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THE BIG LIE
Is Climate Change Denial A Crime Against Humanity?
William C. Tucker*
There is no doubt that anthropogenic warming of the Earth is
underway due to greenhouse gas (GHG) emissions from fossil
fuels. The impacts on humanity will be increasingly severe, with
some scientists warning that the very survival of the human species is at stake. Urgent action is needed to avoid catastrophe. Yet,
the United States has still failed to take meaningful steps to mitigate GHG emissions or exercise international leadership on the
issue, likely due to energy industry propaganda designed to conceal the dangers of fossil fuels from the public by deceiving it as to
the true state of climate science. Because this systematic plan of
deception affects the entire population of the Earth, contributing
to widespread deaths, displacement of persons, and untold deprivations of human rights, this article examines whether it constitutes a “crime against humanity” under the Rome Statute from
which the International Criminal Court derives its authority.
Keywords: international criminal law, human rights, climate
change, denial, crime against humanity
[I]n the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of
their minds they more readily fall victims to the big lie than the
small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It
would never come into their heads to fabricate colossal untruths,
and they would not believe that others could have the impudence
to distort the truth so infamously. Even though the facts which
prove this to be so may be brought clearly to their minds, they
will still doubt and waver and will continue to think that there
may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a
fact which is known to all expert liars in this world and to all who
conspire together in the art of lying. —Adolf Hitler, Mein Kampf 1
* William C. Tucker, A.B. cum laude Harvard College, J.D. Northeastern U. School of
Law, is an Assistant Regional Counsel, U.S. Environmental Protection Agency, Region II. He
is writing here in his individual capacity and not as government counsel. All opinions
expressed herein, including but not limited to positions on legal or policy issues, are entirely
his own and are not to be construed as those of EPA or the United States.
1 Adolf Hitler, MEIN KAMPF 185 (James Murphy trans., Hurst and Blackett Ltd. 1939).
This quotation is admittedly taken out of context, since in it Hitler was not ostensibly
describing his own purposes but blaming “the Jews” for perpetuating a “big lie” by placing the
blame on the Army and not the German government for the loss of the first world war. Id. at
184-85. Nevertheless, the statement presciently reveals Hitler’s utter contempt for the
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I. INTRODUCTION
T
he reality of global warming and associated climate change is upon
us. No longer is there any doubt, nor has there been among the vast
majority of climate scientists for at least two decades, 2 that anthropogenic (human-caused) warming of the Earth is underway, mainly caused
by the introduction into the atmosphere of greenhouse gas (GHG) 3 emissions, primarily carbon dioxide (CO 2 ) from burning fossil fuels. The
Earth’s temperature, as a result of rapid warming since the mid-1970s, is
now higher than it has been in 10,000 years, and with further warming of
more than 1 degree Celsius, the temperature will be higher than it has been
in one million years. 4 For the past decade or two, humankind has been experiencing the predicted results, including increasingly more frequent and
severe storms, more frequent and prolonged heat waves and droughts, the
melting of mountain glaciers and polar ice sheets, rising sea levels worldwide, more frequent and widespread fires, and increased intensity of tropical cyclones and hurricanes. 5
There is urgency to this crisis, because reductions in GHG emissions
must be made in the next two decades, adequate to limit global warming to
2 degrees Celsius, to avoid catastrophic effects. 6 What’s the worst case?
intelligence of the German volk and indeed for truth itself. Since the precedent under
international law for prosecution of propagandists for crimes against humanity begins at
Nuremberg, the parallel drawn is that the well-funded, corporate propaganda of today
denying the dangers of climate change and aimed at the general public, described infra, rivals
in audaciousness and scope the massive Nazi deception that an international Jewish
conspiracy was the real source of Germany’s troubles during World War II. See infra, pp. 1112. No endorsement of Nazi ideas as expressed in Mein Kampf, including but not limited to its
repugnant and virulent anti-Semitism, is intended by the author or the Journal.
2 See James Hoggan & Richard Littlemore, CLIMATE COVER-UP: THE CRUSADE TO DENY
GLOBAL WARMING 20 (2009); Naomi Oreskes, The Scientific Consensus on Climate Change,
306 SCIENCE 1686 (2004) (consensus existed as early as 1993); Reuven S. Avi-Yonah & David
M. Uhlmann, Combating Global Climate Change: Why a Carbon Tax is a Better Response to
Global Warming Than Cap and Trade, 28 STAN. ENVTL. L.R. 3, 15, n. 47 (2009) (citing Clive
L. Spash, GREENHOUSE ECONOMICS 12, 13 (2002) (noting that a “scientific consensus” had
developed in 1985)); Union of Concerned Scientists, Smoke, Mirrors and Hot Air: How ExxonMobil Uses Big Tobacco’s Tactics to Manufacture Uncertainty on Climate Science, Jan.
