Setting Standards for Domestic Prosecutions of Gross Violations of Human Rights Through the ICC: Interna­tional Jurisdiction for Wilful Killings in Brazil?

Eugênio José Guilherme de Aragão*

QUOTING: In: The International Criminal Court: challenges and prospects: proceedings of an international conference organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC). Venice: EIUC, 2005, pp.13-38. ISBN: 88-317-8488-9.

 

Introduction 

The establishment of the International Criminal Court (ICC) offers to the international community a solid legal framework to deal with atrocities committed in cases when the State fails its international obligations of investigation and prosecution. The competence ratione materiae of the ICC covers aggression, war crimes, genocide and other egre­gious acts defined as crimes against humanity. Even if perpetrated in a context of gross violations of human rights, the crimes do not coincide with the notion of human rights violations: For the former individual criminal responsibility is sought, while the latter entails international state responsibility.

The ICC was by no means thought to work as an ordinary in­stance to try individuals accused of acts connected to broader defined gross violations of human rights and thus to indirectly admonish states that failed to prevent these violations. Rather, the Court was conceived to supply a fair procedure against individuals involved in very specific criminal acts of international concern, whenever no domestic court is available to carry out the trial.

Yet, this article shows that the concept of crimes against humanity allows the ICC, under extraordinary circumstances, to rule over certain gross violations meted out in a context of a formally functional democratic state. It is argued that by bearing jurisdiction over such cases the Court will have the opportu­nity to set a standard of quality and effectiveness for the domestic prosecution of crimes related to gross violations of human rights.

This article particularly refers to the problem of widespread and sys­tematic wilful killings in Brazil. The example is very illustrative. Since 1985 Brazil is under civilian rule. The country has a vigorous press and an active civil society.[1] The head of state has been elected in free and direct balloting since 1989 and the Constitution in force since 1988 proclaims the respect to human rights as a fundamental principle of the State.[2] Though, in contrast with these achievements of the late democratisation, Brazil has been strongly criticised for its failure in implementing international human rights standards. Gross violations of human rights are pervasive. Besides wilful killings, the Brazilian government has been accused of not preventing effectively torture, sexual exploitation of children, slavery-like practices and violations of indigenous peoples’ rights.[3]

As to wilful killings, this article shows that in Brazil most of this kind of violence pertains to a more ample context of low inten­sity unrest. The incapacity of the government to prevent that phenomenon is partly due to the involvement of local police and political leadership in organised crime. The judiciary has been dealing with cases of wilful killings in a bureaucratic manner, with convictions of executioners being more an excep­tion than the rule.

The article is divided in five parts. Part One deals with the antecedents of the Rome Conference, showing the insufficiency of ad-hoc tribunals to deal with mass scale atrocities in the contexts of totalitarian regimes, failed states and armed conflict. Part Two is devoted to show that the ICC, though supplanting the main criticisms directed towards ad-hoc international jurisdiction, is based on a rather conservative approach to the use of international criminal law in the pro­tection of human rights. The Court may nevertheless affirm its jurisdiction for certain acts relating to gross violations of human rights. Part Three describes the violence scheme of wilful killings in Brazil. Part Four demonstrates how this violence scheme fits in the defini­tion of crimes against humanity. Part Five assesses the prospects of the ICC in securing a standard for do­mestic prosecutions of gross violations of human rights in Brazil. 

1. The Long Road to Rome 

The treaty for the establishment of the ICC adopted in the 1998 Rome Conference (“Rome Statute”) is the result of a long lasting process, which began after World War I, when the Western allied powers decided to try the German military leader­ship and specially Emperor William II as war criminals.[4] Yet, at that time the plans to treat war atrocities as crimes prosecutable under international jurisdiction generally failed. The German gov­ernment resisted surrendering any of the accused[5] and Emperor William II sought refuge in the Netherlands, whose government refused to co-operate with the Western allied powers.[6] After World War II the idea of international justice was given a new impulse with the determination of the main powers fighting the nazi-regime to punish all “those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in (...) atrocities, massacres and executions". [7] The “major war criminals of the European Axis countries” were to be tried by an international military tri­bunal (IMT), which was to be estab­lished in Nuremberg.[8] 24 men of the political and military lead­ership of the Third Reich were initially considered to stand trial[9] but in the end 22 accused[10] of the crime of wag­ing a war of aggression, of war crimes or of crimes against humanity,[11] faced the court and one was tried in ab­sentia.[12] Among these, 12 were convicted to death by hanging,[13] 7 were convicted to sentences ranging from 10 years to life imprisonment[14] and 3 were acquit­ted.[15]

     The main legacy of Nuremberg is the unambiguous acceptance, in contemporaneous international law, of the idea that individuals may be held responsible for egregious crimes com­mitted in the name of a state policy. As the IMT put it, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be en­forced”.[16] The concept of individual criminal responsibility un­der international law was further applied in the trial of the Japanese political and military leadership by the International Military Tribunal for the Far East in Tokyo (IMTFE), which, albeit not being established on the basis of an inter­national agreement, had a function similar to the IMT.[17] Later the UN International Law Commission (ILC) under the mandate of the General Assembly determined, by formulating the Nuremberg Principles, that “any person who commits an act which consti­tutes a crime under international law is responsible therefore and liable to punishment”.[18]

     The experience of prosecuting the German and Japanese leader­ship after World War II, though largely accepted as a histori­cal necessity, has also provoked criticisms as to the applica­tion of ex post facto law.[19] Furthermore the exceptional charac­ter of the tribunal was certainly not in compliance with the general principle of due process and for some it demonstrated that the trial as a whole was nothing but “victors’ justice”.[20] Thus the need for a permanent international criminal court be­came evident very soon. It has been generally argued that if the Nuremberg-experience were to be repeated in the future, its legal framework should be improved by previously setting up precise and universally accepted rules on the Court’s competence, on the definition of crimes, and on the applicable procedure.[21]

     The Cold War however made further developments towards the constitution of a permanent international criminal court impossible. Already in the immediate aftermath of the Nuremberg-trial of the major war criminals the escalating conflict of interests between the Western allies and the Soviet Union was to inhibit other initiatives of joint prosecution of persons involved in the atrocities of the nazi-regime.[22] In the following years ideological differences would amplify the dif­ficulties for agreements regarding the protection of human rights in general and even more for any understanding on such a sensitive matter as in­ternational justice. Wars of national liberation against colo­nialism and other forms of domination regularly reaffirmed the opposition between Western and so­cialist countries. It appeared impossible to envisage one of the two sides to make the first move towards a common resolution on the use of inter­national jurisdiction to prevent acts of extreme cruelty of either party to these conflicts.[23] What for one side should be condemned as war crime, would be tolerated by the other as a necessity of a struggle against oppression or against terrorism.

     After the end of the Cold War the international community was once again faced with the prospect of trying individuals involved in mass scale atrocities and war crimes. These were committed during armed conflicts of non-international character, which partly had proliferated as a consequence of the deep political changes occurred in the international arena af­ter the demise of the socialist bloc. Thus in the early nine­ties, the disintegration of former Yugoslavia concurred for the demand of international justice as nationalist policies encouraged interethnic hatred and hence widespread and systematic gross violation of human rights.[24]

In Rwanda the mass slaughter of Tutsis promoted by the Hutu-led government in 1994, though wholly foreseen by governments of leading states in world politics and by the UN, was responded by the international community with an effort to spare foreign civilian observers and military personnel.[25] No prompt military intervention was undertaken to avoid the massacre. On the contrary, UNMIR-troops were withdrawn, giving leeway to the furious slaughtering campaign. Only several months after the unleashing of the conflict, when the Tutsi rebellious group RPF (“Rwandan Patriotic Front”) had taken control over the country,[26] the UN-Security Council decided to submit to international justice those who participated in the massacre.[27]

Once again international criminal tribunals were created on an ad-hoc basis, for the specific purpose of responding to atrocities com­mitted in the conflicts in the former Yugoslavia and in Rwanda.[28] Once more, albeit in a more secure legal framework than in Nuremberg and in Tokyo,[29] the prospect of trying those responsible for war crimes, crimes against humanity and geno­cide failed to count on a previously established court, which would better comply with the standards of due process. Addi­tionally, the establishment of both ad-hoc tribunals was in a certain way spoiled by the general impression that it was more a result of international politicking than the conse­quence of true sympathy for the victims of atrocities.[30] The feeling that once again international justice was a service rendered to the powerful against weaker governments could not be avoided. And soon it was established that the case-by-case creation of ad-hoc tribunals for every single conflict around the world is not economically sustainable: past atroci­ties in East Timor and Sierra Leone were also thought to de­serve the attention of international ad-hoc jurisdiction.[31] Although these courts were granted limited funding, their creation evidenced that ad-hoc international justice was a matter of political prioritisation for the states, which have the financial resources to support it.

