The IBA’s response to the war in Ukraine
IBAHRI submits amicus curiae brief on military jurisdiction to the Federal Supreme Court of Brazil
The International Bar Association’s Human Rights Institute (IBAHRI) has submitted an amicus curiae brief to the Federal Supreme Court of Brazil on regional and international human rights law, standards and norms, regarding military jurisdiction over gross human rights violations in peacetime.
The brief was submitted to Action for Unconstitutional Review (ADI) no 5901, which challenges the constitutionality of Law no 13,491/2017. The Law, adopted in October 2017, expands military jurisdiction by amending the Military Penal Code definition of ‘military crimes in peacetime’.
As a result, federal military institutions and courts now have jurisdiction to investigate, prosecute and try federal military personnel accused of intentionally killing civilians in certain contexts. These include duties responding to orders of the President and guarantee of law and order (GLO) operations.
IBAHRI Co-Chair and former Justice of the High Court of Australia (1996–2006), the Hon Michael Kirby AC CMG, said: ‘Law no 13,491/2017 represents a regression in Brazil’s legislation. It reverts aspects of the Military Penal Code back to its stance during Brazil’s military dictatorship and undermines crucial justice system reforms that occurred during the re-democratisation period. The Inter-American Court of Human Rights and United Nations treaty bodies and special procedures have been clear – civilian courts should have jurisdiction over human rights violations, regardless of the identity of the alleged perpetrator.’
Under the Military Penal Code, approved in 1969 during Brazil’s military dictatorship (1964-1985), military courts could try military personnel accused of crimes against civilians, including intentional killings, in certain circumstances. However, in 1996, Law 9299/1996 amended the Military Penal Code to exclude intentional killings of civilians by both federal and state military personnel from military jurisdiction. Constitutional Amendment 45/2004 reinforced the competence of ordinary jurisdiction over state military personnelfor such crimes.
Over the last decade, the Brazilian government has increasingly involved the military in law and order functions, mirroring a ´regional trend toward using the armed forces [for] public security tasks´. For example, in February 2018, the government passed Decree no 9,288, which authorised ´federal intervention´ in Rio de Janeiro until 31 December 2018. The federal armed forces were granted extensive law and order powers, and the police were placed under the command of an army general.
Research suggests that the military’s expanded mandate has led to more frequent misconduct and human rights violations. According to the Public Agency for Investigative Journalism (Agência Pública de Jornalismo Investigativo), between 2011 and 2018, the federal armed forces committed 34 intentional killings in the context of GLO operations. None of the alleged perpetrators have been found guilty. In the same period, 144 military proceedings were opened against civilians accused of military crimes such as contempt, disobedience or resistance; 77 people were convicted.
IBAHRI Co-Chair, and immediate past Secretary-General of the Swedish Bar Association, Anne Ramberg Dr jur hc, commented: ‘ADI no 5901 is one of several Actions for Unconstitutional Review challenging the expansion of military jurisdiction in Brazil, all of which are pending judgement by the Federal Supreme Court of Brazil. The IBAHRI joins human rights organisations, state entities and other actors in Brazil that denounce this shift. We urge Brazil to re-align its domestic legislation with regional and international human rights standards and norms, and to ensure that civilian courts investigate, prosecute and punish human rights violations.’
Notes to the Editor
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