HACIA
D EMOCRACY
2009
Bulletin Topic A
Inter-American Court of Human Rights
Victims of the Ubaitaba Massacre v. Brazil
Dear Delegates,
Welcome to HACIA Democracy, and to the often depressing but ever-urgent world of
international law and human rights. No matter how familiar or unfamiliar you are with these topics,
in the coming weeks you’ll become much better acquainted, exploring issues of pressing concern to
both Latin America and the entire world. I imagine you’ll find the material you’re about to cover as
sobering as I did—it is hard to treat something so viscerally affecting as state-sanctioned murder as
purely an academic exercise—but I trust that, like me, you’ll find the force and immediacy of the
material to be empowering. The issues we’ll be researching and debating are a daily reality for
millions of people, and I can only hope that our work together will spur you to learn more about the
real-world role of the Organization of American States (OAS) and to delve deeper into the cause of
international human rights.
The Inter-American Court of Human Rights, or IACHR, is one of the OAS’ most vital
organs and is a critical means to hold states and individuals accountable for violations of the OAS’
American Convention, which guarantees the protection of basic human rights. Since 1979, the court
has been involved in hundreds of suits against human rights violators from across the Americas. In
our simulation, we’ll consider a case modeled closely on real events, when an attempt by Brazil’s
Military Police to remove members of Brazil’s Landless Workers Movement (MST) from illegally
occupied land resulted in 11 deaths. Although our victims, claimants, and defendants are
fictionalized, their circumstances closely approximate two scenarios from recent Brazilian history—
the Corumbiara and El Dorado dos Carajás massacres.
As we work together to build, argue, and adjudicate cases, we’ll get to know each other well,
but in the meantime I’d like to briefly introduce myself. My name is Paul Katz, and I’m a senior at
Harvard studying the history and literature of the Americas. Although I’ve lived almost all of my life
in the United States, I’ve just returned from Buenos Aires, Argentina, where I’ve been conducting
research for my senior thesis about the Dirty War. Back at Harvard, I’m involved in several
publications and the Harvard Program for International Education, which sends aspiring teachers
into some of Boston’s toughest classrooms to offer instruction in international affairs. I’m
tremendously excited to work with all of you in Mexico City this spring; I’m convinced that we’ll
learn very much from each other, and I wouldn’t be shocked if we even had a bit of fun, too! If you
have any questions or concerns in the period leading up to the conference, or if you’d just like to
introduce yourself, please don’t hesitate to send me an email; my address is pkatz@fas.harvard.edu.
I’m looking forward to hearing from you!
Until March,
Paul Katz
Co-Director
Inter-American Court of Human Rights
pkatz@fas.harvard.edu
2
CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
As a result of these inequalities, millions of
Brazil’s citizens are dispossessed, or
deprived of the opportunity to own land.
Unable to cultivate their own property, these
individuals—called sem terra, meaning
“without land” in Portuguese—have been
forced to choose between farming others’
land for low wages or immigrating to the
slums surrounding big cities in search of
work. Yet during the later half of the
twentieth century—and especially in the last
thirty years—a third option has emerged, as
the sem terra have organized themselves into a
political coalition and have begun to demand
significant government reforms.
Introduction
a. Dispossessed or Dangerous?
Land Reform and Rural
Violence
b. Legal and Policy Background
The Case in Context
a. Background of the Case
b. Underlying Issues
The Case for the Claimants
The Case for the Defendants
The Power of the Court
a. Function and Composition of
the Court
b. Previous Action
c. Needed Collaborators
Framing Position Papers
Aims of the Session
Summary and Conclusion
Bibliography
Appendix I: Glossary
Appendix II: Relevant Articles
from the American Convention
Appendix III: Relevant Articles
from the Inter-American
Convention to Prevent and Punish
Torture
The Movimento dos Trabalhadores Rurais
Sem Terra (Movement of Rural Landless
Workers, or MST), founded in 1984, has
united an estimated 1.5 million sem terra under
the banner of land redistribution. The MST
hopes to pressure the Brazilian government
into breaking up large, unproductive
fazendas, or large estates, into small parcels
of land to be distributed to the country’s
landless workers. The MST’s tactics have been
highly controversial. Since the 1980s, groups
of
MST
members
have
occupied
unproductive portions of large fazendas, where
they have set up semi-permanent settlements
and begun farming the land. The MST had
then tried to pressure the Instituto Nacional
de Colonozição e Reforma Agrária (The
National Colonization and Agrarian Reform
Institute, or INCRA), the Brazilian
government agency responsible for managing
land reform, to seize these formerly unused
pieces of land from their owners and grant
MST occupants legal rights to continue using
it, while the landowners have appealed to local
courts to force the occupying individuals to
leave their property. Depending on the
circumstances of the land occupation and the
predisposition of local judges, these cases
have at times been resolved in favor of the
MST, and at other times in favor of
landowners, leaving the legality of the MST’s
tactics shrouded in contention.
INTRODUCTION
Brazil is gigantic. The dense rainforest of the
Amazon basin, rich farmland of the South,
and arid Sertão of the Northeast all fit within
its borders, which encompass an area larger
than the entire European Union. Yet, despite
being he fifth largest country in the world,
Brazil cannot guarantee land for all of its
people. As in many other Latin American
countries, in Brazil a small class of wealthy
landowners controls a disproportionate share
of the nation’s land. In fact, in 1998, only
0.8% of all Brazilian farms were over 2,000
hectares (ha) in size, yet they controlled 42.8%
of the country’s land. By contrast, 31.9% of all
farms were under 10 ha, yet they contain only
1.3% of Brazilian land (Branford and Rocha,
2002). In other words, a few landowners in
possession of gigantic estates control over
40% of the country’s land, while small farmers
control only a bit more than 1%.
3
Dispossessed or Dangerous?
Reform and Rural Violence
Land
land occupations grew steadily throughout the
90s; after 89 occupations in 1993, there were
119 in 194 and 599 in 1998 (Ondetti 2008).
As a result of its confrontational tactics, the
MST has been accused of fostering
lawlessness and inspiring violence, and it has
faced intense oppositions from rural
landholders, who have organized themselves
into the União Democratica Ruralista
(Rural Democratic Union, or UDR).