2. The ICC: A Conservative Approach to the Protection of Human Rights

The recognition of these natural limitations of ad-hoc in­ternational criminal justice made it possi­ble to revitalise the project of the establishment of a perma­nent international criminal court. The material competence of the ICC, which emerged from the Rome Conference in 1998, would nevertheless preserve the tradition initiated by the IMT in Nuremberg and thereby show a rather conservative character of the project. It should be a court for exercising criminal ju­risdiction only in cases of aggression, genocide, war crimes and crimes against humanity.[32] These “core” international crimes are far from exhausting the list of internationally proscribed individual acts, which relate to gross violations of human rights. The crimes of slavery, apartheid, and torture, for exam­ple, are fully recognised as international crimes. States are obliged by conventional and customary international law to incorporate these crimes in their domestic penal legislation and either to prosecute or to extradite those accused of having committed them.[33] Yet, these crimes have not been included as such in the competence of the ICC. They may nonetheless be subject to the jurisdiction of the court, if committed as part of a crime mentioned in the ICC Statute, such as war crimes or crimes against human­ity.[34]

     Though generally considered a major progress in international law, the idea of a permanent international criminal court to replace the practice of ad-hoc jurisdiction met with strong resistance in regard to several aspects of its imple­mentation. Indeed no State welcomes the prosecution of its own nationals before an international court. The principle of complementar­ity[35] and the clear limitation of the court’s compe­tence were the answers conceived to neutralise the fears of excessive inter­vention in domestic jurisdictional matters. States generally accepted that the court would be a useful tool applying to excep­tional cases where the State could not ensure the rule of law. The drafters heavily drew upon the circumstances that lead to the establishment of the ad-hoc tribunals.

     On the other hand, the aspirations of the human rights-NGO community for the ICC certainly encompassed a broader basis for its exercise of jurisdiction,[36] although the majority of civil so­ciety’s organisations acknowledged the establishment of the ICC as an important step towards the improvement of the inter­national protection of human rights.[37] Later developments may enlarge the competence of the ICC and thus include other crimes corresponding to forms of gross violations of human rights. Unfortunately these developments will need some years to take place since the ICC Statute stipulates that only seven years after its entry into force “the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments” to it, which may include the list of crimes contained in its article 5.[38]

3. The problem of wilful killings in Brazil

In Brazil the ratification of the Rome Statute for the ICC has been made possible mainly through strong activism of human rights-NGOs.[39] There has been a general hope that the ICC might be able to try individuals involved in cases of widespread and systematic gross hu­man rights violations in the country.[40] The distrust in the do­mestic judiciary is pervasive.[41] Judges have been dealing with cases of wilful killings in a very careless manner. The number of convictions in comparison with the actual caseload is ri­diculous and encourages even more violence by ensuring a high prob­ability of impunity to wrongdoers.[42]

     The numbers speak for themselves: with 41,802 intentional homicides in 1998 and a violence-quotient of 25,84 intentional homicides per 100,000 inhabitants in the same year,[43] Brazil is one of the most violent countries in Latin America and in the region it is superseded only by Colombia, El Salvador, and Hon­duras[44] which have experienced dire situations of civil strife in the last decades.

A large part of these killings occur at the hands of the police forces which have been responsible, between January and October of 2002, for 1,203 intentional homicides, solely in the cities of Rio de Janeiro and São Paulo (as a com­pari­son, in Los Angeles, which is deemed to be the most vio­lent city of the US, the police have been considered responsi­ble for 18 deaths throughout 2001).[45] Several of the police of­ficers knowingly involved in killings are still employed as such in their respective de­partments. The Office of the State Ombudsman of São Paulo investigated the antecedents of 22 police officers, which were employed in a special unit for the repression of radical rightwing organisations (“GRADI”). It was established that these policemen were indicted in 162 cases of intentional homicide. One of the officers alone was involved in 32 cases between the years of 1988 and 2001, 22 of which had the investigation stopped by the military justice.[46] Another officer was responding to 25 criminal investigations for homicides committed between 1985 and 2001, 16 of which were stopped in the same way.[47]

     Police violence in Brazil is often explained as a reaction to equally violent organised crime.[48] The expression “war against crime” is even used by unsuspected human rights activists to describe the serious situation of violence in larger urban areas in Brazil.[49] It is true that criminal groups are becoming increasingly organised mainly in Rio de Janeiro and in São Paulo: the formation of the so-called “Comando Vermelho” (“Red Command”, abbreviated “CV”) in Rio de Janeiro and of the so-called “Primeiro Comando da Capital” (“First Command of the Capital”, abbreviated “PCC”) in São Paulo, show a ten­dency of criminal groupings to merge in larger syndicates of Colombian style, specialised in the “drug for arms” business.

These powerful organisations have been attacking police precincts and state governmental offices with grenades and gross-calibre ammunition.[50] In Rio de Janeiro the “Comando Vermelho” was powerful enough to close down all business of the city for a whole day.[51] The slums in the hills of Rio de Janeiro (“favelas”) are being considered out of state control for a long time. Only in sporadic actions, police officers raid these areas looking for fugitives and, on such occasions, opera­tions are carried out with combat-like tactics, supported by helicopters and heavy weaponry.[52] When the police retreats, the rule of the crime syndicate is fully restored. It is a totali­tarian rule. Those who dare to defy the orders and inter­ests of the criminal leadership are executed, sometimes after being atrociously tortured.[53] Criminal syndicates reign through ter­ror and intimidation and no state power has shown the capa­bil­ity to menace their supremacy in the slum areas. The “Co­mando Vermelho” has even been suspected of trying to purchase “Stinger” missiles from foreign terrorist sources, with the intention to shoot down police helicopters during the raids in the hills.[54]

The terrified population reacts by demanding harsh action by the police forces, thereby contributing to the creation of an environment in which torture and wilful killings become rife and are accepted as necessary and thus legitimate.[55] Though there is no official in­struction for these illegal actions, the insignificant num­ber of prosecutions and convictions clearly shows that local authorities systematically condone them.

Since impunity is taken for granted, police violence spreads even to cases of petty crimes, yet se­lectively. The pre-condition for the excesses to occur is the de­fencelessness of the victim. With the re-establishment of de­mocracy, the Brazilian police have not become more law-abid­ing but have merely changed the target of their violent behaviour. It is no more ideologically justified and no more aimed at the political opposition. Now the poorer strata of the population and mainly people of African origin are almost the only victims of State agents’ misbehaviour.[56] Such victims have usually neither the means to hire a solici­tor nor any connections with influent politicians and state officials. This makes them easily vulnerable to po­lice arbitrariness.

In rural Brazil official violence is not less persistent, though no scheme of criminal syndicate can be detected in the country­side. Police are very often used in order to protect private interests of the owners of large estates. These interests are confounded with the political interests of the local ruling elite since in the countryside land propriety is commonly acknowledged as the main basis of power. Great landowners are usually eligible for the posts of mayors, members of local and federal parlia­ments or heads of governmental departments. Sometimes even the state governor possesses large estates. Thus it is easy for this elite to dispose of the police forces to keep off from their estates landless peasants and incidentally to evict poorer people from legally held land in order to enlarge their own estates.

