At OAS, NGOs denounce abuses of Military Justice in Brazil

In a hearing at the IACHR, experts and members of social movements report how military courts have overstepped their constitutional bounds

Sede do Tribunal de Justiça Militar do Estado de São Paulo. (Foto: divulgação)

The situation of the Military Justice system in Brazil is the topic of a public hearing at the IACHR (Inter-American Commission on Human Rights), a body of the OAS (Organization of American States), this Tuesday, March 15. The hearing will be held remotely at 10 am (Brasília time) and broadcast live on the Commission’s YouTube channel.

The hearing in the OAS human rights system was requested by Conectas, Justiça Global, IBAHRI (International Bar Association’s Human Rights Institute), Terra de Direitos and IDDD (Defense of the Right to a Defense Institute). 

The remote meeting was attended by Thiago Amparo, a lawyer and professor at the Getúlio Vargas Foundation; Daniel Sarmento, a lawyer and professor at the Rio de Janeiro State University; Claudemar Aparecido, a lawyer and activist from the MST (Landless Workers Movement); and Vitor Santiago, resident of the Maré favela and a victim of military action during the occupation staged in 2015. The Brazilian State will also send a delegation to the event.

According to the organizations, the hearing in the IACHR will be an opportunity for Brazilian civil society to show how the expansion of the jurisdiction and the use of military courts in the country pose risks to the lives of civilians and to democracy, violating fundamental rights guaranteed by the Federal Constitution and international treaties. 

Problems of the Military Justice system 

According to experts in public security and combating institutional violence, the problems of the Military Justice system are related to the fact that these courts have overstepped their constitutional bounds of resolving strictly military affairs. 

“Military justice should only judge cases that affect military interests. Its expansion, in addition to being unconstitutional, is an ally of impunity for crimes committed against civilians, undermining the principle of equality before the justice system and, therefore, Brazilian democracy,” said Clarissa Borges, advocacy advisor at IDDD.

In this respect, two issues stand out. The first is related to trials of civilians by military courts. This practice increased substantially during the period of the military dictatorship (1964-1985) and, even after it lost its authority to prosecute crimes against national security, the trend of expanding the judgment of civilians continued even after the Constitution of 1988, largely due to the increased role of the Armed Forces in public security activities.

The second point is that the Military Justice system circumvents the jurisdiction of jury trials and judges crimes committed by military personnel exercising functions outside the traditional role of the Armed Forces, namely their work in the area of public security, such as the so-called GLO (operations to guarantee law and order). 

As a result, abuses and crimes against the lives of civilians committed by public security agents and members of the Armed Forces are at risk of not being investigated and prosecuted transparently, creating a backdrop of impunity and rights violations, especially for the residents of favelas and urban outskirts across the country, in particular young black men, and for agricultural workers in rural areas where GLO and police operations are carried out with little or no control from society. 

“The current situation of Military Justice in Brazil does not provide civil society with legitimate means of controlling military activity,” said Gabriel Sampaio, a lawyer and coordinator of the program to Combat Institutional Violence at Conectas. He goes on to say that “the courts run by the military cannot be detached from society, with dynamics and rules that do not apply to the population and other civil legal institutions”. 

According to Cláudio Oliveira, a lawyer who is a member of the Human Rights Section of MST-PR (Rural Landless Workers Movement in the State of Paraná), “the Military Police has historically served as the executor of the violence engineered by powerful landowners and politicians in pursuit of land concentration. They act under the guarantee of impunity, as they engaged the Military Justice system to investigate the crimes committed against landless people. It is a process of institutionalized impunity.” Oliveira added that these situations of abuse mostly happen during evictions. 

Along the same lines as the complaint made by the rural movement, Camila Gomes, a legal advisor at the organization Terra de Direitos, pointed out that one of the objectives of the hearing is “to expose the existing relationship between military justice and rural violence and to show, using concrete examples, how the military justice system underpins this relationship. This is because it serves as a key element to ensure impunity for crimes against human rights defenders in the struggle for the right to land,” she said. 

According to Eduardo Baker, from the organization Justiça Global, the increase in the number of cases involving civilians is also a consequence of the increasing use of the Armed Forces in standard law enforcement activities. “The more the military exercises the functions of the police, the more we see civilians in military courts,” he said. To finish off, Anne Ramberg, co-chair of IBAHRI (International Bar Association’s Human Rights Institute) and former general secretary of the Swedish Bar Association, added that: “There are several cases of constitutional review challenging the expansion of military jurisdiction in Brazil, all of which are pending judgment by the Supreme Court of Brazil, and IBAHRI has joined human rights organizations, state agencies and other actors in Brazil that denounce this shift. We urge the Brazilian State to re-align its domestic legislation with regional and international human rights standards and norms, and to ensure that civilian courts investigate, prosecute and punish human rights violations,” she added.

Discussion in the Supreme Court 

The hearing in the IACHR will take place at the same time that the Supreme Court is debating the role of the Military Justice system in Brazil. Six cases on this matter are pending in the Court. One of them is ADI Case (Direct Action of Unconstitutionality) No. 5032, filed in 2013 by the Office of the Prosecutor General and which is expected to be heard by the justices of the Supreme Court starting on March 23. This case is focused on the use of military courts to try Armed Forces personnel who commit crimes while exercising non-standard military activities, especially in the field of public security, such as GLO operations.