2007,
at
29-30
[hereinafter
Smoke,
Mirrors],
http://www.ucsusa.org/assets/documents/global_warming/exxon_report.pdf. (Appendix A,
The Scientific Consensus on Global Warming: scientific consensus that recent global warming due to human activity found by Intergovernmental Panel on Climate Change (IPCC) in
2001).
3 Greenhouse gases are gases that tend to trap solar energy, heating the Earth. They
include carbon dioxide (CO2), methane (CH4), halocarbons (including chlorofluorocarbons or
Freons), nitrous oxide (N2O), and ozone (O3). Water vapor is also a greenhouse gas. See AviYonah & Uhlmann, supra note 2, at 11.
4 Mark Bowen, CENSORING SCIENCE: INSIDE THE POLITICAL ATTACK ON DR. JAMES HANSEN
AND THE TRUTH OF GLOBAL WARMING, 4 (2008) (quoting from address by Dr. James Hansen
before the American Geophysical Union, 6 Dec. 2005).
5 Intergovernmental Panel On Climate Change Working Group I, FOURTH ASSESSMENT
REPORT, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, SUMMARY FOR POLICYMAKERS
5-9 (S. Solomon et al. eds., 2007), http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4wg1-spm.pdf.
6 Avi-Yonah & Uhlmann, supra note 2, at 12-13, n. 32 (citing Rachel Warren, Impacts of
Global Climate Change at Different Annual Mean Global Temperature Increases, in
AVOIDING DANGEROUS CLIMATE CHANGE 93-100 (Hans Joachim Schellnhuber et al. eds.,
2012-2013]
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The preeminent climate scientist and former Director of the Goddard Institute for Space Studies of the U.S. National Aeronautics and Space Administration (NASA), Dr. James Hansen, says that burning all reserves of
oil, gas, and coal, that is, all recoverable fossil fuels “would make much of
the planet uninhabitable by humans” and “threaten the biological health
and survival of humanity.” 7
Even without such an unthinkable catastrophe, the impacts of climate
change on humanity are expected to be devastating. Warming will cause
sea level rise through thermal expansion of seawater and glacier melting. 8
A rise in global sea levels will adversely impact low-lying coastal areas, affecting land-use patterns, property values, and available resources. 9 As
atmospheric CO 2 increases, the oceans will become more acidic, endangering coral reefs and other marine organisms. 10 Higher levels of water vapor
in the warming atmosphere will result in increased frequency and intensity
of storms in some parts of the world, while other areas will be subject to
more frequent droughts accompanied by crop loss, wildfires, and greater
vulnerability of crops to pests and disease. 11 Melting glaciers will create
water shortages during the growing season in areas dependent on the major rivers of the world, including the Colorado, Indus, and Yangzi. 12 Climate change will affect the reproduction, behavior, and viability of species,
changing their range and the timing of seasonal activities. 13 The rate of
species extinction is expected to accelerate. 14 Moreover, these changes will
be abrupt in comparison to historic “natural” climate-induced changes,
making it more difficult for stressed ecosystems to adapt. 15
2006). According to the IPCC’s 2007 Report (AR4), see supra note 5, to limit global warming
to 2 degrees Celsius will require holding CO2 atmospheric concentrations to 450 parts per
million (ppm). Id. at 13, n. 34. However, some climate scientists think this is not enough. In a
2008 paper, Dr. James Hansen and a number of other researchers attempted to determine
the highest “target” CO2 atmospheric concentration to avoid climate catastrophe. Hansen’s
target is 350 ppm, considerably lower than the IPCC’s 450 ppm. James Hansen, et al., Target
Atmospheric CO2: Where Should Humanity Aim?, 2 OPEN ATMOS. SCI. J. 217-231 (2008),
http://www.columbia.edu/~jeh1/2008/TargetCO2_20080407.pdf.
7 James Hansen, et al., Climate Sensitivity, Sea Level, and Atmospheric CO2, 2013, at 1,
25, to appear in Phil Trans Roy Soc, near-final preprint available at arXiv:1211.4846; see also
James Hansen, STORMS OF MY GRANDCHILDREN: THE TRUTH ABOUT THE COMING CLIMATE
CATASTROPHE AND OUR LAST CHANCE TO SAVE HUMANITY 223-36 (2009).
8 Andrew Dessler & Edward A. Parson, THE SCIENCE AND POLITICS OF GLOBAL CLIMATE
CHANGE: A GUIDE TO THE DEBATE 97 (2nd ed. 2010).