Members of the MST and UDR have often
clashed violently over the issue of land
redistribution. While the UDR believes these
bloody clashes are evidence of the dangerous
nature of the MST, others argue that the
violence is actually a result of powerful
landowners’ attempts to retain the rights to all
of their land, even tracts that they are not
using productively.
This growth in landless activism was met with
harsh
repression
from
conservative
landholding interests; in fact, Amnesty
International recorded 976 killings of rural
land activists between 1985 and 1996. Two
violent episodes stand out as particularly
horrific. As Amnesty explains, “Military Police
killed nine landless peasants at the Santa Elina
Estate, Corumbiara, Rondônia state on 9
August 1995” as they attempted to evict the
peasants from the land they had been
occupying. Less than a year later, Military
Police “slaughtered 19 landless peasants on
the PA I50 road at Eldorado de Carajás, Pará
state, on 17 April 1996” as they cleared the
peasants from a bridge the MST had been
occupying in protest against what they saw as
they government’s slow-moving land reform.
Unlike the UDR, Amnesty argues that this
violence was the result of pressure from
conservative landowners, not the product of
overzealous action by the MST. Amnesty
reports that “the state authorities appear to
have been more influenced by the concerns of
local landowners than by a concern for the
physical safety of demonstrators, squatter
peasants and police. Police employed
excessive force, carried out extrajudicial
executions and engaged in acts of torture and
violence designed to wound, maim and
terrorize the victims” (Amnesty, 1/19/1998).
These two positions regarding land reform are
responses to a problem of unequal land
distribution that is deeply rooted in Brazilian
history. Brazil’s plantation-based colonial past
bequeathed it with extreme inequality in land
ownership, as the Portuguese crown granted
gigantic tracts of land to be converted into
sugar plantations run using slave labor. By the
end of the colonial era, land was already
highly concentrated in the hands of a small,
wealthy elite, yet attempts to further limit land
ownership only intensified after Brazil
declared independence in 1822 and abolished
slavery in 1888. This was designed to prevent
the rural poor from acquiring land, thus
ensuring a continued supply of cheap
plantation labor. Although reformist forces
mobilized in the mid-20th century and largescale land redistribution began to seem like a
realistic possibility, the military regime that
ruled Brazil from 1964 to 1984 crushed
popular protest and maintained the status
quo. When the dictatorship collapsed in 1984,
opposition groups were allowed to organize
themselves politically, and land activists united
to form the MST. In the 1990s, President
Henrique Cardoso redistributed land to
250,000 families—as much as all of Brazil’s
previous Presidents combined—leading the
MST to amplify its tactics in the hope of
prompting further reform. The number of
Land occupations—and the violence that
often accompanies them—have declined
somewhat since they peaked in 1998, largely
due to efforts by Brazil’s current president,
Luiz Inácio Lula da Silva, to accelerate the
pace of land redistribution. Since he assumed
office in 2003 on a platform of workers’ rights
and land reform, Lula has publicly claimed to
support the MST, although—like presidents
before him—he has failed to set concrete
goals for land redistribution, and many within
the MST believe that he is not doing enough
to change Brazil’s highly unequal system of
land ownership. As a result, land
occupations—such as the one described in
4
this bulletin—have continued during Lula’s
nominally pro-redistribution presidency.
of officers accused of corruption very
difficult. Amnesty concludes that “the lack of
an independent and rigorous initial
investigation into human rights violations is a
major factor in maintaining the climate of
almost total impunity in Brazil” (Amnesty,
1/19/1998).
Legal and Policy Background
Whether MST activists are seen as innocent
victims, violent agitators, or a combination of
the two, their actions are set against a
complicated and contentious legal and policy
background. At its heart is the tension
between private property and government
intervention to guarantee the welfare of all
citizens. The Brazilian constitution attempts
to balance these two competing ideals by
protecting private property rights while
simultaneously declaring that land must “serve
a social function.” The MST has interpreted
this phrase to mean that landowners do not
have a right to land that they are not using
productively, and as a result the organization
claims a constitutional basis for its land
occupations. Individual Brazilian courts have
ruled differently on this point, and as a result,
the legality of land occupations remains
unclear under Brazil’s present constitution.
THE CASE IN CONTEXT
As we have learned, land reform in Brazil is a
point of heated and at times bloody
contention. Whether you think the state, large
landowners, or the sem terra of the MST are
responsible, there can be no denying that
deprivation, inequality, and disregard for the
law have produced a vicious cycle of violence
that has left hundreds dead. It is within this
arena of poverty, dispossession, and violence
that the events of January 2005 transpired.
Background of the Case
In the early morning hours of November 19,
2004, a group of 60 landless families affiliated
with the MST occupied a portion of the 223hectare (ha) Fazenda Sorocaba in Ubaitaba in
Brazil’s northeaster Bahia state. These 60
families—250 men, women, and children—
began immediately to set up a base camp at a
corner of the fazenda, consisting of hastily
constructed tent dwellings, outhouse and
cooking facilities, and communal buildings.
They quickly began to prepare approximately
3 ha of the estate for organic subsistence
farming, intending to plant vegetables and
grains.
Although they had received no advance
permission to occupy the land from the
fazenda’s
owner
or
from
INCRA,
representatives of the families claimed that
their occupation was legal—the bulk of the
fazenda’s land had been left dormant for
years—and that they were preparing to
cultivate only a few hectares of the large
estate. MST officials cited the Brazilian
constitution’s provision that land serve a
“social function” and the landowner’s refusal
to productively use his land to evidence the
legitimacy of their occupation.
A second major element contributing to rural
violence in Brazil is the culture of impunity
that is embedded deeply in Brazil’s law
enforcement
and
judicial
systems.
Perpetrators of violence against the sem terra
are rarely punished. Of the 976 murders of
rural land activists previously cited, “only 56
have come to trial and only seven of these
have resulted in convictions” (Amnesty,
1/19/1998).
