Law regarding current military trials sanctioned by Temer

by Camila Jordan and Fernanda Nogueira, Editors and Writers at Brazil Talk

[7 min read]

(This article was updated on Monday, 16th of October 2017)

On October 10th, the Senate approved the PLC 44/2016^[1] amendment to the 9.299/2016 Law; the proposal alters the current decree that defines the Military Penal Code, from October 21st, 1969^[2], concerning the judging process of military servants in the exercise of their duties. In layman terms, it means that crimes committed by the military in duty (under policing and “Law and Order enforcement” operations) against the lives of civilians would be judged by the Military Justice System.

As of today, Monday the 16th of October, Michel Temer, acting President of Brazil, has sanctioned the Law PLC 44/2016. The law was already published in the Diário Oficial da União, roughly translated as the Federal Official Journal of Brazil.

With a history of a 20 year-long military dictatorship, it is not difficult to understand why concerns with this measure would appear. Given the state and amount of on-going military operations in civilian settings^[3] – especially in slums in Rio de Janeiro – this seems to come in a time where the relationship between military and civilians is once more filled with uncertainty and mistrust. Reserving the right to judge these crimes creates a dangerous precedent for absolving military actions that threaten the lives of civilians in the vulnerable situation of slums – where the operations take place.

The theme is not new in Brazil, and it is certainly not new to world. In the 2013 Academy Award Nominee and Emmy Award-winning documentary “The Invisible War”^[4], director Kirby Dick criticizes the US Military Justice System; although dealing with a different type of crime^[5], the film exposes the impartiality of the military justice and shows how very few cases are taken to court and processed. One can easily deduce how minuscule is the number of actual condemnations, and it is hard not to trace a parallel with what the results would be in the application of the Law in the Brazilian scenario.

According to the Brazilian Forum of Public Safety^[6] (Fórum Brasileiro de Segurança Pública) in 2015 3320 civilians were killed due to Civilian and Military Police interventions that were in and out of service. A number that has been increasing since 2012. These stats represent a 6 percent increase over 2014 and a 52 percent increase over 2013. The Rio de Janeiro state comes only second to Sao Paulo state, with 626 and 848 respectively. Death of civilian and military police officers also has been increasing, according to Human Rights Watch organization,^[7] only in 2014 393 officers were killed during confrontations.

Even though the Senate has approved the law, it still has to be sanctioned by President Michel Temer. Parties and other organizations that have positioned themselves against this decision say Temer will most probably sanction it. According to Amnesty International^[8] Brazil has already been directly ordered by the Inter-American Court of Human Rights not to use military jurisdiction to investigate and prosecute military personnel for crimes committed against civilians.

The scenario in Brazil, but especially in Rio de Janeiro has been of great concern for some time now. In 2015 Amnesty International published a report^[9] called “You killed my son” that talked about how the extrajudicial executions at the hands of police forces are frequent in Brazil. In the name of the so-called “war on drugs”, authorities have often used legal terms such as “resistance followed by death” as a smokescreen to cover up killings committed by police officers.

The great fear that comes with the passing of this law is the lack of impartiality by the Military Justice system. Amnesty International’s report shows a lack of adequate investigation and conviction of the perpetrators of police killings.

In a country with a dense and mostly unsolved military history^[10], this law sends a clear message that crimes like these are tolerated by the authorities. Furthermore, publicly available information shows that, in the city of Rio de Janeiro, of 1,275 registered cases of killings by on-duty police between 2010 and 2013, 99,5% victims were men, 79% were black, and 75% were aged between 15 and 29.

“When reviewing the status of all 220 investigations of police killings opened in 2011 in the city of Rio de Janeiro, Amnesty International found that after four years, only one case led to a police officer being charged. As of April 2015, 183 investigations were still open.”

– Report “You killed my son.”

Brazil Talk believes the sanctioning of this law would further aggravate the credibility of the current operations, primarily because of the impartiality issue it brings to the table. More than that, given the current state of social and political instability, it could provide an incentive for nonaccountability of actions committed by military personnel, in the name of “law and order”.

Finally, if the goal is to provide security to the population and strengthen institutions, we believe the solution would rely more on training and less on judiciary devices. In an interview with El Pais^[11], Conectas NGO director Marcos Fuchs mentioned that today, military personnel are not adequately trained to operate in a civilian setting, even less so in the intricate environment of the slums. Instead of thinking about how to deal with the aftermath of killings, we should put our minds to work on how to prevent deaths – of both civilians and military – on the field.

If you would like to pressure President Michel Temer not so sanction the law consider signing Amnesty’s petition here.

Key recommendations by Amnesty International are the following.

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