Bolsonaro is accused of persecuting Brazil's indigenous peoples and destroying the Amazon. An interview with the lawyers bringing the case before the International Criminal Court.
Almir Narayamoga Suruí is the chief of the Paiter Suruí people and Raoni Metuktire leads the Kayapó, both tribes that have inhabited the Brazilian Amazon since time immemorial. The indigenous leaders have submitted a request to the International Criminal Court (ICC) to open an investigation into Brazilian president Jair Bolsonaro, whom they accuse of crimes against humanity and, specifically, against indigenous peoples.
Even before becoming president, Bolsonaro's racist statements made his attitude towards indigenous peoples abundantly clear, and during the campaign for the 2018 presidential elections, the former military man made no secret of his intention to open up the Amazon to exploitation. Once in government, he wasted no time moving from words to deeds. During his first days in office, he transferred responsibility for the demarcation of indigenous lands away from the indigenous affairs agency, Funai, to the agriculture ministry. In the months and years that followed, extractive policies in the Amazon and in territories historically protected by its tribes, together with a climate of impunity that encouraged lawlessness, caused a frightening surge in deforestation and biodiversity loss, as well as the forced displacement of several native communities due to invasions by loggers, miners and farmers.
Anyone who opposed this systematic destruction was intimidated through violence, and sometimes punished with death.
Faced with this crisis, Almir Suruí and Chief Raoni turned to William Bourdon, a French lawyer with a long career in human rights defence, who together with his team submitted the official request to open an investigation into Bolsonaro at the ICC on 22 January. "In our work, we often represent victims of environmental crimes, and we have a collective duty to protect the rights of indigenous peoples," Bourdon and lawyer Charly Salkazanov tell us in an interview about this unique, and potentially historic, case.
What crimes is Bolsonaro accused of?
The charges against Bolsonaro are likely to be considered crimes against humanity for his persecution of the indigenous peoples of the Amazon. Among the facts that substantiate this are several murders of indigenous leaders and the forced displacement of many communities from their lands as a result of the destruction of the Amazon rainforest and the complete suspension of native land demarcation.
You have submitted a request to the ICC for a preliminary investigation. What does that mean?
The legal action takes the form of a communication — that is the term used by the court. This communication is submitted to the Office of the Prosecutor (an independent body of the ICC, ed.), which may decide to open an investigation or submit a request to a pre-trial chamber for authorisation to open one. The procedure begins with an investigation and takes quite some time, because conducting one requires it.
When do you expect to receive a response from the court?
We do not know what the timescale will be, but we expect an investigation to be carried out.
Is Bolsonaro also accused of ecocide?
We are accusing Bolsonaro of crimes against humanity, but ecocide forms part of that. That the crimes we are denouncing constitute crimes against humanity is confirmed by Article 7 of the Rome Statute (the treaty underpinning the ICC, ed.), which refers to "a widespread or systematic attack against civilian populations". But these acts were committed within the broader context of environmental crimes, namely the over-exploitation of the country and the natural resources of the Amazon rainforest. Indeed, numerous examples of ecocide — that is, serious and lasting damage to the environment with severe consequences for human life as well — can be cited within this case.
Ecocide is not yet recognised as an international crime. Where do things stand with its recognition?
There is a movement for the recognition of ecocide as an international crime. On 15 September 2016, the Office of the Prosecutor of the ICC officially announced that one of its priorities in case selection is combating environmental crimes. In January 2021, the European Parliament adopted a very important amendment recognising ecocide and calling for it to be included in the ICC statute. We expect the case against Bolsonaro to pave the way for the recognition of ecocide within the framework of international law, and for the ICC to decide to combat environmental crimes. We believe the court is aware of the gravity of the environmental emergency in the world, and that is why we are asking it to open an investigation into Bolsonaro.
Were you approached directly by Suruí and Chief Raoni to bring charges against Bolsonaro?
It all began in Bordeaux, France, at an event organised by a French association for the defence of the Amazon, Darwin Climate Coalition, in 2019. We met indigenous representatives, including Raoni, who spoke to us about the situation facing his community, Bolsonaro's criminal policies and the judicial obstacles in Brazil. At Raoni's request, we set out the conditions for bringing the case to the ICC. From that point on, a great deal of work was done together with Darwin Climate Coalition and an international team of NGOs and legal experts to write the report — that is, the communication submitted to the court. We are very grateful to the people who helped us, because without them this would not have been possible.
What does the report contain?
Putting it together was an enormous undertaking that took more than a year. We did our best to write as comprehensive a communication as possible: it runs to more than 60 pages of research, sources and information, all carefully verified. We even analysed elements of Bolsonaro's language when he was still a presidential candidate, to demonstrate that his policy against indigenous peoples was premeditated. We were able to find evidence of Bolsonaro's intent to destroy indigenous peoples, including through murder, forced displacement and persecution.
Everything is thoroughly documented. We have accounts from direct witnesses, including indigenous victims, the numbers and names of people killed and of communities forced to migrate due to the invasion of industrial interests which, thanks to Bolsonaro's policies, operate with complete freedom. We also have elements that prove the persecution of indigenous peoples — for example, the restructuring of the agencies responsible for indigenous affairs and the demarcation of their lands, which were stripped of funding and placed under the command of military figures.
If the ICC were to decide to proceed with an investigation, what powers would it have?
In the course of an investigation, the prosecutor's office has broad and wide-ranging powers. It can find and examine evidence, and question victims and witnesses. It can also request the assistance and cooperation of other states and international organisations, and send investigators to the areas where the alleged crimes were committed.
Would the government led by Bolsonaro recognise the court as legitimate?
The Brazilian constitution recognises the ICC. Furthermore, articles 1 and 17 of the Rome Statute establish that the ICC's jurisdiction is complementary to that of national courts in cases where those courts are unable or unwilling to initiate a justice process. In our case, the principle of complementarity is satisfied. Bolsonaro holds sweeping powers in the country, which is why we brought the legal action to the ICC, and our documentation demonstrates the inability or unwillingness of the Brazilian judicial system to investigate those responsible for the attacks on and persecution of indigenous peoples. The ICC has already dealt with cases of this kind — in which political authority holds all the power and obstructs the justice process — so this would not be the first time.
Speaking with indigenous leaders, what did they tell you?
The direct discussions with Chief Raoni were intense and emotional. Raoni expressed his sadness but also his desire to act to improve the conditions of his people. Following this case is a great responsibility and a great honour for us. We know that Almir Suruí and Chief Raoni are not driven by their own interests, but by those of the Amazon and of all humanity, and by their belief that protecting indigenous peoples is their duty.