A seletividade do direito penal internacional

uma análise crítica sobre o sistema criminal estabelecido pelo Estatuto de Roma

Abstract

he Critical Criminology, from authors such as Nilo Batista and Zaffaroni, has as one of its foundations the statement that the selectivity, in reference of individuals going or not on trial on criminal courts, is a rooted culture in the juridical system in action. In domestic criminal law, the individual’s social-economic and racial-etnic conditions are key points for the determination of this selectivity encompassing, from investigatory actions, such as simple police approaches, to the trial instances themselves. In international spectrum, even though the criminal system for individual’s trial is a recent construction, dating from the end of the 20th century and the beginning of the 21st century, this new juridical structure already holds a certain distrust by the international community, either because of the delegation to the International Criminal Court of a power which is understood by many States as an expression of its sovereignty: the power of trialing its citizens, either because of the political load that these trials can hold. This studying, however, investigates a matter even more delicate which puts in check foundations of the criminal order established by the Statue of Rome: the selectivity of the ICC in reference to the nationality of the citizens in trial. It’s sought, by the qualitative methodology, through a bibliographical and exploratory analysis, ascertain the reasons why the ICC has a preference to trial citizens of undeveloped countries at the expense of citizens of developed countries. The alleged selectivity on the decisions of the International Criminal Court could be a cause of a collapse on the system established by the Statue of Rome, once the rise of a plausible justification that States, mainly from the economic South, can argue for denouncing the mentioned Treaty.