The Articulation of Indigenous Peoples of Brazil (APIB) will file this month a complaint against President Jair Bolsonaro for genocide and ecocide before the International Criminal Court. “The APIB has compiled and analyzed all the acts carried out by Bolsonaro against indigenous peoples since the beginning of his government and we consider that there are concrete elements for the International Criminal Court to initiate an investigation”, declares Luiz Eloy Terena, lawyer and legal coordinator of the APIB, to EL PAÍS. On June 23, an international commission of 12 jurists, supported by civil society, took up the crime of ecocide, considered a crime against humanity as a whole, but especially against the planet, and intends to incorporate it into the International Criminal Court.
Terena maintains that the Brazilian president ignores the 1988 Constitution, which guarantees the protection of these communities and the right to their territories. “It not only makes the demarcation of our lands unfeasible, but also the protection of the communities that live in areas already guaranteed by law, by encouraging the presence of grileiros [ladrones de tierras públicas], illegal loggers and miners ”. The specialist adds that the right to land and the environmental protection policy are fundamental aspects to formalize the complaint for ecocide. “You cannot talk about the protection of indigenous peoples without guaranteeing the territory. That is what makes the physical and cultural survival of our peoples impossible. And indigenous peoples are not the only subjects of rights, so are the rivers, lakes, fauna and flora of our territories and, in our worldview, even the enchanted spirits that inhabit these spaces ”, he explains.
The APIB complaint will be added to another formulated in 2019 by the Collective for the Defense of Human Rights (CADHu) and the Arns Commission, made up of former ministers of various Brazilian governments and intellectuals to ensure human rights, which they presented to the Court from The Hague the indications of crimes against humanity and incitement to the genocide of indigenous peoples committed by Bolsonaro. Then, the advance of deforestation and fires in the Amazon were fundamental to the case. In December 2020, the Office of the Prosecutor of the International Criminal Court reported that a preliminary assessment of the jurisdiction of the complaint was being carried out, becoming the first case of this type against a Brazilian president that prospers in the international organization and is not archived. “The current state is already historical and has no precedent. If the investigation were opened, it would be a revolution, because we are not talking about the responsibility of the State, but the responsibility of certain individuals, who can be convicted of committing these crimes, “says Eloísa Machado, a lawyer for the CADHu.
The International Criminal Court allows the complaints filed to be updated throughout the process, and that is what the CADHu and the Arns Commission intend to do by attaching facts related to the “negligence in the management of the pandemic” and the recent attacks on Yanomami and Mundurukus communities by illegal miners who allegedly would have the support of the Federal Government. “It is legally comfortable to speak of crimes against humanity and genocide of the indigenous community when we have this scenario,” Machado emphasizes. According to the Special Secretariat for Indigenous Health of the Ministry of Health, 728 indigenous people have died from covid-19, without considering the infections and deaths among indigenous people living in urban areas. The APIB, for its part, registers 1,126 deaths among indigenous peoples.
Although the process continues to advance and Bolsonaro is tried and convicted of crimes included in the Rome Statute, that would hardly happen during his term as president: due to the Court’s record, the accountability of heads or former heads of State usually takes a decade . Prison sentences of up to 30 years, confiscation of property and repairs – such as apologies and compensation – are some of the possible sanctions in case of conviction.
In July last year, a coalition of more than 60 unions and social movements – the majority of health professionals, led by the Red Sindical UniSaúde – already asked the Hague Court that the Brazilian president be convicted of genocide.
The accusations against Bolsonaro have an increasing impact on the international community. Alice Wairimu Nderitu, advisor to the United Nations secretary-general for genocide prevention, first quoted Brazil when speaking on the issue Monday at a meeting of the organization’s Human Rights Council in Geneva. “In the region of the Americas, I am especially concerned about the situation of indigenous peoples. In Brazil, Ecuador and other countries, I ask the governments to protect the communities that are in danger and guarantee that the crimes committed do not go unpunished, ”said Nderitu. It was the first time that Brazil had been cited at the UN in connection with a genocide.
“We have never experienced a situation like this, of reaching the sad point of having to denounce a Brazilian president before international Justice. We know that the process in the International Criminal Court is long, but our objective was precisely to draw the attention of the international community to what is happening here, “says Juliana Vieira dos Santos, a lawyer for the Arns Commission, who believes that the Bolsonaro government it has systematized an “anti-indigenous policy” in Brazil.
The International Criminal Court accepts complaints such as those that have been filed against Bolsonaro when it considers that the judicial authorities of the country itself do not have the capacity to investigate or judge such irregularities. The complainant organizations assured the Court of The Hague that “the national courts have shown no signs of wanting to hold the guilty responsible”.
Santos and other complainants consider that, if the International Criminal Court decided to pursue the genocide case against Bolsonaro, it would face a challenge: it would have to analyze a middle-income country, with a Constitution in force and without any armed conflict, when She is used to investigating situations in poor countries and at war or under dictatorial regimes. “The International Criminal Court is accused of being selective and of not investigating large or powerful countries, but now it has the opportunity to show that this is not the case,” says Machado. As a precedent, it cites the 2020 decision to investigate the performance of US troops in Afghanistan. “In the case of Brazil, the systematic attack on indigenous peoples has attracted attention,” he concludes.
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