The Climate Fight Has Clear Villains. It's Long Past Time to Name Them

Herman Goering on trial in Nuremberg, 1946 (source)

Slobodan Milošević on trial in The Hague, 1999 (source)

by Thomas Neuburger

"Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."
—France et. al. v. Goering et. al., 22 IMT 411, 466 (Int'l Mil. Trib. 1946), aka the Nuremberg Trials

"Let's call this what it is: an atmosphere of impunity for atrocity."
—Kate Aronoff (source)

Encore un cri de coeur. Contrary to frightened and popular belief, there are actually a number of avenues to success in the battle to repair an increasingly unfriendly climate — or relative success, given that much of the damage that will be done is irreversible.

All of those avenues, however, require the use of force.

What counts as force? Legal action against fossil fuel companies counts as force. Financial attacks on their assets count as force. But most importantly, criminalizing and punishing the behavior of fossil fuel executives — the individuals themselves — counts as force.

The last option is the most promising.  As was aptly and correctly stated at the Nuremberg Trials, "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

If Rex Tillerson's ex-company, Exxon, is punished and stripped of its assets, wealth and business, and yet its executives go free, the fight will be a long one; those executives will fight until they die, or we do, or both.

But let one fossil fuel CEO sit where Slobodan Milošević sat, a criminal in the Hague on trial for his life — an act that splits the criminal from the enterprise, separates the interests of the CEO from the interests of the destructive operation — and we will suddenly see company after company sacrificed to save the lives of those that run them.

The good news is that the first part of this effort — criminalizing CEO-suite behavior — has already been done. Their actions are already and clearly criminal by the standards of the International Criminal Court. The only thing left to do is to deliver the trials and the punishment.

Less Than 1000 Humans Are Personally Killing Our Climate

Kate Aronoff has considered all this. Near the beginning of her seminal essay "It’s Time to Try Fossil-Fuel Executives for Crimes Against Humanity," this appears:

Just one hundred fossil fuel producers — including privately held and state-owned companies — have been responsible for 71 percent of the greenhouse gas emissions released since 1988, emissions that have already killed at least tens of thousands of people through climate-fueled disasters worldwide.

When one first reads this sentence, what's most striking is this part: "Just one hundred fossil fuel producers ... have been responsible for 71 percent of the greenhouse gas emissions released since 1988". A stunning statistic.

Yet Aronoff's sentence also can be reduced to this: "Just one hundred fossil fuel producers ... have already killed at least tens of thousands of people through climate-fueled disasters worldwide." Nothing short of mass murder.

To see the extent of our climate problem — not our problem with the climate, but our problem with the climate problem — one must look at both of the ideas above and note both of those facts.

First, just one hundred fossil fuel–producing companies — captained by perhaps five key people at each — have filled our air with 71% of all greenhouse gas emissions since 1988, a year in which most of us were alive. This is not ancient history, going back centuries or even a few generations. This is historically yesterday, a year alive in living people's memories. This was done as we watched.

Second, it's inescapably true that these 500 people, the "individuals at the helm of fossil-fuel companies" are, as Aronoff puts it, murderers. As she makes clear, these executives are guilty of a specific and heinous crime under international law — not genocide, as one might expect, but "crimes against humanity" as defined by Article 7 of the 1998 Rome Statute, which established the International Criminal Court.

Aronoff writes that "the fossil industry’s behavior constitutes a Crime Against Humanity in the classical sense: 'a widespread or systematic attack directed against any civilian population, with knowledge of the attack,' including murder and extermination. Unlike genocide, the UN clarifies, in the case of crimes against humanity, 'it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed…The perpetrator must also act with knowledge of the attack against the civilian population and that his/her action is part of that attack.'"

Here's what a prosecution would look like in the case of Shell, which is headquartered, ironically, in The Hague:

[W]hat might trying fossil-fuel executives for crimes against humanity actually look like? Royal Dutch Shell, for instance, is based in the Netherlands — in the Hague, in fact — and is a party to the Rome Statute. In order for their executives to be tried for crimes against humanity, the ICC prosecutor would need to open an investigation to determine whether domestic courts in the Netherlands had not done enough to hold the offending parties accountable. The prosecutor could then use their proprio motu power to bring an indictment before the ICC, which would then hear the case.

Alternately, the Dutch government could refer the case to the court itself. Plenty of countries have crimes against humanity statutes, however, so a trial wouldn’t necessarily have to happen under the auspices of the ICC. And because companies like Exxon have operations all over the world, they could theoretically be tried in any country that has such statutes on the books, or that is a party to the Rome Statute. Options abound.

Aronoff's piece is rich in detail. I'll leave you to discover that for yourself.

The "Ask" Is Not to Ask, But to Tell

Let's close with this. The people of the world, all seven billion of us, have put our fate in the hands of perhaps 500 of our wealthiest and most pathological contemporaries. If that fate is not already sealed, it shortly will be, especially if any Republican — or any but the climate-fiercest Democrat — is elected in 2020.

But that does not leave us helpless. We are seven billion; they are less than a thousand. The world is already starting its descent into chaos, just barely perhaps, but noticeably enough that even right-wing voters fear what's ahead. The people are now awake.

That humans will end fossil fuel emissions is inevitable. In less than 100 years, humans will no longer produce enough fossil fuels to add to the damage already done. The only questions left are these:

1. Will the end of human-produced emissions be managed or chaotic?

2. Will the end of human-produced emissions occur in time to matter?

If the process of de-industrialization is chaotic — via collapse of our culture and our numbers — it will continue to its natural end. That is, it will stop when (a) not enough humans are left alive to add appreciably more carbon to the air than their predecessor have already done, or (b) those humans who are left, in whatever numbers, are mainly pre-industrial.

The path to this end, the chaotic one, leads through war and disease; invasion and mass migration; extreme nationalism and tribal self-defense; decadal droughts and famines; brutality, retribution, bloodshed and despair; to extinction. 

If the process is managed, however, especially if it is managed by the wise and determined among us — in the U.S. that means finding and empowering our next FDR, our latter-day Lincoln — the end of fossil fuel burning can preserve as much life and culture as it can, not serve to destroy it totally.

All that stands in our way ... as always ... is the pathology of the very very rich, and the power we allow them over our lives.

Remember though: It is not their organizations that stand in our way; organizations are merely force extenders for mere people. It's the people who use that force. It's long past time to remove those people from the power to destroy us.

Asking them to change won't do the job; nor will deploying logic or science. We're tried those paths since the 1970s, and they've shown us in every way possible that they will not walk away from the power to destroy. The ask must now be a tell — they must be made, with sufficient force, to leave, or the fire that fed our species through all of our past will consume our future entirely as we watch.

Using the International Criminal Court to send this generation's mass murders to their reward — before they send us to ours — counts as sufficient force.  

Encore un cri de coeur.