“Lula has even created a ministry for the indigenous people in the Amazon, which is unprecedented,” says Brazilian lawyer Paulo Busse. “But what the President says is one thing, and whether he will have the conditions to implement what he says is a whole different issue. Our Congress is divided, and half the Congress is made up of members of the agribusiness caucus, which is against the environment and against indigenous and traditional communities’ rights. He will have to negotiate with them.”
Busse co-wrote a "Communication" to the International Criminal Court, asking the ICC to act on possible crimes against humanity in the Brazilian Amazon. It was drawn up on behalf of a group of Brazilian and international NGOs and filed to the ICC on November 9, 2022, just as Lula was staging a comeback in elections to defeat Brazilian president Jair Bolsonaro (in power from 2019 to January 1, 2023), whose right-wing policies and ties to agribusiness are seen as having largely exacerbated the Amazon problem.
“It’s not a case against Bolsonaro”
Another co-author of this Communication is British lawyer Richard Rogers of the NGO Climate Counsel. “Considering how long these types of crimes have been going on and the lack of accountability through the local justice system, we feel there's evidence that the Brazilians are either unwilling or unable to deal with this issue,” Rogers told Justice Info. “There are many Brazilian prosecutors who are very active and very courageous, but they are attempting to deal with an individual event, such as a single murder.”
He says there has never been an effort to take a “bird's eye view” and construct a case of crimes against humanity within the Brazilian justice system. “So we feel the ICC, which has a mandate to prosecute international crimes, is better placed to look at how the crimes committed over the last decade can be tied together as part and parcel of the same policy, developed and implemented by a network of public and private sector actors,” says Rogers.
And it’s not just about Bolsonaro, he told Justice Info. “The evidence suggests that certain members of the Bolsonaro administration are key actors within the network and have been instrumental in promoting the criminal policy resulting in crimes against humanity, and so these individuals would likely be persons of interest for the ICC,” he continued. “But Bolsonaro is part of the system, not the system per se. It’s not a case against Bolsonaro, we see this as a system crime. And it's a system that needs to be dismantled.”
Murder, torture and land-grabbing
“There have been over 12,000 land or water-related conflicts in the Brazilian Amazon over the past ten years,” according to the Communication filed in conjunction with Greenpeace Brasil and Observatório do Clima to the Prosecutor’s office at the ICC. It says it “provides evidence that an organised network of politicians, civil servants, law enforcement officers, businessmen, and other criminals carried out a widespread or systematic attack against rural land users and defenders in the Amazon region”.
These crimes include “murder, persecution, and inhuman acts”, says the Communication. “The evidence shows that, from 2011 to 2021, the conflicts have resulted in 430 murders, 554 attempted murders, 2,290 death threats, 87 cases of torture, and over 100,000 expulsions or evictions. The victims are from a variety of Indigenous Peoples, traditional communities, and other vulnerable groups, whose land has been ruthlessly exploited for profit through a widespread or systematic attack against their lives and livelihoods.”
Weak Brazilian justice in a very difficult region
Busse agrees that there are some courageous Brazilian prosecutors, who have taken up some cases. But, he says, “we have a justice system that especially in the Amazon region is historically unable to investigate and prosecute those crimes. And it is not only lack of will, it's also lack of resources -- human resources, financial resources. The region is very difficult. For instance, the mobility in the region is controlled by organised groups. This is one of the heritages that Bolsonaro left.”
What is needed now, he says, is for the State to reclaim the ground from these organised groups and give more resources to the justice system. “We need a project to implement the laws that we have, that are very clear that the Brazilian State has the obligation to protect environmental defenders and traditional communities in the Amazon,” he told Justice Info. He says the government also needs to “put more prosecutors specialised in these environmental issues and human rights issues in the region, which basically ends up in more financial investments for the State”.
Legal avenues outside the ICC
This is by no means the first NGO Communication to the ICC asking it to act on Brazil. There have been at least six others since November 2019, all targeting Bolsonaro directly. Rogers says this one is broader and “less politicised”. Asked if they have had a response from the ICC, he says they have had only an acknowledgement of receipt. And if the ICC doesn’t take this up?
“Our job is to try to persuade the ICC Prosecutor that this is a case that falls within their jurisdiction and is so serious that it should be prioritised over others,” says Rogers, “because the Amazon also has such an important place in the world to prevent global warming. It's either the biggest carbon sink or one of the biggest carbon emitters, depending on what you do with it.”
“We see this Communication as a kind of springboard to pursue various other forms of accountability,” he says. Those could include accountability in the local courts, as well as “targeting human rights abuses and the corrupt officials through human rights sanctions regimes, targeting businesses and financiers through anti-money laundering legislation”. There is also potential civil action in Brazil or elsewhere, and possible universal jurisdiction cases in third countries for crimes against humanity.
The situation in Brazil is fragile, says Busse, especially after the arrests of Bolsonaro supporters involved in the January 8 attack on governments buildings in the capital. He says that historically “we could never tackle” crimes in the Amazon. “I know it’s going to be difficult. But for the first time in history, we have a president that has put it at the centre of his agenda.”