(Climate) Crime and Punishment

Originally published in the Australian Development Review and the Earthsign blog.

Climate change is worsening devastating droughts across East Africa (photo by Save the Children)

“…carbon polluters shouldn’t just be taxed they should be jailed.”– Martin O’Malley, state secretary of the SA branch of the Construction, Forestry, Mining and Energy Union, March 2011

Last year in Bolivia, a climate change conference was held that attracted over 30,000 people from 142 countries.

As part of this conference, 17 working groups were formed to discuss different aspects of the global climate crisis. These working groups were open to all and decisions were made by consensus. It was a far cry from the disastrous closed shop of the UN climate negotiations in Copenhagen six months before and those in Cancun six months after.

One of the most interesting ideas of the Cochabamba conference was discussed by Working Group Five – the idea that an International Climate Justice Tribunal be established. After several days of tough and heated deliberations, they came out with a number of conclusions and this statement:

“The International Tribunal of Climate and Environmental Justice should have the authority to judge, civilly and criminally, states, multilateral organizations, transnational corporations, and any legal persons responsible for aggravating the causes and impacts of climate change and environmental destruction against Mother Earth. Claims may be made by all peoples, nations, nationalities, states, individuals, or corporations who have been affected, without having exhausted national remedies.”
Final Conclusions, 30 April 2010.

The Bolivian Government, as promised, has since lodged this proposal at the UN where of course it is being ignored by most governments who would face prosecution under such a body.

However, the idea is a popular one – at least in Canada where the Council of Canadians tested it via a national poll of 1000 people in October and November 2010. They found that:

77% of Canadians strongly or somewhat agreed with the statement: “There should be a World Climate and Justice Tribunal to judge and penalize countries and corporations whose actions have contributed to climate change and damaged the environment.”

It is not surprising this position attracted strong support. A court to try governments, corporations and individuals for climate crimes is a fantastic idea. The Global Humanitarian Forum in a 2009 report estimated that “every year climate change leaves over 300,000 people dead, 325 million people seriously affected, and economic losses of US$125 billion”. This was in 2009, and the toll is growing every year.

The people who are fighting to prevent action on climate change must be held accountable for the deaths and impoverishment that occur as a result of their actions. There are, however, many questions about how prosecuting climate criminals might work in practice.

I’m no lawyer but I figure a successful prosecution would rest on firstly establishing beyond reasonable doubt that human emissions are causing global warming and associated impacts, and secondly establishing that the person or government or corporation on trial was willingly undertaking actions (to be defined) that make climate change worse. The first point is already done and could be a founding principle as part of the tribunal’s establishment, or potentially you could set precedence in the first trial.

Resolving the second point would open up a big can of worms. Here in Australia there would be some pretty simple open-and-shut cases as well as some more complicated ones. Executives from fossil fuel corporations and their lobbyists in industry bodies and lobbying firms would be the most basic cases. These are people who are fighting appropriate action on climate change due to their greed. They should be in jail.

Climate change deniers who push their lies about the climate science and spread misinformation and doubt in order to stop or delay climate action would seem to be a simple case. However, which deniers should be held liable? Those who are in positions of power and authority? Those who are most active giving talks and commenting in the media? This is a very dangerous area as people are allowed to think what they like – free speech is valued in our society and rightly so. Dealing with climate change denial is probably best done not through the tribunal but by democratising and diversifying the media and splitting up the very few large corporations that control the newspapers and airwaves. Most climate change denial is given oxygen by companies like Newscorp, which have political agendas in line with the fossil fuel corporations and aren’t afraid to compromise their integrity in order to push them.

Then we come to politicians. This is where it gets really complicated. For example, Julia Gillard is currently trying to get a carbon price through the Federal Parliament. While the policy she favours is practically useless, you cannot argue that it is making climate change worse. However, at the same time her government supports (and is funding) a massive expansion in Australian coal and gas exports as well as new coal and gas-fired power stations. These actions will greatly increase emissions even with the implementation of a carbon price. Does one action balance the other? Or should the fact that emissions and coal exports keep rising be enough to condemn someone like Gillard?

The climate crisis is big and complex and we are all part of the problem as consumers of fossil fuels and products made from industrialised agriculture. However, there is a difference between passively accepting the injustices of the world and actively perpetrating them (although both are a problem).

History is littered with examples of justice denied and more often than not, those who perpetrate crimes against humanity are not held accountable (in fact, many retain their positions of wealth and power). In rare cases, justice does triumph and the small probability that a climate justice tribunal will be founded in the near future should not stop us from trying to have it formed. The climate crisis is already resulting in deaths here and overseas and is set to get much worse as the planet continues to heat up. A debate, both within Australia and globally, is urgently needed to determine whether actively worsening this crisis is a crime against humanity and how those responsible should be held accountable.

If anyone (especially lawyers!) is interested in exploring this further, please contact me on pablo@ycan.org.au.

By Pablo Brait