(this article originally appeared in The Lawyer's Daily, 18 October 2019 issue (paywalled). I also did a radio interview on this subject on 22 October 2019)
As I write this, cities all across Canada are gearing up for the second round of “climate strikes,” mass protests against climate change that are being held to coincide with the United Nations’ emergency climate summit on September 23, 2019. In Europe and in other time zones, they have already begun, people all over the world coming together in an expression of collective protest against a global warming situation that we know from the 2018 IPCC Report is dire.
In this moment, our ears are still ringing from the angry address delivered to the UN summit by Swedish climate activist Greta Thunberg. “We are at the beginning of a mass extinction and all you can talk about is money and fairy tales of endless economic growth,” she said to the assembled leaders, “How dare you?” However, her words should make all of us look into the mirror; as philosophy professor Monique Deveaux recently wrote, given the scope of the danger to humanity and the world, we have a collective political and moral responsibility to take aggressive action. And we are failing to live up to that responsibility. Despite decades of warning, efforts to de-carbonize the atmosphere and forestall cataclysmic change are stagnant. How dare we, indeed.
If our abysmal record of climate inertia continues, if the climate strikes don’t spur change, what’s next? I am neither a climate expert nor a philosopher, but I am a criminal lawyer and academic with some knowledge of transnational terrorism. While terrorism is a complex phenomenon and takes many forms, it is fairly uncontroversial that many groups labelled “terrorists” were motivated by frustration with the failure of political efforts to effect needed social change. Think of “freedom fighters” in colonized developing states who used “terrorist” methods to overthrow repression by colonial governments; of anti-fascist movements who take to the streets to battle racists and neo-nazis who are insufficiently controlled (and even encouraged) by governments; of the Black Panther Party, who presented armed resistance to institutionalized anti-Black racism.
The IPCC has given us a deadline of what is now less than 12 years before cataclysmic effects from climate change will be upon us. We need to begin to consider the possibility that, if climate strikes fail and meaningful progress is not made, then people frustrated with the failure of governments and political processes will take matters into their own hands. We must consider that we may see the formation of a “Green Brigade,” made up of people who think that violent, destructive means are the only way to force change. I’m surprised it has not already happened.
If this forecast of mine is correct, then we may eventually be forced to confront some tough questions that go to the heart of our criminal justice system. It is not difficult to imagine that a so-called “eco-terrorist” who, say, blows up a coal plant could argue that their action is morally justifiable, because of the literal threat to humanity posed by carbon emissions and that, therefore, they are not guilty of a criminal offence. Under normal circumstances this argument will fail; violent, anti-social and destructive behaviour needs to be prosecuted because, as a starting point, it is both morally wrong and, left uncontrolled, could destabilize society. Even if your goals are altruistic, you do not get to choose which rules can be broken. Indeed, controlling these kinds of impulses is what our criminal law is for.
However, the current circumstances are anything but ordinary—we are potentially facing extinction, or at least catastrophic change. The accused climate terrorist could argue that, at some point, the moral pendulum swings over to preservation of life on earth as the first priority. While their methods may not be conventionally ethical, they might say, their cause is very much so. At some point, the question of lawful/unlawful must give way to prioritizing survival over mass destruction. Why, they might ask, should they be convicted of a crime for trying to save humanity?
Is there room for this viewpoint? Those who study terrorism know that this kind of question, as uncomfortable as it is, is not new. As Professor D.J.C. Carmichael reluctantly argued decades ago,[1] while certain terrorist acts may be illegal because they are morally abhorrent, at some point simple utilitarianism may tip the balance towards justifying them in a broader moral sense.
And to be sure, in principle our criminal law allows for this. The idea behind the defence of “self-defence” is that when you are attacked by someone, you can respond with reasonably proportionate physical force. Even though your own use of force would normally be criminal, the law says you are “justified” because of the extreme circumstances. Similarly, the defence of “necessity” operates to excuse illegal conduct if it is committed in response to a situation of imminent peril or danger, where there is no reasonable legal alternative to the unlawful act.
The way the law is currently framed, certainly in Canada, would likely make these defences unavailable to our coal plant-destroying eco-terrorist. And yet, if we believe in the moral force of the principles that underlie these defences, then we are going to have to have uncomfortable discussions about the moral pragmatism of destructive behaviour that is nonetheless geared towards, literally, saving the world. In fact, this conversation has already begun in other countries; in March 2018 a group of climate activists in Boston were held not civilly responsible for various counts of trespass and disturbing the peace, on the basis of a necessity defence.
Moreover, bringing other countries into the equation also points to related issues we may face down the road. When people are sought for extradition, states sometimes refuse to extradite them to face trials in foreign states because the crime alleged is “political” in nature. The modern trend has been against applying this “political offence exception” in terrorism cases, on the basis that political ends do not justify terroristic means. However, extradition can be a politically fraught affair even in normal circumstances—and again, we do not live in normal times. As the climate worsens, it seems reasonable to think that governments that have taken significant climate mitigation measures might be less inclined to extradite an individual to face prosecution for a pro-climate—if destructive—action. The geo-politics surrounding climate and those surrounding transnational crime, which previously have been mostly separate, could converge, and require difficult and creative legal thinking.
To be clear, I am not proposing eco-terrorism as a solution, nor am I suggesting that these defences apply. What I am quite sure of is that we need to gear up for the conversation. Our criminal justice system is designed to deal with no less than the most pressing moral issues in our society. Maintaining its legitimacy in the face of challenges posed by “climate terrorism” will require some hard thinking about how we apply basic concepts to new and pressing moral dilemmas.
ADDENDUM: after I wrote this article I discovered an excellent and prescient piece on the same topic, published in the McGill Law Journal by Hugo Tremblay in 2012. You can read that here.
[1] D.J.C. Carmichael, “Terrorism: Some Ethical Issues” (1976) 24 Chitty’s LJ 233.
Very interesting, very important. Just two points right now:
First, the respectable author of the post, is surprised ( not already happened). Not in vain. This is because, the issue of global warming, deviates from the familiar dialectical forces or powers we are used to. There is all around consensus all over the world about the importance of the issue. Differentiated from other political views or stances. You can't divide the " troops " here, to : west v. east, Muslims v. Christians, blacks v. whites, etc.... They all agree basically fundamentally about the issue. One could only divide it to:
Conservatives / industrialists v. Green groups and general populations, yet, it is identical approximately all over the world. It is distributed and divided so, all over the world, no matter : race, religion,or political affiliation even.
That is very important observation, for understanding, and dealing with it.
And, self defense is in no way relevant here. The author writes : "imminent", but doesn't mention, that such imminence, is calculated or characterized by : seconds, minutes, on the spot, half day hardly, yet, not decades of general situation or state of things. This has nothing to do, with criminal law in fact ( at least, in common law). Self defense is not an issue here, in criminal terms.
Thanks
Posted by: El roam | 26 December 2019 at 06:32 PM