Military Courts and Human Rights Violations in Brazil from the Perspective of the Inter-American Human Rights System

The Supreme Federal Court of Brazil will soon rule (under a constitutional review case called Ação Direta de Inconstitucionalidade no. 5032, commonly referred to as ADI 5032) whether members of the armed forces that commit crimes against civilians during peacetime should be tried before civilian or military courts. This judgment is critical for Brazil, a country with a long (and recent) period of authoritarian military rule (1964-1985) but without comprehensive transitional justice mechanisms and State accountability for human rights violations.

While the current Brazilian Constitution (adopted in 1988) restricted the institutional role of the military, starting from the 1990s, governments began to routinely employ the Armed Forces in public security contexts – from fighting organised crime in the Favelas or the Amazon rain forest to assisting local security forces with mega-events, such as the 2016 Olympics and the 2014 World Cup (often called “operations to guarantee law and order”). This resulted in a complex and conflictual institutional context: unresolved political and human rights issues combined with increasing reliance on the military for public security matters, often resulting in civilian deaths and claims of excessive use of violence.

In principle, the Brazilian Constitution had institutional mechanisms to oversee the military in these cases. The jurisdiction of military courts encompassed “military crimes,” which were generally perceived to refer to crimes perpetrated by members of the armed forces during wartime or to crimes committed by civilians against the military (Article 124, sole paragraph), therefore excluding any crimes committed during these operations, which were initially tried under civilian courts.

In the late 1990s, Congress approved laws establishing that public security operations by the armed forces are considered “military activities” for the purposes of the Military Penal Code. Therefore, the military courts now have jurisdiction to hear and try non-military crimes perpetrated by members of the armed forces during public security operations. The investigation and trial of these criminal offences, previously conducted by civilian authorities under civilian courts, is now overseen by the military.

In this context, the Attorney General’s Office filed ADI 5032 before the Supreme Federal Court arguing against the constitutionality of these laws on human rights grounds, as authorised under Article 103 of the Brazilian Constitution. The trial began in 2022, and it was initially conducted remotely in an online session. So far, five justices have issued opinions on the matter: three approving the constitutionality of the laws expanding military jurisdiction, one finding them unconstitutional, and one finding partial unconstitutionality of these provisions, but accepting the core of Attorney General’s Office petition against military jurisdiction during “operations to guarantee law and order”. The session was adjourned in early 2023 after Justice Lewandowski formally requested more time to review and debate the matter in an in-person trial session.

The Brazilian Federal Supreme Court has eleven judges, and a simple majority is required for decisions of this nature. Judges issue their opinions in order of seniority. As of June 2023, the judgment is still pending and judges may change their votes until all opinions are issued, and the trial is finalised. The trial session is expected to resume in the next couple of months, but judges have significant discretion on the matter and sometimes take several months to review a case.

Human rights advocates and organisations have expressed concerns about the outcome of the case. Many argue that military courts in Brazil do not meet the demands for accountability regarding crimes committed against civilians. Due to the hierarchical nature of the military, there are concerns about the independence and impartiality of the military officers in charge of investigating and hearing cases against their own ranks. Additionally, considering the history of human right violations in Brazil, they argue that during peacetime military jurisdiction should focus on issues about order and discipline within the military and not human rights violations, such as illegal detentions, torture, homicides, among others.

Moreover, this constitutional case again sheds light on international human rights law and the military’s role in Brazilian society. Brazil has consistently ignored the Inter-American Human Rights System standards regarding transitional justice and the risks that military justice poses to human rights (as seen in the facts of Gomes Lund v. Brazil). Once again, while the Attorney General and many amici curiae have argued for a human rights perspective on this matter, the opinions issued so far largely ignore the comprehensive Inter-American human rights precedents and standards on military jurisdiction.

The Inter-American Court of Human Rights (IACtHR) has long-established parameters with respect to military courts and its application in cases involving human rights violations. The Court’s position has evolved, reflecting a growing understanding of the need to ensure accountability and protect human rights, in a region where the military has been playing a relevant role.