9 Id.
10 Id. at 98.
11 Id. at 99.
12 Id. at 100.
13 Id.
14 Hansen, supra note 7, at 144.
15 Dessler & Parson, supra note 8, at 101. CO2 concentrations are currently increasing at
an accelerating rate. See David Archer & Stefan Rahmstorf, THE CLIMATE CRISIS: AN
INTRODUCTORY GUIDE TO CLIMATE CHANGE 23 (2010). In addition, positive “feedback”
mechanisms will amplify the warming process. The two main feedbacks amplifying the
warming process are (1) the ice albedo effect, loss of reflectivity as sea ice melts leaving open
water to absorb nearly all solar radiation falling upon it, and (2) the increase of water vapor in
the atmosphere from warmer oceans: water vapor acts as a greenhouse gas, amplifying the
warming process. Hansen, supra note 7, at 42-46.
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Adding to the urgency of this problem is that there is currently a significant global “energy imbalance,” leaving about 0.6 degree Celsius (1 degree
Fahrenheit) of additional warming “in the pipeline,” that is, inevitable. 16
Unless meaningful mitigation measures are adopted, due to the centurieslong persistence of CO 2 in the atmosphere, temperatures will continue to
rise “well beyond 2100,” with climate change impacts growing increasingly
severe. 17
When the issue of climate change was first brought to the attention of
the general American public in the late 1980s, there appeared to be general
support for governmental response to the crisis. 18 As a result of press coverage of Senate hearings on climate change during a severe heat wave in
June 1988, it seemed that the climate change issue had shifted “from science to the policy realm almost overnight.” 19 Yet, over two decades later,
the United States has still failed to take meaningful steps to address the
gravest threat humanity has faced since the onset of the last ice age some
70,000 years ago. 20
How does one explain this marked shift in American public opinion
and failure of political will at the turn of the century? It is now welldocumented that, since the early 1990s, there has been a sustained and
coordinated public relations effort by certain energy companies and related industries to deceive the public about the true state of climate science,
in order to allow them to continue to profit from CO 2 emissions without
governmental regulation. The American journalist Ross Gelbspan, in The
Heat is On (1997) and Boiling Point (2004), first revealed the existence of
an organized plan, largely funded by the coal and oil industries, to fool the
public into believing that climate science was in a state of controversy. 21
Other investigators have confirmed Gelbspan’s findings. 22 Initially, the
16 Bowen, supra note 4, at 261. This assessment was based on a 2005 study. James
Hansen, et al., Earth’s Energy Imbalance: Confirmation and Implications, 308 SCIENCE
1431–1435 (2005). Recent corroborating data from 3,400 “Argo” floats, instruments that
directly monitor the temperature, pressure, and salinity of the upper ocean to a depth of
2,000 meters, show that Earth’s “energy imbalance” is currently 0.58 watts per square meter.
Earth’s Energy Budget Remained Out of Balance Despite Unusually Low Solar Activity,
National Aeronautics and Space Administration (NASA), Goddard Institute for Space Studies
(30 Jan. 2012), http://www.giss.nasa.gov/research/news/20120130b/.
17 Dessler & Parson, supra note 8, at 101.
18 Hoggan & Littlemore, supra note 2, at 20 (“ . . . no one seemed to be confused about
climate change in 1988.”).
19 Bowen, supra note 4, at 1.
20 Hansen, supra note 7, at 39.
21 Hoggan & Littlemore, supra note 2, at 2-3; Ross Gelbspan, BOILING POINT: HOW
POLITICIANS, BIG OIL AND COAL, JOURNALISTS, AND ACTIVISTS HAVE FUELED THE CLIMATE
CRISIS—AND WHAT WE CAN DO TO AVERT DISASTER 39-40 (2004); Ross Gelbspan, THE HEAT IS
ON (1998).
