Brazil’s Rise to Power must not Forget its History: On Rui Barbosa and the ICC

Brazil’s Rise to Power must not Forget its History: On Rui Barbosa and the ICC

In recent days, Brazil’s President Luiz Inácio “Lula” da Silva has generated much controversy by declaring that, should Russian President, Vladimir Putin, visit the G20 Meeting in Brazil in 2024, he would not be arrested, in defiance of the existing International Criminal Court’s (ICC) arrest warrant against him. Eventually, Lula backtracked, stating the arrest was not up to him, but Brazil’s judiciary. In so doing, however, he opened a new front, questioning Brazil’s membership in the ICC. He even went as far as to say he had not even heard of the ICC until then – which is of course an absurd lie, considering the primacy that ICC policy played in his first government.

Of course, it is highly unlikely that Brazilian democratic institutions, including the Supreme Court, the Attorney General and the Office of the Prosecutor, would stay silent on the occasion of Putin’s visit. They already haven’t in the past. When the ICC requested Brazil’s cooperation in bringing Sudan’s President, Omar al-Bashir, to justice, Brazil’s Supreme Court issued a 19-page dispatch detailing Brazil’s obligations and challenges with regard to ICC cooperation. One of the Court’s conclusions was that, in the event of an al-Bashir visit, it would need to intervene to clarify several issues of constitutional and international law. The same would happen if Putin visits.  

Lula’s statement, therefore, accomplished very little, beyond ingratiating his government further with Putin’s Russia. In the past, I speculated that Lula’s Brazil would need to play “a delicate and awkward balancing game” between the BRICS and G7 and decide how much does it want to move away from Latin America’s traditional foreign policy of upholding international law in search of so-called “Great Power” status. Seven months later, the answer appears to be quite a bit!

If Lula were trying to position Brazil as a neutral arbiter, he should have certainly intervened when Russia abandoned the Black Sea Grain Deal. Lula had been very vocal in the past that his main opposition to the war was one of economic justice; of how the West’s sanctions where causing hunger throughout the Global South. “[W]hy should Bolivia suffer that blockade?”, he retorted. And yet, when Russia left the Deal, Brazil stayed silent, even when other key Global South nations, particularly in Africa, did not. Kenya, for instance, called it a “stab in the back”, while Egypt called Russia’s return to the Deal “essential”.

Back in the early 2000s, Lula’s foreign policy focused on securing autonomy for Latin America vis-à-vis the United States. This is what led to the creation of UNASUR as a competing entity to the US-dominated OAS in 2008 and the region’s collective recognition of Palestine in 2011. In this foreign policy, the ICC was seen as a way to keep the hegemon in check. As Brazil’s then-Minister of Foreign Affairs, Celso Amorim, (currently, Lula’s Special Advisor) said in 2003, “the entry into operation of the [ICC] is an encouraging step. (…) It is an important instrument, whose application should not admit restrictions or special treatment” (p. 81).

Of course, back then, “special treatment” referred to US’ attempt to sign so-called Non-Surrender Agreements with partner states to secure impunity for US personnel acting in military operations around the world. This stalwart defence of international law contrasts with Lula’s recent statements about Ukraine, which makes it seem that Brazil is no longer as concerned with deploying international law to secure autonomy for Latin America, but with deploying its newly-gained political power to secure impunity from international law for its allies and partners. In essence, instead of a rule-enforcer, the first Latin American global power can’t seem to wait to be yet another rule-bending hegemon.

It may seem like this is a necessity of geopolitics. That when presented with increased influence in world affairs, there really is no other path for an emerging power but to become a rule breaker and to mould the world to its own benefit. But such a Realist take has seldom taken hold in Latin America and feels massively out of character in the context of the region’s own diplomatic history. It is difficult to see a region of international-law-oriented states falling in line behind yet another “Great Power” with questionable allies, only because it speaks Portuguese, not English. Brazil’s promoted inclusion of Argentina into BRICS (the only democracy in the recent expansion) will likely lead to more dissension in the group, not less. Similarly, South America’s other left-wing star, Chile’s Gabriel Boric, seems unlikely to compromise on human rights for the sake of geopolitical gains with Russia.

If Brazil’s rise to “Great Power” status is to maintain its Latin American identity, different avenues should be explored. Ever since the establishment of Republican Brazil, in the dying years of the 19th century, international law and diplomacy, not war and impunity, have been at the heart of the Brazilian approach. And this was not the vision of a smaller or weaker nation with little ambition – the ever present “síndrome de vira lata” or “underdog syndrome”, so present in Brazil’s geopolitical psyche. In those years, the “Founding Father” of Brazil’s diplomatic service, the Barão do Rio Branco, was actively trying to position a convulsed Brazil at the forefront of international politics, as a well-respected and equal global power. In fact, it was Rio Branco who orchestrated what has perhaps been Brazil’s most well-known diplomatic victory: its defence of equality of states at the 1907 Hague Conference.

