Authors: Kea Medupe, Carmen Piorno
Introduction
In times marked by increasingly severe environmental degradation, the term “Ecocide” has become popular as a prospective legal prosecution against people responsible for large-scale environmental harm. But what exactly does it mean to commit Ecocide, and how do we prove it? The destruction of ecosystems, whether due to industrial pollution, deforestation, or war, frequently appears irreversible. Despite the urgency, gathering unambiguous, indisputable evidence of Ecocide remains a substantial challenge.
Brazil and Ukraine are notable examples, as both countries have incorporated Ecocide into their domestic legislation, demonstrating the rising acceptance of environmental degradation as a criminal act. Despite these legal frameworks, there is a global push for Ecocide to be formally included in the Rome Statute. Doing so would ensure international accountability and create a consistent legal framework to address environmental crimes, regardless of national boundaries.
In this context, various nations within the Assembly of State Parties are advocating for the amendment of the Rome Statute to recognise Ecocide as an international crime, seeking to hold those responsible for widespread environmental destruction accountable on the global stage.For Ecocide to be prosecuted, clear, verifiable evidence is essential. This includes proof of intent and the scale of the environmental damage, which is often severe, widespread, and long-term; a monumental challenge in itself. Compelling documentation is required to even begin an investigation, and the process of gathering that evidence is fraught with complexity, whether the damage is a result of war, governmental policies, or corporate exploitation. Without robust evidence, cases of Ecocide struggle to gain the traction needed for prosecution. Pinpointing the responsible parties can be notoriously difficult due to how widespread and long-term ecosystem destruction often is, especially when powerful actors have the means to deflect accountability.
Examples from Ukraine and Brazil demonstrate the immense issues of gathering proof of Ecocide. In Ukraine, the continuous war has caused severe environmental damage (e.g. the explosion of the Nova Kakhovka Dam, which will be explained below), and gathering evidence of the magnitude of the impact in an ongoing battle raises logistical and security difficulties. On the other side of the world, the rampant deforestation of the Amazon rainforest in Brazil, worsened by governmental policies, provides a distinct but equally severe challenge for those seeking accountability due to the need of overcoming both legal and political hurdles.
This post will explore the complexities of documenting Ecocide, using the cases of Ukraine and Brazil as examples of the difficulties encountered in the battle for environmental justice. By looking at the challenges of evidence-gathering in both instances, we will better understand why recognising Ecocide at all levels (international and national) is crucial, not just for justice, but for the survival of ecosystems that sustain life on Earth.
The Ukranian Example
Ukraine is one of the few countries that explicitly contemplates Ecocide in their Criminal Code. It is included in Chapter XX of the Code, concerning Criminal Offences Against Peace, Security of Mankind and International Legal Order. Article 441 defines Ecocide as the “mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster”. It adds that these actions “shall be punishable by imprisonment for a term of eight to fifteen years”.
The placement of Ecocide in the Code classifies it as a Crime Against Peace, Security of Mankind and International Legal Order. This differentiates the concept from other kinds of environmental destruction, such as air pollution or contamination of land, which are addressed in Chapter VIII of the Criminal Code: Criminal Offenses Against Environment. This distinguished placement of Ecocide indicates that, more often than not, the crime will include an international component.
This component has been present in the context of the current war that began in 2022 (with the precedent in 2014 of the annexation of Crimea). In the past few years, since the start of the Russian invasion, Ukraine has accused the invader of using Ecocide as a war weapon on several occasions. The most notable of these has been the explosion of the Nova Kakhovka Dam, located on the Dnipro river, in which four cities and multiple villages severely flooded, and the waters of both the river and the Black Sea were massively polluted.
Difficulties when prosecuting Ecocide
Ukraine has started to collect evidence and call for international aid in order to be able to prosecute Russia for Ecocide related crimes. Nevertheless, it has faced serious issues throughout this process. These can be classified into: challenges related to evidence, challenges related to war and challenges related to internationality.
- Challenges related to evidence
The definition of Ecocide provided by the Criminal Code, while useful as a base, is vague and general. In order to seriously prosecute the crime, the legal framework would need to establish clearer guidelines and harm thresholds, as well as a description of the required evidence.
