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Excerpted From: Lily Grisafi, Prosecuting International Environmental Crime Committed Against Indigenous Peoples in Brazil, 5 Columbia Human Rights Law Review Online 26 (November 10, 2020) (191 Footnotes) (Full Document)

LilyGrisafiFor many years we, the indigenous leaders and peoples of the Amazon, have been warning you, our brothers who have brought so much damage to our forests. What you are doing will change the whole world and will destroy our home--and it will destroy your home too .... [for] if our Earth dies, then none of us will be able to live.--Chief Raoni Metuktire of the Kayapó people.

Global failure to heed these urgent warnings has forced the indigenous peoples of the Amazon Rainforest to stand alone to protect their ancestral lands, their communities, and their lives.

The Guardians of the Forest, a group of Guajajara indigenous people, are fighting an endless battle against illegal deforestation in the protected Araribóia indigenous territory of the Brazilian Amazon Rainforest. These Guardians risk their lives to stop the expansion of illegal logging and mining in the last remaining forested portion of the Amazon in this region. This fight has not been without casualties. Hoping to sell or extract valuable resources from indigenous territories, heavily-armed land grabbers, wildcat miners, and illegal loggers invade indigenous territories and often kill indigenous people who attempt to protect their lands. Recently, acts of violence against indigenous people have become more frequent and unabashed throughout Brazil. In November of 2019, Paulo Paulino Guajajara, a leader of the Guardians of the Forest, was ambushed and fatally shot by loggers seeking to illegally clear-cut indigenous land. Over a dozen other tribes have lately experienced or been threatened with violence and invasion.

It is not a coincidence that this increase in violence against indigenous people in Brazil coincides with the election of far-right President Jair Bolsonaro. On the contrary, the increase in violence is a direct response to Bolsonaro's blatantly anti-indigenous policies and frequently racist language. Not only has Bolsonaro taken no steps to end the epidemic of violence against the indigenous peoples of Brazil, his administration has taken affirmative action to undercut the rights of indigenous peoples and has made repeated public statements in support of the destruction of Brazil's indigenous population. In fact, Bolsonaro's conduct rises to the level of an international crime, which should be prosecuted at the International Criminal Court (“ICC”).

Importantly, many of the crimes perpetrated against the indigenous peoples of Brazil are carried out through environmental means, and environmental degradation is not explicitly included in the definition of most international crimes under the Rome Statute, the sole legal source of the ICC's jurisdiction. Despite the omission of direct reference to environmental harms from most crimes listed in the Rome Statute, these environmental crimes do fall within the jurisdiction of the ICC and should be prosecuted accordingly.

This Article investigates current international environmental crimes perpetrated against the indigenous peoples of Brazil for the purpose of demonstrating how and why these crimes should be prosecuted at the ICC.

Part I examines examples of international environmental crimes carried out in the Brazilian Amazon and details the urgent nature of the situation.

Part II then explains the means through which such international environmental crimes may be prosecuted at the ICC.

Finally, Part III provides an in-depth analysis of the justiciability and viability of prosecutions for the international environmental crimes perpetrated against the indigenous peoples of the Amazon.

In late 2019, Brazilian attorneys and human rights advocates from Brazil's Human Rights Advocacy Collective (hereafter referred to by the Portuguese acronym “CADHu”) and the Dom Paulo Evaristo Arns Commission for Human Rights (hereafter referred to as the “ARNS Commission”) sent the Office of the Prosecutor of the ICC a request to begin a preliminary examination into Bolsonaro's criminal conduct that they argue constitutes incitement to genocide and crimes against humanity. At the time of publication, the Prosecutor of the ICC has yet to begin such an examination. The Prosecutor of the ICC should grant CADHu and the ARNS Commission's request to open an investigation into these crimes and hold the rightful parties accountable through a full and fair criminal trial. These prosecutions will be an imperative first step towards both restoring peace and security for the indigenous peoples of the Amazon and establishing precedent for prosecuting international environmental crimes, thereby deterring the future commission of similar acts.

[. . .]

In the warming global climate, at-risk communities are more vulnerable than ever to the life-threatening dangers of environmental degradation. As such, it is imperative that the Office of the Prosecutor of the ICC follows through on the goals set forth in its 2016 policy paper on case selection and prioritization. International crimes committed by or resulting in destruction of the environment must not go unprosecuted. The current language of the Rome Statute allows for certain environmental crimes to be prosecuted as war crimes, as crimes against humanity, and, when committed with intent to destroy a protected group, as genocide. The ICC should assert its power to bring about international justice for all of the most serious international environmental crimes of concern to the international community, including the violent and racist crimes perpetrated against the indigenous peoples of the Brazilian Amazon.

The Office of the Prosecutor of the ICC should take heed of CADHu and the ARNS Commission's 2019 request and investigate those who perpetrate crimes against humanity through environmental means against the indigenous peoples of the Amazon. Specifically, the Office of the Prosecutor should investigate the forcible transfer of the indigenous peoples committed through environmental crimes that are the coercive means by which indigenous peoples are forced from their homes. The Prosecutor should also investigate the extermination of the indigenous peoples perpetrated through the infliction of environmental ills that create the conditions of life calculated to bring about their destruction. The final crime against humanity that the Prosecutor should investigate in this case is the crime of persecution, wherein environmental destruction is used to deprive the indigenous peoples of their right to life due to their membership in particular ethnic groups.

The international community working under the auspices of the ICC must also address the crimes of genocide committed against the indigenous peoples of Brazil. The indigenous peoples of the Brazilian Amazon face genocide perpetrated through environmental harms that deliberately inflict the conditions of life calculated to bring about the destruction of these peoples. The Office of the Prosecutor should investigate these genocidal acts and should also investigate President Bolsonaro for inciting the genocide. Only once those most responsible for these heinous crimes are brought to justice, may the indigenous peoples of the Brazilian Amazon, the guardians of the lungs of the earth, be free to live without fear and to continue to protect us all from the destruction of the planet.

Lily Grisafi has a J.D. from Columbia Law School and an LL.M. from the University of Amsterdam Law School.

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