22 See, e.g., Bowen, supra note 4; Clive Hamilton, REQUIEM FOR A SPECIES: WHY WE
RESIST THE TRUTH ABOUT CLIMATE CHANGE (2010); Hoggan & Littlemore, supra note 2;
Thomas O. McGarity, BENDING SCIENCE: HOW SPECIAL INTERESTS CORRUPT PUBLIC HEALTH
RESEARCH (2010); David Michaels, DOUBT IS THEIR PRODUCT: HOW INDUSTRY'S ASSAULT ON
SCIENCE THREATENS YOUR HEALTH (2008); Chris Mooney, THE REPUBLICAN WAR ON SCIENCE
(2005); Naomi Oreskes & Erik M. Conway, MERCHANTS OF DOUBT: HOW A HANDFUL OF
SCIENTISTS OBSCURED THE TRUTH ON ISSUES FROM TOBACCO SMOKE TO GLOBAL WARMING
(2010); Eric Pooley, THE CLIMATE WAR: TRUE BELIEVERS, POWER BROKERS, AND THE FIGHT TO
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conspirators simply “denied” that global warming was occurring. 23 Later,
when outright denial of global warming in the face of the surface thermometer record became untenable, the tactic adopted was to repeatedly
and loudly stress the “uncertainties” (and only the uncertainties) inherent
in climate research. 24 Later, more subtle tactics included acknowledging
global warming but denying it was caused by human activity, or admitting
it is occurring and human-caused but denying it poses a threat. 25
The existence of a conspiracy to conceal the basic findings of climate
science from the public would not be difficult to prove. For example, it is
known that in 1998 a small task force comprised of energy industry representatives drafted a “Global Climate Science Communication Action
Plan,” which later was obtained in litigation and made available to the
public by Greenpeace and others. 26 The plan outlined a detailed strategy
costing millions of dollars to manufacture uncertainty on the issue of
global warming, copying Big Tobacco's “sound science” disinformation
campaign. 27 In succeeding years, energy companies executed this strategy by funding “a wide array of front organizations” to publish “contrarian” or “skeptical” objections to legitimate climate research and “attack research findings that were well established in the scientific community.” 28 The “victory” sought was public doubt, intended to paralyze
the policy debate with the goal of putting off governmental regulation of
GHG emissions for as long as possible. 29 Quite simply, the goal was and
still is to conceal the harmful effects of burning fossil fuels from the public.
From its inception, the campaign employed all the sophisticated tools
of public relations, including the recruitment of scientists skilled at public
SAVE THE EARTH (2010); Stephen H. Schneider, SCIENCE AS A CONTACT SPORT: INSIDE THE
BATTLE TO SAVE EARTH'S CLIMATE (2009); P.J. Jacques, et al., The Organisation of Denial:
Conservative Think Tanks And Environmental Skepticism, 17 ENVTL. POLITICS 349–385
(2008).
23 “Denial” as used in this article is intended to refer to “denial” of the fact, as reflected in
the consensus scientific assessment, that anthropogenic global warming and associated
climate changes are underway and GHG emissions must be reduced to avoid their harmful
effects. Although some deniers prefer the term “skeptic,” that term is misleading, true
scientific skepticism being integral to the very science they would discredit. Pooley, supra
note 22, at 35. The word has been criticized as evoking Holocaust “denial,” the refusal to
acknowledge documented, historical fact. Id. See e.g. Deborah E. Lipstadt, DENYING THE
HOLOCAUST: THE GROWING ASSAULT ON TRUTH AND MEMORY (1994). But nonetheless there are
similarities; both “denier” groups share an identical moral flaw: their “opinions” are
deliberately disembodied from fact.
24 Hoggan & Littlemore, supra note 2, at 43.
25 Sheldon Rampton & John Stauber, TRUST US WE’RE EXPERTS: HOW INDUSTRY
MANIPULATES SCIENCE AND GAMBLES WITH YOUR FUTURE 287 (2001). See generally Hoggan &
Littlemore, supra note 2, at 118-33 (Ch. 10, From Denial to Delay: A more reasonable—and
more dangerous—trend in obstructing action on climate change.).
26 Hoggan & Littlemore, supra note 2, at 42; Greenpeace International, Denial and
Deception: A Chronicle Of ExxonMobil's Efforts To Corrupt The Debate On Global Warming,
Appendix, http://www.greenpeace.org/usa/Global/usa/binaries/2007/5/leaked-api-commsplan-1998.pdf (last visited 3 June, 2013); Smoke, Mirrors, supra note 2, at App. C (1998
Global Climate Science Team memo) [hereinafter Action Plan or Plan].
