SOURCE: Prof. em. dr. Lucas Bergkamp, LL.M via CLINTEL
PHOTO: Callum Shaw<\/p>\n\n\n\n
Abstract The use of criminal law to pursue climate politics is a further step in the radicalization of the climate movement and poses a threat to economic and political freedoms, the rule of law, and democracy. If the movement is able to realize its plans, all those who do not support ambitious climate policies would have to fear prosecution and imprisonment. Conversely, threatening criminal sanctions against politicians and corporate executives will create powerful incentives to adopt ambitious climate policies and the dominant pro-climate narrative.<\/p>\n\n\n\n Lucas Bergkamp explains how criminal law, in the climate movement\u2019s vision, should supplement civil and administrative law to eliminate any and all opposition to its plans for the realization of a climate utopia.<\/p>\n\n\n\n European government of judges While imposing its high moral demands on executive governments, the Court believes itself to be quite exempt<\/a> from any moral or legal constraints<\/a>. In a previous contribution<\/a>, I discussed how climate-change litigation before the Court has undermined the rule of law, the separation of powers, and democracy. In this article, I focus on the Court\u2019s role in criminalizing the climate debate. Its reckless disregard of judicial impartiality, the right to a fair trial, and judicial restraint is another manifestation of the Court\u2019s support for the progressive movement.<\/p>\n\n\n\n Criminalizing \u201cclimate denial\u201d A recent book, Carbon Criminals, <\/em>Climate Crimes<\/em><\/a>, describes \u201cwhat corporations in the fossil fuel industry, the U.S. government, and the international political community did, or failed to do, in relation to global warming.\u201d On UNESCO\u2019s website, a prominent feature article advocates that \u201cclimate crimes must be brought to justice\u201d and that \u201cstates and corporations<\/a> must be held accountable for their actions or inaction regarding climate change.\u201d<\/p>\n\n\n\n The rationale supporting criminalization Given what we know and have known for decades about climate change, to deny the science, deceive the public, and willfully obstruct any serious response to the climate catastrophe is to allow entire countries and cultures to disappear. It is to rob \u2026 the poorest and most vulnerable on the planet of their land, their homes, their livelihoods, even their lives\u2014and their children\u2019s lives, and their children\u2019s children\u2019s lives. For profit. And for , power\u2026. These are crimes. They are crimes against the earth, and they are crimes against humanity<\/a>.<\/p><\/blockquote>\n\n\n\n This emotional outcry is not only an impenetrable amalgamation of factual and moral reasoning but also assumes what must be proved. To prevent disaster, rationality needs to be brought back into the analysis. Unfortunately, as the ECHR demonstrates, we cannot rely on the judiciary to do so.<\/p>\n\n\n\n The \u201cEuropean Climate-Change Court\u201d Several climate cases are now pending before the Court. As expected, climate-emergency rhetoric dominates the arguments presented by the plaintiffs. The Court has already demonstrated how far it is willing to go to rewrite the law to save the planet.<\/p>\n\n\n\n \u201cClimate emergency\u201d Second, to prevent any argument on the facts, the judges added: \u201cNo one can legitimately<\/a> call into question that we are facing a dire emergency that requires concerted action by all of humanity.\u201d They also committed the Court to the cause: \u201cFor its part, the European Court of Human Rights will play its role within the boundaries of its competences as a court of law, forever mindful that Convention guarantees must be effective and real<\/a>, not illusory.\u201d<\/p>\n\n\n\n
<\/em><\/strong>The climate movement has discovered criminal law as a tool for conducting climate politics. To complement civil lawsuits against states and corporations, the movement\u2019s activists intend to invoke torture and a newly proposed crime of \u201cecocide\u201d to target corporate executives, politicians, and others who stand in the way of their preferred policies. In pushing their agenda, these activists receive assistance from the judiciary\u2014specifically, the European Court of Human Rights.<\/p>\n\n\n\n
<\/em><\/strong>Over several decades, the European Court of Human Rights (ECHR) has evolved into a European government in itself. Based on doctrines<\/a> designed to enable it to expand its powers at its discretion, the Court has enacted a series of mandates for new laws and policies for Europe. There is little democratic control over the Court\u2019s role in advancing progressive politics. Once the Court has spoken, national parliaments are unable to undo its pontification because a human right trumps national law; national judiciaries are compelled to execute the Court\u2019s judgments, even if their own national law provides otherwise.<\/p>\n\n\n\n
<\/em><\/strong>A decade ago, an American lawyer argued that climate denial is arguably punishable as criminal deception and fraud<\/a> under existing law. In 2015, Al Gore<\/a> said that \u201cclimate-change deniers should be punished.\u201d President Trump\u2019s withdrawal from the Paris Climate Agreement was viewed as a crime against humanity: \u201cThis is murder<\/a>.\u201d<\/p>\n\n\n\n
<\/em><\/strong>The argument for criminalizing \u201cclimate denial\u201d typically boils down to the following argument articulated by Jeremy Williams<\/a>:<\/p>\n\n\n\n
<\/em><\/strong>In 2020, the ECHR signaled to the human rights community that it was open to receiving applications from climate activists. The Court and the Council of Europe held a conference, \u201cHuman Rights for the Planet<\/a>,\u201d in which several judges, including the Court\u2019s president, played key roles. The speeches delivered by the Court\u2019s judges were rightly perceived as an open invitation<\/a> to activists.<\/p>\n\n\n\n
<\/em><\/strong>The European Court of Human Rights, to which its president refers as the \u201cEuropean Climate Change Court<\/a>,\u201d has used the opportunity presented by the climate litigation that it invited to take the lead in criminalizing the climate debate. It has done so in a number of ways. First, the Court\u2019s president and one of its vice presidents have declared publicly that \u201cwe are facing a dire emergency<\/a> that requires concerted action by all of humanity\u201d and that \u201cwe will face the collapse<\/a> of everything that gives us our security.\u201d Thus, the Court\u2019s leaders have openly and unreservedly endorsed the climate movement\u2019s alarmist rhetoric. They have done so not based on science but on alarmist declarations by Sir David Attenborough<\/a>, a well-known biologist and climate activist.<\/p>\n\n\n\n