Amnesty or Accountability?

More than four decades after the end of Brazil’s military dictatorship (1964–1985), one fundamental question remains unanswered: can those responsible for torture, enforced disappearances, and extrajudicial killings still be shielded from criminal accountability under the country’s 1979 Amnesty Law? This question now lies before Brazil’s Supreme Federal Court (Supremo Tribunal Federal – STF) in the Claim of Non-Compliance with a Fundamental Precept (ADPF 320), a constitutional case that may redefine the relationship between domestic constitutional law and Brazil’s international human rights obligations.

The Amnesty Law was enacted in 1979 during the country’s gradual transition from military rule to democracy. While officially presented as an instrument of political reconciliation, it has long been interpreted as extending protection to state agents responsible for serious human rights violations committed during the dictatorship. For decades, this interpretation has prevented the criminal prosecution of military officials accused of torture, enforced disappearance, and extrajudicial executions, making the Amnesty Law one of the principal legal obstacles to transitional justice in Brazil.

In 2010, the Inter-American Court of Human Rights held in Gomes Lund et al. v. Brazil (Guerrilha do Araguaia) that the application of the Amnesty Law to prevent the investigation and punishment of serious human rights violations is incompatible with the American Convention on Human Rights. Since then, the Court has consistently reaffirmed this position in subsequent judgments, including Herzog et al. v. Brazil and Leite, Peres Crispim et al. v. Brazil.

ADPF 320 was filed precisely to ensure Brazil’s compliance with the Gomes Lund judgment. More than a dispute over the interpretation of one domestic statute, the case has become a test of Brazil’s willingness to fulfil its international human rights commitments and to recognize that international law imposes binding limits on domestic legal interpretation.

A Constitutional Case with International Implications

The legal debate surrounding ADPF 320 extends beyond the scope of Brazil’s Amnesty Law. At its core lies the principle of conventionality control, the obligation of domestic authorities to ensure that national law conforms to the international human rights treaties binding upon the State.

If the Supreme Court explicitly applies conventionality control, it would affirm that Brazil’s international human rights obligations operate as genuine legal constraints on domestic law. Such a decision would strengthen the authority of the Inter-American Court of Human Rights and reinforce Brazil’s credibility as a constitutional democracy committed to the rule of law and human rights.

Conversely, if the Court continues to rely exclusively on domestic constitutional reasoning while avoiding a direct acknowledgement of the conflict between the Amnesty Law and international law, Brazil risks perpetuating a pattern of only partial compliance with international judgments.

The Supreme Court’s Current Dilemma

Brazil’s lower federal courts have increasingly incorporated Inter-American standards into their jurisprudence. In several cases involving enforced disappearances and the concealment of victims’ remains, judges have held that such crimes are permanent in nature and therefore fall outside the temporal scope of the 1979 Amnesty Law, since they continue until the victim’s fate is clarified.

The Supreme Federal Court, however, has yet to adopt a clear and consistent position. In 2010, in ADPF 153, it upheld the constitutionality of the Amnesty Law under the 1988 Constitution, a decision that has remained in evident tension with subsequent rulings of the Inter-American Court of Human Rights.

A possible shift emerged in February 2026, when Justice Flávio Dino voted to exclude the application of the Amnesty Law to permanent crimes such as enforced disappearance and concealment of corpses. According to his reasoning, as long as the fate or whereabouts of a victim remain unknown, the criminal conduct continues, preventing the offence from falling within the temporal limits of the Amnesty Law.

The proceedings, however, were suspended after Justice Alexandre de Moraes requested additional time to examine the case. Under Brazilian procedural rules, any Justice may issue such a request (pedido de vista), temporarily interrupting the judgment before casting a vote. Although this procedural mechanism is common in the Brazilian constitutional system, it postpones the resolution of one of the country’s most significant pending human rights questions.

International Law Rejects Blanket Amnesties

The legal debate should not be confined to the interpretation of Brazilian constitutional law. International law has progressively established that blanket amnesties cannot shield perpetrators of genocide, crimes against humanity, war crimes, torture, or enforced disappearance from criminal accountability.

This principle has been consistently affirmed by the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the Committee against Torture, and the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (the Orentlicher Principles). International criminal jurisprudence has likewise rejected blanket amnesties for genocide, crimes against humanity, and other serious international crimes, including in the case law of the Special Court for Sierra Leone and other international tribunals. While international law does not prohibit all forms of amnesty, it increasingly rejects those that prevent the investigation and punishment of serious human rights violations.

Grave human rights violations affect not only individual victims but also the international legal order itself. States therefore bear an obligation to investigate, prosecute, and punish those responsible, while ensuring victims’ rights to truth, justice, and reparation.

Interpretative solutions that merely exclude continuing crimes from the scope of the Amnesty Law may permit some prosecutions to proceed. However, they do not resolve the broader incompatibility between the prevailing interpretation of the Amnesty Law and Brazil’s international obligations. Unless the Supreme Court explicitly acknowledges that domestic legal interpretations cannot override binding international commitments, legal uncertainty will remain.

Brazil’s Commitments under the Rome Statute

Brazil’s obligations do not arise solely from the American Convention on Human Rights. Since ratifying the Rome Statute of the International Criminal Court in 2002, Brazil has also undertaken to investigate and prosecute those responsible for genocide, crimes against humanity, and war crimes.

Although the Rome Statute does not expressly regulate amnesties, its system is founded upon the principle of complementarity, according to which States bear the primary responsibility for prosecuting international crimes. Blanket amnesties that prevent genuine criminal investigations may therefore be incompatible with the Statute’s objectives and, under certain circumstances, may expose a State to scrutiny by the International Criminal Court on the basis of unwillingness genuinely to prosecute.

Brazil as a Regional Outlier

Brazil’s hesitation also contrasts with developments elsewhere in South America. Argentina annulled its amnesty laws and resumed criminal prosecutions against perpetrators of dictatorship-era crimes, leading to hundreds of convictions. Chile progressively narrowed the application of its Amnesty Decree through judicial interpretation grounded in international human rights law. Uruguay likewise dismantled legal barriers that had protected perpetrators during its military dictatorship. Although Peru played a landmark role in the Inter-American Court’s jurisprudence through the Barrios Altos judgment, recent legislative initiatives expanding amnesties have generated renewed international concern, illustrating that the struggle against impunity remains contested across the region.

Although regional experiences differ, the predominant trajectory has been towards strengthening accountability for serious human rights violations, even if recent developments demonstrate that this progress cannot be taken for granted.

A Defining Moment for Brazil

ADPF 320 offers the Supreme Federal Court an opportunity that extends well beyond the interpretation of a single statute. The Court may either continue addressing the issue through narrow interpretative adjustments or explicitly recognize that the Amnesty Law cannot be interpreted in a manner incompatible with Brazil’s international human rights obligations.

By expressly acknowledging the supremacy of Brazil’s international obligations in this context, the Court would not only strengthen conventionality control but also reaffirm the country’s commitment to the rule of law, democracy, and the protection of human rights.

As the judgment remains pending, one question continues to define the debate: will Brazil finally align its domestic legal order with the international commitments it has freely undertaken, or will it once again postpone a full reckoning with the legacy of its authoritarian past?