Contemporary International Criminal Law After Critique Symposium: Indigenous Peoples’ Rights in Brazil – Between the Limits of Legal Frames and the Perils of Negotiation in a Context of Historical Discrimination

[Giovanna M. Frisso is a Senior Lecturer in the School of Law at the University of Lincoln]

The colonial aspects of international criminal law have been extensively debated in scholarly literature (see here, here, here and here). Socio-economic and cultural rights, along with discriminatory practices, have either been excluded or only partially addressed within the international criminal law framework. Additionally, international structures tied to resource extraction and the global distribution of wealth—key drivers behind many crimes under the jurisdiction of the ICC—have largely been ignored in the international criminal law discourse (see here). These silences have hindered the articulation of broader claims for social redistribution and self-determination from the Global South.

In light of these critical omissions, a less romantic analysis ‘of how re-engagement with the vocabulary and institutions of ICL in pursuit of emancipatory ends may take place’ has emerged. In this post-critical phase, the 2016 OTP policy paper’s reference to environmental destruction, the illegal exploitation of natural resources, and unlawful land dispossession creates space for discussing systemic elements of colonial projects within the ICC. This policy shift signals to governments, individuals, and businesses benefiting from the legacies of colonialism that the forcible seizure of land will no longer be tolerated.

Building on this change in the OTP’s priorities, in 2021, the Human Rights Advocacy Collective (CADHu) and the ARNS Commission submitted a communication to the OTP regarding, among others, the struggles of Brazilian Indigenous Peoples concerning environmental destruction and illegal land dispossession. The communication presented evidence of activities that dismantled public policies aimed at ensuring Indigenous land demarcation and protecting the environment within these territories. Nonetheless, to align environmental destruction and illegal land dispossession with the ICC’s focus on the physical destruction of groups, the communication had to distil Indigenous Peoples’ ways of life into a framework that reduced their land and environment to mere commodities. Consequently, within the communication, forests could not and were not considered important parts of people’s identities or as living spaces deserving protection. Thus, they were not deserving of specific reparative measures in their own right. In fact, as observed by Davi Yanomami, a Brazilian Indigenous shaman, the word ‘environment’ is not used by Indigenous peoples: ‘We just say that we want to protect the whole forest. Environment is the word of other people; it’s a word of the Whites. What you call environment is what’s left over from what you’ve destroyed.’

Years later, a more complex understanding of Indigenous peoples’ perception of the land and the environment has been articulated in the case In defense of the Cerrado territories before the Permanent Peoples’ Tribunal. In this case, it has been argued that the destruction of environmental aspects of the Cerrado threatens the human dignity and cultural survival of Indigenous Peoples and traditional communities that depend on it, as it reaches the very condition of social reproduction and permanence of the peoples of the Cerrado as culturally differentiated peoples (see here).  To the extent that, more than an untouched environment, the Cerrado is the result of the living and intergenerational work of Indigenous Peoples and traditional communities, their physical destruction represents a loss of part of the material and intangible heritage of a certain agrosystem in the Cerrado.

The differences between the articulation of the violation of Indigenous Peoples’ right to land before the ICC and before the Permanent Peoples Tribunal illustrate an ontological conflict  about how spaces are controlled, used, and perceived. In Brazil, this conflict is illustrated by the challenges related to the implementation of Art. 231 of its Constitution, which provides for the recognition of Indigenous Peoples’ original rights to the lands they traditionally occupy. Recently, such challenges have become more evident in the debates surrounding the constitutionality of Law 14.701/2023 and, in particular, of the temporal framework thesis that it endorses.

