Practice Relating to Rule 158. Prosecution of War Crimes
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states:
The Joint Command … shall establish rules and procedures for immediately reporting and investigating violations [of the Law of Armed Conflict, international conventions and agreements to which Brazil is a party, as well as of the Rules of Engagement for Non-Combatants Evacuation Operations].
The Operations Manual also states:
1.2.1 Non-Combatant Evacuation Operations are conducted by the Ministry of Defence, upon request by the Ministry of Foreign Affairs, for the evacuation of non-combatants whose lives are in danger, from their host country to a safe place of destination …
3.4.1 Non-Combatant Evacuation Operations … may be triggered by sudden changes in the government of the host country, changes in its political or military orientation with regard to Brazil, or hostile threats to Brazilian citizens by internal or external forces in that country.
Annex A. Rules of Engagement and the Law of Armed Conflict
3. The Law of Armed Conflict
According to the policy of the Ministry of Defence, the principles of the Law of Armed Conflict regulate the actions taken by the Joint Command in the defence of its personnel, property and equipment.
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]