Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
Brazil’s Refugee Law (1997) states: “The following individuals shall not benefit from refugee status: … III. [those who] have committed … a war crime, a crime against humanity … .
In 2009, in the Battisti extradition case, the Plenary Court of Brazil’s Supreme Federal Court was called upon to decide on the extradition of Cesare Battisti, requested by Italy. The defendant had been granted refugee status by the Minister of Justice based on the defendant’s well-founded fear of persecution due to his political opinions. The Court found that the Minister of Justice’s decision was unlawful in view of the grave nature of the crimes for which the defendant had been convicted in Italy. The Court also held that such crimes were not political offences, but ordinary crimes, and granted the requested extradition, subject to the discretionary decision of the President of the Republic. Regarding the types of crimes which may hinder the granting of refugee status, Justice Cesar Peluzo, rapporteur of the case, stated:
The UNHCR handbook differentiates … three groups of requirements or clauses which shall be observed in the recognition of the status of political refugee: inclusion, cessation and exclusion [clauses]:
… The so-called … exclusion clauses have a negative significance; … [they] enumerate the circumstances in which a person is excluded from the application of the 1951 [Refugee] Convention although meeting the positive criteria of the inclusion clauses.
Under such methodological light, article 1(F) of the … [1951 Refugee Convention] provides:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed … a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes … .
The provisions of this text were complemented by the [Refugee Law (1997)] which is even more explicit in providing, in its article 3, that:
The following individuals shall not benefit from refugee status:
III. [those who] have committed … a war crime, a crime against humanity … ;
Well, in order to dismiss such impediment, the administrative authority at the [administrative] appeals level presented the following justification:
42. Finally, it is noted that there are no legal impediments for the recognition of the refugee status of the Appellant. Although reference is made to several offences which would have been committed by the Appellant, the … [Italian] State has not informed that the Appellant would have been convicted for a crime which impedes the refugee status, as provided for in article 3(III) of the … [Refugee Law (1997)] …
By stating that “the … [Italian] State has not informed that the Appellant would have been convicted for a crime which impedes the refugee status”, the [administrative] decision … disregarded the clear nature of the [existing] final convictions [by Italian courts] …
[footnotes in original omitted]