     Like the organised crime in urban areas, the landowning elite reacts unscrupulously to any resistance against their interests. Union leaders, leftist politicians, priests, solicitors, human rights activists and, of course, the peasantry, are all targeted by gunmen (“pistoleiros”) hired by estate owners.[57] The killers are usually police of­ficers doing the job in order to get an additional source of income.[58] Sometimes they are also hired through private security companies, which are authorised to function through political influence and are owned by retired higher army or police officers. These companies, similar to crime syndicates in larger cities, arrogate themselves the power to close roads and to submit passers-by to body search and incidentally torture and kill.[59]

     Killings also take place in connection with slavery-like practices which occur inside large estates in remote areas of the member states of Pará, Mato Grosso and Maranhão. Land workers who resist to the harsh labour conditions, demand payment or try to escape are systematically eliminated by hired gunmen, very of­ten under atrocious sufferings.[60] The estates are managed by so-called “capatazes”, employees of landowners residing in Belém, São Luís, São Paulo or Rio de Janeiro. The landowners themselves are often suspected of having connections with inter­national drug trafficking or with illegal timber extraction.[61] Since road links to these remote estates are usu­ally in dire conditions, state monitoring over the practices of estate managers is almost non-existent.[62]

     The local judiciary does not ensure any remedy against hu­man rights abuses in the countryside. The percentage of recorded cases of wilful killings, which go unpunished, is excep­tionally high. According to the CPT (Comissão Pastoral da Terra, the land rights commission of the national catholic bishops’ conference), 99,41% of the killings between 1985 and 2001 in Southern Pará have not received any re­sponse from the judiciary at all.[63] Very often local judges and local prosecutors are part of the landowning elite or close to it. The mayor, the local head of the police, the judge and the prosecutor constitute a single machinery of local power. As a consequence most of the killings are not even investi­gated.[64] Friends and relatives of the victims are mostly too afraid to communicate the facts to the police and thus a large number of violations fail to enter the crime statistics.

     The case of the murder of João Canuto de Oliveira, then president of the land workers’ union in Rio Maria (Southern Pará), is paradigmatic for this involvement of local institutions and politicians in gross violations of human rights. The case was examined by the Inter-American Commission on Hu­man Rights in 1998. The Commission declared, “that Brazil is responsible” inter alia for the violation of the rights to life, freedom, and personal security and safety (Article 1 of the American Declaration of the Rights and Duties of Man). Further the Commission considered that Brazil “did not justify the delay and the ineffectiveness of the internal legal remedies”.

João Canuto was murdered in 1985 and so far no one has been accused of the crime. Despite insistent demands of lawyers, of the Ministry of Justice and even of the federal legislative, the prosecutor withheld the case for several years without justifying his lack of action. There is no doubt about the involvement of a group of farmers, which have hired police officers as gunmen, in the killing of the union leader. These farmers have a close relationship to local authorities and even to state authorities. This circum­stance explains the difficulties of prosecuting the killers and their contractors.[65]

The same promiscuity between private interest and local politics has been decisive to withhold the investigation of other killings in Rio Maria. The Inter-American Commission has also ruled on the case of Newton Coutinho Mendes, murdered in 1994 by gunmen hired by a group of farmers. It was alleged by the petitioners (CPT, Center for Justice and International Law - CEJIL and Human Rights Watch) that the “Bra­zilian justice was unable to act effectively in these cases” and that “the reason for this was that the local authorities (military police, civilian police, the Office of the Public Prosecutor and the judge) [were] directly implicated in organized crime, to which they [were] accessory by act or omission”.[66] The Commission recognised the direct involvement of police officers in promoting impunity; they have been failing “by act and omission [...] to take the action required to impose order and the rule of law”. It also considered that “judicial inaction and delay joined to a formalistic and labyrinthine trial sys­tem have contributed to impunity and personal insecurity”. Prosecutors and judges have been held responsible for dilato­riness and ineffectiveness in the prosecution and conviction of the culprits.[67]

     These repeated killings of union leaders, of landless peas­ants and of land workers conform to a single pattern and would never be possible without the backing of the police, the prosecutions office and the judiciary system. The first ones very of­ten participate directly in the actions and the other ones en­sure that none will be prosecuted and convicted. Chiefs of po­lice, prosecutors and judges are mostly part of the landowning elite and those who are not, do not dare to interfere with the interests of this elite, since this might cost them at least the professional career, if not life.

4. Are cases of wilful killing in Brazil crimes against humanity? 

If the expectations of Brazilian Human Rights activism in regard to the establishment of the ICC are to be met, wilful killings as illustrated above will have to be classified within the crimes of the material competence of the court. For obvious reasons the category of crimes against humanity would fit best to the aforementioned cases, since the violations have no connection with an armed conflict[68] and are not committed against a specific “na­tional, ethnical, racial or religious group, as such”.[69]

For criminal acts to be considered as “crimes against humanity”, they must be committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. By such an attack it is meant “a course of conduct involving the multiple commission of acts [...] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”.[70]

The definition comes close to atrocities committed within the notion of a “consistent pattern of gross violation of human rights”, as referred in ECOSOC Resolutions 1235 (XLII) and 1503 (XLVIII),[71] in § 702 of the Restatement Third of US Foreign Relations Law[72] and in article 3(1) of the UN Convention against Torture:[73] These texts relate to mass-scale violations that fit to such a pattern, which allows to presume that a specific policy supports them. The definition of crimes against humanity according to the Rome Statute though imposes a higher threshold by implying the effective existence of such a policy and the knowledge of it by the person committing the crime.

Several aspects need to be considered in order to assess whether wilful killings in Brazil reach the threshold of organised mass-scale violence established in the definition of crimes against humanity of the ICC Statute. First, it must be determined that state-induced or state-sponsored wilful killings in Brazil are “widespread” or “systematic” or perhaps both; second, it must be examined whether these killings correspond to an “attack against a civilian population”. Finally it must be shown that the persons responsible for the attack have a clear knowledge of it (the mens rea of crimes against humanity). 

(a) The “widespread or systematic” action

The term “widespread” refers to the scale of the atrocities. These must be assessed as to the number of acts, of actors and of victims.[74] Further, “systematic” means that the action has a specific functionality. In the light of the experience of the Rwandan massacre, the ICTR has interpreted the “sys­temacity”-element of crimes against humanity on a rather strict basis, relating it to a “high degree of orchestration and methodological planning”, which corresponds to an action “thoroughly organized and following a regular pattern on the basis of a common policy using substantial public or private resources”.[75] The statute uses a disjunctive formulation, meaning that crimes against humanity can be committed either in a widespread or in a systematic manner. In this regard, it has been ar­gued that it does not follow from this disjunction that a mere “wave” of crimes, without any interconnection between the crimes individually considered, is to be included in the defi­nition of crimes against humanity. Thus “widespread” acts must relate to each other and in a certain way conform to a system.[76]

On the other hand, in the practice of international human rights the expression “widespread and systematic” is used in a more flexible way. The Committee against Torture (CAT) for example has determined that “torture is practiced systematically when it is apparent that the torture cases reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the coun­try in question”. Thus, for the CAT, “torture may in fact be of a systematic character without resulting from a direct in­tention of a government”. Indeed, “it may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration”.[77]

CAT’s concept of “widespread and systematic” action fits better to the definition of crimes against humanity in the ICC Statute. Indeed the widespread character reflects nec­essarily some kind of “systemacity”, but the systematic char­acter does not imply “orchestration” in the sense of a clear planning of the attack, as established in the ICTR-case law. The definition of crimes against humanity in the ICC Statute is somehow different from and more complete than the defini­tion in the ICTR-Statute, since the latter does not specify what “attack against the civilian population” means.[78] In the ICC Statute however, the planning is, as shown be­low, part of the policy-element, which integrates the analytic concept of “attack against any civilian population”, which is different from the notion of “systemacity”. Otherwise, includ­ing “orchestration” in the “systemacity”-concept would make the policy-element stated in Art. 7(2)(a) of the Rome Statute redundant. The systematic character of the attack has thus to be simply interpreted as negating a fortuitous event. It must be seen essentially as an external aspect of the attack, since it shapes the relationship between the single ac­tions.

The killings described, in urban or rural contexts, are widespread and systematic.[79] The numbers are huge and the acts are interrelated. They can be portrayed in two different factual frameworks: abusive police action against criminality or unfettered violent behaviour by criminal organisations, in the cities; and appropriation of public means of social control for private, illegal purposes by landowners, in the country­side. The individual killings in general fit in one of these two pictures. Each of the individual cases may be explained in a wider social context, relating, as to the purposes of the violence, to other frequent killings. The killings have a methodology, which is inherent to their scope. They are a selective means of neutralising any kind of opponents, being they criminals, demanding land workers or land­less peasants. However there is no gen­eral, state-led “methodological orchestration” of killings, as experienced in Rwanda.[80] The state par­ticipates in the killings either by knowingly letting its violent officials act loose and unhindered if the purpose is to fight criminality; or by condoning the violence meted out in a specific framework, leaving it intentionally unpunished. 

