ABSTRACTS
The creation of the International Criminal Court
GILBERTO
VERGNE SABÓIA
Concerning to the International Criminal Court, which
is the creation of the Rome Statute, the text makes references to its political
and main legal antecedents, such as the end of the Cold War, the globalization
and the interdependence, which contributed to the creation of the international
criminal courts ad hoc, from the United Nation’s Security Council.
It also points out as main aspects of this Statute,
considering the sui generis and exceptional International Criminal Court
character: the principle of complementarity and the crimes’ definition, making
a comparison between the Statute and an international criminal code.
It analyses what are the situations of the
establishment of the Jurisdiction of this Court, as well as the prosecuting
attorney general’s participation in what conditions it must act. Futhermore,
it explains the international cooperation and the State’s judiciary privity
which are essential for the good operation of International Criminal Court.
It concludes that the International Criminal Court
creation answers to political and juridical international order in the broadest
sense and it will contribute for the International Law development.
KEYWORDS – International Criminal Court; Rome
Statute; Human Rights; International Criminal Law; Brazilian Constitution;
principle of complementary; international judiciary cooperation.
The
political and Humanitarian dimentions of the creation of the International
Criminal Court
GUILHERME DA CUNHA
It emphasizes the importance of the creation of the
International Criminal Court, which considers a moral and political progress to
the future generations as well as an effective instrument of combat to the
criminality. In this way, it defends the implantation of the court in the
attempt that barbaric crimes don't depend uniquely on the State's laws where
they were practiced, but that are examined in the international ambit.
It relates, also, about ACNUR - United Nations High
Commissioner's office for the refugees, destined to the victims’ protection
pursued by several reasons such as race, religion, social group or political
opinion. This High Commissariat has already protected about 22 million people
and had indispensable participation in the preparatory works in Rome, whose
proposals were approved for the Statute.
KEYWORDS - International Criminal Courts, Rome Statute;
Human Rights, International Criminal Law; Brazilian Constitution, United Nation
High Commissioner's office for the refugees - ACNUR; refugees.
The incorporation to the domestic Law of the juridical instruments of the Humanitarian international Law and International Law of the Human Rights
GERALDO EULÁLIO DO NASCIMENTO
It emphasizes that the great news of the International
Criminal Court consists of the thesis of compatibility, according to which the
internal law will always have priority about the Treatment. It comments the
crimes against the Human Rights, described by Rome Statute in its 5th
Article – genocide, crimes against the Humanity, crimes against the war laws
and aggression. It describes, briefly, the historical evolution of the
International Law. It is favourable to the Rome Statute ratification, taking
into account that a deep survey of it will be necessary.
KEYWORDS: International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; domestic Law;
crimes against Human Rights.
JORGE MIRANDA
It analyses the trends and characteristics of the
International Law nowadays. It reports, due to privileged position of the
Portuguese Constitution dedicates to the International Law, the barriers imposed
by that country to the ratification of International Criminal Court Statute. It
concludes that the material restrictions in that sense found in the Portuguese
Constitution can be reviewed.
It calls the attention to the East Timor, which shows
us that an international criminal jurisdiction becomes necessary.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; Portuguese
Constitution; domestic law; East Timor; international criminal jurisdiction.
EUGÊNIO JOSÉ GUILHERME DE ARAGÃO
It points out that a paragon change in the Brazilian
external policy, with an increasing participation of the civil society, which
must interfere in the discussions about the International Criminal Court
Statute.
It calls our attention to the fact that there is a
great disparity between the domestic criminal Law principles and the
international criminal Law principles, for the former pursues prioritily the
criminal guaranty, the latter has more conservative attitude purposing a general
precaution.
It considers the permanent International Criminal Court
is necessary to the consolidation in the international plan a symbolic penal
Law. It shows the difficulties from the domestic system to the incorporation of
the Statute.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; domestic law;
Penal Law.
Surrender of national people to the International Criminal Court
It examines the extradition of national people in the
Brazilian Law, emphasizing to be vetoed expressly by the Brazilian Constitution.