27 Id.
28 Smoke, Mirrors, supra note 2, at 10.
29 See, e.g., Michaels, supra note 22; Oreskes & Conway, supra note 22.
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relations and willing to oppose the “conventional” viewpoint on climate
change; 30 the use of front groups such as biased think tanks and “Astroturf” grass-roots organizations to create the illusion of impartial endorsements; 31 the creation of fake petitions to give the impression of discord
among climate scientists; 32 manipulation of the media as an “echo chamber” to amplify their message; 33 ad hominem attacks, including “SLAPP
(Strategic Lawsuit Against Public Participation)” suits, against legitimate
climate scientists to intimidate them into silence on policy matters and/or
discredit their research; 34 and finally, the use of public relations tools such
as focus-group testing, polling, advertising, mass mailings, “educational”
materials distributed to schools, and biased internet sites, in order to widely disseminate their message and measure progress toward the “goal” of
public doubt. 35 A key tactic has been a continuing attack on science itself, a
strategy developed by large tobacco companies to cast doubt on research
showing the harmful effects of smoking, by portraying “mainstream” climate science as “junk” science and “skeptical” or “contrarian” climate science as “sound” science. 36
The fact that this propaganda campaign to delude the public on climate change has been wildly successful is affirmed by polling results. A
national survey by the Pew Research Center for the People & the Press,
conducted from November 9-14, 2011 among 2001 adults, found that:
63% say there is solid evidence that the earth’s average temperature has been getting warmer over the past few decades . . . [but]
nearly four-in-ten (38%) say that global warming is occurring
mostly because of human activity, such as the burning of fossil
fuels. The survey finds a continuing partisan divide in opinions
about global warming: 77% of Democrats and 63% of independents say there is solid evidence that the average temperature on
earth has been getting warmer over the past few decades. Just 43%
of Republicans agree. There also is a large partisan gap in views
about the causes of global warming: 51% of Democrats and 40% of
independents say the earth is getting warmer mostly because of
30 Hoggan & Littlemore, supra note 2, at 44. See also Oreskes & Conway, supra note 22,
at 169-215.
31 Hoggan & Littlemore, supra note 2, at 73-87 (Ch. 7, Think Tank Tactics).
32 Riley E. Dunlap & Aaron M. McRight, Climate Change Denial: Sources, Actors, and
Strategies, in ROUTLEDGE HANDBOOK OF CLIMATE CHANGE AND SOCIETY 254-55 (Constance
Lever-Tracy, ed., 2011); Pooley, supra note 22, at 41-42; Hoggan & Littlemore, supra note 2,
at 88-98 (Ch. 8, Denial by the Pound).
33 Hoggan & Littlemore, supra note 2, at 151-167 (Ch. 12, Manipulated Media). The
obligation of the media to provide “balanced” coverage has been taken advantage of in order
to create a manufactured “controversy” requiring reporters and commentators to give equal
coverage to the “conventional” and “contrarian” views, no matter how marginal or
discredited.
34 Hoggan & Littlemore, supra note 2, at 134-150 (Ch. 11, SLAPP Science).
35 Id. at 40, 44-45, 70-71. See also Action Plan, supra note 26.
36 Hoggan & Littlemore, supra note 2, at 67, 99-117 (Ch. 9, Junk Scientists).
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human activity. Just 19% of Republicans say rising temperatures
are mostly attributable to human activity. 37
As the polling results show, for many Americans climate change has become a political issue or question of “belief,” with significant numbers of
apostate members of Congress calling it, not just unproven or “unsettled,”
but even a “hoax.” 38 Thus, the American government lacks the will to exercise leadership internationally on climate change at a time when humankind cannot afford to, as James Hansen put it as early as 1988, “waffle”
without endangering the future of humanity. 39
The human race now faces a climate crisis of staggering proportions,
largely as a result of our failure to act forcefully to address it while we still
have time. This crisis is predicted to place enormous strain on private and
governmental institutions around the world. Even now, U.S. federal, state,
and local governments are planning adaptation strategies to address the
impacts of expected climate changes. 40 Nevertheless, meaningful action at
the national and international levels to mitigate further harm from GHG
emissions remains elusive. Is it possible that international law is impotent
to circumscribe behavior as devastating to the whole of humanity as the
public relations campaign described above? It may not be. The deliberate
use of deceptive propaganda practiced by certain elements within the fossil
fuel industry, its allies, and dependents is arguably punishable as an international crime based primarily on its purpose: the foreseeable, catastrophic, and global devastation which is the highly probable outcome of
its success.
37 The Pew Research Center for the People & the Press, More Moderate Republicans See
Evidence of Warming: Modest Rise in Number Saying There Is “Solid Evidence” of Global
Warming, (1 Dec. 2011), http://www.people-press.org/2011/12/01/modest-rise-in-numbersaying-there-is-solid-evidence-of-global-warming/.
38 See, e.g., Paul Krugman, Betraying the Planet, N.Y. TIMES (28 June 2009) (Op-ed
page), www.nytimes.com/2009/06/29/opinion/29krugman.html?_r=2&em=&adxnnl=1&
adxnnlx=1311954278-fuDW1oWDqyDDjZsujBrrlw. See also Brad Johnson, The Climate
Zombie Caucus of the 112th Congress, THINKPROGRESS.ORG, (19 Nov. 2010),
http://thinkprogress.org/climate-zombie-caucus/.