(b) The “attack against any civilian population”

The expression “attack against civilian population” clearly originates from the context of armed conflict, though crimes against humanity are not any more necessarily linked to such conflict. The “civilian population” contrasts with le­gitimate military targets as envisaged in international law of armed conflict and endows civilians with a general pro­tection.[81]

What is meant under the expression “State or organisational policy” is not clear-cut. The past experiences, which underlie the concept, relate to totali­tarian regimes or warring parties that commit atrocities in an objective, methodological and planned fashion, according to an ideology legitimating terror through law.[82] The policy-ele­ment in this context should thus be understood as an elaborate state or organisational intent, where “organisation” means any non-state group reasonably structured, taking over control, even if in an illicit and illegitimate way, permanently or temporarily, of the whole or of part of a state territory.[83]

The ICTY-case law nonetheless shows a more flexible interpre­tation of the conceptual requirement of a policy guiding the attack. In the Tadić-case, the Court observed that a policy “need not be formalized, and can be inferred from the way in which the acts occur”. Thus “if the acts occur in a widespread or systematic basis, that demonstrates a policy to commit those acts”.[84] This means that a policy can be presupposed and need not be proven in minor details. It is very seldom in history that a regime involved in purposeful atrocities documents all steps of the planning and execution of an attack against the civilian population. Nazi-Germany was an almost unique excep­tion of thorough documentation. In Rwanda a governmental pol­icy was proclaimed through speeches and exhortations made in public and in the media.[85] But when a more clandestine group or organisation, within or outside the government, commits system­atically mass-scale atrocities, one cannot expect to find documents or statements in support of the atrocities.

The introduction of the expression “attack against a civilian population” met with a particular resistance of the NGOs participating in the Rome Conference, since it would restrict too much the material competence of the ICC.[86] The Preparatory Commission, established according to Resolution F of the Final Act of the Rome Conference, has nevertheless given an even narrower meaning to the expression, excluding from it the “ab­sence of governmental or organizational action”, when such ab­stention is not deliberate and not aimed at encouraging an at­tack.[87]

The reaction to this new initiative of confining the notion of crimes against humanity to extreme cases of actively state- or organisation-promoted or encouraged atrocities[88] was strongly criticised by several NGOs[89] and by some State-parties.[90] It was largely argued that the ICC Statute does not in­clude such a restriction, which thus exceeded the meaning of the chapeau of its Article 7.

However it must be stressed that the limitation is mainly intended to exclude from the definition of crimes against humanity the so-called “wave”-like mass-scale atrocities meted out beyond state or organisational control.[91] Conceptually crimes against humanity are carried out with the support of those in charge of social control. This support makes up the policy-element, because it has to be an intended support, though planning can be, in the sense of the Tadić-decision, implicit and inferred from the pattern of action.

The intention may be direct or indirect. As a form of state or organisational dolus, it may be expressed not only in the firm will of making atrocities happen, but also in the state or organisational decision not to take the prevention, investigation and prosecution as a political priority, in spite of knowing that this omission is likely to encourage the commission of more atrocities. The latter kind of attitude corresponds to the traditional category of dolus indirectus in criminal law, though applied to state responsibility: by deciding not to act, albeit it could do so, the state or the organisation accepts to run the risk of the result.

In the case of Brazil the federal government has been declaring that it is not able to impose its human rights policy over the member states. These ones, governmental sources in­sist, are the real responsible for failing to implement inter­national human rights standards within their jurisdiction.[92] In terms of international responsibility of states, this is no ex­cuse at all. If member state governments fail to comply with international obligations assumed by the Brazilian State, it is the latter who will have to respond for it.[93] In similar fashion, from the per­spective of international law, these local policies can be viewed as a state policy of the Brazilian State as a whole, because the federal government does not take any measures against member states that either condone or encourage gross violations of human rights. The same is true for atrocities condoned or encouraged by municipalities or by their mayors or local public officials.

Thus the policy-element required in the definition of crimes against humanity can be as well linked to local authorities’ actions. Their decision to support or to allow free play to atrocities like wilful killings committed by hired gunmen or by police officers acting on behalf of large estate owners is to be understood as a “state or organisational pol­icy” to commit an attack against the local civilian popula­tion, i.e. the non-military target group of landless peasants, land workers and rural union leaders.

In the urban arena the killings committed by police officers or by the organised crime in a massive, systematic manner are also supported by local “organisational policies” inside the public security institutions or of criminal gangs and syndicates. As to wilful killings carried out by police officers, policies supporting them are not openly assumed by the state government, but their existence can be inferred from the in­tricate system of covering up the criminal actions of a large part of the police and from the lax attitude towards the in­vestigation and prosecution of the involved officers. On the one hand, the institutional attitude of silencing over atrocities committed by police officers and the refusal to allow prosecutors to investigate and monitor these crimes inside the corporation clearly points at decisions taken at commanding levels of the police forces, who accept the risk of the recurrence of such killings.

On the side of the criminal syndicates like CV and PCC or other minor groupings, the decision to “eliminate” those who dare to defy their supremacy in the “dominated” slum areas comes always from the upper level of the bosses of the bands or syndicates. Sometimes even summary sham “trials” are arranged by these criminals so as to demonstrate their power.[94] The fact that these bands or syndicates effectively maintain the control of slum areas, being rarely threatened by police operations, permits to consider them as “organisations” for the purpose of sustaining mass-scale atrocities as crimes against humanity.

(c) The knowledge of the attack: mens rea

The definition of crimes against humanity combines state responsibility with individual criminal responsibility,[95] since it does not refer to acts, which can be committed solely by an individual by his autonomous decision. To be car­ried out, crimes against humanity need to be in consonance with superior decisions at state or organisational levels and to relate to other acts of the same nature, as part of a mas­sive operation with large-scale victimisation. Thus atrocities perpetrated in these circumstances are to be attributed to indi­viduals as well as to states or organisations alike. Separately, however the acts are practiced by individuals, who must be aware that they are part of a whole and that their single action represents a practice supported by struc­tures which shield them from any legal consequence.

     This awareness of acting in consonance with a broad scheme of violence that is supported by state or organisation structures constitutes the mens rea or mental element of crimes against humanity.[96] Like the policy-element, the knowledge of the attack by the perpetrator of the single crime can also be inferred from the factual circumstances.[97]

     Hired gunmen, police officers acting on behalf of landown­ers or under the systematic condonation of those responsible to investigate, prosecute and try them, or criminals acting under the orders and protection of the boss of a crime syndicate or grouping can be presumed to have a knowledge of the context in which their actions will be supported. This support, in terms of political, institutional or organisational efforts to cover up the crime and its perpetrator, to shield the perpetrators from any “harassment” by the police, by the prosecutions office or by the judiciary, and even to le­gitimate the crime as “a need” in the fight against criminal­ity, in keeping off “disturbing” elements threatening propri­ety rights of landowners or in ensuring the “arms for drugs” business of the crime syndicate, is actually the main cause of maintaining a high incidence of wilful killings in Brazil.

5. Why an ICC for wilful killings in Brazil? 

If it can be determined that the two main patterns of wilful killings in Brazil correspond to the definition of crimes against humanity according to the Rome Statute, it still has to be explained why and how an international criminal court would help to improve the standard of protection against gross violations of human rights in Brazil.

     One of the main criticisms of the broader idea of transfer­ring criminal jurisdiction to the international community is that such jurisdiction is likely to be exercised “symbolically”. Symbolical use of criminal law means here a devia­tion of purpose of criminal procedure and punishment.[98] If generally modern criminal law is directed to crime deterrence,[99] its use by the international community has been much more in the sense of expressing to a global public that international organisations and states in leading position in world politics are concerned about “justice” and thus can legitimately la­bel some regimes and their heads as “criminal”, when they promote or encourage mass-scale atrocities. Hence criminalisa­tion of atrocities and its prosecution in international tribu­nals function as a means of stigmatising politically certain state governments as “rogues”. In doing so, international criminal law has shown to be selective, because some contexts of mass-scale atrocities are of greater international concern than others. First, massive atrocities committed in an envi­ronment of totalitarianism, failed states or armed conflict are more likely to threaten international security than those carried out within a functional state, formally professing its allegiance to the rule of law. Second, even among extreme situations of the collapse of rule of law or of statehood, some are strategically more relevant. Otherwise it could not be explained why the former Yugoslavia and Rwanda deserved the establishment of ad-hoc tribunals, while Cambodia, Haiti, East Timor, Sierra Leone, Angola and many others were not contem­plated with such institution-building.

