Federal judge Sergio Moro, participating in a debate on corruption in Sao Paolo, on July 25, 2018. Marcelo Chello / Zuma Press / PA Images. All rights reserved.

On 2 November 2018, in his first interview since being elected President of Brazil, Jair Bolsonaro responded to a question about his new government´s policy for combating crime by stating that he intended to apply the same rules that the Brazilian armed forces had used in the UN peacekeeping mission in Haiti. 

´Armed elements are legitimate targets´ he said. 'You don´t confront gunmen with flowers and ask them to hand over their weapons.  We know that in an urban setting the collateral damage of an exchange of fire could be disastrous, but I would defend a legal guarantee to all police officers and soldiers involved in operations to uphold law and order.  Do not worry about a possible conviction or condemnation for fulfilling your mission.

The day before this interview Bolsonaro also announced that he was appointing Judge Sergio Moro, who had led the Operation Lava Jato (Car Wash) investigation that will be discussed below, as his new Minister for Justice and Public Security. 

The two announcements are undoubtedly popular in a country plagued by corruption and violent crime, but they offer a terrifying glimpse into the nature of our new President´s approach to human rights when he takes office in January 2019.

Bolsonaro is a former military officer who has been a full-time politician in Brazil for almost 30 years.  His notoriety comes from a series of bizarrely offensive statements: telling one woman that she was too ugly for him to rape her, saying he would rather his son died than told him he was gay, taunting black people, indigenous communities and those from the poorer states of the north east, and saying that the dictatorship´s only mistake was that it did not kill enough of its political opponents.

Bolsonaro said that the dictatorship´s only mistake was that it did not kill enough of its political opponents.

When casting his vote for the impeachment of former President Dilma Rousseff in 2016, Bolsonaro dedicated it to the memory of the head of intelligence of the military dictatorship, responsible for torturing of over 100 political dissidents including Dilma herself.  On the eve of his election he released a statement in which he promised to imprison his political opponents and echoed a slogan from the dictatorship era: ´Brazil, love it or leave it´.

Bolsonaro did not take part in any presidential debates during the election campaign or give interviews with journalists where he would be required to answer questions so considerable doubt remains about what he actually intends to do when he takes of office. 

Brazil´s laws and constitution clearly prohibit many of the policies that he advocates and some observers have suggested that not all his statements should be taken at face value. However, last week´s announcements are a serious cause for concern.

Brazil´s laws and constitution clearly prohibit many of the policies that Bolsonaro advocates. 

The Brazilian armed forces have been marginalized since the return to democracy 30 years ago. They are, however, proud of the role that they played leading the UN stabilization mission in Haiti and it is no secret that they have drawn on these experiences on the occasions that they have been deployed in Rio de Janeiro to assist the state government. 

The UN Department of Peacekeeping Operations states that UN forces operating with Protection Civilians mandates should consider themselves bound by International Humanitarian Law, rather than international human rights law. 

While this position can be critiqued, it is not surprising that there are those who argue for a ´war on crime´ in which IHL would provide a more permissive legal framework for the security forces. In March of this year, Human Rights Watch revealed that the rules of engagement that the armed forces are currently operating under in Rio include authorizing the use of lethal force to protect goods and property, which is a prime facie breach of Brazilian law.

Clearly Bolsonaro´s proposals would require even more radical and extensive changes to Brazil´s constitution and criminal law, as well as derogations from many international legal obligations.  It is in this context that the appointment of Judge Moro takes on significance. 

Moro's background

In 2013 Moro led a group of young Judges in Curitiba in devising an anti-corruption prosecution strategy, dubbed Operation Car Wash. 

The heads of Brazil´s nine top construction company and its state-owned oil company were soon facing charges along with fifty senior politicians, including members of Congress and state Governors. By the end of 2017, over 300 people had been charged with criminal offences and over 1,000 warrants had been issued for search and seizure, temporary and preventive detention and coercive measures.

The scale of the fraud that Moro´s team uncovered was staggering – almost $10 billion US dollars – but some of their measures were controversial

The scale of the fraud that Moro´s team uncovered was staggering – almost $10 billion US dollars – but some of their measures were controversial. Suspects were placed in pre-trial detention and offered plea-bargains as inducement to testify. Evidence gathered in this way was used to target more suspects and the unsubstantiated word of alleged accomplices has been deemed sufficient for conviction. Moro also provided the Brazilian media with selective briefings about the evidence facing key defendants or tipped them off about police raids. 

The highly politicized nature of Operation Car Wash stretched perceptions about the impartiality of the Brazilian justice.

Brazil has a civil law system in which Judges have an investigative as well as an adjudicative function. This means that Judges sitting without juries both have overall direction of a criminal investigation and then determine the guilt or innocence of the defendant.

The highly politicized nature of Operation Car Wash stretched perceptions about the impartiality of the Brazilian justice. Politicians from all parties faced charges, but inevitably the focus came to fall on its left-wing Workers Party (PT) led by former President Lula. 

In March 2016, Moro ordered Lula´s arrest in an early morning raid, which he had informed the media about so that it could be televised.  President Dilma then attempted to appoint Lula into her government as chief of staff, which would have given him immunity from prosecution, but this was blocked by another judicial order and Moro released a wire-tapped conversation between the serving and former President where the appointment was discussed.

Impeachment and imprisonment

Two events then played out which have dramatically altered the face of Brazilian politics.  First of all, Dilma´s impeachment and removal from office, the following month, and then Lula´s arrest trial and imprisonment earlier this year.

Both legal processes raised a number of concerns, and their combined effect led PT to decide to use the forthcoming election as a fight to defend their party, government and legacy.  Lula was nominated as a candidate, even though his conviction made him ineligible to stand according to a law that his own government had enacted. 

Dilma had been replaced as President by Michel Temer, her own deputy from a rival party.  His government was backed by the centrist parties that have traditionally rivalled PT but proved hopelessly inept and unpopular.  Opinion polls soon showed Lula well ahead of all the other potential presidential, polling at over 40 percent.  His nearest rival was the previous politically marginal Bolsonaro, polling around 15 percent.  Most of the ´centrist´ candidates could not get into double figures.

A few days before the first round of voting, Moro issued another indictment, based on a plea bargain, this time implicating both Haddad and Dilma.

Lula finally dropped out of the race in early September when his last legal appeal, based on an interim request from the UN human Rights Committee, was rejected by the Brazilian Supreme Court.  Fernando Haddad, his former Education Minister and Mayor of São Paulo was nominated in his place but had little time to build an independent profile. 

Bolsonaro was stabbed during a campaign rally at around the same time, bringing him a wave of sympathy.  A few days before the first round of voting, Moro issued another indictment, based on a plea bargain, this time implicating both Haddad and Dilma, who had previously been untouched by corruption allegations.  There seemed to be no pressing legal reason for the timing of this judicial decision.

Moro has clearly compromised both himself and the system that he is part of by his actions. 

Bolsonaro´s deputy, a former army captain, has confirmed that they were in conversation with Moro about his possible appointment during the election campaign and Moro´s wife used her social media account to indicate that she had voted for Bolsonaro in the final round. 

The Brazilian justice system has a constitutional duty to act as a check on the executive and its political neutrality is fundamental to this role. Moro has clearly compromised both himself and the system that he is part of by his actions. If he adopts the same methods that he used in Operation Car Wash in his new role - acting for a President who supports torture, shoot-to-kill operations and total impunity for the security forces – human rights, justice and democracy face a bleak future in Brazil.