mortos e desaparecidos políticos a partir de 1964 (Grupo Tortura Nunca Mais e Núcleo de Estudos da Violência. Recife: Companhia Editora de Pernambuco, 1995).25

25. This period was established by the Law 10,536 of 2002, extending the period established by Law 9.140 of 1995, which envisaged reparation only to violations committed until 1979.26

26. Brasil, Direito à verdade e à memória: Comissão Especial sobre Mortos e Desaparecidos Políticos (Brasília: SDH, 2007).27

27. Contag, As lutas camponesas no Brasil: 1980 (Rio de Janeiro: Marco Zero, 1981).28

28. MST, Assassinatos no campo: Crime e impunidade (1964–1985) (São Paulo: MST, 1986).29

29. Carneiro and Cioccari, supra n 3.30

30. Viana, supra n 26.31

31. Comissão Camponesa da Verdade, supra n 3; Sergio Sauer and Regina C. Saraiva, ‘Violência, repressão e resistências camponesas: Reflexões e (re)construções a partir da Comissão Camponesa da Verdade,’ Retratos de Assentamentos 18(2) (2015): 19–37.32

32. In addition to the Torture Never Again Group, other organizations were also involved in the group that assisted the NTC on repression against Indigenous peoples: the Association of Judges for Democracy, the Justice and Peace Commission of the Archdiocese of São Paulo, Armazém Memória, the Koinonia Ecumenical Presence and the Institute of Relational Policies.33

33. On the demands for the NTC to insert in its work the analysis about repression against Indigenous people, see interview given by Marcelo Zelic, collaborator of the commission and human rights activist, to Edilene C. de Lima and Fabiano A. Azola, Mediações 22(2) (2017): 347–365.34

34. NTC Resolution 5, Official Gazette of the Union, 11 May 2012.35

35. Comissão Camponesa da Verdade, supra n 3, at 23.36

36. Comissão Nacional da Verdade, Relatório Final, Vol. 2 (Brasília: CNV, 2014), 92.37

37. Zelic, supra n 36.38

38. Personal interview with Fabricio Teló, Maria Rita Kehl, São Paulo, Brazil, 25 July 2018.39

39. Zelic, supra n 36 at 355.40

40. Pádua Fernandes, ‘Justiça de transição e o fundamento nos direitos humanos: Perplexidades do relatório da Comissão Nacional da Verdade brasileira,’ in Para a crítica do direito: Reflexões sobre teorias e práticas jurídicas, ed. Celso Naoto Kashiura, Oswaldo Akamine and Tarso de Melo (São Paulo: Outras Expressões; Editorial Dobra, 2015).41

41. Cristina B. de Holanda, ‘Direitos humanos e democracia: Experiência das comissões da verdade no Brasil,’ Revista Brasileira de Ciências Sociais 33(96) (2018): 1–18.42

42. Tulia Moreno, Javier Lautaro Medina, Adriana Patricia Fuentes and Andrea Lopera Lombana, Restitución de tierras en Colombia: Análisis y estudios de caso (Bogotá: Cinep/PPP, 2016); Comisión de Verdad y Justicia, Informe Final (Asunción: Comisión de Verdad y Justicia, 2008); Marcelo Rosa, ‘Reforma agrária e Land-Reform: Movimentos sociais e o sentido de ser um sem-terra no Brasil e na África do Sul,’ Cadernos CRH 25(64) (2012): 99–114; Cherryl Walker, Anna Bohlin, Ruth Hall, and Thembela Kepe, Land, Memory, Reconstruction and Justice: Perspectives on Land Claims in South Africa (Athens: Ohio University Press, 2010).43

43. Amy Jo Westhrop, Ayra Guedes Garrido, Carolina Genovez Parreira, and Shana Marques Prado dos Santos, eds., As recomendações da Comissão Nacional da Verdade: Balanços sobre a sua implementação dois anos depois (Rio de Janeiro: ISER, 2016).44

44. Thiago V. Pires and Solon E. Viola, ‘Memórias da ditadura e o atual cenário de ascenso onservador no Brasil,’ in Imaginarios sociales y memorias: Itinerários de América Latina, ed. Mariana G. Guyer, Paulo H. Martins and Clara B. Kohn (Buenos Aires: Clacso, 2019), 27–50.45

45. Bolsonaro homenageia torturador em seu voto pelo impeachment. Rede Brasil Atual, 18 April 2016, https://www.redebrasilatual.com.br/politica/2016/04/bolsonaro-homenageia-torturador-em-seu-voto-pelo-impeachment-2649/ (accessed 12 November 2020);46

46. Octavio Amorim Neto e Igor Acácio, ‘De Volta ao Centro da Arena: Causas e Consequências do Papel Político dos Militares sob Bolsonaro,’ Journal of Democracy em Português 9(2) (2020): 1–29.47

47. Danyelle Gonçalves, ‘O preço do passado: Anistia e reparação de perseguidos políticos no Brasil’ (PhD diss., Federal University of Ceará, 2006).48

48. Just as James and Stanger-Ross argue that political apologies can always be improved due to new learning or victims’ activism, also understanding about the kinds of human rights that are repairable is changeable, and it is possible to insert socioeconomic rights into the scope of reparation. Ibid., n 5.49

49. The first date (1961) refers to the day when the National Congress approved parliamentarism. The second (1988) refers to the approval of the new Federal Constitution after the end of the dictatorship.50