     It is true that the ICC, as a permanent court, will soften this selectivity, since it will be equally available for all contexts of mass-scale atrocities, while committed in fur­therance of a state or organisational policy. Though if the court chooses just to concentrate in actions of “rogue” governments, it will maintain the symbolism of international criminal prosecution and its work may be regarded as politically dubi­ous. “Rogue” governments are not likely to be deterred by the sole perspective of having their heads prosecuted under inter­national jurisdiction. Each crisis of democracy and state­hood is circumscribed to a specific historical context and one case is politically improbable to be taken as a paradigm to others. In other words, it is not likely that a Central-Ameri­can general will think twice before ordering or encouraging atrocities be perpetrated, simply because he will be remember­ing of Milosević’s fate.

     On the other hand by choosing to concentrate its work in the prosecution of atrocities perpetrated under the conditions described for Brazil, the ICC will be able to establish for domestic courts and prosecutors a standard of prosecution necessary to fight impunity and to ensure universal respect to human rights. International prosecution can work as an effective sanction for states not able or not willing to carry out the prosecution of gross violations of human rights through its own courts. It can function as a means of “expropriating” domestic jurisdiction and of ensuring that perpetrators of gross violations will be made accountable, thus interrupting the vicious circle of violence nourished by its condonation.

     This is actually the same logic, which underlies the proposal for the “federalisation” of the jurisdiction for crimes related to the violation of internationally protected human rights in Brazil.[100] According to the bill of constitutional amendment presently under the consideration of the Brazilian Na­tional Congress, the federal Prosecutor-General shall have the power to put forward a claim for the transfer of a case from a local court to a federal court, whenever it is determined that local judiciary is unjustifiably delaying or withholding the exami­nation of the case or that the decision is likely to be influ­enced by undue interests.[101] The idea is not only to ensure a fair and effective criminal procedure in the given case, but also to submit local justice to the pressure, which results from the legal possibility of being deprived of the authority over that case. This latter consequence is certain to affect the self-worth of local institutions and thus to force them to change their attitude.

     Following this model, the ICC could encourage effective qualitative changes in domestic prosecutions of gross violations of human rights subsumed in the definition of crimes against humanity. For this to happen it will nevertheless to adopt a more flexible interpretation of the concept of “wide­spread or systematic attack against any civilian population” than suggested by the case law of the ICTR and by later elabo­ration of the PrepCom. Such a strategy will allow the court to be more present in the field of international human rights law and to be less selective in the application of international criminal law.

---

* LL.M. University of Essex (UK), Federal Prosecutor in Brazil and Lecturer at the University of Brasilia School of Law.

[1] Cf. Report of the UN-Special Rapporteur for Torture, Sir Nigel Rodley, regarding his visit to Brazil (E/CN.4/2001/66/Add.2), para. 168.

[2] Cf. Article 1(III), of the Brazilian Federal Constitution.

[3] Cf. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Brazil, Washington: 1997. The report is available at http://www.oas.org (31/1/2003).

[4] Articles 227 to 230 of the Treaty of Versailles (28/7/1919) dealt with the issue of prosecuting the German Emperor and other “persons accused of having committed acts in violation of the laws and customs of war”. The German Emperor would be tried for “a supreme offence against international morality and the sanctity of treaties”.

[5] Very soon the allied leaders noticed that forcing Germans to co-operate in the surrender of German military and politicians involved in war crimes would destabilise the German government and would likely bring about a Bolshevik revolution in the country. A compromise has thus been reached to try 854 suspects of a list prepared by Britain, France, Belgium, Italy, Poland, Rumania and Yugoslavia. These suspects were to be tried in Germany by the Supreme Court of the Reich in Leipzig. After other negotiations the allied powers agreed to reduce the list to 45 individuals. Even though by the end only 12 individuals were accused and 6 were convicted (cf.  Ahlbrecht, Heiko, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert, Baden-Baden: Nomos Verlagsgesellschaft, 1999, pp. 41-44).

[6] See Willis, James F., Prologue to Nuremberg – The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport/London: Greenwood Press, 1982, pp. 98 ff.

[7] Declaration of German Atrocities (also known as “Moscow Declaration”) adopted in 1/11/1943 at the Moscow Conference attended by the heads of state or government of the US, Britain and the Soviet Union. Full text is available in Bassiouni, Cherif M., Crimes Against Humanity in International Criminal Law, Dordrecht/Boston: Martinus Nijhoff Publishers, 1992, pp. 573/574.

[8] Cf. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, signed in London on 8/8/1945 (“London Agreement”), available in Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law, op. cit., pp. 579-581.

[9] The leaders included in this list were Hermann Wilhelm Göring, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Hans Fritzsche, Franz von Papen, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walther Funk, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Arthur Seyss-Inquart, Albert Speer, Konstantin von Neurath, Martin Bormann, Hjalmar Schacht, Robert Ley and Gustav Krupp von Bohlen und Halbach.

[10] Robert Ley committed suicide before the beginning of the court case and Gustav Krupp was considered incapacitated to stand trial.

[11] The crimes were defined in Article 6 of the Charter of the International Military Tribunal, annexed to the London Agreement. Text available in Bassiouni, M. Cherif, Crimes Agrainst Humanity in International Criminal Law, op. cit., pp. 582-585.

[12] i.e. Martin Bormann.

[13] Sentenced to death: Hermann Wilhelm Göring (committed suicide before being executed), Joachim von Ribbentrop, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Fritz Sauckel, Alfred Jodl, Arthus Seyss-Inquart and Martin Bormann (not executed).

[14] Rudolf Heß (life imprisonment), Walther Funk (life imprisonment), Karl Dönitz (10 years imprisonment), Erich Räder (life imprisonment), Baldur von Schirach (20 years imprisonment), Albert Speer (20 years imprisonment), Konstantin von Neurath (15 years imprisonment).

[15] Franz von Papen, Hans Fritzsche and  Hjalmar Schacht, though being all later convicted by German courts.

[16] The Judgment of Nuremberg (30 September 1946). Full text published by the Stationery Office, London: 1999, at p. 84.

[17] The IMTFE was established by an act of the “Allied Supreme Commander for the Pacific Theater”, General Douglas McArthur, and not by an agreement like the IMT. By this act the statute of the Tribunal was also promulgated, with only slight differences in the definition of the crimes for which the IMTFE was made competent.

[18] Nuremberg Principle I, in 5 UN GAOR Supp. (No. 12) 11, U.N. Doc. A/1316 (1950).

[19] Cf. Ahlbrecht, Heiko. Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert, op. cit., pp. 74-79.

[20] Cf. Frei, Norbert. Der Nürnberger Prozeß und die Deutschen, in Wette, Wolfram/Ueberschär, Gerd R. (ed.). Kriegsverbrechen im 20. Jahrhundert, Darmstadt: Primus Verlag, 2001, pp. 447-492, at 483-488.

[21] Cf. Lawyers Committee for Human Rights, Establishing an International Criminal Court – Major Unresolved Issues in the Draft Statute, in International Criminal Court Briefing Series, vol. 1, nº 1 (May 1998), pp. 4/5; available at http://www.lchr.org/icc/pap1rev2.htm (21.6.2001).

[22] Cf. Arnold, Pascal. Der UNO-Sicherheitsrat und die strafrechtliche Verfolgung von Individuen, Basel/Geneva/Munich: Helbing & Lichterhahn, 1999, p. 55.

[23] Cf. Tomuschat, Christian. Von Nürnberg nach Den Haag, in Nürnberger Menschenrechtszentrum, Von Nürnberg nach den Haag: Menschenrechtsverbrechen vor Gericht – Zur Aktualität des Nürnberger Prozesses, Hamburg: Europäische Verlagsanstalt, 1996, p. 93-115, at p. 99.

