Excerpted From: Abbey Koenning-Rutherford, Dishonoring the Earth: Ecocide as Prosecutable Genocide Against Indigenous People, 111 Georgetown Law Journal 1495 (June, 2023) (184 Footnotes) (Full Document)


AbbeyKoenningRutherfordGlobal Indigenous people exist as one with the environment, with no western binary between people and nature. Destruction of Indigenous people is reciprocal with environmental destruction. Indigenous people, though only six percent of the global population, protect eighty percent of the world's biodiversity and occupy exceedingly environmentally vulnerable regions. Because of these reasons, the International Criminal Court (the “ICC”) could be utilized to achieve justice by prosecuting ecocide as genocide, should impacted Indigenous peoples choose to utilize it.

The destruction of Indigenous communities via environmental and environmentally related harm is nowhere more apparent than in the Amazonian rainforests of Brazil. Under President Jair Bolsonaro, the Indigenous people of Brazil faced an unprecedented era of deliberate destruction, both directly and indirectly. The Bolsonaro Administration systematically dismantled environmental and Indigenous peoples' protections, leading to alleged violations of Articles 6 (a), (b), and (c) of the Rome Statute. Bolsonaro called for attacks against Indigenous land protectors, decriminalized invasion of Indigenous land, and explicitly incited full-scale extermination of Indigenous peoples to access their land. In a complaint to the ICC, a coalition of Indigenous peoples alleged that, through these actions, Bolsonaro committed and incited genocide against them.

The scenario in Brazil is but one of many. Indigenous people are under assault by colonial governments and corporations, which continue to environmentally displace, harm, and attack Indigenous people to maintain status within the nation-state world order that, arguably, created the need for global human rights efforts. Colonial governments leverage resources and land stolen from Indigenous people to maintain power and privilege in a world order dependent upon cohesive national identities, leading to the harm and exclusion of Indigenous people.

This Note explores a potential route for justice, should Indigenous communities choose to take it. There are a variety of routes to honor Indigeneity and return land sovereignty to Indigenous people, and the prosecution of ecocide as genocide in the ICC may be one such route. Despite being a potential route to justice, the ICC was created as a tool for justice in the nation-state world order and does not prioritize Indigenous viewpoints and perspectives. To reconcile the lack of Indigenous perspectives incorporated in the ICC and to honor Indigenous legal frameworks, this Note seeks to maintain roots in and respect of Indigenous cosmology and connectivity.

In Part I, this Note will examine the intricate juxtaposition between international and economic frameworks and an Indigenous ecological framework. This Note aims to identify the pervasiveness of colonial, international, and economic systems while recognizing the existence of Indigenous frameworks. It is never too late to imagine an international legal system with Indigenous cosmologies incorporated. In Part II, this Note will examine the operational definitions of ecocide and genocide before assessing potential prosecutability of ecocide in the ICC. Part III will assess examples from Brazil, Canada, and Nigeria that illustrate the prosecutability of ecocide as genocide. Part IV will examine whether this route is advisable based on estimated victim perspectives.

There is tension between recognizing Indigenous cosmologies as correct and arguing for accountability in a predominately colonial international legal system. This Note recognizes and grapples with this tension. Genocide is discussed, rather than crimes against humanity, to grapple with this tension, as genocide is “singled out for special condemnation and opprobrium.” This Note focuses on genocide, rather than crimes against humanity, to offer two forms of justice: retributive, in the form of prosecutions, and restorative, in the form of recognizing that perpetrators of genocide have a special intent to destroy groups as a whole. Prosecutions for crimes against humanity do not require special intent. These communities deserve to have their longstanding, systemic extermination recognized and prosecuted if it is preferred within their specific Indigenous communities.

[. . .]

Governments and corporations regularly use ecocide as a genocidal tool against global Indigenous peoples. This methodology can be prosecuted in the ICC should the impacted communities be receptive to this form of justice and should sufficient evidence exist to prove intent. Ecocide is utilized to destroy Indigenous communities in no small part because of Indigenous peoples' intimate ties to the environment in which they reside. This methodology for destruction is, in certain cases, led by intentional actors, who shield their crimes behind the cloak of corporations, governments, or ambiguity. Still, intentional actors reside within these systems that enact policies and plans to destroy Indigenous people. Extractive industries are particularly involved in these dealings because colonialism and extractive industries thrive when Indigenous people are destroyed. The ICC may not be the holistic solution for justice, but should impacted parties choose to utilize it, this Note evidences that the ICC can be utilized in this way.

Georgetown University Law Center, J.D. 2023; University of Oklahoma, B.A. 2018. © 2023, Abbey Koenning-Rutherford.