Ecocide and crimes against humanity: questions on Bolsonaro and the International Criminal Court.

Editors’ Note: Today’s post is part of our guest post series. In these opportunities, Democratizing opens space for further discussion to our focus – transitional justice and the decline of democracy – to hear experts on topics that contribute to a broader reading of the Brazilian political scenario. Good reading!

Emilio Meyer and Mariana Rezende

The Amazon Forest under the Bolsonaro government

In the past months, a vertiginous growth in the number of fires in the Amazon Forest has been shocking the world. According to data of the National Institute of Space Research (INPE), the number of fires between January and August is the biggest in seven years. The Institute concluded that there was a growth of 82% in relation to the same period of 2018. The comparison of numbers regarding deforestation in the months of July of 2018 and July of 2019 also reveals a staggering reality: a growth in the occurrences of this practice of 278%. 

Some data can help to explain this growth. The anti environmental speech of president Jair Bolsonaro, ever-present in his presidential campaign, became reality and materialized into these alarming numbers. The counter-ideology of the President, openly defended during his campaign, has led to a series of actions and omissions in relation to the deterioration of the Brazilian environmental policy – regarded for years as one of the most progressive in the world. 

Between January and August, the number of fines imposed by the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) has dropped 29%. In March, Bolsonaro set up a contingency plan of R$187 million in the Ministry of the Environment. It led to a cut of 38% in the inspection funds and 24% in the fire fighting efforts. In April, the inspection operations dropped 70% in Amazon. Besides these worrying data, in the following month, the contingency was broadened to R$244 million. 

While the actions and omissions of the President in relation to the environment can be considered violations to the provisions of the Impeachment Law (Law 1.079/1950), as Professor Conrado Hubner seems to support, we will focus exclusively on the dismantling actions described above – actions that have caused irreparable environmental damage – and the possibility of framing them as crimes against humanity.

Crimes against humanity and Bolsonaro’s actions

Before we advance to the fundamental issue of this article – if the conducts practiced by the President are encompassed into the acts considered crimes against humanity – it seems relevant to take a step back for a moment and try to understand what are crimes against humanity. 

In this sense, we search for support in the reasoning of Professor David Luban in his paradigmatic article about crimes against humanity. In this article, the Professor defends the basis for the concept, which according to him rests, simultaneously, in at least two offenses: 

1. offenses that ‘not only the victims and their own communities, but all human beings, regardless of their community’; and 
2. ‘offenses [that] cut deep, violating the core humanity that we all share and that distinguishes us from other natural beings.’

It seems to us, based on the aforementioned understanding, that, in fact, the President’s actions fits into the concept: his speech against the environment (and the Ministry of the Environment) and in favour of deforestation, his claims denying scientific data about the situation of Amazon Forest, and the contingency of funds to institutes that promote implementation and inspection of environmental policies, amidst the current situation.

In this sense, the actions perpetrated by the Brazilian president and its government are offences that 

1. ‘not only the victims and their own communities, but all human beings’, since the way of life (e.g. practices, beliefs and their quotidian activities) of the Indigenous Peoples has been harmed by the destruction of the Forest; and 
2. violate ‘the core humanity that we all share and that distinguishes us from other natural beings’ in so far as such actions are direct violations to what makes us humans as inhabitants of the same planet, failing to guarantee the minimal environmental conditions for the survival of the species.  

“Inhuman acts” – Art. 7(1)(k) of the Rome Statute and the conducts of the President

Therefore, since the President’s actions seem to match the basis offenses encompassed by the concept, it seems necessary to inquire whether there is a norm of international criminal law that specifically encompasses the mentioned actions. For this purpose, we refer to the provisions of Article 7(1) of the Rome Statute (crimes against humanity). 

While the actions perpetrated by Bolsonaro do not seem to violate (directly) the provisions of subparagraphs (a) to (j), it is possible to establish a relationship between the actions perpetrated by the president and the provision of article 7(1)(k), which establishes crimes against humanity are also:

‘Other inhumane acts of a similar character [to the other actions that are mentioned by the article] intentionally causing great suffering, or serious injury to body or to mental or physical health.’

For an action to meet the requirements of Article 7(1)(k), it shall satisfy the following cumulative elements: 

1. the perpetrator shall cause a serious injury to the body or to mental or physical health of an individual; 
2. such action shall be of a similar character (severity) to any other conduct mentioned by the article; 
3. the perpetrator shall be aware of the factual circumstances that established the severe act; 
4. the act shall be committed as part of a widespread or systematic attack directed against any civilian population; 
5. the perpetrator should have known or should have intended that the action was part of a widespread or systematic attack against any civilian population.

It seems to us that all the elements were met by the President’s conducts: 

1. the action caused physical damage to individuals living in the area and in other areas (due to the pollution caused by the fires) in addition to the aforementioned existential damage to Indigenous Peoples and other communities in the region; 
2. the severity of the action is evident, fires and deforestation have caused devastating and irreversible damages to the region, affecting thousands of lives; 
3. the president was notified by official entities – from his own government – about what was happening and deliberately refrained from acting, even to the point of removing anyone who reported the situation; 
4. the actions were part of a widespread attack against an unquantifiable number of people, due to the environmental damages caused, and directly against local Indigenous Peoples; 
5. the president was aware of the widespread damage that could be caused by his actions, and, in this regard, there is evidence of intent on his part (since the electoral campaign, considering his past statements).  

Considering all the points raised, it seems to us, at an initial analysis, that Bolsonaro’s actions meets all the elements of the international crime established by Art. 7(1)(k). This leads us to believe that at least a complaint to the International Criminal Court is appropriate.

The possibility of filing a complaint for crimes against humanity as legally viable and morally commendable

In this regard, in 2016 the International Criminal Court Prosecution published a document suggesting its interest in expanding its competence to report environmental crimes as crimes against humanity. Besides that, it is important to emphasize that it is increasingly common for renowned international law professors to defend that environmental crimes are encompassed within the boundaries of crimes against humanity – beyond the ‘inhuman acts’ mentioned in Article 7 (1)( c) – war crimes and even the crime of genocide.

We understand that legal proceedings deciding for the conviction for crimes against humanity based on environmental crimes are still incipient at this moment, although the court has recently advanced in the sense of accepting such complaints. Accordingly, we believe that these initiatives are not completely legally inappropriate. The reason for our disagreement with the perspective of legal inappropriateness refers to the fact that the elements of the crime established by Article 7 (1)(k) encompass similar conducts and have similar effects to those practiced by the president.

Because of the seriousness of the situation – and its continuously growing devastating and irreparable consequences – it seems reasonable for us to take all viable measures in order to stop a catastrophe. Therefore, in addition to complaints directed to the Inter-American Commission on Human Rights and United Nations bodies, to file a complaint against the President’s conduct in the International Criminal Court, although somewhat quixotic, seems to us both a legally viable and a commendable attempt endeavour.

By Felipe Guimarães Assis Tirado [1], Monique Rocha Salerno Lisboa [2], Ana Clara Abrantes Simões [3], João Marcelo da Silva Elias [4].

1 Lawyer, Master’s candidate in Transnational Law by King’s College London, Master and Bachelor in Law by UFMG.

2 Lawyer. Masters in International Public Law by University of Kent and Bachelor in Law by UFMG.

3 Lawyer, Master’s candidate in Law at UFMG, bachelor in Law by UFMG.

4 Law student at USP.