[24] It is often suggested that the UN-Security Council could have acted more effectively to stop the atrocities in Bosnia. Thus the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) would have been a lesser stratagem to save face of the international community, for the failure in preventing the Bosnian tragedy. Cf. Scharf, Michael. Balkan Justice, Durham, NC: Carolina Academic Press, 1997, pp. 30 ff.

[25] Cf. Klinghoffer, Arthur Jay. The International Dimensions of Genocide in Rwanda, New York: New York University Press, 1998, pp. 41 ff.

[26] Idem, ibid., pp. 80 ff.

[27] The creation of the International Criminal Tribunal for Rwanda (ICTR) was initially backed by the new Rwandan RPF-government. This support was nevertheless withdrawn after the Rwandan government was not successful in establishing the death penalty for those convicted as the main responsible for the massacre. See Klinghoffer, Arthur Jay. Op. cit., pp. 115 ff.

[28] See Security Council Resolutions 808 (1993) of 22 February 1993 and 995 (1994) of 8 November 1994.

[29] Since the 1946 and 1947 trials the customary basis for the international criminalization of certain atrocities has become more consistent. Thus crimes against humanity, war crimes and genocide have a much more solid foundation for international prosecutions as part of ius cogens. See Bassiouni, M. Cherif. International Criminal Law, vol. I, 2^nd ed., New York: Transnational Publishers, 1999, p. 98.

[30] This feeling is evident in the attitude of the Rwandan Government in regard to the establishment of the ICTR. But also the resistance of the Yugoslav government in co-operating with the court has been cause by such frustration. Cf. Akhavan, Payam. Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, in Americal Journal of International Law, vol. 95 (2001), pp. 7 ff.

[31] On an International Criminal Tribunal for East Timor see Magro, John. Is there Justification for an International Criminal Tribunal for East Timor?, in E Law - Murdoch University Electronic Journal of Law, Vol 7, No 3 (September 2000), available at http://www.murdoch.edu.au/elaw/issues/v7n3/

magro73nf.html (24 February 2003). On the establishment of an International Criminal Tribunal for Sierra Leone, see Security Council Resolution 1315 (2000) of 14 August 2000.

[32] This limitation contrasts with the first Draft Code of Crimes against the Peace and Security of Mankind, which was submitted to the UN-General Assembly by the International Law Commission in 1991. This draft comprehended 12 groups of crimes (aggression, threat of aggression, intervention, colonial domination, apartheid, systematic or widespread violations of human rights, extraordinarily grave war crimes, employment of mercenaries, international terrorism, illegal drug trade and environmental crimes). Though the second draft code (1996) included only 5 groups of crimes (aggression, genocide, crimes against humanity, crimes against the United Nations and their personnel and war crimes) and was thus much closer to the Rome Statute. This draft exerted a decisive influence in the Rome Statute. Cf. Ahlbrecht, Heiko. Op. cit., pp. 211-215 and pp. 335 ff.

[33] See 1926 Slavery Convention (Article 6); 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Articles 3 and 6); 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (Articles I, III and IV); 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Article 4).

[34] See Article 7(c), (f), and (j) of the Rome Statute, as to slavery, torture and apartheid as crimes against humanity; see Article 8(2)(a)(ii) and Article 8(2)(e)(vi) of the Rome Statute as torture and slavery as war crimes.

[35] The principle of complementarity restricts the jurisdiction of the ICC as to cases, which have not been dealt with appropriately by the state or states, which has or have jurisdiction to deal with it. Thus the prosecutor of the ICC may prosecute only those cases, in which such state “is unwilling or unable genuinely to carry out the investigation or prosecution” (Article 17 of the Rome Statute)

[36] The ILC-Draft referred to in the PrepCom-report for the Rome Conference actually included „crimes, established under or pursuant to the treaty provisions listed in the Annex 2/ which, having regard to the conduct alleged, constitute exceptionally serious crimes of international concern”.

[37] The prosecution of gross abuses is generally viewed as a step forward to prevent impunity and thus to ensure that human rights are respected. See e.g. Amnesty International document IOR 40/001/1997 of 1 January 1997 – The International Criminal Court – Making the Right Choices, Part I, available at http://web.amnesty.org/ai.nsf/index/ior400011997?OpenDocument&of=THEMES\

INTERNATIONAL+JUSTICE (24 February 2003); also Lawyers Committee for Human Rights, Establishing an International Criminal Court – Major Unresolved Issues in the Draft Statute, in International Criminal Court Briefing Series, vol. 1, nº 1 (May 1998), available at http://www.lchr.org/icc/pap1

Rev2.htm (21 June 2001).

[38] See Article 123 of the Rome Statute.

[39] The issue of the ratification of the Rome Statute was included in the agenda of the 3^rd National Human Rights Conference by the Movimento Nacional dos Direitos Humanos. This inclusion in was decisive for a change of attitude of the Brazilian government. See this author’s article A Sociedade Civil no Brasil, a Globalização e os Direitos Humanos, in Piovesan, Flavia (editor). Direitos Humanos, Globalização Econômica e Integração Regional, São Paulo: Max Limonad Editora, 2002, p. 609.

[40] In the VI National Human Rights Conference the ratification of the Rome Statute has been presented as a need to fight impunity in Brazil (see speech of the Chairman of the Human Rights Commission of the Chamber of Deputies, Deputy Nelson Pellegrino, available at http://www.camara.gov.br/

cdh/ultimos_informes (23 February 2003)). In this sense the Deputy Jutahy Jr. has submitted to the Chamber of Deputies a Constitutional Amendment, favouring the prosecution of crimes related to gross violations of human rights by federal courts and recognising the jurisdiction of the ICC. Available at http://www.camara.gov.br/jutahyjunior/dhumanos/violacaodh.htm (24 February 2003).

[41] Cf. Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport: Praeger Publishers, 2000, p. 78.

[42] In São Paulo for example, the Internal Affairs Department of the Civil Police has examined 176 cases of police violence, in which a total of 207 deaths were caused. Of these cases just 50,8% have been sent to the judiciary for prosecution. Cf. Global Justice, Human Rights in Brazil 2002, p. 61; available at http://www.global.org.br (24 February 2003).

[43] Cf. SENASP – Secretaria Nacional de Segurança Pública, Brazilian Ministry of Justice, data available at http://www.conjunturacriminal.com.br/boletins

/conjcridh.htm (16 June 2002).

[44] Idem, ibid. Colombia has a rate of 78.44/100,000 homicides, Honduras 63.58/100,000 and El Salvador 109.1/100,000 (the data of El Salvador have been taken from Capobianco, Eduardo R./De Mesquita Neto, Paulo. O Fórum Metropolitano e o Papel dos Municípios na segurança Pública em São Paulo, São Paulo: Instituto São Paulo Contra Violência, 2001, p. 3.

[45] Cf. Global Justice, Human Rights in Brazil 2002, op. cit., p. 58.

[46] Until 1999 military courts were competent for trying police officers pertaining to the member states’ “military police” (the uniformed police), even in cases of intentional homicide against civilians. The Federal Law Nr. 9,299, of 1996, transferred this competence to ordinary civilian courts.

[47] Cf. Global Justice, Human Rights in Brazil 2002, op. cit., pp. 55-56.

[48]  Report of the UN-Special Rapporteur for Torture, Sir Nigel Rodley, regarding his visit to Brazil (E/CN.4/2001/66/Add.2), para. 10: “The Special Rapporteur notes, however, that the fight against a high level of criminality was often presented by his official interlocutors as an explanation, if not a justification, of the rather tough behaviour of law enforcement officials who were reported to have to face violent criminals while having limited resources at their disposal”.

[49] See e.g. speech of Deputy Jaques Wagner, member of the Human Rights Commission of the Chamber of Deputies, available at http://www.jaqueswagner.com.br/artigo5.htm (19 September 2002): “Brazil has to react and fight a real war against organised crime and the misery of its people”.

