The Criminal Law of Climate Protest

More and more climate activists are opting to break minor laws in order to get maximum exposure for their pro­tests. In fact, a number of climate justice movements—such as 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. They seek to shape official climate policy-making by resorting to (un-)civil disobedience. Not only public and collective legal interests (e.g., public order), but also individual legal interests (freedom, property, etc.) are affected by such protests, some of which involve the commission—at least prima facie—of minor offenses, such as trespassing, blocking public services, damaging property, violating official orders, and cyber-vandalism. Given today’s fragmented societies, it is not surprising that there are radically dif­fer­ent perceptions of these actions: while for some political philosophers and many climate activists they are heroic acts that represent the legitimate exercise of a right to civil disobedience, for most legal scholars they are criminal acts that should be punished accordingly.

The goals of this project are twofold. First, it will analyze whether certain climate protests should be considered law­ful despite formally satisfying the definitional elements of a criminal offense. Although this is a criminal law question, its answer requires an understanding of the philosophical and political dimension of protests and their meaning in a democratic state governed by the rule of law. In particular, this project will study whether classical constitutional political rights (freedom of expression and demonstration), the defense of necessity, and/or a supra-legal defense for politi­cally legitimate protests can justify acts that are prima facie criminal. Second, this project will address the question of what (if any) punitive response is appropriate for those climate protests that are considered (criminally) unlawful. More specifically, the project will examine whether criminal acts committed by climate activ­ists can, as a general rule, be excused as forms of civil disobedience. Two factors that could po­ten­tially be seen as exculpatory are the lack of a need for prevention and the finding that the offenses at issue are “acts of conscience” carried out by politically mo­ti­vated offenders. If both of these exculpatory grounds can be ruled out, the project will have to address the question of what the just measure of punishment for politically motivated crimes is. Should an offender’s motive to benefit society lead, as a general rule, to a mitigated punishment?

In sum, the project aims to provide concrete answers to the most pressing (transnational) criminal law questions raised by the growth in coercive forms of protest against the climate change policies of major Western states.