An aerial view shows a river and a deforested plot of the Amazon near Porto Velho, Brazil August 14, 2020. Photo: Reuters/Ueslei Marcelino/File Photo
On a Tuesday afternoon in late March 2020, Zezico Rodrigues Guajajara was killed by gunmen as he was driving a motorbike near his home village on the Araribóia reservation in Maranhao, Brazil.
A member of the Guajajara tribe, he had worked for years to protect land in the Amazon belonging to his ancestors and other uncontacted, or isolated, tribes. For Zezico, fending off illegal incursions had become increasingly dangerous as emboldened logging and mining groups targeted him and other Indigenous environmental activists. He was the fifth Guajajara to be killed in a five-month period.
Indigenous chiefs and human rights organizations have linked such killings to a “state policy” implemented by Brazilian President Jair Bolsonaro to “plunder the wealth of the Amazon,” and asked the International Criminal Court to open an investigation into whether the actions of the far-right leader and other top Brazilian officials constitute crimes against humanity.
Some court watchers say the requests are a legal “hail mary,” given that the international court doesn’t have jurisdiction over peace-time environmental destruction and that national governments have long had control over natural resources within their own borders.
But Bolsonaro’s rampant deforestation of the Amazon and the threat posed by climate change have prompted world leaders like Pope Francis and French President Emmanuel Macron to support a campaign for a new international crime called “ecocide” that would outlaw widespread environmental destruction. Supporters cite Bolsonaro’s actions in the Amazon as a prime example of ecocide happening in real-time.
For now, the court’s jurisdiction is limited to genocide, war crimes, crimes against humanity and the crime of aggression. But in 2016 the court’s Office of the Prosecutor expressed a willingness to give “particular” consideration to crimes related to environmental destruction, illegal exploitation of natural resources or the illegal dispossession of land.
Some legal analysts think Karim Asad Ahmad Khan, the court’s new prosecutor as of June 16, may for the first time authorize an investigation related to environmental destruction because Bolsonaro’s alleged crimes against humanity – murders and the forced displacement of Indigenous groups – are so closely related to the Amazon’s deforestation.
Whatever Khan decides, the Bolsonaro case presents the international court with a novel way to advance legal thinking about peace-time environmental destruction and how deforestation can be linked to the commission of crimes against humanity, defined legally as widespread or systematic attacks against a civilian population, with knowledge of the attacks. Environmental destruction during times of conflict is already considered a war crime that falls within the jurisdiction of the court, which has historically focused on crimes associated with armed conflict.
In January, two Brazilian Indigenous chiefs, Almir Narayamoga Suruí and Raoni Metuktire, filed what is known as an Article 15 Communication, essentially an informative legal document requesting that the prosecutor open an investigation. The request detailed Bolsonaro’s environmental and Indigenous policies, ecological harms, and accounts of murder, forced displacement and persecution carried out against Brazil’s Indigenous population. They argued in the 68-page document that further destruction of the Amazon, 60 percent of which is in Brazil, also poses a threat to humankind.
“The Amazon rainforest plays an essential role in global climate regulation. A point of no return must be avoided at all costs,” the chiefs said in a statement attached to their request. Scientists have warned that a tipping point, where the rainforest can no longer regenerate itself, may be near, and that the collapse of the Amazon would cause cascading environmental disasters. Suruí is from Sete de Setembro Indigenous land and Metuktire is from the Xingu Indigenous Reserve, both located in the rainforest.
“What is happening is ecocide,” said French lawyer Valérie Cabanes, who helped prepare Suruí and Metuktire’s request and serves on a panel of international lawyers that released a legal definition of “ecocide” on Tuesday as part of a campaign to criminalize “severe” and “widespread or long-term” environmental damage.
Cabanes said Surui and Metuktire “filed the case alleging crimes against humanity because that’s what’s available right now, and the crimes that are happening fit that definition, too.”