[50] In Rio de Janeiro for example people most probably linked to the “Comando Vermelho” threw a hand grenade against the State Secretariat for Human Rights on 14 May 2002 (cf. Jornal do Brasil, edition of 25 June 2002: “Bandidos atacam Prefeitura”). Later, on 27 August 2002 a police precinct was also attacked by the same means, as a vengeance for the killing of the drug dealer Ademilson Barbosa in an exchange of fire with the police (cf. Agência Estado, article “Traficantes jogam Granada em posto da polícia no Rio”, available at http://www.estadao.com.br/agestado/noticias/

2002/ago/27/167.htm (3 October 2002). Finally on 5 October 2002 once again a hand grenade was thrown against the State Secretariat for the Administration of Prisons. The PCC took the responsibility for the act, as a reprisal against the government’s non-compliance with an agreement on the treatment of the leaders of the organisation (cf. Jornal da Tarde.

[51] Cf. Globonews, article “Comércio fecha portas por ordem do tráfico em diversos bairros do Rio”, available at http://globonews.globo.com/GloboNews

/article/0,6993,A402766-2,00.html (24 February 2003). See also Folha de São Paulo, edition of 30 September 2002, “Comércio fecha as portas no Rio por causa do tráfico”.

[52] In July 2001 the Police of Rio de Janeiro occupied 40 of the hundreds of “favelas” in the city, using heavy weaponry and helicopters, in order to arrest a large number of drug dealers. Though the operation was not considered successful. The dealers are often informed by accomplices inside the police on the moves of the police forces. The population is eventually trapped in the crossfire and does not support the police action either: “favela is like this: the banditry on the one side and the police on the other, and us between them”, said a lady living in the neighbourhood of a “favela” (cf. O Estado de São Paulo, edition of 25 July 2001, “Operação da PM não consegue evitar tráfico”.

[53] The case of Tim Lopes, a journalist of the television broadcaster “Rede Globo”, is exemplary. He was captured in the night of 2 to 3 June 2002 by members of the criminal syndicate of Elias “Maluco” (Elias, “the madman”, one of Rio’s most powerful drug dealers), when secretly recording a scene in a hillside bar, where several drug dealers met. Tim Lopes was summarily submitted to a fake “tribunal” presided by Elias “Maluco” himself, condemned to death and then atrociously killed. The place, where his body was found ten days afterwards, was identified as a clandestine cemetery, where the syndicate buried several of its victims. See Reporters Without Borders website http://www.rsf.fr/article.php3?id_article=2514 (25 February 2003). See also Revista Época, edition nº 213 of 17 June 2002, article “Terra de Ninguém”, available at  http://epoca.globo.com/edic/213/soci7a.htm (25 February 2003).

[54] See Correio Braziliense, edition of 19 June 2002, article “A Central do Crime”, available at http://www2.correioweb.com.br/cw/EDICAO_20020619/pri_

bra_190602_192.htm (25 February 2003).

[55] Cf. Chevigny, Paul. Defining the Role of the Police in Latin America, in Méndez, Juan E. et. al. (editors), The (Un)Rule of Law and the Underprivileged in Latin America, Notre Dame (IN): University of Notre Dame Press, 1999, pp. 49-70, at 55.

[56] Cf. Report of the UN-Special Rapporteur for Torture, Sir Nigel Rodley, regarding his visit to Brazil, cit. supra, § 166 (“[Torture] is found at all phases of detention: arrest, preliminary detention, other provisional detention, and in penitentiaries and institutions for juvenile offenders; mainly it happens to poor, black common criminals involved in petty crimes or small-drug distribution...”).

[57] According to the numbers of the CPT (Comissão Pastoral da Terra of the Brazilian Catholic Bishops’ Conference), from 1980 to 2001 1,557 land workers and landless peasants have been murdered all over Brazil, most of them involved in conflicts with estate owners (statistics per state available at http://www.mst.org.br, 9 December 2002). Among those killed are the leaders of the land workers union in Rio Maria (Southern Pará) João Canuto de Oliveira (killed in 1985 and until now no one has been convicted) and Expedito Ribeiro de Souza (killed in 1991; one of the contractors of the gunmen, the landowner Jerônimo Alves de Amorim was convicted to 19 years imprisonment in 2001). Not included in the numbers of the CPT are cases like that of Father Josimo Tavares (killed in 1986; the killer was arrested in 2001 and is still awaiting his trial) or of the oppositionist members of the state parliament Paulo Fontelles and João Batista, both killed in Southern Pará because of their advocacy for the landless peasants’ rights. In July 2002 the President of the land workers’ union in Altamira, Bartolomeu Moraes da Silva, was also murdered after being tortured. He had already asked for police protection without success. The killing is attributed to landowners and timber extracting companies acting in the region (cf. Presos suspeitos de envolvimento na morte de sindicalista no Pará, Tribuna da Imprensa, 23 July 2002).

[58] Article Indústria da pistolagem se expande, Jornal do Brasil, 10 December 2001

[59] Cf. Article Empresa vira polícia privada no Pará, Jornal do Brasil, 11 December 2001.

[60] Cf. Article Fuga em busca da sobrevivência, Correio Braziliense, 9 December 2002, including the testimony of the former slave Antônio Oliveira da Silva Souza, which fled an estate in Maranhão state. He told that a companion of his was “butchered” because he dared to ask for a salary.

[61] The case of Castelo dos Sonhos, Southern Pará, is the most well known. An extremely violent drug trafficker known as “Márcio Rambo” had his estate there, where he employed a great number of slave-like-workers. The estate was mainly used to store cocaine, purchased in Colombia against weapons. In 1990 the estate was searched by the federal police in a combat-like action, with the use of air force support. “Márcio Rambo” was accused of regularly killing and torturing his slave-like-workers (Cf. procedure in the Federal Prosecutions Office nº 1990.01.00029-7).

[62] Cf. Resende, Ricardo, O trabalho escravo contemporâneo por dívida: como se manifestam os acusados?, available at http://www.ilo.org (9 December 2002).

[63] Cf. Article Operação combate violência, O Paraense, 7 December 2001.

[64] Maria Ribeiro, the spouse of Expedito Ribeiro de Souza was recommended by the local prosecutor, the local judge and the chief of the police not to take any steps against those who killed her husband. She should just “forget it” (cf. Article of Toneto, Bernardete, Violência no campo: A dor de quem fica, http://www.alomundo.com.br/sf/sf2001/295dez/violencia.htm, 9 December 2002)

[65] Case 11.287, Report 24/98 of 7 April 1998.

[66] Cf. IACHR, Case 11.405, Report 33/97 of 1 October 1997, § 16.

[67] Cf. IACHR, Case 11.405, Report 59/99 of 13 April 1999, § 100. It was established that the murder of several landless peasants and union activists in Southern Pará occurred in 1994 has not been prosecuted so far since “the access to justice is still blocked due to the complicity of the public authorities with organized crime in the region”. This complicity “entails various consequences, which range from the victim’s fear, in the face of threats, to come forward with the story, to the omission on the part of the police in failing to act to prevent and investigate crimes”. It was argued that “justice is thus obstructed, that arrest warrants are simply ignored by the authorities, who even facilitate and assist the escape of the suspects arrested” (Report 33/97 of 1 October 1997, § 73).

[68] At the present stage, the concept of crimes against humanity in customary international law does not require a link to armed conflict. Cf. M. Cherif Bassiouni, Crimes Against Humanity, in Bassiouni, M. Cherif (ed.), International Criminal Law, 2^nd ed., vol. I, New York: Transnational Publishers, 1999, pp. 571-574.

[69] The so-called „discriminatory element“ was also not included in the definition of crimes against humanity of the ICC Statute. Cf. Robinson, Darryl, Crimes Against Humanity, in Lattanzi, Flavia/Schabas, William A. (editors), Essays on the Rome Statute of the International Criminal Court, Il Sirrente: Ripa Fagnano Alto, 1999, pp. 149-151.

[70] Rome Statute, Article 7 “chapeau” and para. (2a).

[71] These resolutions deal with special investigation procedures under the responsibility of the UN-Sub-Commission on Prevention of Discrimination and Protection of Minorities (now called Sub-Commission on the Promotion and Protection of Human Rights). These investigations are not directed to individual cases of abuses but to broader “situations” of gross violations of human rights. See Robertson, A.H./Merrills, J.G. Human Rights in the World, 4^th ed., Manchester: Manchester University Press, 1996, pp. 77 ff.