39 Bowen, supra note 4, at 1.
40 See, e.g., 2009 California Climate Adaptation Strategy: A Report to the Governor of
the State of California in Response to Executive Order S-13-2008, Executive Summary,
www.energy.ca.gov/2009publications/CNRA-1000-2009-027/CNRA-1000-2009-027-FES.PDF (last visited 11 Mar. 2011); New York State Energy and Development Authority
(NYSERDA), ClimAID Draft Synthesis Report, Responding to Climate Change in New York
State: An Integrated Assessment for Effective Climate Change Adaptation Strategies in New
York State (1 Nov. 2010), www.nyserda.ny.gov/~/media/Files/EE/EMEP/Climate
Change/clim-aid-synthesis-draft.pdf; New York Climate Action Council (CAC), Climate
Action Plan Interim Report (9 Nov. 2010), (Ch. 11, Adapting to Climate Change),
http://www.dec.ny.gov/docs/administration_pdf/irpart1.pdf; New York State Department of
Environmental Conservation initiatives addressing climate change adaptation and mitigation,
including statewide GHG inventory and reduction initiatives, Regional GHG initiatives
(RGGI), and a “Climate Smart Communites” program involving local communities,
www.dec.ny.gov/energy/43384.html#adaptation (last visited 15 Mar. 2011).
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II. FREE SPEECH AND PROPAGANDA
The force of propaganda is a direct attack against man. The
question is to determine how great is the danger. - Jacques
Ellul 41
The power of the spoken and written word in the form of propaganda
in modern times cannot be over-emphasized. It has played a vital role in
crimes against humanity prosecuted at Nuremberg and in subsequent international criminal tribunals. 42 For example, Julius Streicher, a Nazi
sympathizer who published Der Stürmer, a vicious anti-Semitic weekly
newspaper, was convicted and hanged by the International Military Tribunal at Nuremberg solely for private propaganda activities constituting
crimes against humanity. 43 Although these prosecutions concerned discriminatory speech, it should not be assumed that deceptive propaganda
aimed at controlling the minds of millions of people is only dangerous in
the hands of bigots. By paralyzing governmental response to the crisis,
climate change denial may prove to be as devastating to humanity as the
GHG emissions themselves. Yet in a democracy, criminalizing speech itself
is always suspect. As a threshold matter, therefore, one must first ask
whether propaganda of the type that has contributed to the current climate
change crisis is protected speech under international law.
Fraudulent speech has never found refuge under the U.S. Constitution,
and a public relations scheme aimed at profiting from continued GHG
emissions by concealing its dangers from the public may well constitute
fraud under U.S. law. 44 Nevertheless, the principal difficulty to prosecution
in the U.S. is posed by the resilience and power of the First Amendment,
which subjects any attempt to restrict speech on public policy issues to intensive scrutiny. On the other hand, the free speech defense under international law is narrower than under U.S. law, since the U.S. takes a more extreme position with regard to free speech than that of other democracies. 45
The principal difference is that international law based upon national
41 Jacques Ellul, PROPAGANDA: THE FORMATION OF MEN’S ATTITUDES xvi (Konrad Kellen &
Jean Lerner trans., Vintage Books 2d ed. 1973).
42 See Judicial Decisions, International Military Tribunal (Nuremberg), Judgments and
Sentences, (1 Oct. 1946) Judgment of Julius Streicher [hereinafter Streicher Judgment], reprinted in 41 AM. J. INT’L L 172, 293-296; Prosecutor v. Kordic & Cerkez, Case No. IT-9514/2-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia 26 Feb. 2001); Nahimana et al.
v. Prosecutor, Case No. ICTR-99-52-A, Judgement (28 Nov. 2007).
43 See Streicher Judgment, supra note 42; Christopher Scott Maravilla, Hate Speech as a
War Crime: Public and Direct Incitement to Genocide in International Law, 17 TUL. J. INT’L.
& COMP. L. 113, 117 (2008).
44 See, e.g., United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006);
aff’d in part and vacated in part, 566 F.3d 1095, 1144 (D.C. Cir. 2009) (holding tobacco
company defendants liable under the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-1968, for “making false and fraudulent statements to consumers about their
products.” 449 F. Supp. 2d at 26-27; 566 F.3d at 1144.)
45 Jean-Marie Kamatali, The U.S. First Amendment Versus Freedom of Expression in
Other Liberal Democracies and How Each Influenced the Development of International Law
on Hate Speech, 36 OHIO N.U.L. REV. 721, 721 (2010).
