Actions close siege against Bolsonaro and case in The Hague walks to be accepted – 01/05/2023

The complaints against former president Jair Bolsonaro at the International Criminal Court for his dismantling of indigenous policies and for suspected crimes against these populations are on their way to being accepted.

Three different sources in The Hague and in Brazil signaled that there are clear signs that the processes against the former president have gained a new pace and that there is a strong tendency towards admissibility of cases.

The signaling takes place at a time of increased international pressure against Bolsonaro, in measures that aim to close the siege against the former president:

1. As of Tuesday, for the first time, Brazil will receive a visit from a UN representative whose mandate is to investigate risks of genocide among a population. Kenyan Alice Wairimu Nderitu, special adviser to the Secretary-General for the Prevention of Genocide, will stay in the country until May 12 and will focus her agenda on the situation of indigenous peoples and the Afro-Brazilian community.

One of the government’s strategies is to get an international report backing the idea that, under the Bolsonaro government, these populations experienced real risks of genocide. An eventual Nderitu document could reinforce the pressure on the ex-president and should feed the denunciations in The Hague.

2. Brazilian entities will submit a new report to the International Criminal Court, with details of the humanitarian crisis situation experienced by the Yanomami people. Once again, the focus will be on Bolsonaro.

3. In the case of the Court, the indications have also left interlocutors “cautiously optimistic” and point to a strong tendency for the complaints to be accepted. It is not yet a question of going into the merits of a possible crime that Bolsonaro has committed. But, first, an assessment of whether the Court’s attorney has a mandate to assume such complaints against the former president.

Since 2020, Bolsonaro has been the subject of different complaints at the International Criminal Court. At least one of them has been archived. But complaints relating to the situation of the indigenous people drew the attention of the court’s attorney who, per year, receives more than 700 complaints from all over the world.

Cases like the one presented by the Articulação dos Povos Indígenas do Brasil pointed to crimes resulting from the dismantling of assistance to traditional populations. One of the trends in The Hague is to bring together, in a single assessment, the different evidence presented by different groups.

Jurists consulted by UOL point out that one of the main points to be considered before starting an investigation is the concept of complementarity between The Hague and national justice.

That is, for a case to be accepted, some principles are examined:

  • The Hague assesses whether there is already an open case against that person in their country of origin. But it may choose to go ahead with the investigation in situations where the state is unable or chooses not to conduct the inquiry independently.
  • The Court examines whether national procedures were carried out with a view to protecting the person concerned from criminal liability for crimes within the Court’s jurisdiction.
  • If there has been an unreasonable delay in the process which, in the circumstances, is inconsistent with the intention to bring the person concerned to justice;
  • The proceedings were not conducted independently or impartially, and were conducted in a manner that, in the circumstances, is inconsistent with the intent to bring the person concerned to justice.

For jurists, state inaction in the face of a crime makes a case immediately admissible at the International Criminal Court. But inaction is not the only element that can lead the court to consider action against the suspect.

If Bolsonaro is already being investigated, it is necessary that the crimes for which he is denounced in The Hague are the same ones for which there is a domestic process against him.

In 2006, in a case involving the Democratic Republic of Congo, the ICC decided to accept the complaint, even when the suspect had already been detained in his country of origin. At that time, the prosecution ruled that for a case to be inadmissible, “domestic procedures must cover both the person and the conduct which is the subject of the case before the Court”.

Among the entities that took the cases to The Hague, there is cautious optimism in the face of the signals from the prosecution. A process, however, may take months or years to actually mean any risk of arrest for Bolsonaro.

Last year, the Permanent Peoples’ Court (TPP) already condemned Bolsonaro for crimes against humanity committed during the covid-19 pandemic and indicated that another policy would have saved at least 100,000 people.

The conviction, however, had no practical consequences against Bolsonaro. But even if only symbolic and moral, the decision could increase international pressure against the former Brazilian president. The international body, created in the 1970s, does not carry the weight of the International Criminal Court, nor the capacity to take action against a state or head of government. But the conviction was considered by civil society groups, former ministers and jurists as an important seal of approval to put pressure on the Planalto Palace and expose Bolsonaro to the world.

Bolsonaro, according to the court, committed “intentional” and “intentional” acts against his population.

Members of the body also recommend that the International Criminal Court further assess the possibility of genocide committed by the state, over decades and more recently intensified by the former president. The symbolic sentence was transmitted to the court in Holland.

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