The other Article 15 Communication, submitted in November 2019 by Brazil’s Human Rights Advocacy Collective (CADHu) and the Dom Paulo Evaristo Arns Commission for Human Rights (Arns Commission), asked the prosecutor to “establish an innovative construal” of the law, based upon the recognition that “Indigenous ways of life are grounded on very specific links between human and non-human lives, the land itself, wildlife, plants, and rivers.” The groups also detailed similar policies and acts as did the Suruí and Metuktire request, but said Bolsonaro’s actions also amount to genocide, which generally is the commission of certain acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
A third request pertaining to Bolsonaro’s handling of the Covid-19 pandemic was filed last year, as well.
What is distinct about the two other requests is that they argue the livelihoods, culture and survival of Indigenous groups are directly linked to the natural environment around them. As such, policies that encourage mass ecological harm are effectively an attack on those individuals. They extend that argument to the rest of humanity in light of the climate crisis and the Amazon’s key role in storing carbon.
Bolsonaro has denied the allegations and staunchly defended Brazil’s right to develop the rainforest, citing the country’s sovereignty, and accusing foreign actors of wanting to impede Brazil’s lucrative agricultural and commodity export industries. His supporters also point out that Brazil has historically contributed very little to climate change compared to developed countries like the United States. Brazil’s Embassy in Washington and it’s Ministry of Foreign Affairs did not respond to questions and a request for comment from Inside Climate News.
While neither request alleges that Bolsonaro had knowledge of, or was personally involved in, any of the alleged murders or other crimes, they say he and other officials bear ultimate responsibility because their policies and rhetoric encouraged the attacks on Indigenous groups.
In asking the “court of last resort” to investigate their president, Suruí and Metuktire said in their request that Brazil’s justice system is unwilling to carry out a meaningful investigation into the alleged crimes. Their plea comes nearly 50 years after the release of a damning government report that detailed thousands of atrocities – including torture, murder and land theft – carried out with impunity by Brazilian officials against Indigenous peoples during the country’s military dictatorship.
The mentality of that regime, namely that Indigenous persons should assimilate and have no land rights, has become ascendant under Bolsonaro, Indigenous groups and lawyers say.
“It’s a completely wrong mentality, but that’s Bolsonaro. He comes from this school that believes Indigenous peoples aren’t peoples,” said Ana Valéria Araújo, a Brazilian attorney who has represented Indigenous groups for over 30 years and is now the executive director of the non-profit Fundo Brazil. “He sees them as obstacles to development and when there’s an obstacle, you have to remove it.”
Bolsonaro has a history of making anti-Indigenous statements. He has compared isolated Indigenous peoples to animals in a zoo, and in 2020 said that “Indians are undoubtedly changing …They are increasingly becoming human beings just like us.” In 1998, he lamented that Brazil wasn’t as “efficient” as the United States, which “exterminated the Indians.” And as president, his administration opened investigations into Indigenous leaders, including Suruí, who have spoken out against his policies, accusing them of defaming the president.
Over the past 40 years, Indigenous groups have won hard-fought legal gains in Brazil and internationally. At the same time, the fields of international criminal and human rights law have developed, piercing the previously unassailable shield of state sovereignty and culminating in the 1998 creation of the International Criminal Court.
In possibly taking on environmental destruction, some question if the court is being asked to do too much. Critics say the institution has underperformed and is already overextended.
As the prosecutor considers the requests to investigate Bolsonaro, the campaign to make ecocide an international crime is gaining momentum. Supporters of the campaign hope one of the court’s 123 member countries will trigger a formal process to amend the court’s founding treaty, known as the Rome Statute, by formally requesting that ecocide be added as the court’s fifth crime.
The panel’s release on Tuesday of the legal definition, after six months’ work, was seen as an important precursor to such a request from a member nation. The panel defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
The process for considering, debating and ultimately approving ecocide as an international crime could take years. And even if successful would ultimately require the agreement of two-thirds of the court’s member countries. In the meantime, the only way the court can hold Bolsonaro accountable is if he has committed acts that fall within one of the court’s four existing crimes. The two requests allege that he has.
Still, Suruí and Metuktire argue that their request advances the case for the “recognition of ecocide” as an international crime. For them and others, the scale and urgency of the climate crisis, along with the lack of alternative mechanisms to stop the depletion of the Amazon, make the International Criminal Court their last and best hope.
