By Kauan Juliano Cangussu*
After months of leading international statistics of daily deaths caused by Covid-19 in proportion to its population, on 19 June, Brazil surpassed the half million death mark due to the virus. The escalation of the deadly impact is frequently attributed to Jair Bolsonaro’s government, which refused to follow guidelines from (both) the World Health Organization and the Brazilian Health Agency, obstructed the policy of governors and mayors, and persistently spread disinformation. Bolsonaro has been accused of several crimes, and complaints have been submitted to domestic and international courts, with some even framing the President’s acts as crimes against humanity and genocide.
During the last year, accusations of genocide have been repeatedly echoed by activists and social movements against the Bolsonaro government. Specially referenced in Brazilian history in regard to the structural violence faced both by black and indigenous peoples (Nascimento, 1978; Palmquist, 2018), the use of the category of genocide was intensified during the pandemic to describe their specific plight, but also to refer to the huge number of deaths among Brazil’s general population. Notably, in July 2020, Justice Gilmar Mendes of the Supreme Federal Court, Brazil’s highest court, publicly qualified the management of the pandemic as genocidal.
These accusations of genocide are not just strong political and moral condemnations of heinous acts; genocide is a crime under international and Brazilian criminal law. Contrary to a widespread assumption, it does not only refer to mass-killing, but, as its etymology implies, to several acts that aim to destroy (cide) a particular people (genus). The object protected, therefore, is not human life itself, which is addressed by the criminalisation of other practices, such as homicide. It is the collective existence of a group, its culture and identity.
Consequently, assessing whether the Brazilian situation could be framed as genocidal demands an attentive look at what genocide means. Recognising an act as genocide has both political and legal consequences that go beyond the field of international criminal law. Besides the duty to investigate and punish its perpetrators (Article 4 Genocide Convention), the international community has an obligation to intervene to prevent and suppress the crime (Article 8 Genocide Convention) and to provide redress to the victims (Clavero, 2018).
In this article I will, first, identify the extent of the effects of Bolsonaro’s government and its managing of the pandemic on Brazilian indigenous peoples. Subsequently, I will give an overview of some of the most debated aspects of the definition of genocide and I will discuss if it could be applied to qualify the acts targeting indigenous peoples in Brazil as genocidal. For the concluding part, I will stress how systematic violations of human rights are intrinsically related to genocides.
2. “The Indian (…) is evolving, he is becoming a human being just like us”
On 23 January 2020, after two years in office, Bolsonaro evaluated the results of his policies towards indigenous peoples with the aforementioned sentence. Despite the phrase being correctly criticized as racist, the President’s statement was evoking an old and well-known assimilationist attitude in Brazilian history. Since colonial times, public authorities allegedly sought to promote indigenous well-being by assimilating them into what was conceived as a superior and more civilized culture. Brazilian law, although formally recognising indigenous ownership of their lands since the 1934 Federal Constitution, did not acknowledge their right to exist as a distinct people and to determine their own development before 1988 (Lima, 2015). Ideally, in the legal and political discourse, indigenous peoples were to be guided under state tutelage to civilized status, which was deemed to improve their conditions, and integrate both their lands and workforce into the Brazilian economy (Lima, 2015).
In practice, nonetheless, we have witnessed many episodes of physical violence and land grabbing. The expansion of Brazil towards the west, intensified in the 20th century, conceived the indigenous ancestral territories as a demographic void. Forced displacements, massacres, kidnappings of indigenous children, and other techniques were frequent practices which were tolerated and even perpetrated by the State. As an estimative, the Brazilian National Truth Commission counted that at least 8.350 Indigenous deaths resulted from State acts and omissions in the period between 1946 and 1988 (Comissão Nacional da Verdade, 2014).
Emblematically, a shift was attempted with the 1988 Federal Constitution, a historical milestone in the recognition of indigenous rights in Brazil. Written with indigenous participation, it acknowledged indigenous peoples’ rights to maintain their own social organisation, customs, languages, and creeds, and their original rights over lands they traditionally occupy. The Constitution imposed a deadline of 5 years on the State for the demarcation of all indigenous territories.
Today, 32 years later, more than 64% of Brazilian indigenous lands are still pending regularisation, and since 2016, no new land has been demarcated. Bolsonaro, who assumed presidential office in 2019, promised several times that he would not demarcate a single centimetre of indigenous land, since he deemed it criminal to deny Brazilians the opportunity to economically explore their natural resources.
During the second year of his presidential term, a report of the Inter-American Commission on Human Rights (the Commission) confirmed he was faithful to his promises. The Commission verified and showed concern over the revision of indigenous and environmental policies to favour illegal occupation of indigenous land, which was followed by a raise of violent attacks against indigenous communities (CIDH, 2021, p. 29).
These policies led to the first of several complaints to the International Criminal Court (the ICC) Prosecutor’s Office, accusing Bolsonaro of committing international crimes. In 2019, the NGOs Collective of Lawyers for Human Rights and Commission for the Defense of Human Rights Dom Paulo Evaristo Arns notified the Prosecutor that Bolsonaro was inciting genocide and promoting systematic attacks on indigenous peoples. His racist remarks, interference and defunding of environmental and indigenous agencies, and promotion of violence were said to be acts tantamount to genocide and crimes against humanity.
