Soldiers take up a position during an operation after violent clashes between drug gangs in Rocinha slum in Rio de Janeiro, Brazil. September 22, 2017. © REUTERS

(São Paulo) – President Michel Temer of Brazil should veto a bill that would shield members of the armed forces accused of unlawful killings of civilians from prosecution in civilian courts, Human Rights Watch said today.

Brazil’s Senate approved the bill on October 10, 2017, and the Chamber of Deputies in July of 2016. Under its provisions, military courts would try soldiers charged with unlawful killings or attempted killings of civilians while the armed forces were engaged in policing operations or other deployments ordered by the president or the defense minister.

“The law would bring back a standard practice of Latin America’s dictatorships, when the military sat in judgment of itself for killing civilians,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “The bill for military trials of soldiers accused of killing civilians would stack the deck against victims of serious human rights violations getting justice.”

The leadership of the army and the bill’s proponents in Congress claim that moving the trials out of civilian courts is necessary to provide “legal protection” to members of the armed forces. In a note to the media, the army also said that subjecting soldiers to the jurisdiction of civilian courts “can hinder prompt reaction” during policing operations.

However, the rules for the use of lethal force are the same in the military and civil criminal codes. And Brazil’s civilian legal framework provides full due process guarantees to any soldier accused of an unlawful killing, just like to any other citizen.

Members of the armed forces currently patrol the streets of Rio de Janeiro and conduct raids alongside state military police and civil police officers. If Temer signs the bill, soldiers charged with unlawful killings of civilians during those operations will be tried in military courts, while other law enforcement personnel will continue to face civilian courts. Civilian courts should retain jurisdiction over all unlawful killings cases irrespective of the alleged killer, Human Rights Watch said.

In the military justice system, the courts of first instance are staffed by four military officers and a civilian judge, all with an equal vote. The appeals court, the Superior Military Tribunal, consists of 15 military officers and five civilians. Its decisions can be appealed to the Supreme Federal Court, a civilian court.

The military criminal code, approved in 1969 during Brazil’s military dictatorship (1964-1985), provided that unlawful killings of civilians should be tried before military courts. But it was amended in 1996 to move trials for such crimes to civilian courts.

Under international and regional norms, extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.”

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights before military jurisdictions given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”

The UN Human Rights Committee, which monitors implementation of governments’ obligations under the International Covenant on Civil and Political Rights, has called on states to ensure that military personnel are subject to civilian jurisdiction for any crimes that are not “of an exclusively military nature.”

“President Temer should prevent a significant achievement of Brazil’s democracy from being erased,” Canineu said. “Impunity for killings by law enforcement is already a big problem in Brazil, and this bill would only contribute to more abuses and further undermine public security.”