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trends worldwide tends to be more flexible in balancing freedom of expression against other individual rights and societal interests. 46
There are a number of international treaties that govern freedom of
expression, usually in the context of propaganda or hate speech constituting, or aiding in persecution of a targeted or minority population. 47 However, under these statutes, the competing interests of free expression as a
fundamental human right is balanced against the right to equal protection
against discrimination as well as other societal interests. For example, the
Universal Declaration of Human Rights (UDHR) protects against discrimination and incitement to discrimination in Article 7, while Article 19 provides that “Everyone has the right to freedom of opinion and expression.” 48
The International Covenant on Civil and Political Rights (ICCPR) provides
in Article 19(2) that “Everyone shall have the right to freedom of expression,” but under Article 19(3) that right “carries with it special duties and
responsibilities” and may be subject to restrictions for “the protection of
national security or of public order . . . or of public health or morals.” 49 The
European Convention on Human Rights (ECHR) prohibits “hate speech,”
that is, discriminatory speech falling short of direct “incitement,” by balancing the “right to freedom of expression” in Article 10(1) against restrictions necessary “in the interests of [inter alia] national security . . .
public safety” or “for the protection of the reputation or the rights of others” under Article 10(2). 50 Objections to holding propagandists criminally
liable, based on their interests in free expression, which might prevail under U.S. law would be subjected to more rigorous scrutiny under international law to ensure those rights are balanced against broad societal interests, including environmental concerns.
Modern propaganda or public relations, which Edward Bernays, whom
some call the “father of public relations,” 51 called “engineering consent,” is
as pervasive as it is influential in the formation of public attitudes. 52 Writing in his book, Propaganda, 53 in 1928, Bernays emphasized that it had
become ubiquitous as well as highly effective in shaping public opinion as
early as the late 1920s:
This practice of creating circumstances and of creating pictures in
the minds of millions of persons is very common. Virtually no imId.
See generally id.; Maravilla, supra note 43.
48 Universal Declaration of Human Rights art. 7, 19, G.A. Res. 217 (III) A, at 71, U.N.
Doc. A/RES/217(III) (10 Dec. 1948), [hereinafter UDHR] , Maravilla, supra note 43, at 115.
49 International Covenant on Civil and Political Rights art. 19(2), (3), 16 Dec. 1966, U.N.
Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 Mar. 1976 [hereinafter ICCPR];
Maravilla, supra note 43, at 115.
50 Maravilla, supra note 43, at 115 (citing, inter alia, European Convention for the
Protection of Human Rights and Fundamental Freedoms art. 10(1),(2), 4 Nov. 1950, 213
U.N.T.S. 222, commonly referred to as the European Convention on Human Rights
[hereinafter ECHR]).
51 Hoggan & Littlemore, supra note 2, at 27 (Bernays, 1891-1995, and Ivy Lee, 1877-1934,
are rivals for the title).
52 Id.
53
Edward Bernays, PROPAGANDA (2005), www.historyisaweapon.com/defcon1/
bernprop.html.
46
47
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portant undertaking is now carried on without it . . . [I]t is universal and continuous; and in its sum total it is regimenting the public
mind every bit as much as an army regiments the bodies of its soldiers. 54
Yet precisely because it is so potent, Bernays recognized that propaganda
has ethical limits. 55 In his autobiography, Bernays noted that Nazi Propaganda Minister Joseph Goebbels praised another of his books, Crystallizing Public Opinion, as having been helpful in crafting the Nazi media campaign against German Jews. 56 Therefore, Bernays was acutely conscious
that propaganda could be misused, writing that a public relations professional or propagandist “must never accept a retainer or assume a position
which puts his duty to the groups he represents above his duty to society.” 57 The public relations professional, he wrote, “[S]hould be candid in
his dealings . . . his business is not to fool or hoodwink the public.” 58
Furthermore, corporate propaganda, due to the considerable resources
available to fund it and its potential reach, not to mention its inherent bias,
should arguably be held to a high ethical standard, particularly when it
concerns matters of public policy. In fact, a convincing argument may be
made that corporate speech is never solely or even primarily concerned
with public welfare but is always essentially “commercial,” 59 as American
black-letter corporation law requires. 60 Furthermore, where surrogates
such as public relations professionals are used, it is not always clear
whether a corporate message is “political” or “commercial.” For example, a
Id. at 54.
Hoggan & Littlemore, supra note 2, at 27.
