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A Criminal Law Approach to Terrorism in Brazil

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A Criminal Law Approach to Terrorism in Brazil Calhoun: The NPS Institutional Archive DSpace Repository Theses and Dissertations 1. Thesis and Dissertation Collection, all items 2014-12 A criminal law approach to terrorism in Brazil Oliveira de Sousa, Carlos Henrique Monterey, California: Naval Postgraduate School http://hdl.handle.net/10945/44636 Copyright is reserved by the copyright owner. Downloaded from NPS Archive: Calhoun NAVAL POSTGRADUATE SCHOOL MONTEREY, CALIFORNIA THESIS A CRIMINAL LAW APPROACH TO TERRORISM IN BRAZIL by Carlos Henrique Oliveira de Sousa December 2014 Thesis Advisor: Michael Freeman Second Reader: Douglas Borer Approved for public release; distribution is unlimited THIS PAGE INTENTIONALLY LEFT BLANK REPORT DOCUMENTATION PAGE Form Approved OMB No. 0704–0188 Public reporting burden for this collection of information is estimated to average 1 hour per response, including the time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Washington headquarters Services, Directorate for Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302, and to the Office of Management and Budget, Paperwork Reduction Project (0704-0188) Washington, DC 20503. 1. AGENCY USE ONLY (Leave blank) 2. REPORT DATE 3. REPORT TYPE AND DATES COVERED December 2014 Master’s Thesis 4. TITLE AND SUBTITLE 5. FUNDING NUMBERS A CRIMINAL LAW APPROACH TO TERRORISM IN BRAZIL 6. AUTHOR(S) Carlos Henrique Oliveira de Sousa 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION Naval Postgraduate School REPORT NUMBER Monterey, CA 93943-5000 9. SPONSORING /MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSORING/MONITORING N/A AGENCY REPORT NUMBER 11. SUPPLEMENTARY NOTES The views expressed in this thesis are those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. Government. IRB Protocol number ____N/A____. 12a. DISTRIBUTION / AVAILABILITY STATEMENT 12b. DISTRIBUTION CODE Approved for public release; distribution is unlimited A 13. ABSTRACT (maximum 200 words) The goal of this thesis is to present how Brazilian law treats terrorism. In particular, it seeks to develop a model bearing the core characteristics that an effective criminal law must have to fit the country’s reality. We intend to conduct a thorough critical analysis of the current law, and present the requirements to design an adequate one. Therefore, the study path starts with an overview of Law 7170/83, which allegedly criminalizes terrorism in Brazil. Next, we will show how international laws and agreements signed by Brazil obligate the country to have a law against terrorism. Finally, the text will show that adoption of a criminal law is one of the several approaches to dealing with terrorism and how civil liberties can be affected by the decision to criminalize such acts. In this context, and to show foreign experiences, we will use the comparative method to study the experience of six countries regarding criminal law dealing with terrorism: Argentina, Chile, Colombia, Peru, the United States of America, the United Kingdom of Great Britain, and Northern Ireland. 14. SUBJECT TERMS 15. NUMBER OF Brazil, terrorism, criminal law, Law 7170/83, international laws, agreements, prevention, counter- PAGES terrorism. 65 16. PRICE CODE 17. SECURITY 18. SECURITY 19. SECURITY 20. LIMITATION OF CLASSIFICATION OF CLASSIFICATION OF THIS CLASSIFICATION OF ABSTRACT REPORT PAGE ABSTRACT Unclassified Unclassified Unclassified UU NSN 7540–01-280-5500 Standard Form 298 (Rev. 2–89) Prescribed by ANSI Std. 239–18 i THIS PAGE INTENTIONALLY LEFT BLANK ii Approved for public release; distribution is unlimited A CRIMINAL LAW APPROACH TO TERRORISM IN BRAZIL Carlos Henrique Oliveira de Sousa Federal Police Commissioner, Brazilian Federal Police B.S., Federal University of Rio de Janeiro Law School, Brazil, 1993 Submitted in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE IN DEFENSE ANALYSIS from the NAVAL POSTGRADUATE SCHOOL December 2014 Author: Carlos Henrique Oliveira de Sousa Approved by: Michael Freeman Thesis Advisor Douglas Borer Second Reader John Arquilla, Ph.D. Chair, Department of Defense Analysis iii THIS PAGE INTENTIONALLY LEFT BLANK iv ABSTRACT The goal of this thesis is to present how Brazilian law treats terrorism. In particular, it seeks to develop a model bearing the core characteristics that an effective criminal law must have to fit the country’s reality. We intend to conduct a thorough critical analysis of the current law, and present the requirements to design an adequate one. Therefore, the