Furthermore Ukraine has not successfully prosecuted any Ecocide crime yet. This, added to the lack of clear guidelines and specific descriptions mentioned above, generates a legal gap that needs to be filled in order to address future, present and past crimes.
In addition, proving Ecocide requires a demonstration of intent, as well as a strong link between actions and environmental destruction. This calls for complex scientific evidence, which is costly in terms of money and time. The case of the destruction of the Kakhovka Dam serves as a perfect example. There is plenty of evidence regarding the consequences of the disaster, but the cause and the intent behind it has yet to be determined.
Evidence gathering has an added time constraint, based on the fact that environmental degradation often unfolds over time, difficulting the attribution of responsibility without immediate and accurate documentation of the consequences. This means that, in the case that during the investigation of the causes and intent more proof of the consequences was required, we would no longer have access to it.
- Challenges related to war: Immediacy of other issues, overlap with War Crimes and political and diplomatic considerations
As mentioned above, the attribution of responsibility for environmental destruction often requires immediate documentation. This is often unsafe or even impossible in war zones, where logistical, safety and technical issues are faced.
Another challenge caused by war and related to immediacy is the pressure of other dangers that pose a more instant threat to human rights. The resources directed to addressing these other issues create an even bigger lack of means to document Ecocide.
These issues are not only prioritized in terms of resources, but also in terms of prosecution. Ecocide overlaps in war times with Crimes Against Humanity and War Crimes, that currently have international recognition. For this reason, international cooperative efforts focus more on them than on Ecocide. Ukraine may also face this pressure to focus on crimes with more immediate international backing, such as War Crimes, rather than an emerging and less established crime like Ecocide.
In the context of the war with Russia, focusing on Ecocide charges might complicate broader accountability efforts or peace negotiations. For example, once the countries start to negotiate peace, they will have to decide between accountability for actions committed during the war, amnesty, or a hybrid model between the two. When making this decision, they need to establish which crimes to consider for amnesty, and which for accountability. Ecocide adds an extra factor to this discussion, which may complicate the negotiations.
- Challenges related to internationality: insufficient institutional capacity, need for international recognition of Ecocide
While Genocide, War Wrimes, Crimes Against Humanity and Crimes of Aggression are recognized under international law, Ecocide is not. Regardless of the fact that Ukraine has criminalized it domestically, its absence as a recognized crime under international law (e.g., in the Rome Statute of the International Criminal Court) makes it harder to pursue cases beyond national borders or secure global support for prosecutions.
Ukrainian legal and environmental institutions may lack the resources, expertise, and infrastructure needed to thoroughly investigate and prosecute Ecocide cases. Specialized knowledge of environmental science, international law, and evidence collection is crucial, but these areas are often underfunded and underdeveloped.
The Brazilian Example
In 2019, vast stretches of the Amazon rainforest were destroyed, putting the lives of traditional communities at risk. Deforestation surged by nearly 50% within two years, reaching its highest level since 2008. Meanwhile, the Brazilian government slashed the budget for environmental crime enforcement by 27.4%.
The Amazon plays a critical role in carbon sequestration, and its degradation has profound global implications. Reports have indicated that under the leadership of former president Jair Bolsonaro, the government’s approach went beyond negligence. Bolsonaro’s administration actively undermined the agencies tasked with protecting the environment, weakening their ability to monitor and enforce laws designed to safeguard the Amazon. Key environmental bodies, such as IBAMA, saw significant cuts in funding. By reducing the capacity of these agencies, the government effectively allowed environmental criminals to operate with minimal risk of detection or prosecution. This created an environment of impunity, enabling the rapid expansion of deforestation and other Ecocide related crimes.
Under Brazil’s new leadership, there has been a clear shift towards reinstating environmental protections and addressing the ecological damage caused by the former administration. Key actions have included:
(i) the reinforcement of environmental monitoring through advanced satellite technology;
(ii) increasing funding for IBAMA and other environmental protection agencies;
(iii) the commitment to a “Zero Deforestation” pledge aiming to halt illegal deforestation by 2030;
(iv) the introduction of a new Ecocide Bill which represents a significant step forward in Brazil’s approach to environmental justice.
