By Putin, Brazil defends global immunity for war criminals

Brazil opposed a proposal by the United Nations (UN) International Law Commission to allow foreign officials convicted of war crimes to be prosecuted and punished outside their country. The position was expressed in an opinion sent in November 2023 to the UN body, which regulates the application of the rules of international law between member countries.

In the document, Brazil still argues that, within its territory, a country should only comply with obligations imposed by the International Criminal Court (ICC) – such as an arrest order – against a foreign leader only if his country is also a signatory to the Statute of Rome, which created the Court, defines the crimes judged by it (genocide, crimes against humanity, war crimes, among others) and prosecutes people accused of these crimes.

The position has drawn the attention of diplomats and international analysts as it contradicts the rules of the Rome Statute. Alongside 123 countries, Brazil is a signatory to this treaty, and as such, has committed to complying with the ICC’s determinations since 2002.

Today, the most notorious case in court is that of Vladimir Putin, dictator of Russia, against whom there is an international arrest warrant issued last year, due to atrocities committed in the invasion of Ukraine.

Putin was considered responsible for the deportation of at least 9,000 Ukrainian children who lived in Ukrainian territories temporarily occupied by Russia. They were later forcibly adopted by Russian families. Most parents do not know the whereabouts of their children who were victims of crime.

Strictly speaking, if Putin sets foot on the territory of a country that is a signatory to the Rome Statute, that country is obliged to arrest him and hand him over to the ICC, based in the Netherlands.

Brazil’s opinion guarantees immunity to dictators like Putin

In the opinion delivered to the UN, Brazil gave its opinion on a proposal under discussion in the commission on the right to criminal immunity in foreign jurisdictions.

According to the UN proposal, employees of a given State cannot be criminally prosecuted in another country for acts committed in the exercise of their functions. Heads of State, Government and Ministers of Foreign Affairs have even broader immunity, as they would not be criminally prosecuted outside their country for acts carried out in an official or private capacity, during or before their term of office.

The exception is precisely in cases of war crimes and crimes against humanity, genocide, apartheid, torture and forced disappearance. According to the UN proposal, immunity does not apply in these cases, almost all of which are judged by the ICC.

In the opinion delivered to the UN International Law Commission, Brazilian diplomacy stated that it was “committed to promoting accountability for serious crimes under international law” and said it recognized “initiatives to avoid impunity”.

However, Brazil then argues that, if in fact the body reserves immunity for war crimes and the like, “this provision would only apply between the States parties to the possible future agreement”. “Under no circumstances, the limitation or exception suggested in the draft article 7 could apply to a State that is not a party to a convention based on this wording,” said Brazilian diplomacy under Lula.

In practical terms, it is a way of guaranteeing immunity to leaders of countries that, like Russia, do not ratify the Rome Statute and, therefore, do not submit to the ICC’s orders.

In another part of the opinion, Brazil also argues that immunity rules do not affect the “rights and obligations” of countries that adhere to international agreements to establish criminal courts – which, in theory, would favor compliance with ICC orders. But he makes a reservation: this would only apply “between the parties to these agreements”.

In other words: a country could only arrest a foreign leader at the behest of the ICC if he is from a State party, signatory to the Rome Statute. Yet another loophole for Putin to free himself from an international prison.

Lula has already said that Putin would not run the risk of being arrested in Brazil

The discussion gained relevance in international relations due to the statement by President Luiz Inácio Lula da Silva (PT), in September last year, guaranteeing that Vladimir Putin would not run the risk of being arrested if he came to the G20 meeting in Rio de Janeiro, in November this year.

“If I am president of Brazil, and if he [Putin] comes to Brazil, there is no way he will be arrested. No, he will not be arrested. No one will disrespect Brazil,” said Lula, during an interview in New Delhi, India, at a meeting of the same G20, a group that brings together the 20 largest economies in the world. Putin did not attend that event, even though India is not a signatory to the Rome Statute and therefore has no obligation to comply with ICC orders.

If the UN approves the guarantee of immunity from the ICC in the way it was proposed by Brazil, due to the fact that Russia does not ratify the existence of the international Court, the Brazilian government would have a legal argument for not arresting Putin in a possible visit by the dictator. Despite this, some experts consider it to be a fragile maneuver.

Ministry of Justice would have to carry out the arrest, explains expert

Specialist on the subject, lawyer and doctor of Law Marcelo Peregrino maintains that the Rome Statute, incorporated by Brazil into law, is very clear in declaring that criminal immunity does not apply to leaders convicted of war crimes and similar crimes abroad. .

This is what article 27 of the treaty indicates: “this Statute shall apply equally to all persons without any distinction based on official status. In particular, the official status of Head of State or Government, member of Government or Parliament, elected representative or public servant shall in no case exempt the person concerned from criminal liability under the terms of this Statute, nor constitute per se reason for reducing the sentence. Special immunities or rules of procedure arising from a person’s official capacity; under domestic law or international law, shall not prevent the Court from exercising its jurisdiction over that person.”

Article 59 of the Rome Statute is even clearer with regard to ICC arrest orders addressed to signatory States, such as Brazil: “the State Party which receives a request for preventive detention or for detention and surrender shall immediately adopt the measures necessary to carry out the detention, in accordance with the respective domestic law and the provisions of Part IX”.

Peregrino says that, in the event of a visit to Brazil by Putin or another war criminal identified by the ICC with an arrest warrant, it would be up to the Ministry of Justice to carry out the measure.

“What the Rome Statute says is that countries must comply with international warrants even against foreign authorities who have material and formal immunity, even if they are nationals of a country that is not a signatory to the Rome Statute. Brazil committed to the ICC and the treaty that established it was incorporated internally. There is no doubt about the validity of the Rome Statute”, says the lawyer.

Refusal to arrest Putin could cause Lula to become uncomfortable with Western leaders

In addition to being fragile from a legal point of view, a possible refusal by Brazil to arrest Putin, if he comes to the G20, would also wear down the country in the face of the United States and Europe, whose leaders, unlike Lula, vehemently condemn the Russian president. for the invasion of Ukraine.

For Gunther Rudzit, professor of International Relations at ESPM, a possible failure by Brazil to comply with the Rome Statute would not be a mere nod to Putin. “Human rights are an essential part of what it means to be West. Making a point of welcoming a leader guilty of committing war crimes, like Putin, even more so in an invasion and annexation of territory, as happened in Crimea in 2014, is something that any average European citizen repudiates, not just their leaders”.

He recalls that in April 2023, during a visit to Portugal, Lula said that “the decision for war was taken by two countries”, suggesting that Ukraine would be as guilty as Russia. “That went down very badly. Lula has been trying to correct it since then, but it is written down. Like it or not, Russia was the one who invaded the neighboring country. And Brazil has always based its foreign policy against the use of force. I would say that attitudes like this provoke not a departure, but a bad will, on the part of the United States, when Brazil needs it”, adds Gunther Rudzit.

The G20 meeting in Brazil is scheduled for November, in Rio de Janeiro. Even with Lula’s word that Putin would not be arrested here, his arrival is considered unlikely. In addition to persona non grata among most of the group’s leaders, there would be risks along the way – European airspace is closed to Russian aircraft and a crossing through Africa could also be the focus of attacks, depending on the country.