“The prosecution of [Bolsonaro] in Brazil is blocked. The only person who can investigate him is the [Brazilian] Chief Prosecutor of Justice, who is an ally of Bolsonaro,” said Ana Carolina Alfinito, a legal advisor with the non-profit Amazon Watch. “We’ll never have true justice for his crimes if the International Criminal Court doesn’t act.”
Conceived as a forum to end impunity and hold accountable perpetrators of the world’s most heinous crimes, the International Criminal Court is the world’s only permanent international criminal tribunal.
The progeny of the post-World War II tribunals at Nuremberg and Tokyo, the court was created by the agreement of 120 nations, including most US allies, to end impunity for individuals who commit “the most serious crimes of concern to the international community.” Though the United States has been a leader in the development of international justice, it is not a member of the court and, depending on the U.S. administration, has vacillated between cooperation and hostile relations with the institution.
Meant to complement and not replace national judicial systems, the court exercises jurisdiction only if and when nations fail to do so themselves. Supporters of the court, which came into force in July 2002, see it as an advancement of the rule of law, where no individual is too powerful, or above the law. And no victim is below the law or powerless to access justice. The court acts as a deterrent for criminal activity and is a forum where victims can be heard, recognized and seek redress.
In considering the requests to investigate Bolsonaro, the Office of the Prosecutor must first decide whether to open a preliminary examination to determine if the Court has jurisdiction and if the case is “in the interest of justice.” To do so, the prosecutor will have to decide among the hundreds of investigation requests filed with the Court each year. In 2020, 800 were filed, and as of May, eight preliminary investigations and 14 investigations were pending.
If selected, the notoriously slow-moving court could take years to process the case from investigation to trial and post-trial appeals. And there are sure to be obstacles along the way. Lacking any enforcement mechanism of its own, the court relies on its member states to cooperate in the investigation and detention of suspects. Cases are often politically charged, and the Bolsonaro matter is no exception.
The prosecutor’s consideration of the Bolsonaro case is taking place just as the global campaign to criminalise ecocide completes its opening phase. The process for considering, debating and ultimately ratifying ecocide as an international crime could take years and, if successful, the resulting ecocide law will not apply retrospectively. Thus, it is unlikely Bolsonaro could be charged with ecocide for any acts he has taken up to the date the law goes into effect.
While the law’s ramifications will depend on its final definition, as agreed to by the court’s member nations, the panel of lawyers defined “widespread” damage to the environment as “damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.”
The panel wrote that “‘severe’ means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources,” and defined “long-term” as “damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.”
For Robert T. Coulter, an Native American lawyer who has fought for Indigenous rights for decades, a “properly defined” crime would reduce harms to Indigenous peoples, lands and resources. But “if poorly defined and badly applied,” he said, “it could conceivably be used to stop and punish Indigenous traditional uses of their own resources.”
Supporters of an ecocide crime say Bolsonaro’s policies toward the Amazon show that nation-states should no longer have unchecked control over natural resources within their own borders, when mismanagement of those resources can affect the rest of humanity. The Amazon rainforest acts as an important carbon sink, making it a core part of humanity’s fight against climate change, they said.
Each time a portion of the Amazon is cut down, less rainfall is cycled from the ground through tree roots and leaves, then released into the atmosphere as water vapor. This cycling process affects precipitation patterns and has a cooling effect on local areas. But as more trees are cut down, less water is cycled, temperatures go up, drought is more likely and more forest dries out and dies off. The process threatens millions of plant and animal species, many of which live nowhere else on earth, and makes the forest more susceptible to fires. In 2019, those fires raged out of control. As the world watched the Amazon burn, French President Emmanuel Macron called the situation “ecocide” and an “international crisis.”
“We expect the case against Bolsonaro to open the door for the recognition of ecocide in the context of international law,” said William Bourdon, a French attorney who filed the January request on behalf of the Indigenous chiefs. “We believe the court understands the gravity of the international environmental emergency.”
