Tue. Oct 19th, 2021


Image for article titled Could Fossil Fuel Companies Ever Be Tried for Crimes Against Humanity?

Illustration: Elena Scotti (Photos: PixelSquid)

Someone does something wrong, and is held accountable for it. It’s a pleasant notion, one with no bearing whatsoever on the world of the super-rich, whose various plunderings, deceptions, and general anti-humanity behaviors have gone and will continue to go unpunished. But does it have to be this way? Might we one day see an oil exec slumped on the stand, eyes silently begging the jury for mercy? Might we watch that exec whimper piteously as the cuffs are secured? I’m not talking accounting fraud, I’m talking Crimes Against Humanity. Could the fossil fuel companies be tried for them?

The list of damages is long from turning parts of the Amazon into a toxic sacrifice zone to lying about climate change for decades and locking up the political means to deal with it, putting humanity in grave danger. For this week’s Giz Asks, we reached out to a number of experts to find out.


 Professor, International and Comparative Environmental Law, American University

There is little political will among the most powerful governments to hold fossil fuel companies responsible for crimes against humanity, so the possibility is likely low. But these companies should be held accountable, and steps are being taken to make it happen.

For at least a decade now, advocates within the international law community have been talking about ecocide as a crime against humanity. Groups like the Center for International Environmental Law and the Stop Ecocide Foundation have been working on the legal strategy and building up the factual basis: e.g., what Exxon knew and when they knew it. These kinds of things are necessary for bringing a case.

Recently, the Stop Ecocide Foundation empaneled a number of leading international law experts, who provided a technically credible and well-thought-out definition of ecocide that would include deliberate, reckless acts committed knowing that the acts are substantially likely to cause severe and widespread or long-term damage. The definition is part of a proposal to amend the Rome Statute, which is the treaty that sets out the crimes that can be prosecuted by the International Criminal Court. Two-thirds of the member countries will have to vote in favor of the amendment, although any one country can recommend it. Vanuatu has publicly supported adding ecocide as the fifth international crime as has France, so it’s very possible a country will formally recommend it, and the members will have a debate about it. (That said, it’s important to note that the US is not a party to the Rome Statute.)

One of the major advantages of the crimes-against-humanity framework is that it would reinforce the moral line crossed by fossil fuel companies that have promoted their products while undermining climate science. Attaching the label of ecocide can build momentum for other advocacy against the fossil fuel companies—actions in domestic courts by the victims of hurricanes, wildfires and flooding increasingly shown to be exacerbated by fossil fuel-induced climate change, or by getting contributions to some kind of international fund to support the victims of climate change, as an alternative to being prosecuted. If you build up enough credibility for a potential prosecution, the companies may look for some political way out. As ever, companies want to avoid being declared responsible.

PhD Candidate, History, Stanford University, where he studies the history of climate change politics and fossil fuel companies.

Yes, they could. The law constantly evolves in light of changing historical conditions, and what might seem implausible today may become inevitable in time. So let’s look at the evidence.

By the late 1970s, the US oil industry’s main trade association, the American Petroleum Institute, had a secret task force, including scientists from nearly every major oil company, to monitor climate change research. That task force was warned in 1980 that fossil fuels, if not replaced with safer energy sources, would cause “globally catastrophic effects” by the middle of the 21st century. The next year, a research director at Exxon sent an interoffice memo again observing that the company’s long-term business plans could “produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s population).” In 1986, Royal Dutch Shell internally predicted that global warming from its fossil fuel products could lead to changes “the greatest in recorded history,” imposing “costly” adaptations and a slew of damages, including “destructive floods,” abandonment of entire countries such as Bangladesh, and forced migration around the world.

Years earlier, in 1979, another Exxon employee analyzed options for avoiding a catastrophic buildup of carbon dioxide, finding that limiting greenhouse gases to a “relatively safe level” would require prompt action to develop and deploy renewable energy technologies, that coal and shale oil could never become major energy sources, and that all told, over 80% of recoverable fossil fuel had to be left in the ground. In other words, the oil industry knew there were options.