In Castillo Petruzzi and others v. Peru, the Court recognised that the military court system is a functional jurisdiction as it maintains order and discipline within the armed forces (1999, para. 128). Later, in Durand Ugarte v. Peru, the Court emphasised that in a democracy based on the rule of law, military jurisdiction should be exceptional and aimed at protecting legal interests related to the military’s functions (2000, para. 117). Hence, based on the IACtHR’s case law, it should be limited to military personnel for offences within their functions and under specific circumstances (2000, para. 116).

Over the years, the Court’s jurisprudence has specified the limited scope of military jurisdiction in human rights violation cases. In the case Montero Aranguren and others (Retén de Catia) v. Venezuela (2006), the Court held the State responsible for not removing provisions that allowed military courts to investigate human rights violations committed by the National Guard ( para. 54).

This was later developed in cases such as La Cantuta v. Peru (2006) and Zambrano Vélez and Others v. Ecuador (2007). In both, the Court reinforced its stance that military courts do not have jurisdiction to investigate and prosecute human rights violations, given that allegations of these types of abuses are not related to typical functions of the military (i.e., national security), nor are they connected to order and discipline within the armed forces (2006, para. 142; 2007, para. 66).

Radilla Pachecho v. Mexico (2009) marked a milestone in the Court’s jurisprudence. The Court highlighted that military jurisdiction should be reduced or even eliminated in democratic states during peacetime. If a State decides to maintain it, its use should be minimal and strictly necessary (2009, para. 272). It clarified that human rights violations should always fall under the jurisdiction of civilian courts (2009, para. 272).

Subsequent cases, including Rosendo Cantú and Other v. México (2010) and Cabrera García and Montiel Flores v. México (2010), reaffirmed the principle that military courts are not competent to investigate or prosecute cases of torture, forced disappearances, sexual violence, or any other human rights violations (2010, para. 161; 2010, para. 198).

Brazil has already been judged before the IACtHR concerning military jurisdiction. In the more recent case of Herzog and others v. Brazil (2018), the Court repeated that military jurisdiction should not automatically intervene solely based on the involvement of military personnel or the occurrence of events within military establishments but on the nature of the crime and the violated legal interest (2018, para. 247).

It was not the first time Brazil was questioned about not activating the ordinary jurisdiction to investigate killings of civilians by police personnel. In Favela Nova Brasília v. Brazil, the IACtHR emphasised that criminal investigations about alleged abuses of State armed forces should be entrusted to an independent body separate from the police or military force involved in the incident.

These parameters are relevant to the Supreme Federal Court of Brazil since they are authoritative interpretations of the American Convention on Human Rights (ACHR). Based on Article 27 of the Vienna Convention on the Law of Treaties States, Article 2 of the ACHR, the case law of the IACtHR, and Article 5 of the Brazilian Constitution, human rights treaties are part of the national legislation. Hence, Brazil has an international and constitutional obligation to align its domestic legislation and practices with the provisions and interpretations of the Inter-American system corpus iuris.

This position is supported by the conventionality control doctrine, which seeks to warrant that States may not invoke the provisions of their internal law as justification for failing to perform the prescriptions of the American Convention (Tzompaxtle Tecpile and others v. México, 2022, para. 219),

According to the said doctrine, the responsibility to ensure that national laws are consistent with the Convention falls on all public authorities, including judges (FEMAPOR v. Peru, 2022, para. 99). Thus, not just the Supreme Federal Court of Brazil, but any Brazilian judge handling alleged human rights violations committed by armed forces must guarantee that the scope of the military jurisdiction remains limited for extraordinary cases. Such special cases will be restricted to maintaining organisation and obedience within the armed forces.

This is an opportunity for Brazil’s highest court to demonstrate its commitment to guaranteeing accountability, protecting human rights, and assuring that Brazil’s legislation is in accordance with the provisions and interpretations of the American Convention on Human Rights.