A CPI da pandemia e o Tribunal Penal Internacional: uma análise da viabilidade jurídica do indiciamento do ex-presidente Bolsonaro por crimes contra a humanidade

Abstract

This study aims to analyze the legal viability of former President Jair Messias Bolsonaro’s indictment before the International Criminal Court for committing “crimes against humanity” during the Covid-19 pandemic. The investigation is based on the conclusions of the Covid-19 Parliamentary Inquiry Committee, established in the Federal Senate in 2021, which identified a series of omissions and commissions by the Federal Government that, according to the Final Report, would constitute a systematic and widespread attack against the Brazilian civilian population. Initially, the study examines the legal, political and factual foundations of the PCI, highlighting episodes such as the promotion of “herd immunity” without vaccination, the encouragement of “early treatment” with ineffective medications, the oxygen crisis in Manaus and the deliberate lack of protection of indigenous populations. Such practices were classified by the Final Report of the PCI of Covid-19 as “crimes against humanity”, a criminal type set out in art. 7 of the Rome Statute, in the categories of “extermination”, “persecution” and “other inhumane acts”. The study then presents the historical background and structure of the ICC, as well as the principles that guide its activities, with an emphasis on the “principle of complementarity” and the ICC’s interpretation of the “rule of exhaustion of internal resources”. The theoretical analysis is accompanied by specialized doctrine and relevant case law of the Court, including the Lubanga, Al-Islam Gaddafi and Al-Senussi cases, which outline the criteria for international admissibility when there are pending domestic proceedings. Finally, the third part of the study focuses on the progress of ongoing investigations in Brazil, notably Petition No. 10.059/2021, which deals with the possible practice of the crime of “epidemic resulting in death” (art. 267, § 1, of the Brazilian Penal Code), a criminal type present in the Brazilian Penal Code that most closely resembles the notion of “crimes against humanity” under the terms of the Rome Statute, which may constitute an obstacle to the admissibility of the case in the ICC.