Should Climate Activists be Punished as Common Offenders?
On the Climate Necessity Defence
Some climate activists, rather than receiving punishment, have in several cases successfully claimed to have acted on the grounds of necessity. In representative democracies guided by the rule of law, the climate necessity defense must be rejected, however, since such protests do not meet the ‘non-legal alternatives’ requirement, writes Ivó Coca-Vila in his recently published article “Punishing the Last Citizens? On the Climate Necessity Defence” (Open Access). According to the senior researcher at the Max Planck Institute for the Study of Crime, Security and Law, this does not mean that protesters should be punished as common offenders. Their acceptance of responsibility and political motivation should be taken into account as a mitigating factor when sentencing.
The Background
Climate activists are increasingly opting to break minor laws in order to gain maximum exposure for their climate protests. In fact, a number of climate justice movements—such as the German groups Last Generation, Extinction Rebellion, and Ende Gelände—explicitly call for civil disobedience and coercive forms of protest as a way of drawing attention to the catastrophic effects of global warming.
In many cases, climate activists deny that their acts are even criminally wrong. In particular, several defendants have claimed that their actions are justified by the necessity defense, also known as the ‘lesser evil defense’. In Anglo-American and Continental law systems, a person is not criminally responsible for an offence if: 1) the defendant faced an imminent evil; 2) the criminal act was appropriate to avert that evil; 3) the evil caused by the criminal act was less serious than the evil avoided; and, finally, 4) there was no reasonable legal alternative available to the course of action taken. If defendants meet these four requirements, even if they are fully culpable, the offences committed are not only excused but also justified.
The use of this argumentation by climate protesters has recently enjoyed a measure of success in many Western jurisdictions. In the past five years, climate protesters have been acquitted by using the necessity defense in a number of liberal democracies such as the USA, Switzerland, France, and Germany. Consequently, a door has been opened that previously seemed completely closed.
What is Wrong
Ivó Coca-Vila argues that—from a strictly criminal law perspective—it is wrong to justify acts of climate protest by resorting to the necessity defense. Even assuming that climate protest can indeed mitigate the effects of global warming, this defense should not be accepted as a mechanism for appeasing legislators and public officers, at least not within the framework of a democratic state with a justifiable claim to political authority. Criminal acts of climate protest that are not covered by basic political rights (freedom of expression and freedom of demonstration) must therefore be considered legal wrongs.
What is Right
However, Coca-Vila goes on to argue that criminal offences committed as acts of civil disobedience in the context of climate protests should be treated differently from ordinary criminal offences. In general, criminal climate protests should be penalized. But there are very good reasons for mitigating penalties in cases of climate protest, according to the researcher.
Coca-Vila argues that climate activists who act according to the classic canons of civil disobedience—in particular, non-violently and publicly—generally deserve less harsh punishment than do ordinary offenders. “Just as bad motives are considered an aggravating factor in sentencing in most criminal codes, so too could the good motives of climate protesters be considered a mitigating factor when they give the commission of the wrongdoing a very different meaning from that of a crime committed for classical motives,” the researcher writes.