Some Thoughts on Referendums and Human Rights in Uruguay

One of the most complex problems for democratic societies is that of learning how to live with their past. This is particularly difficult when that past is full of atrocities including torture, disappearances, cases of sexual abuse, assassinations or any other systematic violations of human rights. During the military dictatorships of the seventies and eighties, the southern cone countries were victims of these facts and are still struggling to settle their accounts with that tortuous past. The latest weeks these weeks, we have seen Uruguay taking up the debate on the Expiry Law that blocks the investigation of members of the police and armed forces for the crimes committed from 1973 to 1985.

During these years, the Uruguayan armed forces -as a part of Operation Condor, led by Chile- took control of the various aspects of the life of the country, which sought to contain the spread of communism in the region. According to these standards, the case of Uruguay is not as dramatic as that of its neighbors, as the most common crimes by the state were "only" torture and unjust imprisonment, instead of massacres and disappearances as in the case of Argentina or Chile, for instance. However, according to some studies, the balance left by the dictatorship was the highest rate of political prisoners in the world, most of whom were tortured, as well as a large number of dead and desaparecidos.

Unlike the case of Argentina, where the military ceded power in a weak position after the defeat in the Falklands war, in Uruguay the power shift to civilian hands was primarily a negotiated agreement between equal partners. As a result, the military was able to impose drastic conditions, including the promulgation of the Expiry Law. This not only sought to equate the Amnesty Law that protected political prisoners, but that also meant a closure with the past, that is, an act of oblivion for the crimes of the dictatorship. Julio Maria Sanguinetti, president from 1985 to 1990 and from 1995 to 2000, believes the Expiry Law was necessary to ensure the consolidation of democracy in Uruguay, a view shared by large sectors of the population.

However, several civil society initiatives supported by international organizations of human rights, promoted a referendum in 1989 on the ratification of the controversial law. At that time the anti-impunity campaign lost the referendum by a vote of 56% to 44%, so it was considered that the crimes committed by state agents during the dictatorship would remain unpunished. Despite this defeat, the organizations of families of the victims of these crimes continued their mobilization. With the coming to power of leftist governments, they manage to call another referendum in 2009 that also failed to achieve the vote required to repeal the law.

The debate that we see these days in Uruguay is about the possibility of repealing the Expiry Act , this time not through a plebiscite, but by Congress. The position taken on this issue will be a major reference point for other countries in similar transitions like the one of Uruguay. However, there are several problems. On the one hand there is the decision of the primary constituent that in two occasions has rejected the repeal of the law; that could be taken as a clear decision of the people to close their accounts with the past. For some legislators, a decision different to this means ignoring the people's opinion and thereby overriding any democratic principle. The opposite argument is the recognition of the crimes committed by state agents during the years of dictatorship and a lawsuit against it by the Inter-American Commission on Human Rights (IACHR), which begins hearing on November 15.

It has been emphasized that the search for Truth, Justice and Reparation is a transcendental condition when talking about processes of transition and consolidation of democracy as in processes of transition from a war situation to one of peace. Not only this, the IACHR considers that "...amnesty provisions are unacceptable, as well as provisions on prescription and the establishment of exemptions from liability that prevent the investigation and punishment of those responsible for serious violations of human rights such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by the International Law of Human Rights "(1).

Given this, an eventual vote in Congress against the Expiry Law does not mean turning over democracy, as it has been made to believe in several media: all the contrary. Not only a true democracy is one that respects minorities -in this case the victims of State crimes and their families- but peace can only be guaranteed when the causes of violence have been clarified, when the truth of what happened has been established,  and when the necessary measures to compensate the victims have been adopted (2). Keeping the Expiry Law prevents that these three components are actually met, and makes it impossible for the victims and their families to make a real closing of accounts with the past. Thus, out of respect for true democracy, as a mechanism to guarantee peace, and as an example to other regimes with similar histories, the rejection of the Expiry Law is a necessary step in Uruguay. No matter if the majority think otherwise.

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Thanks to Mauricio Pérez and Bernardo Vela for their discussions with me on these topics, and for helping me clarify some legal concepts on the topics dealt with in this article. Any mistake or omission is my total responsibility.

(1) Cited in Vela, B. and Duarte, J. (2007) ¿Política de Estado de Paz o Política de Gubernamental de desmovilización? El conflicto armado colombiano y la precaria situación de las víctimas. En: Cátedra Unesco. Derechos Humanos y Violencia: Gobierno y Gobernanza. El desplazamiento forzado interno en Colombia un desafío a los derechos humanos.

(2) Ibid.