What should you do when you learn your products, if used as intended, will cause worldwide, irreversible catastrophe in the foreseeable future? First, you should warn people, including the public and governments. Then you should act to avoid the catastrophe. Fossil fuel companies could have coordinated among themselves and with governments to replace fossil fuels with safer energy products, beginning in the early 1980s. They didn’t. Instead they concealed their knowledge. Then, in the late 1980s and early 1990s, when governments around the world sought to act and minimize the damage, fossil fuel companies invented and promoted climate denial, convincing policymakers and large segments of the public that climate science was uncertain and global warming not a threat, contradicting the industry’s own internal documents. Deception became the industry’s business model.

Since then, Big Carbon has pursued a cabinet of strategies to delay the necessary replacement of fossil fuels: blocking climate legislation, framing climate change as a consumer choice problem (the same way the tobacco industry did with cigarettes), and promoting a variety of false or distracting solutions, including methane gas, hydrogen (which is mostly made from methane), carbon capture (which the industry has privately acknowledged since the early 1980s is uneconomical), an exclusive focus on efficiency, and even reforestation (which, while good in itself, served to distract attention away from coal, oil and gas). Today, the industry’s main tactic isn’t denial, it’s anything that can induce delay and prolong the reign of fossil fuels.

With climate, the problem with delay is that it’s predatory: every year of wasted time translates to irreversible impacts that will be felt effectively forever. Fossil fuel companies intentionally imposed this path on the world, knowing the consequences: droughts, storms, floods, crop failures, famines, forced migrations, and the even the dissolution of entire countries. In the industry’s own words, consequences “the greatest in recorded history.” Why? For a buck.

Today, we already feel the consequences of the industry’s history of deception and delay. And we’re just getting started. In 10 years, that history will still matter, even more. In 100 years, it will still matter. Long after the industry is a cautionary relic, the world will still be living in the fallout from decisions made in the 1980s and since. In 500 years, the names of the fossil fuel majors might still be known: as those who knowingly sold out the world, and humanity’s future history, for another few decades of lucrative sales.

Could fossil fuel companies ever be tried for crimes against humanity? We might find out.

Associate Professor, Law School and Department of Human Ecology, Rutgers University

It’s understandable that people want to equate the actions of fossil fuel companies with crimes against humanity. But the short answer to the question is “no.”

Charging these companies or their chief executives with “crimes against humanity” is appealing because the effects of their actions are similar to the actions of those who have been convicted of the crime: Powerful actors are harming the vulnerable. They are known to have acted wrongfully. The public conscience revolts at their actions and their impunity. And they have the deep pockets to provide an equitable solution for those they have harmed, if they are convicted.

The International Criminal Court defines crimes against humanity, in part, as “inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health.” (Rome Statue Art 7k). A UN body of legal experts that recently studied crimes against humanity with the goal of improving prevention and reducing impunity explained that they are “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”(ILC Art 2.1).

Is this the right crime? In international law, crimes against humanity are real crimes that can be prosecuted against real people. But there are several limitations on prosecuting fossil fuel companies for crimes against humanity under today’s laws. Crimes against humanity involve particular crimes and they require an intention to cause the atrocities. Furthermore, only individuals, not corporations, can be prosecuted at the International Criminal Court, the court that would be most likely to hear such cases.

The directness and gravity of crimes against humanity are unlike the long chain of causation from extracting fossil fuels to emitting greenhouse gases. Murder, rape, forced pregnancy, slavery and torture are the kinds of specific acts that, when aimed at a population, are considered crimes against humanity and were prosecuted during the Nuremberg war crimes trials after World War Two. Greenhouse gas emissions don’t directly harm people; the EPA even argued that CO2 couldn’t be considered a pollutant under the Clean Air Act (it lost that argument, but still). This is really more like product liability—the fossil fuel industry was selling a product that appeared useful but it had dangers that the company was aware of and that it hid.

A crime against humanity requires the intent to “cause great suffering or serious injury to body or mental or physical health,” while fossil fuel companies just wanted to make money by selling their products. Although the effects of coal, oil and gas have already caused great suffering and serious injury from air and water pollution and climate change, that was not the companies’ intent. Sometimes the law will look at that distinction differently: if a person does something that they know will cause harm, they might be legally responsible even though they don’t intend the harm (they’re doing it for a different reason). So, it could be enough that the fossil fuel companies knew that their product was causing serious harm, which they certainly did. Their recklessness and fraudulent conduct in actively misleading the public and attempting to suppress climate change science could weigh as an aggravating factor against them.