[72] The Restatement is a thorough study done by the American Law Institute and is often considered as an authoritative document as to establish the present state of international customary law. § 702(g) of the Restatement considers that a state violates international law if, as a matter of state policy, it practices, encourages, or condones “a consistent pattern of gross violations of internationally recognised human rights”. In the commentary to the Restatement it is established that “a violation of rights covered by this section is committed as a matter of state policy when it is required or encouraged by law, clear custom, usage, or by some official act or statement of a responsible high official”. Further, “evidence of condonation might be found in failure to take steps to punish acts of officials that are common or notorious” (cf. American Law Institute. Restatement of the Law Third – The Foreign Relations Law of the United States, vol. 2, St. Paul (Minnesota): American Law Institute, 1990, p. 168).

[73] Art. 3(1) of the UN-Convention Against Torture establishes the prohibition of réfoulement, where an alien is supposed to be tortured when arriving in his destination. The supposition shall be considered legitimate whenever a “consistent pattern of gross, flagrant or mass violations of human rights” exists within the respective state.

[74] See ICTR Akayesu-Case, para. 580: “the concept of ‘widespread’ may be defined as massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims”.

[75] See ICTR Akayesu-Case, paras. 580 and 581.

[76] Cf. Robinson, Darryl. Crimes Against Humanity, op. cit., at p. 161

[77] CAT Report at the 48^th Session, A/48/44/add.1, para. 39.

[78] See Art. 3 of the ICTR-Statute, where the attack is merely mentioned, but no conceptual elements of it are established.

[79] In the same sense, Sir Nigel S. Rodley, as UN Special Rapporteur for Torture, stated in his report on his visit to Brazil, that “torture and similar ill-treatment are meted out on a widespread and systematic basis in most of the parts of the country” (cf. E/CN.4/2001/66/Add.2, para. 166).

[80] On the contrary, within the UN the Brazilian government has often been praised for its openness and its recognition of the need to fight gross abuses of human rights in the country. CAT for example, in line with UN Special Rapporteur on Torture, stated that it notes with satisfaction “the political will expressed by the State party to combat the practice of torture, and its eagerness to co-operate with United Nations bodies and regional organisations to this end”. CAT also acknowledged “the frankness and transparency with which the Government recognises the existence, seriousness and extent of the practice of torture in Brazil” (cf. CAT/CXXVI/Concl.6/Rev.1, para. 4).

[81] S. Robinson, Darryl, Crimes Against Humanity, cit., p. 155.

[82] Cf. Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law, Martinus Nijhoff Publishers: Dordrecht/Boston/London: 1992, pp. 241-242.

[83] S. Tadić-case, cit., para. 654 and 655, stating, with the support of the ILC-Draft Code of Crimes Against the Peace and Security of Mankind,  that crimes against humanity can be perpetrated even by groups with de facto power or criminal gangs without permanent control of a territory.

[84] ICTY, The Prosecutor v. Tadić (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 653.

[85] Cf. ICTR, The Prosecutor vs. Hassan Ngeze, ICTR-97-27, dealing with the incitement to commit genocide and crimes against humanity by the editor of the newspaper Kangura.

[86] Cf. Robinson, Darryl, Crimes Against Humanity, supra, p. 156

[87] Cf. PCNICC/2001/1/Add.2 („Finalized draft text of the elements of Crime“ of the Preparatory Commission), footnote (6) to Article 7 of the ICC Statute: “A policy which has a civilian population as the object of the attack would be implemented by State or organisational action. Such policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action”.

[88] PCNICC/2001/1/Add.2, para. 3 to Article 7, Introduction: “It is understood that ‘policy to commit such attack’ requires that the State or organisation actively promote or encourage such an attack against a civilian population”.

[89] Human Rights Watch for instance recommended: “The requirement in the rolling text that a State or organization ‘actively promote or encourage’ should be deleted from the chapeau”, since “any elaboration on the meaning of ‘policy’ must be consistent with the Statute and international law”. Thus, “it should cover policies of toleration, acquiescence, explicit or implicit approval or endorsement, direct or indirect encouragement or promotion” (cf. Human Rights Watch, Commentary to the Preparatory Commission on the International Criminal Court, p. 3, available at http://www.igc.org/icc/html/hrw200006.html (25 February 2003).

[90] S. Hall, Christopher Keith, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, 94 AJIL 773, at 779, pointing out that most States participating in the PrepCom favoured the sentence quoted supra footnote (98) be dropped, since “international law recognised that crimes against humanity could be committed pursuant to or in furtherance of a state policy with the consent or acquiescence of state officials, citing in particular the examples of the definitions of torture in Article 1 of the Convention Against Torture and the crime against humanity of enforced disappearance in Article 7(2)(i) of the Statute, as well as subsequent jurisprudence”.

[91] At the Rome Conference this concern was expressed mainly by delegations from the “Arab group” and from the “Asian group”. See Robinson, Darryl. Defining “Crimes Against Humanity” at the Rome Conference, in The American Journal of International Law, nº 93 (January 1999), p. 43.

[92] Cf. Pinheiro, Paulo Sérgio (Brazil and the International Human Rights System, in University of Oxford Centre for Brazilian Studies Working Paper Series, Working Paper CBS-15-00 (P), Oxford: 1999), the former State Secretary for Human Rights of President Cardoso’s government, arguing that “since the return of civil government and democracy [in Brazil] there has been a clear tension between the federal government’s more pro-active policy of promoting human rights and the immunity of the agents of state governments – such as state secretariats, the judiciary, and the police”. And he concludes: “The federal government is aware of this tension, and is not unwilling to address it”. Though it must be said that until the end of that government, human rights issues have been dealt with as a secondary subject in the federal government’s policy. Cardoso’s government had stronger commitments with the market and was overwhelmed by the need of securing the currency. Thus it was not eager to spend the necessary funding for a consistent human rights policy in all levels. Further, human rights policy was seen mainly as a means of facilitating the “integration of Brazil into an increasingly globalised world economic order” (sic - Pinheiro, ibid., p. 19). Such policy was therefore mainly market and marketing-oriented. In this sense the excuse of attributing the failure in the compliance of international human rights standards to the member states was always very convenient.

[93] The “federal clause” in Article 28 of the American Convention on Human Rights leaves no room for misinterpretations: “(1) Where a State Party is constituted as a federal state, the national government of such State Party shall implement all the provisions of the Convention over those subject matter it exercises legislative and judicial jurisdiction. (2) With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfilment of this Convention”. But also in the UN-International Law Commission’s draft articles on Responsibility of States for internationally wrongful acts adopted in 2001 (in Official Records of the General Assembly, 56^th session, Supplement nº 10 – A/56/10 – chp.IV.E.1) it is established that “the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of that State” (Article 4).

[94] In the case of the journalist Tim Lopes (supra) such a fake trial was presided by the drug dealer Elias “Maluco” himself.

[95] S. Bassiouni, Cherif M., Crimes Against Humanity in International Criminal Law, op. cit., pp. 240 ff.

[96] In the Tadić-case the ICTY stated that “in addition to the intent to commit the underlying offence the perpetrator must know of the broader context in which it occurs” (cit., para. 656).

[97] Cf. Tadić-case, cit., para. 657: “While knowledge is thus required, it is examined on an objective level and factually can be implied from the circumstances“.

[98] Cf. Hassemer, Winfried. Symbolisches Strafrecht und Rechtsgüterschutz, in Neue Zeitschrift für Strafrecht, nº 12 (1989), pp. 553-592.

[99] This tendency is very clear in modern civil law penal literature (e.g. Hassemer, Winfried. Einführung in die Grundlagen des Strafrechts, 2^nd ed., Munich: Verlag C.H. Beck, 1990, pp. 22 ff., on “Folgeorientierung” or “consequence-orientation” in criminal law), though in common law systems the use of punishment as satisfaction for victims (retributive criminal policy) has been more frequent (see Roth-Arriaza, Naomi. Impunity and Human Rights in International Law and Practice, Oxford: Oxford University Press, 1994, pp. 19 ff., suggesting a “victim-centered approach” to punishment).

[100] See Bill of Constitutional Amendment nº 96-C, of 1992, submitted by Deputy Hélio Bicudo. The proposal transfers to the federal judiciary the competence over crimes connected to the violation of human rights protected by international law.

[101] See proposed § 5 of Article 109 of the Federal Constitution.