Can We Make Destroying the Amazon a Crime Against Humanity?

Ernesto Londoño
Freshly cut jungle begins to burn at the Nova Fronteira region in Novo Progresso, Brazil, Tuesday, Sept. 3, 2019. Brazilian President Jair Bolsonaro sent the military to help extinguish some fires. Last week, he passed a decree banning most fires for land-clearing for a period of 60 days, although he later limited the ban to the Amazon. (AP Photo/Leo Correa)

Since August, as vast stretches of the Amazon rainforest were being reduced to ashes and outrage and calls for action intensified, a group of lawyers and activists who have been advancing a radical idea have seen a silver lining in the unfolding tragedy: One day, a few years from now, they imagined Brazil’s president, Jair Bolsonaro, being hauled to The Hague to stand trial for ecocide, a term broadly understood to mean the willful and widespread destruction of the environment, and one that, they hope, will eventually be on par with other crimes against humanity.

There is no international crime today that can be used to neatly hold world leaders or corporate chief executives criminally responsible in peacetime for ecological catastrophes that result in the type of mass displacements and population wipeouts more commonly associated with war crimes. But environmentalists say the world should treat ecocide as a crime against humanity — like genocide — now that the imminent and long-term threats posed by a warming planet are coming into sharper focus.

In Bolsonaro they have come to see something of an ideal villain tailor-made for a legal test case.

“He has become a poster boy for the need for a crime of ecocide,” said Jojo Mehta, the co-founder of Stop Ecocide, a group that is seeking to give the International Criminal Court in The Hague the jurisdiction to prosecute leaders and businesses that knowingly cause widespread environmental damage. “It’s awful, but at the same time it’s timely.”

The first prominent call to outlaw ecocide was made in 1972 by Prime Minister Olaf Palme of Sweden, who hosted the United Nations’ first major summit on the environment.

In his keynote address at the conference, Palme argued that the world urgently needed a unified approach to safeguard the environment. “The air we breathe is not the property of any one nation, we share it,” he said. “The big oceans are not divided by national frontiers; they are our common property.” That idea got little traction at the time and Olaf died in 1986 having made little headway in the quest to establish binding principles to protect the environment.

During the 1980s and 1990s, diplomats considered including ecocide as a grave crime as they debated the authorities of the International Criminal Court, which was primarily established to prosecute war crimes. But when the court’s founding document, known as the Rome Statute, went into force in 2002, language that would have criminalized large-scale environmental destruction had been stripped out at the insistence of major oil producing nations.

In 2016, the court’s top prosecutor signaled an interest in prioritizing cases within its jurisdiction that featured the “destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”

That move came as activists seeking to criminalize ecocide had been laying the groundwork for a landmark change to the court’s remit. Their plan is to get a state that is party to the Rome Statute — or a coalition of them — to propose an amendment to its charter establishing ecocide as a crime against peace. At least two-thirds of the countries that are signatories to the Rome Statute would have to back the initiative to outlaw ecocide for the court to get an expanded mandate, and even then it would only apply to countries that accept the amendment. Still, it could change the way the world thinks about environmental destruction.

Richard Rogers, a lawyer who specializes in international criminal law and human rights, said that if ecocide campaigners and countries suffering the effects of climate change put forward a narrow definition of the crime, it could quickly garner widespread support. “We’ve seen in the past few years a huge shift in public opinion, and we’re entering a phase where there is going to be huge pressure on governments to do more,” said Rogers, a partner at Global Diligence, a firm that advises companies and governments on risk mitigation.

Given the number of countries and businesses that would recoil at the prospect of being held criminally responsible for environmental damage, he said, it is vital to come up with criteria that reserve prosecution for cases in which “massive and systematic” environmental destruction is done “knowingly or intentionally.”

Environmental activists say there is no shortage of culprits who could be put on trial if the world were to decide to outlaw ecocide. But few are as compelling as Bolsonaro, a far-right former Army captain who campaigned on a promise to roll back the land rights of indigenous people and open protected areas of the Amazon to mining, farming and logging.

From an evidentiary standpoint, Bolsonaro is an attractive potential defendant because he has been so starkly disdainful of his own country’s environmental laws and regulations. He vowed to put an end to fines issued by the agency that enforces environmental laws. He has asserted that protecting the environment matters only to vegans. He complains that Brazil’s 1988 Constitution set aside too much land to indigenous communities who “don’t speak our language.”

Since Bolsonaro took office in January, deforestation in the Amazon has increased significantly, setting the stage for the thousands of fires that began raging last month. Government agencies tasked with protecting the environment warn meanwhile that they are at a breaking point as a result of budget and personnel cuts.

Bolsonaro is by no means the only world leader reviled by environmentalists. President Donald Trump has been assailed for rolling back environmental regulations and pulling out of the Paris climate accord.

Facing a cascade of international pressure and a boycott of some Brazilian exports, Bolsonaro last month ordered a military operation to put out fires in the Amazon. But the government’s overriding message has been that the world’s angst about the Amazon is an unwelcome and unwarranted intrusion on Brazil’s sovereignty.

Eloísa Machado, a law professor at Fundação Getúlio Vargas University in São Paulo, said Bolsonaro’s dismantling of environmental protections, which have decimated the Amazon’s indigenous communities, may already meet the criteria of crimes against humanity under existing international law. They could, she said, amount to genocide. She and a team of scholars are drafting a complaint the International Criminal Court could use as a blueprint to open an investigation against Brazil.

There is good reason to be skeptical that the International Criminal Court, which has long been criticized for slow prosecutions and for pursuing a narrow range of cases, could emerge as an effective bulwark against climate change. In nearly two decades the court has won only four convictions, and its caseload has consisted mainly of African leaders.

“The ICC never missed an opportunity to miss an opportunity,” Rogers said. “But I think it’s a huge opportunity for the ICC to show that it’s a court for the 21st century, a court that adapts to the needs of the people it needs to be serving.”

In the best of cases, campaigners to outlaw ecocide say it would take a few years to muster the support they need to amend Rome Statute. But merely raising the profile of the debate over penalizing ecocide could go a long way toward shaping the risk assessment of corporations and world leaders who until now have regarded environmental disasters mainly as public relations nightmares.

“We use criminal law as the line between what our culture accepts and what it doesn’t,” Mehta said. “Once you have a criminal law in place you start to change the culture.”

This article originally appeared in The New York Times.


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