In making their case that the destruction of the Amazon is linked to the commission of crimes against humanity, such as the murders of environmentalists and the forced displacements of Indigenous peoples, the Article 15 requests filed by the tribal leaders and the human rights organizations also describe Bolsonaro’s environmental rollbacks in detail.
They include at least 57 legislative acts that weaken environmental protections that took place from his inauguration through last September and a slew of budget cuts and restructurings of key agencies that protect and monitor the environment. The requests note that Bolsonaro has staffed key environmental agencies with former federal police and military officers. “The goal, according to Bolsonaro, is to ‘put an end to the ideological framework of the sector, led by NGOs and entities concerned with the environment,’” Suruí and Metuktire said.
The chiefs accuse Bolsonaro of acting aggressively to try and silence activists and others who might interfere with his agenda. When Brazil’s National Institute for Space Research, or INPE, which uses satellite imagery to monitor deforestation, reported a spike in deforestation during his first year in office, Bolsonaro fired its director and questioned the accuracy of the agency’s data. His administration has also attempted to restrict public access to government officials, issuing a moratorium on press contact with employees in Brazil’s environmental agency, Ibama.
Under Bolsonaro’s administration, enforcement of laws protecting the environment has plummeted, according to the requests. Environmental fines in Brazil decreased 72%, even as deforestation rates rose to a 12-year high.
His Environment Minister, Ricardo Salles, has been the main architect of the remaking of Brazil’s regulatory framework, Suruí and Metuktire said. In May of 2020, Salles was captured on video advising Bolsonaro to take advantage of the media’s fixation on the Covid-19 pandemic to “push through” environmental rollbacks. Salles resigned on Wednesday, weeks after Brazil’s federal police opened an investigation into his alleged involvement in illegal timber exports. Salles has denied the allegations. His office did not respond to requests for comment.
Environmental advocates in and outside of Brazil believe his departure will do little to slow the ruination of the Amazon.
“Whoever sits in the chair of minister will obey the orders of Bolsonaro and continue to implement the policy of environmental destruction, just as Salles did,” said Marcio Astrini, head of Climate Observatory, in a statement.
The Article 15 requests argue that Bolsonaro’s environmental rollbacks are linked to the widespread destruction of the Amazon. The deforestation, according to the requests, “has a marked and disproportional effect on the Indigenous peoples, whose physical existence and lifestyles depend on the forest, the land, and the rivers in material, social and symbolic terms.”
Bourdon said, “The exploitation alters the Amazon rainforest and destroys ecosystems, polluting water, natural resources and the livelihoods of Indigenous people. They suffer from diseases due to contamination of their resources and they are sometimes forced to leave their lands.” He added, “The massive and violent exploitation of the Amazon is a direct attack on the rights of Indigenous peoples.”
The two requests go on to detail murders, trespassing and displacements connected to Bolsonaro’s environmental and Indigenous policies. Human rights advocates say the alleged crimes are the latest in a centuries-long campaign to eradicate and assimilate Brazil’s Indigenous people.
Torture through the slow crushing of ankle bones. Intentional introduction of lethal diseases into isolated populations. Air attacks using sticks of dynamite. The donation of food laced with arsenic.
These and other forms of murder, rape, starvation, slavery, land theft and torture were carried out by Brazil’s Indian Protection Service against Indigenous persons during the country’s 1964 to 1982 military dictatorship, according to a 7,000-page report compiled by then-public prosecutor Jader de Figueiredo in 1967. The dictatorship was installed following a US-backed coup targeting a communist regime.
The so-called Figueiredo report catalogs thousands of crimes perpetrated by the federal agency charged with helping Indigenous communities. The crimes took place starting in 1910, but had roots as far back as the 1500s, when Portugal first colonized the region.
The dictatorship’s large-scale and coordinated attempt at eradicating Indigenous groups was based in large part on a desire to exploit the natural resources on their land. “The military considered Indigenous peoples obstacles to development,” Araújo said.
