The possible anatomy of coming climate change trials

As I write these lines, we have an ever clearer understanding that 1) humanity is hurtling towards a disaster of unimaginable proportions, and 2) the responsibility for this entirely foreseeable disaster rests to a very large extent on a very small group of people, mostly businessmen and political leaders, who over the last three decades have done their utmost to confound all attempts to actually solve the problem. This has been done in the name of profit and financial gain, as the required actions would’ve hurt the bottom line of some of the world’s most powerful corporations. Despite ample evidence that the present course of action may well lead to millions if not billions of deaths and permanent diminution of the Earth’s capacity to sustain human civilisation, even now full 90 percent of the world’s 200 largest corporations, for instance, are actively spending money to forestall any corrective measures.

I’m convinced that sooner or later we will see an international tribunal that will seek to punish the most responsible parties, provided they are still alive. This will be a messy affair that will cause all sorts of legal issues, and probably unfairly punish mostly the younger persons instead of those who hold the most responsibility. But be it as it may, it is inconceivable that aiding and abetting the widespread destruction of the Earth’s life support systems – ecocide – can go entirely unpunished, even if the acts such as lobbying against emission reductions or failing to act are not crimes today.

As a thought experiment, I shall present below some snippets that illustrate how the Prosecution’s case against perpetrators of ecocide might possibly be argued in the future.

 


 

Regarding the ex post facto problem of accusing persons retroactively of acts that were not crimes at the time, only the most incorrigible legalists can pretend to be shocked by the conclusion that perpetrators of a planetary ecocide act at peril of being punished for their perpetration, even if no tribunal has ever previously decided that acts that materially contribute to a planetary ecocide are crimes. And, in any event, the ex post facto question is rendered much easier by the fact of treaty violation. Someone who violates a treaty, such as the Paris climate pact, must act at peril of being punished by the offended party’s employing self-help.[1]

And what about the argument that these crimes had been committed in the pursuit for greater good for all, in the name of economic growth? It appeared to me that such issues should be ruled irrelevant, on the familiar legal principle that a destitute man who steals groceries is a thief even though his purpose is to feed his starving children.[2]

It is important that the trial not become an inquiry into the causes of runaway greenhouse gas emissions. It cannot be established that economic ideology was the sole cause of the global catastrophe, and there should be no effort to do this. Nor, I believe, should there be any effort or time spent on apportioning out responsibility for causing the ecocide among the many nations and individuals concerned. The question of causation is important and will be discussed for many years, but it has no place in this trial, which must rather stick rigorously to the doctrine that materially contributing to global ecocide is illegal, whatever may be the factors that caused the defendants to do so. Contributing causes may be pleaded by the defendants before the bar of history, but not before the tribunal.[3]

…of course proof of criminality dependent entirely on finding evidence that the “economic defendants” had sufficient knowledge of the probable results of inaction, and shared sufficient responsibility for influencing policies towards inaction, that they might properly be convicted.[4]

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” [5]

“Leaders of the world deliberately set out to make ecocide an international crime” and carried out that intention “in numerous treaties, in governmental pronouncements, and in the declarations in the period preceding the present day.” He mentioned the numerous intergovernmental treaties of climate change mitigation, the 1992 Rio Earth Summit, the Kyoto Protocol of 1997, the 2007 Bali action plan, the Copenhagen and Cancun Agreements, and the Paris agreement of 2015, stressing the frequency of global participation in such agreements and declarations. Shawcross thus laid the basis for his conclusion that “International law had already … constituted ecocide a criminal act.” Accordingly, there was “no substantial retroactivity – i.e. no element of ex post facto – in enforcing the Charter’s condemnation of crimes against the environment.” [6]

Now, needless to say, it is not the Prosecution’s position that it is a crime to be a managing executive or pursue profit. The profession is an honorable one and can be honorably practiced. But it is too clear for argument that those who commit crimes cannot plead as a defense that they committed them in pursuit of profit. It is not in the nature of things and it is not the Prosecution’s contention that every member of this group was a wicked man or that they were all equally culpable. But we will show that this group … wanted to aggrandize our common environment at the expense of the vast majority of world’s peoples. [7]

…I took up the ecocide charges. Proof of company’s leadership’s complicity in these crimes required us to show that the members of the group knew that lobbying efforts were likely to prevent emission reductions, and that they willingly joined in the execution of those plans. [8]

…I spoke at some length in an effort to clarify these matters, saying in part: I want to make clear again the nature of the accusations against this group. They are not accused merely for doing the usual things that a manager is expected to do, such as making plans and decisions. … It is an innocent and respectable business to be a locksmith; but it is nonetheless a crime if the locksmith turns his talents to picking the locks of neighbors and looting their homes. And that is the nature of the charge against the defendants.[9]

The managerial defendants will perhaps argue that they are pure technicians. This amounts to saying that managers are a race apart from and different from the ordinary run of human beings – people above and beyond the moral and legal requirements that apply to others, incapable of exercising moral judgement on their own behalf.[10]

The prosecution here believe that the profession of management is a distinguished profession. We believe that the practice of that profession calls for the highest degree of integrity and moral wisdom no less than for technical skill. We believe that, in consulting and planning with the leaders of other fields of national activity, the business leaders must act in accordance with international law and the dictates of the public conscience. Otherwise the economic resources of the nation will be used, not in accordance with the laws of modern society, but in accordance with the law of the jungle.[11]

…In the trial of an individual member, Jackson declared, their lack of knowledge of the enterprise’s criminality “might possibly be a factor in extenuation,” but “the test would not be what the person actually knew, but what, as a person of common understanding they should have known.” On this basis, the defendant in a later trial would have to give very particular reasons to explain why they, as a reasonable person, did not also know.[12]

Jackson’s position: “the Prosecution’s test is constructive knowledge. That is, ought a reasonable person in the position of a member to have known of these crimes.” [13]

NOTES

The snippets presented here are very slightly modified excerpts from the book The Anatomy of Nuremberg Trials: A Personal Memoir., written by Telford Taylor, an U.S. counsel for prosecution in the trials. The sections in italics are my modifications from the original; otherwise the excerpts, taken from the sections dealing with the prosecution’s case, are nearly verbatim, with some condensation and changing of the personal pronouns to more modern form. The following citations refer to locations in the Kindle Edition.

It is not my intention to argue that those who aid and abet ecocide are equal to Nazi war criminals, nor that their guilt is at a similar level to those who deliberately murdered millions. However, the coming ecocide may well cause billions of deaths, and I would be extremely surprised if no one is ever punished for complicity – provided that the defendants are still alive when the notion of international trials moves from thought experiments such as this towards actual policy proposals. Personally, if I were working in a fossil fuel company in any decision-making role, I would resign as soon as possible and probably not pursue any options for extending my lifespan or preserving my body in the hopes that future generations might revive it, as the generations come may have very little reason to be grateful to us.

[1]: Location 1151

[2]: Location 1161

[3]: Location 1164

[4]: Location 1785

[5]: From Justice Jackson’s opening argument, quoted in Location 3683

[6]: Location 4195

[7]: Location 5424

[8]: Location 5442

[9]: Location 5478

[10]: Location 5486

[11]: Location 5492

[12]: Location 6138

[13]: Location 6172

 

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About J. M. Korhonen

as himself
This entry was posted in Economy and the Environment, Politics and tagged , , . Bookmark the permalink.

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