The temporal framework thesis can be traced back to the Brazilian Supreme Court decision of 2009, which tied the demarcation of the Indigenous territory in the case to their occupation or existing legal dispute at the time Brazil’s Constitution was adopted on October 5, 1988. This understanding has informed administrative procedures for the demarcation of lands traditionally occupied by Indigenous Peoples, severely restricting their territorial claims. In light of this thesis, Indigenous Peoples’ communities that were forcibly removed from their ancestral lands before 1988, especially during Brazil’s military dictatorship (1964-1985) and were unaware of their legal rights or lacked the resources to formally dispute land ownership in court by 1988, could not claim rights to those lands, despite their ancestral ties.

Last year, in 2023, the Brazilian Supreme Court declared the  unconstitutionality of the temporal framework thesis, reaffirming Indigenous peoples’ constitutional rights to their traditional lands. This ruling was celebrated as a significant victory for Indigenous Peoples’ rights, with the Articulation of Indigenous Peoples of Brazil’s website stating that “Rights cannot be negotiated”. Nonetheless, even before the publication of this judgment, the National Congress enacted Law 14,701/2023 of October 23, 2023, reinstating the then declared unconstitutional temporal framework thesis as a means of regulating Article 231 of the Constitution. The constitutionality of this law is being questioned (see ADC 87, ADI 7.582, ADI 7.583, ADI 7.586 e ADO 86).

In April 2024, instead of addressing the constitutionality of the law, Supreme Court Minister Gilmar Mendes ordered the initiation of a mediation and conciliation process for the recognition, demarcation, use and management of Indigenous lands. Minister Gilmar Mendes’ decision certainly raises concerns about the judiciary’s role in upholding constitutional rights and the potential influence of political pressures on the interpretation and application of fundamental laws. Recourse to negotiation was, nonetheless, presented as a means of avoiding further conflicts between the Judiciary and the Legislative powers, ensuring legal certainty and pacifying the social conflict underlying the implementation of Art. 231 of the Constitution.

Recognizing that the implementation of Indigenous Peoples’ rights raises relevant political-legal debates, Minister Gilmar Mendes requested the parties to engage in the negotiation process in good faith. Good faith, whilst relevant, fails to address a more fundamental issue: the long-term structural devaluation of Indigenous Peoples’ ways of living. The Brazilian Congress’s blatant disregard for the Supreme Court’s recognition of Indigenous rights highlights the power imbalance in which such negotiations are expected to take place.  Indigenous Peoples enter negotiations from a position of historical disadvantage, confronting powerful agribusiness interests with considerable political and economic influence. This imbalance threatens to perpetuate ongoing land alienation and structural violence against Indigenous Peoples, raising serious concerns about the fairness and equity of any potential agreements.

As such, there is a risk that, as seen in the communication to the OTP, Indigenous Peoples will bear the burden of making themselves understood in terms that resonate with non-Indigenous interlocutors in this negotiation process. To the extent that this is done at the expense of expressing their ideas – such as viewing their territories as integral to their identity, spirituality, and cultural continuity – the integrity of the proposed negotiation process itself will come into question. For example, even the choice between using the term “land” or “territory” in negotiations could jeopardize the very foundations of Indigenous cultures. In Brazilian law, the term “land” is tied to the notion of property as an individual asset, which contrasts with Indigenous Peoples’ views of territory. To mitigate the risks that historical discrimination poses to the negotiation process, more than just goodwill is needed. The negotiation process itself needs to ensure that the Indigenous Peoples are not simply treated equally in what remains a fundamentally unequal situation. This is particularly important given that, at the moment, Law 14,701/2023 serves as the starting point for the negotiations.

In any case, the consequences of the discussions surrounding Indigenous Peoples’ territories in Brazil extend far beyond national borders. Besides debates regarding Brazil’s compliance with international instruments related to Indigenous Peoples’ rights, the discussion of the temporal framework thesis illustrates the challenges that the prosecution of charges related to illegal dispossession of land can pose to the ICC as it highlights states’ wide latitude to interfere with the right to property. As such, Minister Gilmar Mendes’ decision might, inadvertently, have further limited the space for a more inclusive understanding of our relationships with the land within the ICC.