Lewandowski: Armed Intervention: Unbailable and Impedible Crime

*Text originally published in this Sunday (29/8) edition of Folha de S.Paulo newspaper.

In ancient Rome there was a law according to which no general could cross, accompanied by their troops, the Rubicon River, which marked the northern border with the province of Gaul, now corresponding to the territories of France, Belgium, Switzerland and parts of Germany and from Italy.

In 49 BC, the Roman general Julius Caesar, after defeating a fierce rebellion of Gallic tribes led by the legendary warrior Vercingetorix, at the end of a long campaign crossed the referred watercourse in front of the legions he commanded, uttering the famous phrase: “The luck is cast”.

The boldness of the gesture took his fellow citizens by surprise, allowing Julius Caesar to seize political power, establishing a dictatorship. About five years later, he was stabbed to death by political opponents, including his adopted son Marco Júnio Bruto, in a scene immortalized by the English playwright William Shakespeare.

The episode reveals, with exemplary didacticism, that different civilizations have always adopted, with greater or lesser success, preventive rules to prevent the usurpation of legitimate power by force, pointing to the severe consequences to which transgressors are subjected.

In Brazil, as a reaction to the authoritarian regime installed in the near past, the 1988 Constitution established, in the chapter on fundamental rights and guarantees, that “the action of armed groups, civil and military, against the constitutional order constitutes a non-bailable and imprescriptible crime. and the democratic state”.

The bill recently approved by the Brazilian Parliament, which revoked the National Security Law, divided this crime into several autonomous crimes, including them in the Penal Code, with emphasis on the conduct of subverting existing institutions, “preventing or restricting the exercise of constitutional powers”. Another criminal behavior corresponds to the coup d’état, characterized as “attempting to depose, through violence or serious threat, the legitimately constituted government”. Both offenses are sanctioned with severe penalties, aggravated if violence is used.

Externally, the Treaty of Rome, to which Brazil recently adhered and which created the International Criminal Court, typified as a crime against humanity, subject to its jurisdiction, the “attack, generalized or systematic, against any civilian population”, through the practice of murder, torture, imprisonment, enforced disappearance or “other inhumane acts of a similar character, which intentionally cause great suffering, or seriously affect physical integrity or physical or mental health”.

And here it should be noted that the eventual summoning of the Armed Forces and auxiliary troops, based on article 142 of the Major Law, for the “defence of law and order”, when performed outside the legal hypotheses, whose configuration, in fact, it can be assessed at a later time by Organs competent bodies.

By the way, the Military Penal Code establishes, in article 38, paragraph 2, that “if the superior’s order has as its object the practice of a manifestly criminal act, or there is excess in the acts or in the form of execution, the inferior is also punishable” .

This same understanding was incorporated into international law, from the trials carried out by the Nuremberg court, established in 1945, to try war criminals. As can be seen, the price to be paid by those willing to cross the Rubicon can be high.