Brazil ratified the Rome Statute in June 2002, so the International Criminal Court (ICC) may exercise its jurisdiction over international crimes committed in Brazil.
As a matter of prosecutorial policy, the The Office of the Prosecutor (OTP) has said it will prioritize crimes under its jurisdiction that are committed by means of, or that result in ‘the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land’ (see OTP’s 2016 Policy Paper on Case Selection).
This is a very brief overview of the law and analysis of ‘crimes against humanity’ (‘CAH’), which is the relevant international crime in this case. For more detail, please go to the DOWNLOAD ICC COMMUNICATION page.
THE LAW
Crimes Against Humanity (CAH) is provided for under Article 7 of the Rome Statute. It is made up of 1. contextual elements and 2. underlying crimes/acts.
1. Contextual elements
The contextual elements are: A widespread or systematic attack on the civilian population of Brazil pursuant to and/or in furtherance of an organizational policy (by the Network) to commit such an attack.
The ‘attack’ is a course of conduct involving the multiple commission of underlying crimes/acts listed in Article 7(1). The attack cannot be merely a collection of random acts, but rather a series of events (either large in scale or organized in a systematic way) committed pursuant to a policy.
The ‘policy’ requires the active promotion or encouragement of an attack against any civilian population, by an organized body of people, with a particular purpose. The policy need not be formalized and may be inferred from a variety of factors taken together, such as a motive, a recurrent pattern of violence, the use of public or private resources, or statements by the organization condoning or encouraging the crimes. A perpetrator must either deliberately act to further the policy or engage knowingly in conduct envisaged by the policy.
2. Underlying crimes/acts
The three underlying crimes relevant in this case are murder, persecution, and other inhumane acts.
Persecution ‘means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. Fundamental rights include the right to life; the right not to be subjected to torture or cruel, inhuman, or degrading treatment; and freedom of expression, assembly, and association.
THE ANALYSIS
Based on the evidence, there is a reasonable basis to believe that crimes against humanity have been committed in Brazil. A widespread and systematic attack has been committed against a civilian population, comprising murder, persecution, and other inhumane acts. The persecution was based on political and/or cultural grounds.
CPT data (2011-2021) shows:
a. Violence Against Persons: 430 murders; 554 attempted murders; 2290 death threats; 87 cases of torture; 1559 arrests (many of them unlawful); 2072 assaults; and 259 consequential deaths;
b. Violence Against Occupation and Possession: 14,889 expulsions; 96,028 evictions; destruction of 31,463 homes; destruction of 33,185 gardens/cultivation plots; destruction of 44,730 other assets; and 163,956 firearm-related threats.
This attack was committed by the Network over the last decade, against thousands of Rural Land Users and Defenders, pursuant to an organizational policy to facilitate the dispossession of land, the exploitation of natural resources, and the destruction of the environment, irrespective of the law.
The Network is comprised of public and private-sector actors from multiple levels of Brazilian society, including politicians, civil servants, law enforcement officers, representatives of private commercial interests, and a rogues’ gallery of criminal actors.
This policy promoted and/or encouraged the commission of the underlying crimes, which were perpetrated by public and private-sector actors, at the local, state, and federal levels. The course of conduct amounts to a coherent and consistent flow of criminal events raging unabated for the last decade, in furtherance of the Network’s policy.
Since most of the crimes are linked to the illegal dispossession of land, the illegal exploitation of natural resources, and the destruction of the environment, the OTP should prioritize this case.