The International Criminal Court to the rescue of the home and lives of the Brazilian indigenous peoples : analysing the possibility of investigating and prosecuting crimes of extermination and forcible transfer of indigenous peoples in the Amazon forest

Abstract

The mutual reliance between the right to live in dignity and peace and the right to a healthy environment is becoming unquestionable. However, the high rates of environmental destruction causing irreversible harms have converted environmental degradation in one of the major threats to international peace and security. Among the most threatened ecosystems are the forests, which are essential to mitigate climate change; besides, these natural treasures are home of millions of indigenous persons whose lives are closely linked with the natural environment surrounding them. However, the destruction of forests is disproportionately affecting indigenous groups; this is the case of the indigenous persons living within the Brazilian Amazon. Since the election of the new President of Brazil in October 2018, Brazilian indigenous persons have been suffering an unprecedented surge of violence, invasions, and destruction of their territories that is endangering their survival. This research focuses on analysing whether the attacks against indigenous peoples and the systematic destruction of their lands, starting from January 2019, can amount to a crime against humanity of extermination and of forcible transfer of Brazilian indigenous peoples as regulated in Article 7 of the Rome Statute. The research further assesses whether the alleged crimes can be investigated and prosecuted by the International Criminal Court. To this effect, it is evaluated if the reported violence against indigenous persons and the government policies issued since January 2019 comply with the elements of the alleged crimes. The research findings evidence that the principles of complementarity and gravity are fulfilled and that the International Criminal Court could be in the position of investigating and prosecuting the alleged crimes. The research findings also support the existence of crimes of extermination and forcible transfer of Brazilian indigenous persons. Finally, it is also assessed whether the Brazilian President could be criminally liable for inducing to the commission of these crimes.