Many suspect that corruption of the Military
Police—Brazil’s largest police force, under the
control of state governors—accounts for
much for this violence, with private gunmen
and police officers working for wealthy
landowners as hired killers. According to
Amnesty, “a federal prosecution service
investigation into 173 cases of land conflictrelated killings involving hired gunmen
revealed that 72 cases had the direct
participation
of
military
policemen”
(Amnesty, 1/19/1998). Yet, under Brazilian
law it is the Military Police who investigate
themselves, making the successful prosecution
5
The fazenda’s owner, Fernando Rodrigues da
Silva, strenuously disagreed with the MST’s
claims that the occupation had been legal
under Brazilian law. Fearing that the sem terra
would attempt to build a permanent
settlement on his land and make a legal claim
to obtain the deed to a portion of his fazenda,
Rodrigues immediately filed an ação de
manutenção de posse, or petition for defense of
possession, in local court to expel the sem terra
from his land.
and dispatched the Bahia Military Police. On
January 8, 2005, a group of nearly 50 offers
set up a base camp on a field several
kilometers from the landless workers’
settlement. In the early morning hours of
January 10, these officers surrounded the
settlement and began to move in on it at 5am,
using bullhorns and spotlights to order its
inhabitants to evacuate. Tensions quickly
escalated and, shortly after the operation had
begun, shooting erupted. (Each side blames
the other for beginning the confrontation).
Both the military police and some of the sem
terra were armed, and the fighting took a
heavy toll on both sides. By the time fighting
ceased at approximately 5:45am, more than
100 individuals had been arrested, 28 had
been injured—seven members of the military
police and 21 sem terra—and 11 lay dead.
Among the dead were two military police
officers, six landless adult men, one landless
adult women, and two children of 5 and 9
years, respectively.
On the morning of November 25, while the
local court was still considering Rodrigues’
ação, a group of approximately 20 armed men
in civilian dress arrived at the landless families’
compound. The gunmen, who ordered the
families to disperse immediately, were met
with resistance from the sem terra, and a minor
confrontation ensued, in which the sem terra
threw rocks and sticks and the armed gunmen
fired several shots in the direction of the
families’ settlement. Neither side sustained
major injuries, and after several minutes the
gunmen retreated, promising to return if the
settlement was not promptly evacuated.
In the wake of what they termed the
“Ubaitaba Massacre,” the MST—with the aid
of Human Rights Watch (HRW) and the
Center for Justice and International Law
(CEJIL)—filed a lawsuit against the state,
accusing the Military Police of murder and
other human rights violations in their
execution of the Ubaitaba court’s ação. An
investigation was launched into the conduct
of the police, but—as it was carried out by the
Military Police themselves—the MST refused
to acknowledge its legitimacy. After two years
of investigation and extensive court delays,
the case finally came to trial in October of
2007. The local court decision was swift; the
judge ruled against the MST after only two
days of testimony. Believing that a biased
investigation had rendered a fair trial
impossible and that as a result, further appeal
would be useless, the MST submitted its claim
to the Inter-American Court of Human
Rights. It is now up to you to evaluate the
MST’s case (they are the “claimants”) and the
response of the Brazilian state (it is the
“defendant”) to determine whether violations
of the Inter-American Convention on Human
Rights occurred on January 10, 2005.
On November 29, the local court ruled in
Rodrigues’ favor, determining that the MST’s
occupation had been illegal and ordering the
60 families to leave Sorocaba. If police action
were necessary to remove the sem terra, the
judge declared, it should be “carried out with
moderation and a great deal of caution, so
that it would not end up in tragedy.” A court
officer delivered the order to the occupying
families, but he was met with hostility and the
families refused to comply with the order.
Hoping to avoid bloodshed, the court officer
encouraged state and local officials to
negotiate a peaceful solution to the conflict.
State agents, along with local officials of the
Catholic Church, began negotiations with the
landless families. Rodrigues refused to
participate in these negotiations; instead, the
estate owner began lobbying the governor to
dispatch members of the Military Police to
remove the sem terra from his land.
After several weeks of negotiation, the
governor complied with Rodrigues’ demands
6
respect rights) of the American Convention,
in addition to Articles 1, 6, and 8 of the InterAmerican Convention to Prevent and Punish
Torture.
Underlying Issues
A number of tremendously broad issues—
including poverty, dispossession, unequal land
distribution, and the slow pace of land
reform—have helped to create the cycle of
violence at the heart of this case. These issues
raise fascinating and critical questions
surrounding the nature and legality of the
MST’s behavior. Does the organization have a
constitutional justification for its actions? Do
its tactics promote violence? What alternatives
would be more desirable or effective for
Brazil’s landless workers?
The claimants root their case in a broad
defense of the MST’s tactics. They assert that,
due to vast inequalities in land ownership in
Brazil, very little of the countryside remains
for poor farmers to cultivate, and vast tracts
of land sit unused. As living conditions for
paid sharecroppers are very basic and
opportunities for poor rural immigrants to
Brazil’s cities are few, occupying and
cultivating land offers landless peasants their
only hope for a life of dignity and freedom
from dire want.
More directly relevant to this specific case are
the issues surrounding Brazil’s rural security
policy, especially its investigation practices.
United Nations Special Rappeteur on
Extrajudicial Killings Asma Jahangir has
observed that the Brazilian security services
are marked by a culture of “systematic
impunity” (UN 1/28/04). Does Brazilian
law—which leaves the Military Police
responsible for investigating allegations of
abuse against their own officers and
commanders—contribute to this culture?
What impacts does such a culture of impunity
have on human rights in Brazil?
Keep these underlying issues in mind as you
consider the specific the claimants’ and
defendants’ cases. You will revisit these
questions later in this bulletin, as you begin to
prepare your position papers.
In reconstructing the events leading up to the
January 10 raid, the claimants argue that the
local court and military police showed a clear
preference for the landowner and a disregard
for the human rights of the occupying
families. They contend that Rodriguez and
other landowners from the area—who, they
claim, had an interest in preventing the MST
from gaining a foothold in the area—placed
undue pressure on local and state officials to
end negotiations prematurely and begin police
action to evict the sem terra from Sorocaba.
Rather than negotiate a peaceful end to the
conflict, Rodrigues—with the support of the
UDR—sought a violent solution. His desire
for violence instead of negotiation, the
claimants contend, is evidenced by the
gunmen the claimants suggest that he hired to
intimidate and provoke the sem terra on
November 25, before the local court had even
ordered them to evacuate the fazenda. As a
result of the position of Rodrigues and the
UDR, the claimants maintain, a peaceful
solution was rendered impossible.
THE CASE FOR THE CLAIMANTS
The claimants’ case revolves around two
central claims. First, the claimants allege that
the Brazilian state violated their human rights
during the Ubaitaba raid of January 10, 2005.
