By: Aimara Pujadas / GICJ
On October 26th, 2021, after six months of investigative procedures, the Brazilian Parliamentary Commission of Inquiry (CPI) presented a report[1] charging President Jair Bolsonaro and other State representatives with crimes related to the pandemic, based on the "reckless" mismanagement of the Covid-19 crisis that led to the deaths of hundreds of thousands of people in Brazil, becoming the seventh in the world with the most deaths per number of inhabitants.
The approval of the report entails the request for the indictment of a total of 78 individuals and two companies for various crimes committed during the COVID-19 pandemic.
Jair Bolsonaro is accused of a total of nine crimes: commission of epidemic crime resulting in death, violation of preventive health measures, quackery, prevarication (the failure to carry out or delay of public duties for reasons of personal interest), irregular use of public funds, incitement to crime, forgery of private documents, crime of responsibility and crimes against humanity.
Particularly, the accusation of “crimes of responsibility,” laid out in Brazil’s constitution, is punishable with impeachment. It is based on the incompatibility of a conduct with the dignity, honor, and decorum expected of the presidential office.
The report makes reference to a broad range of conducts and to several provisions of the Brazilian Criminal Code such as: homicide (Article 121); danger to life or health (Article 132); epidemic (Article 267); infraction of sanitary preventive measures (Article 268); incitement to crime (Article 286); ideological falsehood (Article 299); malfeasance (Article 319); and others[2].
Additionally, the report identifies the commitment of crimes against humanity which appear under article 7.1 (k) of the Rome Statute: inhuman acts that cause suffering or seriously affect physical integrity and health, as also the crimes of extermination and persecution against identifiable groups or collectives.
According to the CPI, the Brazilian government, "omitted and opted to act in a non-technical and reckless manner in the fight against the pandemic" ... "deliberately exposing the population to a concrete risk of mass infection."
Facts behind the accusations:
Bolsonaro was found responsible for promoting dubious remedies and pushing through laws that allowed private doctors and hospitals to act on their own and publicly promote medicines such as chloroquine and ivermectin, for which there was no scientific evidence of efficacy, as was stated by the president of the Brazilian National Health Regulatory Agency (ANVISA – Agência Nacional de Vigilância Sanitária) during his testimony in the committee.
In addition, the report denounced what it is said was the Brazilian government's deliberate delay in the purchase of vaccines. On this sense, the testimony of Pfizer's president in Latin America, Carlos Murillo, at the commission, was crucial as it exposed the inaction of Jair Bolsonaro's government in dealing with the coronavirus crisis.
Five proposals were submitted to the federal government between August and November 2020, and were all ignored by the Ministry of Health, then headed by General Eduardo Pazuello. Brazil could have received 1.5 million doses of Pfizer's COVID-19 vaccine in December last year.
Among the offenses committed by Bolsonaro, according to the senators, are incitement or apology for crime and spreading an epidemic, offenses included in the Brazilian Penal Code. The head of the Brazilian State insisted (in multiple pronouncements, internet videos, and even before the UN General Assembly) on the idea of reaching herd immunity through intentional contamination of the population, instead of vaccination.
This strategy was imposed, putting Brazil’s economy in the first place, and pushing into the background the development of vaccines and social distancing measures recommended by the World Health Organization and subscribed by the Brazilian legislature.
Regrettably, attempting to attain herd immunity by contagion has not only been proved to be unsustainable to tackle a pandemic of the magnitude of COVID-19, but it has entailed thousands of avoidable deaths, as well as the overstrain and even collapse of healthcare systems.
All the above-mentioned evidence prompted the committee to conclude that crimes against humanity had been committed through the government’s response to the pandemic of COVID-19. This constitutes the most serious charge, a crime that has no statute of limitation.
Even though the Commission initially considered charging Bolsonaro with indigenous genocide and mass murder, the fear that different legal interpretations would obstruct a possible conviction as well as the lack of consensus, led the authors of the report to withdraw those charges.
However, the CPI found, in addition, that the government’s response to COVID-19 had been especially harmful to indigenous populations. The Commission collected several studies showing that the vulnerability of indigenous people to COVID-19 was much greater in comparison with that of the non-indigenous people as a result of a State policy that deliberately puts aside indigenous communities.
Since Bolsonaro took office, he has ignored the laws protecting those populations, resulting in an in-crescendo vulnerability which was evident even before the pandemic. The Brazilian president has conducted a policy of destruction of the Amazon Forest, as well as attacks on native people, in order to supposedly boost development projects in protected areas.