The Brazilian political party PSOL submitted a new Ecocide Bill to the Brazilian Congress in 2023. This legislation seeks to criminalise the act of “performing illegal or wanton acts with the knowledge that they create a substantial probability of causing serious, widespread, or long-term damage to the environment.” If convicted, perpetrators could face imprisonment for 5 to 15 years, in addition to fines. Importantly, the bill specifies that the crime of Ecocide will not apply to indigenous and traditional populations who continue to live according to their cultural practices and within their territories.
The proposed legislation underscores that Ecocide is not defined by the actual harm caused, but by the creation of a dangerous situation – an environmental risk that could lead to severe consequences. Therefore, Ecocide is framed as a crime of “danger”, focused on the potential for environmental destruction rather than the material result of such destruction.
Potential Challenges in Evidence Gathering
The proposed Ecocide Bill seeks to criminalise actions that lead to severe environmental damage. However, as with many laws related to environmental protection, the complexity of evidence gathering and proving intent may present significant hurdles. Below are several potential challenges:
- Demonstrating Likelihood of Serious Harm
The Bill places emphasis on Ecocide being a “crime of danger”, meaning that prosecutors would need to prove that the actions in question created a substantial probability of causing long-term environmental damage. This leads to the issue of predicting the future environmental impact of a particular activity or policy.
Gathering conclusive evidence about future environmental harm is inherently speculative. Deforestation for example might take years or decades to fully reveal their long-term consequences. Proving that an action creates a “substantial probability” of severe harm would require environmental experts to provide credible assessments of potential risks. While expert assessments are grounded in scientific data and research, to some extent, they are still based on probabilities rather than certainties. Environmental experts have to navigate these uncertainties when providing testimonies, which presents a challenge in proving a “substantial probability” of harm in court.
- Lack of On-the-Ground Monitoring and Documentation
Although satellite technology has improved, on-the-ground monitoring remains crucial in detecting and documenting Ecocide. However, in remote areas like the Amazon, where deforestation and illegal mining activities often take place, there is a significant gap in real-time monitoring.
Satellite images alone may not provide enough context to prove the illegality or recklessness of an activity, especially when human actors actively work to obscure their actions.
- Corporate and Government Accountability
Evidence of corporate or governmental negligence or complicity is hard to gather, particularly when key actors have the resources to obfuscate their role in environmental crimes. Corporates may shift the blame to local subcontractors, and governments may fail to adequately support investigations into industries that are significant contributors to the national economy. Entrenched corruption is also a factor that could hinder efforts to collect evidence, as perpetrators may use their influence to avoid scrutiny.
Comparing the Cases
The cases of these two countries present differences but also relevant similarities, which demonstrates that addressing Ecocide and other environmental crimes allows for a common international approach suitable for all countries, complemented then by national specifications. Followingly, this post will make a comparison of the cases in several different aspects.
Ecocide related development in both countries
In 2001, Ukraine codified Ecocide as a criminal offense under Article 441 of its Criminal Code, defining it as the mass destruction of flora and fauna, poisoning of air or water resources, or any other actions that may cause an environmental disaster, punishable by imprisonment for eight to fifteen years. However, the ongoing conflict has significantly hindered the enforcement of this legislation, complicating efforts to prosecute environmental crimes.
In Brazil, the administration of former President Jair Bolsonaro (2019–2022) was marked by environmental deregulation, budget cuts for environmental monitoring, and increased deforestation and illegal mining. The current administration under President Luiz Inácio Lula da Silva has initiated measures to reverse these trends, including introducing legislation to criminalize Ecocide and implementing policies aimed at environmental conservation.
Comparing their legislation
Ukraine’s law centers on the consequences of actions, while Brazil’s proposed Ecocide Bill emphasizes the risk and unlawful or wanton behavior. This distinction affects evidence gathering; Ukraine must demonstrate actual environmental damage, whereas Brazil would need to prove the potential for significant harm, which can be more abstract and challenging to substantiate.