Second, they contend that certain practices of
the Brazilian security services—including their
military-style tactics and their practice of
conducting investigations internally—are
themselves in contravention of the American
Convention. The claimants allege violation of
Articles 4 (right to life), 5 (right to humane
treatment), 8 (right to a fair trial), 25 (right to
judicial protection), and 1(1) (obligation to
When the Military Police did begin preparing
for their raid, the claimants argue, they did so
in a way that directly contradicted the local
judge’s order that it be executed “with
moderation and a great deal of caution.” Their
tactics, weaponry, and general mentality were
more characteristic of a military operation
than a police action, and Military Police
7
officials deliberately lied about the time of the
raid to keep journalists off of their track,
suggesting that they had intended from the
beginning to conduct the operation in a
manner incompatible with international or
Brazilian law.
members who continued to resist arrest.
Unwilling to fire at these human shields, the
three
resisting
gunmen
surrendered
themselves and, although they had abandoned
their weapons, were immediately executed by
the Military Police officers who had captured
them.
When the raid did commence, the claimants
contend, it was carried out with flagrant and
intentional disregard for human rights. It was
begun at the highly unusual and semi-dark
time of 5am—a military tactic that further
reduced the likelihood of a peaceful outcome.
While the Military Police reported than
approximately 50 officers took part in the
operation, the claimants have presented
testimony from sem terra and from
independent observers contending that there
were in fact approximately 70 armed
combatants, some of whom were not
uniformed. Members of the occupying
families identified these additional gunmen as
members of the original armed group hired by
likely hired by Rodrigues on November 25,
and claim that their presence is evidence of
Rodrigues’ undue influence over the military
operation.
As the armed conflict drew to a close around
5:45am, the Military Police collected those
that they had arrested—more than 100
individuals, including men, women, and
children—and transported them to the base
camp they had established several kilometers
away. They collected the remaining corpses
from Sorocaba and proceeded to burn the
occupying families’ settlement to the ground.
Once there, the claimants contend, Military
Police officers refused medical treatment to
many of those injured during the conflict and
began abusing prisoners indiscriminately,
raping one woman and two underage girls,
and beating many of the male prisoners—two
so severely that they died within hours. All
prisoners were released at the end of the day
on January 10, when the Military Police
disassembled their camp. They were ordered
never to return to Rodrigues’ land and told to
leave the state of Bahia, but no official
charges were ever pressed against any of those
detained.
The claimants acknowledge that, after the
November 25 incident, the sem terra developed
a self-defense strategy and acquired several
small arms for their own protection. Yet when
the Military Police arrived on January 10, the
claimants argue, members of the sem terra did
not fire first. Instead, they claim, the Military
Police and other gunmen opened fire on
those defending the camp and began to shoot
indiscriminately at the settlement, where most
of the 250 men, women, and children were
sleeping. Those asleep quickly awoke and
began immediately to flee the battle scene in
which they unexpectedly found themselves.
All told, eight sem terra were confirmed dead—
one woman, three men, and two children
were killed during the armed conflict, and two
more in the hours following the battle—and
one man was reported missing. The claimants
have presented eyewitness testimony stating
that this individual—a 22-year-old male—was
driven away in a military police vehicle at
approximately 6am. A corpse matching the
rough description provided by the victim’s
family washed up downstream on the bank of
a nearby river on January 13. The corpse was
handed over to the Military Police, who
claimed to be unable to make a positive
identification.
As the military police continued their advance
on the camp, they continued to fire
indiscriminately into the camp, killing several
innocent sem terra, including one woman and
two young children. They began arresting
those they could capture, handcuffing some,
tying others to trees, and using several women
and children as human shields as they
advanced on one group of three armed MST
The MST immediately filed a complaint with
the state and national authorities, who ordered
an investigation into the raid, to commence
immediately. As Brazilian law stipulates, the
8

Military Police were themselves put in charge
of the investigation. Despite the order that the
investigation begin immediately, nearly a
month
elapsed
before
the
inquiry
commenced. The claimants contend that the
investigation was conducted in a slow and
highly irregular manner, taking nearly two
years and producing no substantial evidence.
Investigators refused to speak with a number
of the eyewitnesses gathered by the MST, and
their forensic analyses were—in the opinion
of the independent experts hired by the
claimants—sloppy and often misleading. This
biased investigation, the claimants argue,
reflects the final stage of an operation
intended from the beginning to weaken the
MST and favor large landowners by
murdering and otherwise violating the human
rights of the occupying individuals while
granting Rodrigues and the Military Police
impunity for their actions.


Evidence
The claimants provided a number of pieces of
evidence. Beyond those facts mentioned
above, this evidence documents that:






Journalists were explicitly told that no
police action was to take place before
January 15 and were mislead as to the
location of the MST settlement.
During the raid, many members of the
Military Police wore bandanas and other
items to obscure their faces and covered
their nametags. They parked their vehicles
at a distance and covered license plates
and other identifying information.
The Military Police burned the settlement
and removed corpses after the raid,
making forensic reconstruction of the
day’s events impossible.
Although over 100 people were arrested
in the wake of the raid, all were released
and none faced criminal charges,
suggesting that legal aims were never the
primary concern of the Military Police.
Nearly all of the bullets found at the scene
of the crime came from high-grade
weapons, which the sem terra would have
been unlikely to possess.


Independent forensics experts from the
Universidade de São Paulo hired by the
MST visited the ruins of the MST
settlement and reviewed the work of
Military Police forensic analysts and
concluded that their work had been
insufficient and potentially compromised
by political considerations. As the Military
Police did not permit these independent
experts to access the bodies of victims,
the local court deemed their report
inadmissible.
These experts traced a portion of the
bullets and spent casings found at the
fazenda to weapons purchased by the
Military Police. These bullets ought to
have been traceable to specific guns,
although the police claimed to be unable
to provide information linking any of the
bullets to individual officers’ weapons.
No attempt was made to collect DNA or
other samples from the three individuals
who had accused the Military Police of
rape.
Eyewitnesses, including a journalist and an
Ubaitaba town commissioner, reported
seeing Military Police officers beating sem
terra at their encampment on the
afternoon of January 10.
Medical examinations by the Military
Police revealed that the wounds of the
three men who died at Sorocaba were
characteristic of those produced by bullets
fired at point-blank range.
