7
21.
Similarly, attention should be paid to the role played by the Nuremberg
Charter in establishing the elements which characterize crimes against humanity.
The existence of an international custom was recognized, as an expression of
international law prohibiting such crimes (Case Almonacid, paragraph 96). Unlike
in this case, Almonacid referred to a single attack, thus harder to classify as a
crime against humanity, and even so, this Court established the precedent.
22.
Former President of the Court, A.A. Cançado Trindade, in his separate vote
in the case of Almonacid, recalled that the configuration of crimes against
humanity is a manifestation of the universal juridical conscience, of its rapid
response to crimes that affect humanity as a whole. He stressed that with the
passage of time, the rules that came to define “crimes against humanity”
emanated from customary international law, and unfolded, conceptually, later, in
the framework of international humanitarian law, and more recently in the
domain of jus cogens, of imperative law (Almonacid, paragraph 28).
23.
The crimes of enforced disappearance, extrajudicial summary executions,
and torture perpetrated by the State to systematically repress the Guerrilha do
Araguaia are examples of crimes against humanity. As such, they deserve
different treatment, that is, their judgment can not be prevented by the passage
of time, such as statute of limitations or provisions of amnesty norms.
24.
The General Assembly of the Organization of the United Nations adopted
on November 26, 1968, the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity. It should be noted that
it is not a characteristic of this Convention that it is the creator-innovator of Law,
but rather that it is conciliatory, reason for which, though not ratified by the
State, should be applied by the State. In the same sense, in 1974, the European
Council has drafted the European Convention on the Non-Applicability of Statutory
Limitations to Crimes against Humanity and War Crimes.
25.
They did so not by an imposition of negotiation talks. It was not the result,
then, of conclusions reached by the process of negotiating, signing, ratifying and
parliamentary referendum that presupposes the adoption of any international
treaty. For the sake of the truth, such supranational instruments only recognize
that which international custom has determined.
26.
Also, in what regards the 1969 Vienna Convention, a multilateral treaty to
consolidate the usual rules of conclusion of treaties between sovereign states took
place. Since its effective entry into international force in 1980, it took 29 long
years until Brazil internalized the Convention, coming to do so with the imposition
of two reservations to the terms of the Convention.
27.
On the other hand, 42 years after its adoption at the international level,
Brazil remains without proper ratification of the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes against Humanity,
despite having signed it. That omission was certainly the result of political
pressure from the group of soldiers who carried out the atrocities described in this
proceeding. However, this lack of ratification is overcome, since, as the Court
understood, its mandatory compliance is derived from international custom and
not from the act of ratification. The applicability of these crimes comes as a
category of general international law, which is not born from the Convention, but
it is recognized in it (Case Almonacid, paragraphs 152 and 153).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents