Danos massivos ao meio ambiente: a construção do ecocídio no sistema internacional penal

Abstract

This work investigates the evolution of the idea of ecocide - as the ultimate crime against the environment - in parallel with the development of international criminal law, in order to assess whether the crime, previously relegated to the academic field between the 1970s and 1990s, finds today a technical structure and practical relevance to be included in the International Criminal Court, a major reference of the international criminal system. In this context, we sought to contribute to the open questions surrounding the 'ecocide' initiative as an international crime, starting with the repercussion given to major environmental disasters in recent years, the existing laws and bills on ecocide in the world, and the analysis of the ICC as the appropriate Court to prosecute the crime. The approach, despite gathering elements of domestic law (when discussing cases and criminal liability), is international, focusing on the existing mechanisms and institutions of international criminal law and related ones. The research, through the inductive method, uses documentary and bibliographic research, national and international rules and procedures. Ecocide emerged as a systematic attack on the environment during the Vietnam War. But, as we saw in the following decades, the use of herbicides was not the only means of causing massive environmental damage, as in the case of oil exploration in the Niger Delta and Alberta tar sands, the chemical pollution of Bhopal, and the collapse of tailings dams in Brumadinho and Mariana, all of which were committed between negligence, with assumption of risk, and direct intent. In common, a diffuse legal response was perceived, with difficulties in determining individual and collective, national and international responsibilities, including on the issue of climate change. It was then necessary to analyze ecocide as a crime itself and its conceptual and practical development, from the draft of the Code of Crimes against the Peace and Security of Mankind, developed by the International Law Commission, to the criminal definitions consolidated in countries like Colombia and France, as well as a bills, such as Chile and Brazil. The development of the notion of ecocide was clear, starting from a vague crime exclusive to war situations in the 1970s, evolving as a tool, nonexistent until then, against the practice of massive damage to the environment. The level of detail reached today allows us to understand ecocide as a viable crime on par with other international crimes, such as genocide or crimes against humanity. Finally, in relation to the obstacles to the 'ecocide' initiative at the ICC, the existing criticisms regarding the Court's performance, the search for legitimacy, between the common law and civil law legal systems, and the analysis of the volitive elements (mens rea), sovereignty, universal jurisdiction, and ecocide as a jus cogens norm were pondered. The conclusion is that ecocide is a viable crime, with sufficient technical maturity and breadth of discourse in various forums to consider it a relatively well-defined conduct. It has also been found that the ICC is the most appropriate place to accommodate the new crime in practice, symbolizing a legal and universal limit to the massive destruction of the environment.