During trial, the local judge—the same
one who had given the order to evacuate
the occupying families from Sorocaba—
agreed to hear only five of the nineteen
eyewitnesses the MST had been intending
to call, as this was the number of
witnesses the Military Police had called
and “time was precious.”
Questions a Judge Might Ask
A judge evaluating the case brought by the
Ubaitaba victims would be inclined to ask
critical questions. These questions would
attempt to probe inconsistencies in the
claimants’ logic, to suggest possible
weaknesses in the connections between
9
evidence and its intended conclusions, and to
cast the case in a new light based on
considerations not raised by the claimants.
The following questions are just a few
examples of the sort a judge might ask.










invade Fazenda Sorocaba, the defendants
argue, but these reasons are beyond the scope
of this court. Instead of ruling on Brazil’s
current scheme of land ownership, the
defendants believe that the IAHCR needs to
focus exclusively on the legal decision of the
Ubaitaba court to expel the MST from
Sorocaba, and on the manner in which the
court’s ação was executed.
Why did the MST-affiliated families
occupy land to which they had no deed?
Why did the families refuse to comply
with the lower court order and evacuate
the land?
Under what circumstances would the
families have left Sorocaba?
Rodrigues paid market value for his
land—why should he be forced to
sacrifice it against his will? In what
circumstances can private property rights
be ignored?
Why did the occupying families purchase
weapons and develop a plan to resist the
police if they had been seeking to avoid
conflict?
How can the MST justify its legal
accusations against the Military Police
when its own members had explicitly
refused to abide by the rule of law?
What incentive would Military Police
officers have had to provoke a violent
confrontation?
How sound can independent forensic
analysis be if the analysts are not granted
access to all of the evidence? Why should
the opinions of experts hired by the MST
be treated as any more objective than
those of the Military Police investigators?
Who should conduct investigations of the
Military Police, Brazil’s main police force?
Why did the MST not appeal the lower
court’s decision in a higher Brazilian
court, rather than taking their case to the
IACHR?
The MST entered Sorocaba with the
deliberate intention of violating Brazilian law
and illegally occupying a portion of the estate.
The sem terra never had any intention of
complying with the eviction order delivered
by the Ubaitaba court. In fact, they behaved
violently from the very beginning, as was
evident in their response to the arrival of the
Ubaitaba court officer. They were unwilling to
budge in negotiations, the defense contends,
dooming all sides to a direct confrontation
rather than a peaceful, negotiated solution.
After they learned of the local court’s
intentions to evict them from Sorocaba, the
sem terra devised a deliberate strategy to
confront the police, which they put into
action during the police raid demanded by the
Ubaitaba court’s ação.
Because of the intentions of the MST, the
situation in which the Military Police found
themselves was dangerous and unpredictable.
Many officers have died as a result of the
MST’s confrontational tactics in the past.
Confronting similar tactics in Ubaitaba placed
Military Police officers directly in harm’s
way—in fact, two died during the
confrontation. Thus, the defendants maintain,
it was the MST’s choice of tactics that created
the conditions for violent confrontation; the
Military Police, in choosing tactics appropriate
to the threat they had faced from occupying
groups in the past, were merely responding in
the only secure way to a set of foolish and
dangerous tactical decisions by the occupying
families themselves.
THE CASE FOR THE DEFENDANTS
The defendants strongly object to the
claimants’ attempts to paint the Military Police
as the aggressor in the Ubaitaba conflict, and
to bring broader issues of land distribution
and economic equality before the IACHR.
The MST might have had certain reasons to
When the Military Police arrived at Sorocaba
on the morning of January 10, the defendants
claim, they were met almost immediately by
gunfire from hostile armed guards who were
clearly following a pre-established plan to
10
repel any possible police action. They were
forced to return fire; as the gunmen were
shooting from within a densely populated
settlement, it was nearly impossible to
completely ensure that non-combatants could
escape unharmed.
Rights Defense Council, an independent
federal agency, also investigated the case and
submitted its findings to the local court; it is
continuing to monitor the situation and can
guarantee that appropriate domestic remedies
will be available to the MST. After the local
court’s ruling, the MST still has the
opportunity to make two further appeals,
including to the very pro-human rights
Brazilian Supreme Court, a body which is
unlikely to be influenced by local land politics.
Until these steps are taken, the defendants
maintain, the IACHR should not be ruling on
this case.
All of those authorized to participate in the
raid were highly trained soldiers, the
defendants maintain; any involvement of
private gunmen was the decision of the
landowner and the Military Police were in no
way responsible. There was absolutely no
collusion between private security forces and
the Military Police.
The defendants concludes its case with a plea
for legality as a means to solve Brazil’s social
problems. In their view, land reform
undertaken through legal channels, not illegal
land invasion, represents the only way to
break the cycle of poverty and violence that
the MST’s rash and deadly actions have only
deepened.
After neutralizing hostile combatants, the
defendants explain, the Military Police
followed standard procedure and evacuated
the injured and those they had arrested. They
then burned the occupiers’ settlement to
prevent the MST from resettling it, not to
obscure evidence.
After the MST, HRW, and CEJIL filed their
complaint, an investigation was launched into
the raid. This investigation, like all others, was
conducted by an entirely independent branch
of the Military Police and was not subject to
influence by any other member of the
organization. The defense contends that the
MST’s frustration with the police investigation
arose because the investigator did not find the
strong evidence for which the MST had
hoped, so they bought their own more
favorable opinion, which was based on such
scanty evidence as to be inadmissible in court.
Moreover, the defendants remind, eyewitness
testimony not backed up by hard evidence—
such as that offered by many of the MST’s
witnesses—is unreliable, as everyone is
subject to undue influence.
Evidence
The defense presented numerous pieces of
evidence. Beyond what was mentioned above,
this evidence indicates that:




The IAHCR stipulates that all domestic
judicial remedies must be exhausted before a
case can be brought before the Court. The
defendants argue that even if particular
individuals committed certain excesses—
including possible private gunmen hired by
the Rodrigues—domestic remedies have not
nearly been exhausted. Brazil takes human
rights very seriously. The country’s Human

11
As the MST’s hired experts acknowledge,
the majority of bullets found at the crime
scene were fired from non-police
weapons.
MST literature found at the scene
instructed the occupying families to
“fervently resist forced dislocation”
The MST has openly admitted that it
crafted a “self-defense” plan to defend
against attempts to remove occupiers
from their settlement.