After the Figueiredo report came out, the Indigenous Protection Service was replaced by the National Indian Foundation, or FUNAI, the agency in charge of Indigenous affairs today. Despite the rebranding, the government’s policy remained one of assimilation, and successive administrations acted at times to strip land and cultural protections from tribes until 1988 when Brazil enacted a new constitution, Araújo said, “But now those policies have resurfaced.”
In the decades after the Figueiredo report, Indigenous groups won hard-fought legal protections, but that hasn’t stopped new efforts to seize Indigenous land and assimilate native groups.
The country’s 1988 constitution marked a turning point of sorts for Indigenous groups and was the culmination of their efforts to codify their rights to land they’ve continuously occupied for centuries.
Today, the constitution has been the main tool for Indigenous groups to fight back at the national level against infringements on their rights. Among the document’s protections is a guarantee to a “balanced environment” and a mandate for the government to demarcate – or identify and set aside – all Indigenous territories within five years of the constitution’s enactment. Though the time-bound goal was not reached, the government had steadily made progress, demarcating about 40 percent of the more than 1,200 Indigenous territories in Brazil.
But that progress stopped when Bolsonaro took office.
The requests by the chiefs cataloged an array of Bolsonaro’s actions that weaken protections for Indigenous people, including placing a moratorium on demarcations. As a candidate, he promised not to demarcate “one centimeter” more of Indigenous land, and on his first day in office, he transferred responsibility for the process from the National Indian Foundation (FUNAI) to the Ministry of Agriculture, which is known to cater to industry, the requests said.
After the country’s Supreme Court overturned the move, Bolsonaro installed at the head of FUNAI a former federal police officer known to have close ties to the agriculture industry. The government’s unwillingness to enforce laws protecting Indigenous groups has also been harmful, the requests said.
These policy changes, coupled with environmental rollbacks, effectively opened up parts of the Amazon long inhabited by Indigenous groups to mining, logging and agriculture, and that flood of development activity, most of which is illegal, has led to violence and the destruction of protected Indigenous lands, according to the requests.
Since Bolsonaro took office in January 2019, there were 256 cases of property damage, illegal occupation and exploitation of Indigenous land, up from 109 incidents in 2018, according to the Missionary Council for Indigenous Peoples.
Other accounts of illegal intrusions are much higher, according to the requests. A spokesman for the over 40,000 Yanomami peoples who occupy protected land in northwest Brazil and parts of Venezuela, told the United Nations Human Rights Council in March 2020, “There are already around 20,000 illegal miners invading our territory, contaminating our water and bringing back diseases such as mercury intoxication and malaria.”
At least one study has shown an association between illegal gold mining on Yanomami territory and high levels of mercury in tribal members’ hair samples, including those from children. Elevated levels of mercury in humans can cause neurological problems and other serious and irreversible health problems. Mercury is especially dangerous for fetuses. Gold miners use mercury to extract gold from sediment, a process that contaminates water sources and decimates surrounding ecosystems.
In 2019, the murder rate of Indigenous persons reached an 11-year high. In one case, detailed in the January request, Emyra Wajãpi, the leader of the Wajãpi people, was stabbed to death by illegal miners who invaded her village. United Nations High Commissioner for Human Rights Michelle Bachelet said the murder was a “worrying symptom of the growing problem of encroachment on Indigenous lands – especially forests – by miners, loggers, and farmers in Brazil.” In public comments after the murder, Bolsonaro reiterated his desire to legalize mining in Indigenous areas.
Suruí and Metuktire placed special emphasis on Bolsonaro’s effect on Brazil’s isolated Indigenous peoples. Without official recognition of their territories, the population of over 100 uncontacted tribes is acutely at risk, because any outside contact could spread disease among the population. That danger increased during the Covid-19 pandemic, according to a recent UN Human Rights Council report. The report attributed the rise of incursions to “harmful government rhetoric” that has “emboldened” miners, loggers and others.
Other governmental policies under Bolsonaro have restricted Indigenous groups’ access to food aid and health care, Bourdon said. “President Bolsonaro and agribusiness groups are imposing unbearable living conditions on Indigenous peoples to force them to move.”