In fact, the environmental damages and invasions of indigenous lands profoundly impact the indigenous peoples’ way of living, which is culturally, socially, and symbolically related to their territories. Their health in particular is impaired both by illness related to environmental degradation and by depriving them of the elements necessary to conduct traditional healthcare practices. Additionally, the Special Secretariat for Indigenous Health (SESAI), a subsystem within the Brazilian universal healthcare system tasked with promoting health with an ethnic-racial approach, ceased to cover indigenous persons living in non-demarcated lands and urban areas. Due to their cultural distinctness and special vulnerability to contagious and infectious diseases, not having access to specialised and culturally appropriate health service undermines their right to health and leave them more vulnerable.
In that context the Covid-19 pandemic hits Brazil: the first case was officially reported on 26 February 2020. Initially denying its gravity, the president did not act immediately. He kept dismissing the policies recommended by the World Health Organization for months and fired his health minister for recommending social distancing. Regarding indigenous peoples, no comprehensive strategy was drafted to contain infections, despite their well-known vulnerabilities to contagious diseases, with the result that the virus soon reached many indigenous communities. Moreover, state officials were one of the main vectors of transmission.
In the first semester of 2020, from the 1500 federal legal norms issued to cope with the pandemic, only 7 referred to indigenous peoples.
On 7 July, the first norm attempting to establish a comprehensive policy to contain the pandemic within the communities, Law n° 14.021 was promulgated with several vetoes from the President. Bolsonaro vetoed, among others, the State obligation to provide clean water, hygiene, hospital beds and easy access to the Covid Relief Income. Although some vetoes were overturned by the Congress, they clearly demonstrated the government’s hostility in promoting indigenous health during the pandemic.
Among local and communal strategies to cope with the virus, indigenous associations and their partners chose to appeal to national and international courts. In July 2020, a new complaint was sent to the ICC Prosecutor’s Office by one health workers union, denouncing inaction during the pandemic as causing a genocide of the Brazilian people as such and of its indigenous and tribal peoples. In the same month, the Articulation of the Indigenous Peoples of Brazil, a national association formed by several regional entities representing indigenous peoples, filed a petition with the Supreme Federal Court, alleging that the federal government was violating several constitutional fundamental rights, such as the right to life, health, and human dignity, directly threatening the existence of several indigenous peoples.
Brazil’s concentrated system of constitutional review allows for not just the control of norms, but also of State acts and omissions that violate its fundamental precepts. The Supreme Federal Court, based on the risk of irreparable harm, granted a precautionary measure, ordered the government to expand the Special Secretariat for Indigenous Health coverage to all indigenous lands, independently of their legal status. Additionally, it demanded the drafting of a plan for containing Covid-19 among indigenous peoples, with their participation. Specifically, due to their extreme vulnerability and risk of extermination, the Court ordered the immediate installation of sanitary barriers for indigenous peoples voluntarily isolated or recently contacted. Still, despite the urgency, a National Plan was homologated by the Court only in March 2021, after three previous versions had been considered inadequate.
Meanwhile, invasions of indigenous lands by loggers, miners, and farmers have not ceased during the pandemic. The Inter-American Commission on Human Rights issued precautionary measures in three cases, related to the Yanomani and Ye’kwana Peoples, the Mundukuru People, and the Guajajara and Awá Indigenous Peoples in voluntary isolation, all of them facing the risk of irreparable harm to their life and health by third-parties’ invasions and lack of access to health care, which was aggravated by the rate of Covid-19 infections and deaths. Also, in June 2021, a precautionary measure was issued by the Supreme Court, urging the immediate expulsion of invaders from Yanomami and Mundukuru territories.
This overview, although far from being comprehensive, is enough to indicate that many indigenous peoples own existence is under threat, and although many threats preceded the pandemic, they were aggravated by it. At least 16 indigenous peoples whose languages are at risk of disappearing, were hit hard by Covid-19, intensifying the risk faced by their elders, who are key to the oral transmission of their language and traditions. Without a significant shift in Brazilian policies, several peoples face the risk of irreparable harm. To assess if it can be frame as genocide, we must take a closer on the possible meanings of the concept.
3. “An essentially contested concept”: the scope of the crime of genocide
Genocide is a concept created quite recently. Its first use was in the book Axis Rule in Europe, written by Raphael Lemkin (1944, p. 79), a Jewish Polish Lawyer who created it to refer to the practices employed to destroy national groups in occupied Europe. Describing many different acts that could impar the collective existence of a Group, Lemkin (1944 p. 83-90) defined Genocide as a synchronized attack on the essential foundations of the life of a captive people.