study path starts with an overview of Law 7170/83, which allegedly criminalizes terrorism in Brazil. Next, we will show how international laws and agreements signed by Brazil obligate the country to have a law against terrorism. Finally, the text will show that adoption of a criminal law is one of the several approaches to dealing with terrorism and how civil liberties can be affected by the decision to criminalize such acts. In this context, and to show foreign experiences, we will use the comparative method to study the experience of six countries regarding criminal law dealing with terrorism: Argentina, Chile, Colombia, Peru, the United States of America, the United Kingdom of Great Britain, and Northern Ireland. v THIS PAGE INTENTIONALLY LEFT BLANK vi TABLE OF CONTENTS I. INTRODUCTION........................................................................................................1 II. BACKGROUND AND ENVIRONMENT .................................................................3 A. MAIN THEORIES...........................................................................................5 III. LAW 7170/83 – BACKGROUND.............................................................................11 A. INTERNATIONAL SCENARIO .................................................................14 B. BILL OF LAW ...............................................................................................15 C. OPPOSITION FROM CIVIL SOCIETY ....................................................16 D. UNITED NATIONS .......................................................................................16 E. BRAZIL AND THE TREATIES AND OTHER INTERNATIONAL INSTRUMENTS ............................................................................................19 IV. HOW DO SIX DEMOCRATIC COUNTRIES DEAL WITH COUNTER- TERRORISM CRIMINAL LAW? ..........................................................................21 A. OVERVIEW ...................................................................................................21 B. UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (UK) .............................................................................................23 C. UNITED STATES OF AMERICA...............................................................27 D. ARGENTINA .................................................................................................30 E. CHILE .............................................................................................................32 F. COLOMBIA ...................................................................................................35 G. PERU ...............................................................................................................37 H. FINAL CONSIDERATIONS ........................................................................39 V. CONCLUSION ..........................................................................................................41 LIST OF REFERENCES ......................................................................................................45 INITIAL DISTRIBUTION LIST .........................................................................................51 vii THIS PAGE INTENTIONALLY LEFT BLANK viii LIST OF ACRONYMS AND ABBREVIATIONS AMIA Asociacon Mutual Israelita Argentina (Argentina-Israel Mutual Association) ELN Ejercito de Liberacion Nacional (National Liberation Army) FARC Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia) FIFA Federation Internacionale de Football Association (International Federation of Association Football) IRA Irish Republican Army OAS Organization of American States UN United Nations UNGA United Nations General Assembly UNODC United Nations Office on Drugs and Crimes USA PATRIOT Act Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ix THIS PAGE INTENTIONALLY LEFT BLANK x ACKNOWLEDGMENTS I am very grateful for the patient guidance and assistance provided by Professors Michael Freeman and Douglas Borer. I would also like to thank Professor Gordon McCormick, with his diamond model, who guided me as to how theorize better; Professor Kalev Sepp, who taught me how to deal with texts and to present ideas; Professor Frank Giordano, who performed the veritable miracle of making me understand math; and Professor Nancy Roberts, who introduced me to new ways of dealing with wicked problems, and also to how to be more creative and innovative. I wish to thank my English teacher, Brian Hazlehurst, who gave me the language skills that permitted me to have this experience. As a member of the Federal Police,
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