The requests also blame Bolsonaro for “inflamed rhetoric,” that has been “denigrating these communities, with a constant discourse of dehumanisation, radicalisation and disparagement of their lifestyles.”
He has expressed nostalgia for the days of military rule, telling NPR it was a “very good period,” and has said, “The dictatorship’s mistake was to torture but not kill.” As president, Bolsonaro reinstated a national day commemorating the start of the dictatorship.
“Rather than assisting the Indigenous peoples and legally imposing respect for their rights, President Jair Messias Bolsonaro is instead acting in ways that strip them of their humanity in the eyes of Brazilian society,” said CADHu and the Arns Commission. “Bolsonaro is portraying Brazil’s Indigenous peoples to society in general as either sub-human or a potential threat to national sovereignty, with ‘integration’ as the solution.”
The Bolsonaro case gives the International Criminal Court the opportunity to hold the Brazilian president and other officials accountable and play a role in fighting peace-time environmental harms, the lawyers filing the requests said.
But not everyone sees the court as the best mechanism to address environmental harms, or sees deforestation and the rollback of Indigenous rights as wrong.
To his supporters, Bolsonaro’s decisive 2018 electoral victory gave him a mandate to carry out his campaign agenda to enact market-friendly policies, limit the rights of Indigenous groups, repeal environmental regulations and, in his words, “authorize industrial, hydraulic and mining in protected areas.” They also question why Brazil, a developing country, should sacrifice monetizing its natural resources when other nations got rich doing the same thing.
In response to the criticism that he is mismanaging the Amazon, Bolsonaro has said Brazil’s “sovereignty is non-negotiable,” calling the criticisms evidence of a “misplaced colonialist mindset.” And Boslonaro isn’t the first to open up the Amazon. Successive administrations across political parties have taken steps to develop the rainforest and curtail environmental protections.
But to Bourdon, the right to sovereignty doesn’t make it lawful to undermine the rights of Indigenous peoples.
“The role of international law is to regulate the behaviour of states and their leaders. No one disputes the sovereignty of the President to carry out a policy, but this policy must respect the rights of Indigenous peoples,” he said. “The right to sovereignty cannot be equated with the right to freely dispose of the lands of Indigenous peoples, much less to have the right of life and death over them.”
Regarding the International Criminal Court, some have doubts about the institution’s ability to expand its reach into environmental destruction. Supporters have said the institution has had poor management and that the quality of some legal proceedings has been lacking. To date, there have been just 10 convictions and four acquittals.
Last year, a group of independent experts published a 350-page report critical of the court’s operations, and some legal scholars have said the institution has overextended itself and should stick to its core mission.
“There’s a lot of talk going on now at the ICC about the need for reform, and the need for the court to focus on the cases that are truly most important,” said Todd Buchwald, who formerly served as ambassador at-large and special coordinator for the State Department’s Office of Global Criminal Justice.
Decisions to allow investigations into possible crimes committed in Afghanistan and Palestinian territories have also proved controversial. But the criticism and controversy could push the prosecutor for the international court to take up an unconventional case like Bolsonaro’s to “divert attention from these highly controversial areas by looking at something that has more universal support from nations,” said Richard Falk, a well-known international legal scholar from the United States who first wrote about ecocide in 1973.
Should the court step into the environmental arena, either through the adoption of an ecocide crime or by taking up a case like Bolsonaro’s, environmentalists and lawyers say that just the prospect of court action or an impending international crime would have a deterrent effect on polluting businesses, financial institutions and politicians like Bolsonaro. The crimes the court prohibits are considered not just a violation of victim’s rights, but an affront to humanity at large. “Treating that level of environmental harm as ecocide would associate the behavior of Bolsonaro with a form of ultimate criminality,” said Falk.
Cabanes, referring to the moral weight of Suruí and Metuktire’s request, said, “That’s why filing this communication about the Amazon and doing it with Indigenous leaders was so important.
“When you destroy an environment, you ultimately destroy your home, culture and people,” she said. “Because we are part of nature and we can’t guarantee our fundamental human rights if we don’t protect the rights of nature to exist, regenerate and thrive.”