The occupying families’ negotiating
position hardly changed during several
weeks of discussions, as they refused any
solution that would not allow them to
remain on Rodrigues’ land.
An Ubaitaba town commissioner who
also testified for the claimants reported
clearly hearing Military Police offers
demand that the sem terra guards drop





their weapons before any firing began; this
order was ignored.
A defense eyewitness reported seeing
armed combatants firing from within the
civilian-filled central settlement.
Military Police medics were requested as
soon as hostilities ceased; treatment for
injuries was available on-site where
detainees were kept after hostilities ceased.
Many of the eyewitnesses that the MST
had wanted to call to the stand during trial
have direct ties to the organization,
rending their testimony less than impartial.
The Military Police investigation produced
many revelations damaging to the Military
Police themselves, clearly proving the
independence of the investigation.


Can the Military Police truly conduct an
independent, impartial investigation of
their own organization?
Given the MST’s concerns over the
impartiality of the Military Police
investigation, is it possible that further
appeals could yield a truly fair trial?
Doesn’t the responsibility to restraining
private gunmen lie with the Military
Police? If not, who bears responsibility for
seeing that private gunmen don’t interfere
illegally with police operations?
THE POWER OF THE COURT
A judge evaluating the defendants’ case would
ask questions with the same ends in mind as
when evaluating the claimants’ case. Again,
the following are only a few examples of the
sorts of questions a judge would be inclined
to ask.
While it is important to thoroughly
understand the positions of both the
claimants and defendants, in order to render a
decision you will also need to familiarize
yourself with the nature and structure of the
Inter-American Court of Human Rights. This
section will introduce you to the court itself,
cite relevant past decisions, and point to
collaborators outside of the court who will
necessarily be critical partners in reaching and
implementing a decision.

Function and Composition of the Court
Questions a Judge Might Ask






Why did the military police burn the
occupiers’
settlement
despite
the
destruction of evidence that this burning
entailed?
What interest would the MST members
have had to start a violent confrontation?
Was there ever a realistic possibility that a
police raid would proceed without
violence? Why wasn’t a greater effort
made to avoid physical confrontation?
Why were military-style tactics employed
during the raid of January 10?
What does the presence of non-police
bullets at the scene prove if private
gunmen were suspected to be present?
Does a witness’ membership in the MST
necessarily mean that his or her testimony
is unreliable?
If the goal of the police operation was to
ensure compliance with the law, why were
no charges filed against any members of
the MST?
The IACHR began operating in 1979, but its
roots run several decades deeper into history.
The Organization of American States (OAS),
the IACHR’s parent organization, was
officially created by treaty in 1948, although
the annual meetings of American countries
from which it took form—known as the “Pan
American Union”—had been occurring since
1890. In 1959, the OAS’ member states
formed the Inter-American Commission on
Human Rights to investigate human rights
violations by or within member states. The
work of this Commission was concretized in
1969 with the ratification of the American
Convention on Human Rights, a document
that took effect in 1978 with the goal of
“consolidating in this hemisphere, within the
framework of democratic institutions, a
system of personal liberty and social justice
based on respect for the essential rights of
man.” One of the provisions of the Charter
was the creation of a judicial body to hear
12
cases concerning human rights violations; this
body, of course, is the IACHR. Cases can
either be brought to the Court by member
states or by the Commission; individual
citizens thus must secure the approval of the
Commission before they can bring a case
before the Court.
University of Minnesota’s excellent Human
Rights Library (www.umn.edu/humanrts);
important documents related to these two
cases are also cited in the bibliography at the
end of this bulletin. Please visit these sites and
familiarize yourself with these cases and their
outcomes, along with other relevant cases you
encounter.
To carry out its adjudicatory functions, the
court relies on seven judges appointed by
member states and elected to six-year terms
by the OAS General Assembly. One of the
seven judges is selected to serve as President
and another as Vice-President. No country
can be represented by more than one judge at
any given time. However, if a country is called
before the Court as a defendant at a time
when no judge from that country is serving on
the court, that country may appoint a judge
on an ad hoc, or temporary, basis to deliberate
the case.
Needed Collaborators
Given the scope of the issues raised by this
case, a number of collaborators will be
required to adjudicate both sides’ competing
claims and to implement a decision. In
addition to the claimants, the cooperation of
the Brazilian state will be crucial. In order to
implement any far-reaching reforms, the
collaboration of the security apparatus—
especially the Military Police—will be critical,
as will the involvement of legislators and
other political leaders, who alone are capable
of changing land-use and police investigation
policies.
At present, the seven justices serving on the
Court are from Chile (which holds the
Presidency), Peru (Vice-Presidency) Jamaica,
Costa Rica, the Dominican Republic, Mexico,
and Argentina. As Brazil is being called as a
defendant in this case, it will be entitled to
appoint a judge of Brazilian nationality to
serve as well.
Reports produced by human rights groups
with extensive experience dealing with rural
violence and land use policy, such as Amnesty
International and the United Nations
Commission on Human Rights, will aid in
adjudicating the case, and the OAS’ own
Commission on Human Rights will be critical
in implementing and following up on any
judgment reached in this case.
Previous Action
The IAHCR has considered several cases that
are directly relevant to Ubaitaba v. Brazil. One
of the most paradigmatic is Corumbiara
Massacre v. Brazil (case 11.556), admitted
in 1998 and decided in 2004. Another highly
relevant case, which will be tremendously
helpful in understanding the issues
surrounding police investigations, is El
Dorado Dos Carajás v. Brazil (Case
11.820), admitted in 2003 and still pending
decision.
FRAMING POSITION PAPERS
Now that you have had an opportunity to
review each side’s major arguments and to
learn a bit about the IACHR itself, it is time
for you to draft your own position papers.
You will be responsible for writing two
separate position papers; each should be
about one double-spaced page in length.
One paper should argue on behalf of the
claimants and the other on behalf of the
defendants. In each position paper, you’ll
need to present arguments and back them up
with specific, carefully cited evidence. This
section of the bulletin will give you useful
advice that will help you both write an
It is extremely important that you be
familiar with these two cases, as they have
created various legal precedents that will be
critical in understanding the present case.