Concerning to the reception of the Rome's treatment in the Brazilian legal
system, it observes that this Treatment doesn’t admit the constitutional
alteration because of the adoption of international agreement. At the same time,
the Rome Statute determines that the States which takes part must cooperate to
one another and to the International Criminal Court, in order they make possible
the execution of their obligations. It points out the distinction between
extradition and surrender of national people, this last one foreseen in Rome
Statute, and it compares the extradition in the International Law, in the
America Law and in the Brazilian Law. It concludes that Brazil, for being
inserted in a new epoch of International Judiciary cooperation, should suspend
the prohibition of the extradition of national people.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; extradition;
surrender of national people; judiciary cooperation.
Life
imprisonment punishment
LUIZ
VICENTE CERNICCHIARO
It defends that, in the conflict’s analysis between
the life punishment prevision in the International Criminal Court Statute and
its bar by the Brazilian Constitution, it must consider the material Law’s
point of view, taking into account that it has been inclined to a constant
improvement. It states that life imprisonment is incompatible with Brazilian
constitutional rules, for any legal possibilities of Brazilian Constitution
change with the intention of including in it this kind of prison which are
constitutionally blocked.
It examines the Supreme Court jurisprudence in relation
to extradition, in cases of life punishment or capital punishment how the
condition itself. It agrees with the fact that Brazil must adhere to the Rome
Statute, but it has restriction concerning to the life punishment application.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; capital
punishment; life punishment; extradition.
CEZAR ROBERTO BITENCOURT
It defends that the punishment conception is intimately
related to the State’s conception, and it must understand the penal sanction
according to the historical context.
It analyses the emergency, the peak and the decadence
from the resource to the privated freedom punishment. It describes the
progressive Humanism of Brazilian criminal Law in the sense of abolishing the
privated freedom punishments, with the increasing adoption of alternative
punishments. It notices that the emergency of the contemporany criminality has
aroused a legitimate speech of the progressive abandon from the fundamental
guarantees.
It disagrees with that posture, defending the
preventive actions, against the repressive ones. It considers that life
punishment penalty foreseen in the International Criminal Court Statute, is
constitutionally forbidden in Brazil. Its adoption in the countries where
constitutional prohibition has been adopted would mean a retrocession. At the
same time it recognizes the value and legitimacy of the International Penal
Court, suggesting the review of its Statute in order to solve this problem.
KEYWORDS: International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; life
imprisonment; life punishment; Criminal Law; life imprisonment;
unconstitutionality.
LUIZ BENITO VIGGIANO LUISI
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; life
imprisonment; punishment - adequacy.
Immunity of jurisdiction and special procedural rules based on official capacity
JOÃO CLEMENTE BAENA SOARES
It argues that to delegate to the United Nations
Council of Safety the power to institute ad hoc courts for the judgement of
crimes against the Human Rights it always dashes in the possibility of the
States which participate of the Council veto this institution. In this sense, it
considers the Statute of the International Criminal Court a victory of the
prevalence of the Law, although incomplete. It points out the negative and
positive aspects of the Statute, especially inquietudes relative to the
situation of the national people of the States which participate of Safety's
Council and of the employees and agents of the international organisms not
contemplated explicitly, as well as to the diplomatic immunity. It considers
opportune the discussion, close in the collectivity, around an amendment to the
Brazilian Constitution, in order to outline the constitutional obstacles to the
ratification of the Statute by Brazil.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; Immunity;
diplomatic immunity; Head of State; special venue; constitutional reform.
GUIDO FERNANDO SILVA SOARES
It treats of the International Law importance in the
globalized world It analyzes the history of the State and of the appearance of
the division of the Powers in Judiciary, Executive and Legislative. It weaves
considerations regarding the limitations of international order, mainly
concerning to the immunities dictated by the Constitution and by the rules the
International Law. It compares the international relationships in Brazil with
the north-american example. Finally, it looks over the existent vacuum between
the creation of an international agreement and its execution.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; immunity; Head
of State; special venue.
The article intends to demonstrate that, although there is some tension
between the International Criminal Court Rome Statute and the Brazilian
Constitution, Brazil can adhere to the mentioned treatment, since the
interpretative limits in the instrument of ratification, which allow the best
harmonization with the extremely strict clauses from our Brazilian Constitution.
KEYWORDS – International Criminal Court; Rome Statute; Human Rights; International Criminal Law; Brazilian Constitution; immunity; Head of State; special venue.