Some years later, the term would be incorporated in a United Nations Resolution and in the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), partially due to Lemkin’s insistent campaign (Mazower, 2009, p. 126). Approved unanimously by the UN General Assembly in 1948, the Genocide Convention defined genocide as:
“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
The Genocide Convention definition had a profound influence on Genocide scholarship and is repeated in Article 6 of the 1998 Rome Statute of the International Criminal Court, and in many national laws, such as in the Brazilian Genocide Law. However, the ambiguity of its redaction, along with different political claims, traumas and emotions associated with genocide, made it in its short history a “essentially contested concept” (Moses, 2002, p.28) Among many nuances and disputes on its meaning, the issues of who can be a victim of a genocide; how to assess genocidal intention; and which acts can be framed as genocidal acts are constantly debated on the scholarship and international jurisprudence.
The text of the Genocide Convention restricts who might be a victim of genocide to racial, ethnical, national, and religious groups, leaving groups that many scholars deem worthy of protection, such as those based on sexual preferences or political affiliation, standing in the cold. Ethnic groups, described in the judgment of the Akayesu case of the International Criminal Tribunal for Rwanda (the ICTR) as those sharing a common language and culture, clearly include indigenous peoples.
The intent to destroy a group as such has been predominantly interpreted by international jurisprudence as requiring a special intent, i.e. that a perpetrator targets a victim based on their group identity and aiming to destroy the group itself (Greenawalt, p. 2264). However, as Greenawalt points out, nothing in the Genocide Convention or the ICC Statutes impose that reading. In fact, the ICC Statute default definition of intent frames it as a person willfulness to engage in a conduct or to cause a particular consequence, or the awareness that that consequence would happen as a predictable result of one’s conduct. Moreover, the core concern of the Genocide Convention is, as contained in its preamble, avoiding permanent losses to humanity, being, thus, the destructive result of genocidal acts more relevant than its specific motivations.
Consequently, in its terms, an act that might destroy an indigenous people, independently of its motives, can be persecuted as genocide as well as, for instance, not acting to protect indigenous peoples from the effects of a pandemic. Nevertheless, in the case of Bolsonaro’s administration, a special intent in his destructive acts was repeatedly demonstrated by his anti-indigenous rhetoric and discriminatory policies. As the ICTY stated in the Akayesu case the special intent can be inferred for presumptions of fact, such as discriminatory speeches, policies, and systematic attacks.
In respect to genocidal acts, killings, serious bodily and mental harm, and the deliberate infliction of conditions of life calculated to bring about their destructions are all currently faced by Brazilian indigenous peoples. In respect to the last two clauses, their ambiguity requires that they are interpreted according to the aims of the Genocide Convention, thus encompassing acts that could potentially be, in a particular context, exterminatory. In this sense, both clauses can refer to one act that willfully denies a group their right to health, Lemkin (1944, pp. 83-90) himself, considered the endangered health of the Jewish and Polish peoples as a genocidal method. Moreover, in the Genocide Convention’s first draft, the debilitation and death of individuals by a lack of health care were explicitly described as physical genocide. Therefore, depriving indigenous peoples of their right to health and deliberately not acting to protect them from the destructive impacts of Covid-19 are both covered by the acts defined in the Genocide Convention.
4. Conclusion
Indigenous rights are specifically designed to allow indigenous people to secure a life with dignity for indigenous peoples from an indigenous point of view. It frames within the modern state framework and in the language of human rights the possibility of repairing historical disparities and allowing indigenous peoples conditions to survive as indigenous. As article 8(1) of the UN Declaration on Rights of Indigenous Peoples states: “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture”.
Actually enforcing these rights should be seen as a key aspect of genocide prevention and suppression. As the Brazilian current situation demonstrates, the right to physical integrity, to life, to health and to indigenous ancestral territories and their natural resources, all keenly related to one another, and are synchronically and systematically being attacked by the current administration. Understanding how indigenous rights are systematically violated is key to understand why indigenous peoples are still – and often silently – exterminated in states that are formally democratic, but are yet to decolonise their practices and acknowledge past and present genocides.
Holding Bolsonaro’s government accountable, both in international and domestic courts, is an important and still pending step, but it is not enough. The urgency of the matter demands a stronger approach from the international community, seriously pushing for the implementation of indigenous rights and the immediate enforcement of precautionary measures to avoid the risk of genocides. Manifold alternative actions are already being conceived by indigenous movements, such as the recommendations in the Complicity in Destruction report published by the Association of Brazil’s Indigenous Peoples and Amazon Watch, which exposes how a network of leading financial institutions are financing human rights abuses and environmental devastation and recommends policies and actions that could be immediately implemented by companies, governments, and other relevant stakeholders. However, so far, very few serious commitments and actions were taken, and if more time is wasted, it might be too late for many people.
* Kauan Juliano Cangussu is a Research Fellow, Programme for Studies on Human Rights in Context, Ghent University (Belgium). He is also a MA student in Human Rights and Multi-level governance at University of Padua and a lawyer. Previously Kauan worked as an intern in the Brazilian Public Prosecutor and Public Defender’s Office, where he provided legal assistance to vulnerable segments of Brazilian society.
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