International Criminal Law in Brazil
Introduction
International criminal law in Brazil (Direito Penal Internacional) concerns the domestic implementation of international crimes, cooperation with international criminal tribunals, and Brazil’s engagement with the International Criminal Court (ICC). Brazil is a founding member of the ICC, having ratified the Rome Statute on June 20, 2002. The Brazilian legal system incorporates principles of universal jurisdiction for certain international crimes and has developed mechanisms for mutual legal assistance in criminal matters.
Rome Statute and the ICC
Ratification and Implementation
Brazil signed the Rome Statute of the International Criminal Court on February 7, 2000, and ratified it on June 20, 2002. The Statute entered into force for Brazil on September 1, 2002. The ratification was approved by the National Congress through Legislative Decree 112/2002.
Unlike some states that have enacted comprehensive implementation legislation, Brazil has not adopted a specific statute incorporating ICC crimes into domestic law. Instead, international crimes within the ICC’s jurisdiction — genocide, crimes against humanity, war crimes, and aggression — are prosecuted under existing domestic criminal provisions where applicable. This has raised questions about the principle of complementarity and Brazil’s ability to prosecute ICC crimes domestically.
Complementarity
The ICC’s complementarity principle provides that the Court may only exercise jurisdiction when states are unwilling or unable to genuinely prosecute. Brazil’s lack of specific implementing legislation could theoretically create gaps in domestic prosecution capacity, though no situation involving Brazil has yet been brought before the ICC.
Domestic Prosecution of International Crimes
Genocide
Genocide is criminalized by Law 2.889/1956, which implements the Genocide Convention. The law defines genocide as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. Punishment ranges from 15 to 30 years’ imprisonment for the core offense, with increased penalties for aggravated forms.
Crimes Against Humanity
Brazilian law does not contain a specific provision defining crimes against humanity as a distinct category. Instead, constituent acts — murder, torture, enforced disappearance, deportation, persecution — are prosecuted under ordinary criminal provisions. This approach has been criticized by scholars who argue that it fails to capture the systematic nature of crimes against humanity.
Torture
The Torture Law (Law 9.455/1997) defines and criminalizes torture, implementing the Convention Against Torture. The penalty ranges from 2 to 8 years, with increased penalties when torture results in serious bodily injury or death, or when committed against vulnerable persons.
Enforced Disappearance
Law 9.455/1997 also addresses enforced disappearance, and Brazil ratified the International Convention for the Protection of All Persons from Enforced Disappearance in 2010. The Gomes Lund v. Brazil case before the Inter-American Court addressed the forced disappearances committed during the military dictatorship (1964-1985).
Universal Jurisdiction
Brazilian law recognizes a limited form of universal jurisdiction. The Penal Code (Article 7, II, a) provides that Brazilian law applies to crimes committed abroad when Brazil is obligated to prosecute under an international treaty. This provision allows prosecution of certain international crimes regardless of the nationality of the perpetrator or victim, or the place of commission.
However, Brazil has rarely exercised universal jurisdiction in practice. The STF has not definitively addressed the scope of universal jurisdiction under Brazilian law.
Cooperation with International Tribunals
International Criminal Court
Brazil has cooperated with the ICC through: (i) execution of requests for assistance; (ii) provision of information and documents; and (iii) logistical support for ICC activities. However, Brazil has not entered into a surrender agreement with the ICC, and the domestic legal framework for executing ICC requests relies on general mutual legal assistance statutes.
International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY)
Brazil cooperated with the ad hoc tribunals under the general provisions of the Penal Code and mutual assistance laws, though cooperation was limited in practice.
International Residual Mechanism for Criminal Tribunals
Brazil continues to maintain cooperation with the Mechanism, which succeeded the ICTY and ICTR.
Mutual Legal Assistance
Law 13.445/2017 (the Migration Law) and Decree 3.810/2001 regulate mutual legal assistance in criminal matters. Brazil has concluded bilateral mutual legal assistance treaties with numerous countries and participates in the Inter-American Convention on Mutual Assistance in Criminal Matters.
Extradition
Extradition (extradição) is governed by the Migration Law, the Penal Code (Articles 76-94), and applicable treaties. The STF has exclusive competence to judge extradition requests (Article 102, I, g of the Constitution). Brazilian law generally prohibits extradition for political offenses and does not extradite Brazilian nationals (except for naturalized Brazilians for crimes committed before naturalization).
Brazilian Jurisprudence
The STF has addressed international criminal law in several cases. In Extradição 1.085 (2010), the STF discussed the application of the non-refoulement principle in extradition cases involving risk of torture. In AP 470 (the Mensalão case, 2012), the STF addressed the classification of organized crime in relation to international standards.
Conclusion
Brazil’s engagement with international criminal law reflects its commitment to the international rule of law, though implementation gaps persist. The lack of comprehensive implementing legislation for the Rome Statute and the reliance on ordinary criminal provisions for international crimes present challenges for effective prosecution. Continued legislative development, enhanced cooperation with the ICC, and the development of domestic jurisprudence will be critical for strengthening Brazil’s contribution to international criminal justice.