These cases are available online both at the
OAS’ website (www.oas.org) and the
13
excellent position paper and frame a winning
argument. This may be the most helpful part
of this entire bulletin!
IAHCR mandate Brazil to take to
ameliorate the situation?
This brief will be a very useful resource for
you as you prepare your position papers, but
it will not be sufficient. In order to create a
compelling argument—and to argue a
convincing case—you will need to consider
the precedents established by past
IACHR decisions, including those cited in
this brief. This will necessitate additional
research on your part. In addition, you should
endeavor to conduct further research into the
MST, land reform policy, and violence in rural
Brazil. The bibliography at the end of this
brief is a good point of departure for your
independent research. Remember that
everybody participating in the session will
have read this brief. The only way to make
your argument original and to have an
advantage over the other side is to conduct
your own research.
As you compose your position papers, you
will want to consider some broad questions
to help structure your thinking. You do not
have to answer these questions directly in
your paper, but brainstorming answers to
them will help you to organize and improve
your cases. Think about:





Which aspect of this case is most
interesting to you, and why?
Which of the arguments made by the
claimants/defendants
was
most
compelling? Which piece of evidence?
Which of the claimants’/defendants’
arguments was least compelling? Which
piece of evidence?
What different interpretive possibilities
does the evidence presented by both
claimants and defendants suggest?
How does the specific case of the victims
of the Ubaitaba massacre relate to the
broader issues of rural violence and land
reform?
One final note: Remember that when we meet
in March, we will be arguing about whether
specific articles of the American Convention
were violated or not. Thus, you should base
your thinking and your arguments in the
text of the American Convention itself. As
much as you can, cite specific words and
sentences from the Convention, and be
explicit about exactly which article or clause
has been violated by each abuse you cite or
refute.
After addressing these broad considerations,
you will want to set about writing both of
your position papers. Each of your position
papers needs to explicitly address the
following three essential questions:
(1) Were all domestic judicial remedies
exhausted? Did the claimants adequately
demonstrate that a fair trail was
impossible in Brazil?
(2) Did the specific violations of the
American Convention alleged by the
claimants take place? Whether you answer
yes or no, what evidence supports your
answer?
(3) Do any broader aspects of Brazilian
policy (e.g. forced land evacuations,
military-style policing tactics, mandating
that investigations into abuses committed
by the Military Police be conducted by the
Military Police themselves, etc.) violate the
American Convention? Why or why not?
If they do, what concrete steps should the
AIMS OF THE SESSION
When we convene this coming March, we will
have a number of substantial and challenging
issues to address. We will primarily need to
make two determinations. First, we will have
to debate the merits of the evidence presented
by both claimants and defendants surrounding
the January 10 raid. Then, taking into account
our decision on this particular case, we will
need to draw conclusions about the
lawfulness of Brazil’s current policing
practices in rural communities and about the
MST and land reform in general. Our
decisions will need to be rooted in the clauses
of the American Convention; we will only be
14
able to condemn specific violations of the
Convention and order reforms that will bring
Brazilian practice into line with its
requirements.
collective welfare that a more just and
inclusive Latin America will be created.
BIBLIOGRAPHY
As is the case with the preparation of your
position papers, meeting the aims of the
session will require further research and
critical and creative thinking on your part.
You will want to ground your thinking not
only in the logic of the claimants’ and
defendants’ cases, but in the procedure and
precedent established by past IACHR
decisions, as well. Thoroughly researching not
only the issues at hand, but also the structure
and history of the Court itself, will guarantee
that our time together is both productive and
enjoyable.
The following resources were consulted in the
preparation of this report. Where available, web links
to the sources have been included.
Amnesty International. “Brazil: Corumbiara
and Eldorado de Carajás: Rural Violence,
Police Brutality and Impunity,” 19 January
1998.
Amnesty International. “Brazil: Eviction in
Cascavel Must not Become an Excuse for
More Violence,” 11 June 2008.
SUMMARY AND CONCLUSIONS
Amnesty International. “Brazil: Land Activists
Renewed Target of Criminal Justice
System,” 11 July 2008.
This bulletin has presented you with a
tremendous amount of information about the
background and circumstances of the
Ubaitaba Massacre. You have learned about
the cycle of poverty, violence, and inequality
that plagues the Brazilian countryside. You
have also explored the fictionalized case of a
bloody conflict between the MST and a Bahia
landowner, one, which exemplifies many of
the greatest challenges facing rural Latin
America. Finally, you have been briefed on
the nature and history of the IAHCR and
been charged with the lofty aim of reconciling
the security needs of the Brazilian state and
the private property rights of its citizens with
the international human rights guaranteed by
the American Convention.
Amnesty International. “Brazil: Police
Violence and the 500th Anniversary,” 19
December 2000.
Branford, Sue and Jan Rocha. Cutting the Wire:
The Story of the Landless Movement in Brazil.
London: Latin American Bureau, 2002.
IAHCR. Corumbiara v. Brazil, Case 11.556,
Report
No.
77/98
(1998).
<www1.umn.edu/humanrts/cases/1998/
brazil77-98.html>
IAHCR. Corumbiara v. Brazil, Case 11.556,
Report
No.
32/04
(2004).
<www1.umn.edu/humanrts/cases/1998/
32-04.html>
The tasks that lay before you—both as you
prepare for the conference and as you debate
your positions together in March—are not
easy, but they are critically important. Only by
engaging the occasionally competing demands
of economic security and human rights can
we find a policy that respects individual
liberties while ensuring that the private
property on which the Brazilian economy is
built remains secure. It is in this interplay of
respect for private enterprise and concern for
IAHCR. El Dorado dos Carajás v. Brazil,
Case 11.820, Report No. 4/03 (2003).
<www.cidh.org/annualrep/2003eng/Bras
il.11820.htm>
Kay, Cristóbal. “Reflections on Rural
Violence in Latin America.” Third World
15
Quarterly, Vol. 22, No. 5 (October 2001):
741-775.
Fazenda—An hacienda, or large agricultural
Martins, Monica Dias. “The MST Challenge
to Neoliberalism.” Latin American
Perspectives, Vol. 27, No. 5 (September
2000): 33-45.
Instituto Nacional de Colonozição e
Reforma Agrária (INCRA)—Brazilian
government agency responsible for
instituting land reform
MST.
“Why
We
Are
Struggling.”