Differences in the origin of the challenges
Both Ukraine and Brazil face challenges in prosecuting Ecocide, though the origins differ. In Ukraine, the involvement of another country, namely the Russian invasion, impedes enforcement, despite existing legislation and documented environmental damage. In Brazil, internal factors—including historical legislative gaps and resource constraints—pose challenges.
Current difficulties in evidence gathering
Both countries encounter difficulties in accessing affected areas. In Brazil the remoteness and vastness of the Amazon rainforest complicates accessand documentation hindering the need for effective monitoring and evidence collection. Additionally, proving intent remains a significant hurdle in holding perpetrators accountable in both jurisdictions. Similarly, in Ukraine, ongoing conflict creates hazardous conditions that impede environmental assessments and the gathering of necessary evidence to prosecute Ecocide cases. Besides, both legislations present a vague definition of “massive harm” and a poor specification of the required evidence, which added to a lack of precedent of prosecuted Ecocide cases, makes it arduous to start a new process.
In addition, Brazil’s forward-looking approach presents challenges in measuring potential consequences, as it requires assessing the likelihood and extent of harm before it occurs.
Policy Recommendations
Elaborating viable international legislation to address Ecocide
The escalating environmental crises underscore the urgent need for robust international legislation to criminalize Ecocide. The ICC serves as a pivotal institution in this endeavor, with ongoing discussions to amend the Rome Statute to include Ecocide as a prosecutable offense. This initiative reflects a growing global moral responsibility to safeguard our planet’s ecological integrity.
Natural ecosystems, such as the Amazon rainforest, transcend national boundaries. The Amazon’s vastness and ecological significance highlight the necessity for international cooperation in its protection.
Ukraine’s experience underscores the international dimension of Ecocide, as external actors’ involvement in environmental destruction highlights the critical need for global mechanisms to prosecute such crimes. The extensive environmental damage attributed to Russian military actions in Ukraine has prompted calls for the International Criminal Court (ICC) to expand its jurisdiction to include Ecocide, emphasizing the necessity of international legal frameworks to address transboundary environmental harm.
Promoting the development of domestic legislation that contemplates Ecocide
Incorporating Ecocide into domestic legislation compels national governments to prioritize environmental crimes, even amidst other pressing issues. This legal recognition ensures the allocation of resources for evidence collection and prosecution. Ukraine exemplifies this commitment by actively seeking aid of international institutions to prosecute environmental destruction attributed to Russian military actions, which has caught the attention of the EU Advisory Mission (EUAM) Ukraine, that supports these efforts by assisting in the investigation and prosecution of international crimes, including those against the environment.
Establishing Ecocide as a criminal offense not only enforces legal accountability but also shapes societal values. When an act is legally defined as a crime, it signals its immorality to the public, thereby influencing the collective moral compass. The law often serves as a guideline for acceptable behavior, and criminalizing Ecocide underscores the severity of environmental destruction. Moreover, recognizing Ecocide as a criminal offense elevates its profile in the media, fostering greater public awareness and advocacy.
Furthermore, the inclusion of Ecocide in domestic law enhances a country’s international standing by demonstrating leadership in environmental protection. As global awareness of environmental issues grows, nations that adopt such legislation position themselves as forward-thinking and responsible, potentially influencing international policy and attracting support from the global community.
Conclusion
The criminalization of Ecocide is essential for establishing legal accountability and shaping societal values regarding environmental protection. The cases of Brazil and Ukraine illustrate the complexities involved in prosecuting Ecocide, including challenges in evidence collection and definition. In Brazil, the lack of prior legislation on Ecocide has led to difficulties in documentation and prosecution, compounded by budget cuts and a lack of national commitment. Conversely, Ukraine’s experience highlights the international dimension of Ecocide, as external actors’ involvement in environmental destruction underscores the critical need for global mechanisms to prosecute such crimes. These cases demonstrate the importance of both national and international legislation in effectively addressing and prosecuting Ecocide, thereby promoting environmental justice and sustainability.