Faced with this scenario, in November 2019, a group of lawyers and human rights defenders gathered in the Human Rights Lawyers Collective (CADHu for its acronym in Portuguese) and in the ARNS Commission (a renowned human rights commission in Brazil), presented before the International Criminal Court (ICC) an accusation against the Brazilian president of crimes against humanity[3].
The report issued listed thirty-three facts proving that there was criminal intent, which can be attributed to the presidential statements, in which Bolsonaro claims that indigenous peoples need to “be integrated into Brazilian society” and the major Brazilian economic sectors while pursuing to deinstitutionalize the Brazilian indigenous policies and causing the destruction of the living conditions and forms of existence of these peoples due to the pollution of rivers and the invasion of their lands by miners, loggers and land grabbers.
The acts conducted by the federal government put the indigenous and native peoples of the Amazon at risk of genocide and forced displacement, a scenario that has been described as ecocide[4] and constitutes a crime against humanity. In the context of the pandemic, those violations were accentuated, and therefore included in the Brazilian Parliamentary Commission of Inquiry Report.
Although the Commission has no power to press charges, the adoption of its report will trigger the investigation of the competent institutions, the Supreme Court which is the Brazilian Prosecutor's Office and the International Criminal Court in The Hague, so that the requests can be assessed.
Geneva International Centre for Justice supports the statement that the crimes described in the report issued by the Parliamentary Commission of Inquiry were "intentional", as the Brazilian government deliberately decided not to take the necessary measures against the coronavirus, hoping that the population would achieve collective immunity, which was indeed a high-risk strategy that resulted in hundreds of thousands of preventable deaths.
GICJ denounces the deliberate delay in the acquisition of vaccines, and condemns the promotion of ineffective treatments such as hydroxychloroquine, which put the Brazilian population in grave danger.
The global COVID-19 crisis has exposed and exacerbated existing human rights violations and inequalities in Brazil, with a devastating effect on vulnerable groups. Indigenous communities have been denied of their rights and excluded from the design of recovery policies. No culturally appropriate recovery measures addressing their specific needs for assistance have been adopted.
GICJ considers that the governmental authorities responsible for the crimes described in the report should be held liable as there is ample indication, and also hard evidence, of the commission of both political-administrative offenses (‘crimes of responsibility’), some of which amount to crimes against humanity, and other ordinary crimes during the pandemic. Finally, we call on all governments across the world to refrain from resorting to similar disinformation tactics. Transparency must be guaranteed to safeguard the health and safety of everybody.
Justice, Human rights, Geneva, geneva4justice, GICJ, Geneva International Centre For Justice
[1] Federal Senate. Parliamentary Commission of Inquiry into the Pandemic. Final Report. [Portuguese] 20 October 2021. https://down-load.uol.com.br/files/2021/10/2954052702_relatorio_final_cpi_covid.pdf
[2] Peluso Neder Meyer, Emilio; Bustamante, Thomas: A Portrait of Bolsonaro’s Crimes Against Humanity: The Legislative Investigative Committee Report on the COVID-19 Pandemic in Brazil, VerfBlog, 2021/11/05, https://verfassungsblog.de/a-portrait-of-bolsonaros-crimes-against-humanity/ , DOI: 10.17176/20211106-011750-0.
[3] Informative Note to the Prosecutor International Criminal Court pursuant to Article 15 of the Rome Statute requesting a Preliminary Examination into Incitement to Genocide and Widespread Systematic Attacks Against Indigenous Peoples by President Jair Messias Bolsonaro in Brazil. Submitted in November 2019 by the Human Rights Advocacy Collective (CADHu) and the ARNS Commission São Paulo, Brazil. Available at: https://apublica.org/wp-content/uploads/2019/11/e-muito-triste-levar-um-brasileiro-para-o-tribunal-penal-internacional-diz-co-autora-da-peticao.pdf
[4] Ecocide can be defined as the conduct of someone who intentionally promotes the destruction or extensive loss of the ecosystem of a territory and its biodiversity, preventing the use of water, soil, subsoil, or even the air of the region. The debate on ecocide dates back to the 1970s and, since then, has gained prominence in United Nations’ discussion forums in order to be considered a crime according to international standards. On 23 June 2021, an international commission of 12 lawyers, supported by civil society, proposed a definition for the crime of ecocide, a crime against humanity and against the planet, to be considered among international crimes at the International Criminal Court in The Hague (ICC)