Even if it isn’t possible to succeed in convicting fossil fuel company executives of crimes against humanity, it might be worth bringing these cases to show society’s disapproval of their behavior. Or, a better alternative might be to charge the fossil fuel companies with ecocide (once laws to make ecocide a crime are adopted). A recent proposal to add ecocide to crimes for the International Criminal Court described it as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” That fits the bill. Criminalizing the behavior of fossil fuel companies by making ecocide a crime in national and international law would more effectively achieve the goal, if it is to pressure industry and express public outrage.

Professor, Law, University of Wisconsin-Madison, whose research research examines the interactions between environmental and health sciences and administrative law

Under the current definition of crimes used by the International Criminal Court, I think it’s unlikely. The closest category for fossil fuel emissions would be Article 7.1.k (“Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”). While yes, climate change does cause great suffering, the intentionality part of it might be hard to demonstrate. However, the Act also says that intent does not have to be specific intent; that is, there just needs to be intent to do the thing that causes suffering as well as knowledge that the act would cause the suffering, which could be demonstrated with respect to fossil fuels.

I suspect, though, that this would be hard, given the track record of charges of crimes against humanity being used for more direct physical attacks. The thing with public international law is that it works primarily through these sources:

– Treaties

– Customary International Law (what countries have treated as international law)

– Principles of international law (about how to apply international law)

– Writings of international law experts

– Prior judicial decisions, and

– Non-legally binding instruments (such public statements assented to by various bodies of government or coordinated bodies of government, etc.)

This proposal for the definition of ecocide (which would more likely bring fossil fuel companies under the umbrella of committing crimes against humanity) was put together by an Independent Expert Panel for the Legal Definition of Ecocide to figure out language that the International Criminal Court could adopt.

Right now, there’s a proposal from the Independent Expert Panel for the Legal Definition of Ecocide that’s attempting to figure out language that the International Criminal Court could adopt for ecocide cases. If the ICC agrees to adopt this definition, then that would count as a non-legally binding instrument (as well as writing of international law experts) that would push any international court more towards accepting intentional fossil fuel emissions as a crime against humanity.

Associate Professor of Law and Director of the Environmental Law and Community Engagement Clinic at the University of Virginia

As an environmental lawyer focused on coalition-building, what I really hear in this question is a plea to do something about the climate crisis. Isn’t there some all-powerful hammer—the proverbial silver bullet—that we can use to bring this spiraling problem under control?

It seems like we need one. Just a few years ago a Special Report from the Intergovernmental Panel on Climate Change concluded that rapid decarbonization would be needed this decade. The report’s authors advised, “There is no documented historic precedent” for the scale of economic transformation that needs to occur.

Is there something bold we can do about all this? Yes, absolutely. Just a few weeks ago, the Attorney General of Vermont filed a consumer protection action against ExxonMobil, Shell, Sunoco, and CITGO, alleging that “deceptive and unfair practices” have misled consumers about the causal role of fossil fuels in global warming.

The non-profit organization, Our Children’s Trust, continues to litigate Juliana v. United States, an Oregon lawsuit that insists the federal government violates our rights to life, liberty, and property when it fails to protect the stability of the Earth’s climate.

These coast-to-coast litigation efforts are buttressed by state legislative actions. The day after Vermont’s claim was filed, Illinois Governor J.B. Pritzker signed the Climate and Equitable Jobs Act, which will phase out all coal and gas-fired power plants in Illinois by 2045. Binding commitments to transition to a zero-carbon electricity grid are also on the books in at least nine other states by my count: Virginia, New York, New Mexico, Maine, Nevada, California, Hawaii, Washington, and Colorado.

So we are seeing a patchwork quilt of lawsuits and legislation being sown at the state level. And while none of these actions, standing alone, seems as bold as an international prosecution for “crimes against humanity,” taken together they should give us reason for optimism. What all of these efforts prove is that state governments—not Congress or the White House—are delivering deep cuts in greenhouse gas emissions on an urgent and essential timeframe.

Do you have a burning question for Giz Asks? Email us at tipbox@gizmodo.com.



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