In October, a report by Brazil’s Senate recommended pursuing crimes against humanity and other charges against the president over his handling of the pandemic, which has killed more than 600,000 Brazilians – the second highest Covid-19 death toll worldwide. In November, Brazil’s National Institute of Space revealed that deforestation in the Amazon rose to a 15-year high in 2021, making the government’s COP26 pledge to end illegal deforestation by 2028 appear increasingly unattainable. Concerns over Bolsonaro’s environmental policies have also been a major sticking point in the EU-Mercosur trade deal negotiations.
The ICC prosecutes four crimes – genocide, crimes against humanity, crimes of aggression and war crimes. However, in 2016, the Court indicated in a policy paper that it would expand its focus to prosecuting serious environmental crimes such as ‘illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment.’
Crimes against nature are crimes against humanity
Founder, AllRise and the Planet vs Bolsonaro initiative
Kate Mackintosh, Executive Director of the Promise Institute for Human Rights at UCLA School of Law, says AllRise’s submission now creates a crucial opportunity for the new Prosecutor, Karim Khan QC, to demonstrate how seriously the ICC views environmental crimes. ‘I hope it means that he sees this as an opportunity to make the Court look relevant and address the concerns of millions of people across the globe,’ she says. ‘And possibly also to help the perception of the Court as being concerned with issues perpetrated by actors in the Global South and unable to confront crimes committed by actors from powerful northern states.’
Mackintosh is an Advisory Board Member of the Stop Ecocide Foundation, which wants to make ecocide the fifth internationally recognised crime under the Rome Statute. In June, she was part of an international panel of legal experts that moved a step further towards this goal and published a legal definition of ecocide as the ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.’
Nine countries already have ecocide laws. All countries should incorporate ecocide into national legislation, says Leopoldo Burguete-Stanek, Programme Officer of the IBA Environment, Health and Safety Law Committee and a partner at Gonzalez Calvillo in Mexico City. He believes making ecocide an internationally recognised crime would impose an additional ‘legal duty of care’ on states. ‘A universal prosecution of these types of events would allow that, even if a country has a very tolerant environmental legislation, crimes committed in its territory could be prosecuted at the international level,’ he says.
AllRise Co-Founder and lawyer Wolfram Proksch welcomes these efforts to prosecute ecocide at the ICC, but says the latest complaint against Bolsonaro highlights the need for courts to act now. ‘We don't have time to wait for another 10–12 years until the member states of the ICC would be willing to amend the Rome Statute,’ he says. The Office of the Prosecutor at the ICC was unable to comment on any proposed amendments to the Rome Statute, stating that this ‘falls squarely within the ambit of States Parties under the Court’s founding treaty.’
Proksch is no stranger to high-profile cases, having represented Austrian activist Max Schrems in his data privacy battle with Facebook, which was ultimately dismissed by an Austrian court. He believes we must continue to use and test existing laws and legal frameworks to seek justice. ‘We cannot wait for further COP26 agreements that are not enough, where there are no real means to change the situation,’ he says. ‘This should be a major signal to the world that we are at the stage where we have to use the last things we have, which is the law at the moment that we have.’
Guillermo Tejeiro Gutiérrez is an Officer of the IBA Environment Law Committee and a partner at Brigard & Urrutia in Bogotá. He believes we must use all tools at our disposal to curb the climate crisis: ‘Today, it is imperative to adopt as many tools as needed – including those from international criminal law – to fight against all activities that destroy the environment and cause all types of damages, including those of climate change.’
In lieu of ecocide being incorporated into the Rome Statute, environmental lawyer Stephen Hockman QC says there’s still a strong argument for establishing a separate international court for the environment. While the Court’s rulings would not be enforceable, Hockman says it would succeed in empowering people – whether indigenous groups in the Amazon rainforest or small island state populations – to have a say in protecting their environments. ‘It would represent a very significant progress to have rulings by a respected body of judges,’ he says. ‘And it's very likely that they would be a significant weapon in the hands of people within the country in question.’
Header image: Burning of the Amazon rainforest at dusk to increase livestock grazing area and agriculture activities. Area already deforested in the foreground. PARALAXIS/ Shutterstock.com