Friday, 26 September 2014

Beyond the rhetoric - is Climate Inaction a Crime against humanity?

In my 'speech' I used the term. by coincidence the same expression was used at the UN by the President of the Seychelles: 

"But how does that help us when we continue to ignore the truth? Climate change – on our current, avid path – is a crime against humanity.  We are all guilty.  And we are all victims. But increasingly, SIDS themselves, are refusing to be victims."

The full text of Mr Michel's (short) speech is here. SIDS refers to the Small Island Developing States group, of which Seychelles is a member.

Such a claim is, of course, rhetorically dramatic, but is there any substance to the idea that a Crime against Humanity may be committed, in the event that a binding International Protocol is not adopted at COP21 in Paris next year?

The aim of the next couple of posts, on the legal question of climate obligations aims to explore the idea that a failure of the Body Politic to sign a binding Protocol under the terms of the UNFCCC at Paris next year might constitute a criminal and prosecutable offence.

The meaning of the term has broadened in recent years. Since the Rome Statute in 2002, a 'crime against humanity' is defined thus:

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:[25]
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;

 The statute's explanatory memorandum also adds additional content for clarity:
(Crimes against Humanity) are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.
The most obvious reason to say that 'climate inaction' is not a CAH (crime against humanity) is that the definition specifies an attack and an intent. In this sense it follows the usual logic of criminal law, that a crime requires an agent, a victim or victims, and an intent on the part of the agent.
But there are aspects of the impacts of climate inaction which, from the point of view of the (present or future) victims, have the characteristics of a CAH, without a particular agent. The IPCC AR5 attributes high confidence to climate impacts including death, sickness and other effects on human populations which would certainly fall into the category of 'causing great suffering, or serious injury to body or to mental or physical health'.
In addition, it could be said that: ' a serious attack on human dignity or grave humiliation or a degradation of one or more human beings'... 'are part ... of a government policy (although the perpetrators need not identify themselves with this policy)'...'other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice'... 'in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity...' all might be viewed as descriptive of the impacts of climate inaction.
But the definition requires agency and intent. 
However, there are other elements of (International) Law  which might be considered relevant to the discussion at hand. Whilst it would be hard to establish that any individual or state has committed an act with malicious intent which constituted a CAH, one might reasonably ask, since there are an indeterminately large number of 'victims', i.e, people whose experience would include death or 'great suffering or serious injury', as well as a number of specifiable breaches of Human Rights, if the existence of the effect (the 'harm') does not imply the presence of an offence?
There are a number of further considerations which I will look at in the next post. These include - the culpability involved in a 'failure to act to prevent harm', 'nonfeasance', the international concept of the 'responsibility to protect', the ideas of peremptory norms, 'actio popularis', and other matters.