FRANCISCO REZEK
It argues that the Human Rights thematic, object of the
Statute of the International Criminal Court, tends to be more easily assimilated
by the Brazilian internal order, although divergences come between the precepts
of the Statute and those preconized in the domestic norms. It doesn't consider
that there is a constitutional subject sufficiently serious to the point of to
obstruct the Brazilian adhesion to the Statute, defending the possibility of
constitutional reform in that sense. It points out that the International
Criminal Court doesn't intend to clear out the penal procedural competence of
the national courts, but it intends to be just competent in exceptional
hypotheses, as the one of the bankruptcy of the national institutions. It
considers that the concern with the Statute of the International Criminal Court
must come round to the power that this Statute confers to the United nations
Safety's Council to block the processes in the Court.
KEYWORDS - International Criminal Court; Rome Statute;
Human Rights; International Criminal Law; Brazilian Constitution; principle of
complementarity; sovereignty; penal procedural competence.
FLÁVIA PIOVESAN
It conveys a preliminary idea on the redefinition of
the sovereignty concept to come the light of the movement of
internationalization of the Human Rights, which disseminated the idea the
protection of the Human Rights should not restrict to the exclusive domestic
jurisdiction. It emphasizes that the International Criminal Court would just
have a subsidiary and complementary responsibility to the one of national
States, which may be put to action when they show unable to condemn to the
violations of the Human Rights. It analyzes that the principles of International
Law inserted in the Constitution of 1988 represent the opening of the Brazilian
juridical order to the international system of protection of the Human Rights,
bringing a new interpretation of traditional principles, as the one of the
sovereignty and the one of the non-intervention. It considers that the
ratification of the Statute of the International Criminal Court by Brazil is
compatible with the Brazilian order.
Crime and process: insanity and Aids (reading again Franco Basaglia)
LAGRASTA NETO
Reading again Franco Basaglia, today (May 2000), a
question arises: in checking the delinquent’s sanity or juvenile infractor, it
will be joined two sorts of social segregation (prison and madhouse), as
guardianship attempts in the defense of the public order?
Considering
the fact that it’s not licit to the judge to judge or to extract process,
proceeding or inquiry, established against the sick human being who, at the end,
is judged as though he were healthy, it arises an old dilemma: delinquent or
sick infractor don’t submit to penal typology or to the protector statute if
we don’t estimate the insanity stage, the lack or self-determination
deficiency, when it practices the anti-social act, having in mind the
semi-imputability or non-imputability.
KEYWORDS – Human Rights; mind desease; aids; social
segragation; delinquency; juvenile infractor; “semi-imputability”;
“non-imputability”.
Racial crimes in the Brazilian Law
LEON FREJDA SZKLAROWSKY
It analyzes the historical evolution of the juridical
treatment conferred to the racism and the different discrimination forms against
the minorities. It considers that in the Brazilian Law processed a growing
evolution concerning to the protection of the minorities. It proceeds to a
comparative observation of all the Constitution, which have already been edited
in Brazil, as well as of the legal diplomas that are specifically devoted to the
racism. It criticizes the beneficial points and the referring gaps to the
effective legislation in Brazil about the racism and it presents the
jurisprudential evolution relative to the theme.
It concludes with an alert so that the society and the
governments of all the countries join in order to avoid that the resurgence of
racist groups assumes tragic dimensions for the Humanity.
KEYWORDS - Human Rights; racism; discrimination;
minorities; racism crime; protection to the minorities.
International Law and globalization face the Human Rights questions
The globalization, if it is understood as a
tree-dimensional phenomenon formed by the intensification of several flows
(economical, financial, communicative, religious, persons); by the loss of State
control on those flows and on other actors of the international scene and by the
decrease of space and temporary distances, it creates expectations of political
and juridical innovations.
Actually, this phenomenon leads to the discussing of
the principle of the sovereignty, organizer of the relantionships among States,
and consequently, of the maintenance of the international public order. It is in
this context of accelerated mutations that the subjects of Human Rights are
being treated nowadays. In this article, the consequences of the globalization
will be analyzed in the ambit of the international protection of the Human
Rights, under a Franc-Brazilian perspective.
KEYWORDS - International Law; globalization; Human
Rights; sovereignty; France.