<www.mstbrazil.org/?=node/570>
Land Redistribution—A policy whereby the
government acquires and dismantles large
estates, distributing the resultant small
parcels of land to landless farmers
estate
Ondetti, Gabriel. Land, Protest, and Politics: The
Landless Movement and the Struggle for
Agrarian Reform in Brazil. University Park,
PA: The Pennsylvania State University
Press, 2008.
The Organization of
<www.oas.org>
American
Movimento dos Trabalhadores Rurais sem
Terra
(MST)—Brazilian
grassroots
movement founded in 1984 with the aim
of redistributing unproductive land to the
sem terra; has an estimated 1.5 million
members
States.
Sem Terra—A landless person (literally
“Sem-terra invadem fazenda na Bahia.”
Agência Folha, 19 November 2004.
<www1.folha.uol.com.br/folha/brasil/ult
96u65801.shtml>
União
Democrática
<www.udr.org.br>
“without land”)
União Democrática Ruralista (UDR)—An
organization of rural landowners opposed
to the MST
Ruralista.
United Nations Commission on Human
Rights. “Report of the Special Rapporteur,
Asma Jahangir: Mission to Brazil.” 28
January 2004.
APPENDIX II: RELEVANT ARTICLES
FROM THE AMERICAN
CONVENTION ON HUMAN RIGHTS
The following relevant articles and clauses
have been excerpted directly from the
American Convention on Human Rights.
United Nations Commission on Human
Rights. “Report of the Special Rapporteur,
Philip Alston: Follow-Up Country
Recommendations.” 28 February 2006.
Article 1. Obligation to Respect Rights
(1) The States Parties to this Convention
undertake to respect the rights and
freedoms recognized herein and to ensure
to all persons subject to their jurisdiction
the free and full exercise of those rights
and freedoms, without any discrimination
for reasons of race, color, sex, language,
religion, political or other opinion,
national or social origin, economic status,
birth, or any other social condition.
….
APPENDIX I: GLOSSARY
Ação
de Manutenção de Posse—A
“Petition for Defense of Possession,” a
legal act seeking to evict individuals
occupying a piece of private property
Dispossessed—Deprived of possessions (in
this case, land)
Article 4. Right to Life
16
(1) Every person has the right to have his
life respected. This right shall be protected
by law and, in general, from the moment
of conception. No one shall be arbitrarily
deprived of his life.
….
(e) the inalienable right to be assisted
by counsel provided by the state, paid
or not as the domestic law provides, if
the accused does not defend himself
publicly or engage his own counsel
within the time period established by
law;
(f) the right of the defense to examine
witnesses present in the court and to
obtain the appearance, as witnesses, of
experts or other persons who may
throw light on the facts;
(g) the right not to be compelled to be
a witness against himself or to plead
guilty; and
(h) the right to appeal the judgment to
a higher court.
(3) A confession of guilt by the accused
shall be valid only if it is made without
coercion of any kind.
(4) An accused person acquitted by a
nonappealable judgment shall not be
subjected to a new trial for the same
cause.
(5) Criminal proceedings shall be public,
except insofar as may be necessary to
protect the interests of justice.
Article 5. Right to Humane Treatment
(1) Every person has the right to have his
physical, mental, and moral integrity
respected.
(2) No one shall be subjected to torture or
to cruel, inhuman, or degrading
punishment or treatment. All persons
deprived of their liberty shall be treated
with respect for the inherent dignity of the
human person.
….
Article 8. Right to a Fair Trial
(1) Every person has the right to a
hearing, with due guarantees and within a
reasonable time, by a competent,
independent, and impartial tribunal,
previously established by law, in the
substantiation of any accusation of a
criminal nature made against him for the
determination of his rights and obligations
of a civil, labor, fiscal, or any other nature.
(2) Every person accused of a criminal
offense has the right to be presumed
innocent so long as his guilt has not been
proven according to law. During the
proceedings, every person is entitled, with
full equality, to the following minimum
guarantees:
(a) the right of the accused to be
assisted without charge by a translator
or interpreter, if he does not
understand or does not speak the
language of the tribunal or court;
(b) prior notification in detail to the
accused of the charges against him;
(c) adequate time and means for the
preparation of his defense;
(d) the right of the accused to defend
himself personally or to be assisted by
legal counsel of his own choosing, and
to communicate freely and privately
with his counsel;
Article 25. Right to Judicial Protection
(1) Everyone has the right to simple and
prompt recourse, or any other effective
recourse, to a competent court or tribunal
for protection against acts that violate his
fundamental rights recognized by the
constitution or laws of the state
concerned or by this Convention, even
though such violation may have been
committed by persons acting in the course
of their official duties.
(2) The States Parties undertake:
(a) to ensure that any person claiming
such remedy shall have his rights
determined by the competent
authority provided for by the legal
system of the state;
(b) to develop the possibilities of
judicial remedy; and
(c) to ensure that the competent
authorities shall enforce such remedies
when granted.
17
APPENDIX III: RELEVANT
ARTICLES FROM THE INTERAMERICAN CONVENTION TO
PREVENT AND PUNISH TORTURE
After all the domestic legal procedures of
the respective State and the corresponding
appeals have been exhausted, the case may
be submitted to the international for a
whose competence has been recognized
by the state.
The following relevant articles and clauses
have been excerpted directly from the InterAmerican Convention to Prevent and Punish
Torture.
Article 1
The States Parties undertake to prevent
and punish torture in accordance with the
terms of this convention.
Article 6
In accordance with the terms of Article 1,
the States Parties shall take effective
measures to prevent and punish torture
within their jurisdiction.
The States Parties shall ensure that all acts
of torture and attempts to commit torture
are offenses under their criminal law and
shall make such acts punishable by severe
penalties that take into account their
serious nature.
The States Parties likewise shall take
effective measures to prevent and punish
other cruel, inhuman, or degrading
treatment or punishment within their
jurisdiction.
Article 8
The States Parties shall guarantee that any
person making an accusation of having
been subjected to torture within their
jurisdiction shall have the right to an
impartial examination of his case.
Likewise, if there is an accusation or wellfounded reason to believe that an act of
torture has been committed within their
jurisdiction, the States Parties shall
guarantee that their respective authorities
will proceed properly and immediately to
conduct an investigation into the case and
to initiate, whenever appropriate, the
corresponding criminal process.
18