50. Viana, n 26 at 31.51

51. Maria do R. Nunes, ‘Apresentação,’ in Camponeses mortos e desaparecidos: Excluídos da Justiça de Transição, ed. Gilney Viana (Brasília: SDH, 2013), 6.52

52. Within this conflict, many peasants not engaged in resistance against the dictatorship also suffered serious human rights abuses. For this reason, the Association of the Tortured in the Araguaia Guerrilla (ATAG) petitioned for their reparation.53

53. Orlando Calheiros, ‘“No Tempo da Guerra”: Algumas notas sobre as violações dos direitos dos povos indígenas e os limites da justiça de transição no Brasil,’ Re-vista Verdade, Memória e Justiça 9 (2015): 11.54

54. The injunction was granted in favor of lawyer João Henrique Nascimento de Freitas, legal adviser to the Praia Vermelha Military Circle and to the state deputy for Rio de Janeiro, Flávio Bolsonaro, son of President Jair Bolsonaro, who is a retired army captain and ardent defender of the military regime and practices of torture against communist militants.55

55. Personal interview, Ana Maria Oliveira, Rio de Janeiro, Brazil, 14 May 2019.56

56. Amerigo Incalcaterra, ‘Estrategias de vinculación entre las Instituciones Nacionales de promoción y protección de los derechos humanos y las organizaciones de la Sociedad Civil a partir de los Principios de París,’ (Mexico City: Office of the United Nations High Commissioner for Human Rights, 2007).57

57. ‘Ato chama atenção para desmonte da Justiça de transição no Brasil,’ DW, 4 September 2019, https://www.dw.com/pt-br/ato-chama-atenção-para-desmonte-da-justiça-de-transição-no-brasil/a-50282848 (accessed 19 October 2020).58

58. ‘Novo chefe da Comissão da Anistia travou indenização a camponeses do Araguaia,’ ZH, 27 March 2019, https://gauchazh.clicrbs.com.br/politica/noticia/2019/03/novo-chefe-da-comissao-da-anistia-travou-indenizacao-a-camponeses-do-araguaia-cjtrh3ao701fh01pr8j2q2mg9.html (accessed 19 October 2020).59

59. ‘Comissão da Anistia indefere 85% dos pedidos de reparação a perseguidos políticos em 2019,’ O Globo, 16 December 2019, https://glo.bo/2ZIqRal (accessed 27 May 2020); Sob Bolsonaro, ‘Comissão de Anistia muda critérios e vítima vira terrorista,’ UOL, 10 August 2019, https://noticias.uol.com.br/politica/ultimas-noticias/2019/08/10/anistiando-terrorista-e-decisao-com-base-em-infancia-militar-as-decisoes.htm (accessed 19 October 2020).60

60. Ibid., 121.61

61. Personal interview, Ana Maria Oliveira, Rio de Janeiro, Brazil, 14 May 2019.62

62. Chris Huggins, ‘Linking Broad Constellations of Ideas: Transitional Justice, Land Tenure Reform, and Development,’ in Transitional Justice and Development: Making Connections, ed. Pablo de Greiff and Roger Duthie (New York: International Center for Transitional Justice and Social Science Research Council, 2009); Liz A. Wily, ‘Tackling Land Tenure in the Emergency to Development Transition in Post-Conflict States: From Restitution to Reform,’ in Uncharted Territory: Land, Conflict and Humanitarian Action, ed. Sara Pantuliano (Rugby: Practical Action Publishing, 2009); Barbara McCallin, ‘The Role of Restitution in Post-Conflict Situations,’ in Land and Post-Conflict Peace Building, ed. Jon Unruth and Rhodri Williams (London: Earthscan, 2013).63

63. Liane A. Silva, ‘Justiça de Transição aos Avá Guarani: A necessária política de reparação e restituição de terras pelas violações cometidas durante a ditadura militar,’ in Os Avá-guarani no oeste do Paraná: (Re)existência em Tekoha Guasu Guavira, ed. Carlos F. Souza Filho (Curitiba: Letra da Lei, 2016).64

64. Personal interview, Maria Rita Kehl, São Paulo, Brazil, 25 July 2018.65

65. In 2009, while judging a conflict regarding the “Raposa Serra do Sol” Indigenous land, the Brazilian Supreme Court decided that this territory should be guaranteed to the Macuxi people, since they were occupying this land on the day when the 1988 Federal Constitution was enacted. This decision gave birth to the ‘timeframe thesis’ (tese do marco temporal), according to which only those lands occupied by Indigenous peoples before 1988 or those lands whose claims of ownership on the part of Indigenous peoples before 1988 can be proved. The timeframe thesis is one of the main sources of controversy regarding demarcation of Indigenous lands. See Pádua Fernandes, ‘As terras indígenas e a (in)justiça de transição: O Supremo Tribunal Federal e a legitimação dos crimes da ditadura militar’ (paper presented at the V Nacional Conference on Rights, Research and Social Movements, Vitória, Brazil, 22–26 September 2015).66

66. Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles),’ United Nations, 2005, https://www.unhcr.org/protection/idps/50f94d849/principles-housing-property-restitution-refugees-displaced-persons-pinheiro.html (accessed 19 June 2020).67

67. Paulo S. Pinheiro, e-mail message to Fabricio Teló, 27 January 2019.68

68. Erin Daly, ‘Transformative Justice: Charting a Path to Reconciliation,’ International Legal Perspectives 12 (2002): 73–183.

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