At that time, Western powers were seeking to establish a permanent international tribunal akin to the present-day International Court of Justice. However, European powers sought to allot the allocation of justices depending on political and economic power, not sovereign equality. Thus, some “weaker” states, like Brazil, would be placed in special schedules which reduced their judges’ tenure. While British and German justices would serve for twelve years, Brazilian and Mexican justices would serve for four. Bolivian justices, for one.

Rio Branco had sent his best diplomats, including one Rui Barbosa, now famously known as the “Águia da Haia”, the Eagle of the Hague, to sit at the negotiation table with a clear directive: make Brazil be respected. This was not what was expected of him in Europe. As a recent article puts it, “Latin American states in general were just expected to ratify an agenda that had already been decided by the major players of the international scenario”. But Rui Barbosa would have none of it. While, in Europe, Rui Barbosa’s speeches in defence of sovereign equality were blamed for the “failure” of the Conference, in Latin America, they became classics of the Latin American approach.

Rui Barbosa rallied in favour of the equal rights of smaller states, much to the frustration of his European counterparts. In fact, at one point, the German delegate, Marschall von Bieberstein, complained: “I have a great respect for power and what it represents in the world. I will never consent that a great personification of power such as Germany can be judged by someone nominated by Guatemala”. In order to bridge the impasse, the US even offered Rui Barbosa a Brazilian permanent seat in the proposed international tribunal, which he promptly declined.

In the end, Rui Barbosa’s efforts were enough to prevent the establishment of a permanent court, with unequally assigned justices. The 1907 Convention on Pacific Settlement of International Disputes remained an arbitration system, rather than a court. As one contemporary commentator put it:

“It is probable that [US Delegate] Mr. Choate’s advocacy of a permanent court of arbitration to be organized and established at The Hague would have been successful, had not the head of the Brazilian delegation insisted that every one of the forty-four Powers which had sent spokesmen to the Conference should be represented on the projected tribunal. It might have been foreseen that Germany and other great Powers would not consent to have their policies settled for them by the votes of decayed Oriental States like Turkey or Persia, or by insignificant South-American republics”.

Rallying the power of the “insignificant”, however, is Rui Barbosa’s long-lasting lesson for modern-day Brazil. 110 years after the Eagle of the Hague’s defence, African leaders gathered in Addis Ababa approved an ICC Withdrawal Strategy, expressing their dissatisfaction with what they call a double-standard against Africa. As the document states, “the predominance of African subjects of international criminal justice has created suspicion about prosecutorial justice. Growing numbers of African stakeholders have begun to see these patterns of only pursuing African cases being reflective of selectivity and inequality”. Angola, a non-member state, has even advocated for an African criminal tribunal to replace it.

Six years after the Withdrawal Strategy, not much has changed, even if mistrust remains. While, originally, South Africa, Burundi and Gambia were set to withdraw from the Court, only Burundi followed through. And while, as Human Rights Watch reports, “[o]utside of AU meetings, Nigeria, Senegal, Burkina Faso, Côte d’Ivoire, Mali, Malawi, Zambia, Tanzania, Ghana, Democratic Republic of Congo, Lesotho, Sierra Leone, and Botswana have clearly spoken out (…) to expressly reaffirm their commitment to the ICC”, it would be naïve to conclude that serious fissures still remain in the relationship between Africa and the ICC.

Brazil has long positioned itself as a bridge between Africa and Latin America. Not just through its historic and cultural links with Lusophone countries like Angola, Mozambique, Cape Verde, Guinea-Bissau and São Tomé & Príncipe, but through active foreign policy engagement, including a Strategic Dialogue Mechanism with Nigeria and close bilateral and trade relations with Kenya, Senegal and, of course, the African BRICS: South Africa and soon Egypt and Ethiopia.  

In other words, Brazil’s ICC policy could, if it so chose to, pivot away from securing impunity for Putin within its borders (a losing battle considering Brazil’s democratic institutions and independent judiciary) and into an alliance with African nations to challenge the balance of power within the ICC, and, in the medium to long term, turn it into a body more politically able to address the international crimes of Western actors and their allies. This is not only much more consistent with Brazil’s diplomatic history, but also a much more morally defensible position than “Putin should be allowed impunity too”.

Brazil’s search for so-called “Great Power” status has placed it at a crossroads. It can choose to be an international-law-enforcer, as is its Latin American tradition since the days of Barão do Rio Branco, or it can choose to be yet another hegemon seeking impunity for its fellow “Great Power” allies in the BRICS. Only one of these would be a revolutionary change in the way our world works. And it is time to choose.   

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History of International Law, International Criminal Law, Latin & South America, Public International Law
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