56 Edward Bernays, BIOGRAPHY OF AN IDEA: MEMOIRS OF PUBLIC RELATIONS COUNSEL 652
(1965). Note that Bernays was a nephew of Sigmund Freud and at least by birth Jewish
himself. In fact, although Bernays personally disdained religion, his great-grandfather Isaac
Ben Jacob Bernays was chief rabbi of Hamburg and “a pioneer of modern Orthodox
Judaism.” See Larry Tye, THE FATHER OF SPIN: EDWARD L. BERNAYS AND THE BIRTH OF PUBLIC
RELATIONS 132, 185 (2002).
57 Hoggan & Littlemore, supra note 2, at 28 (emphasis added).
58 Id. That adherence to the truth is still considered a guiding principle of the public
relations profession itself is evident on reading the Public Relations Society of America
(PRSA) “Code of Ethics” (“Code”). A “core principle” under the Code is “protecting and
advancing the free flow of accurate and truthful information.” Id. (emphasis added). A
second “core principle” is to achieve “[o]pen communication . . . by revealing all information
needed for responsible decision making.” Accordingly, a PRSA member is required, among
other things, to investigate “the truthfulness and accuracy of information released on behalf
of those represented,” and--significantly—to reveal “the sponsors for causes and interests
represented.” Examples of improper conduct under this provision include declaring “publicly
that a product the client sells is safe, without disclosing evidence to the contrary.” Member
Code of Ethics 2000, Public Relations Society of America, http://www.prsa.org/
AboutPRSA/Ethics/CodeEnglish/index.html (last visited 24 Sept. 2011) (emphasis added).
59 See Tamara R. Piety, Against Freedom of Commercial Expression, 29 CARDOZO L.
REV. 2583, 2593 (2008) (“Every time a corporation offers its opinion about climate change . .
. or any other political or social issue of public concern, the only legitimate basis for it doing
so, pursuant to principles of corporations law, is that management has made the
determination that this communication would enhance the corporation’s profitability.”).
60 Id. at 2623 (“Pursuant to conventional interpretations of black letter corporate law,
the corporation’s officers and directors have primarily one duty—to enhance shareholder
value.”).
54
55
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common tactic of climate change deniers is to launder their message
through front groups so that it appears to come from a disinterested, third
party source with no “commercial” motive. 61 Because corporate propaganda may potentially have “significant negative consequences for the public
interest” in, among other things, “environmental policy,” one may argue
that it should be subject to heightened judicial scrutiny, balancing international free speech guarantees against other competing societal interests,
including the considerable threat to public health and welfare posed by
climate change. 62
Over the past several decades, a body of scholarship has developed
that emphasizes the immense contribution of deceptive propaganda to the
rise of Nazism in Germany in the 1920s and 1930s as well as to the general
German war effort from 1939 to 1945. 63 The deceptiveness of Nazi propaganda lay, not so much in its distortion of factual detail, that is, its “small
lies,” or in its racist but frank expressions of opinion, but rather in its overarching themes, chief among them the deception that Germany was justified in fighting an international Jewish conspiracy which animated both its
Bolshevik and democratic enemies. 64 This Orwellian “big lie” that Germany was fighting a war against international Jewry was stressed frequently
in speeches, newspapers, radio addresses, and public posters during the
war years, 65 and was aimed at accomplishing two purposes: first, achieving
broad public acceptance of, or at least apathy toward, the persecution and
planned extermination of the Jewish population; 66 and second, providing a
theoretical justification for the increasingly hopeless war effort. 67
Though some may wince at the comparison, the public relations campaign described above has a similar general purpose: the selling of large
61 Id. at 2595. See also Hoggan & Littlemore, supra note 2, at 73-87 (Ch. 7, Think Tank
Tactics).
62 Id. at 2585 See also Randal Marlin, PROPAGANDA & THE ETHICS OF PERSUASION 185200 (2002) (Public Relations Ethics).
63 See generally Jeffrey Herf, The “Jewish War”: Goebbels and the Antisemitic
Campaigns of the Nazi Propaganda Ministry, 19 HOLOCAUST AND GENOCIDE STUDIES 51-80
(Spring 2005); Dennis E. Showalter, Jews, Nazis, and the Law: The Case of Julius Streicher,
(The Simon Wiesenthal Center, Museum of Tolerance Online Multimedia Learning Center)
Annual 6 Ch. 6, http://motlc.wiesenthal.com/site/pp.asp?c=gvKVLcMVIuG&b=395155 (last
visited 21 May 2011); Caesar C. Aronsfeld, THE TEXT OF THE HOLOCAUST: A STUDY OF THE
NAZIS’ EXTERMINATION PROPAGANDA: 1919-1945 (1985); Lucy S. Dawidowicz, THE WAR
AGAINST THE JEWS, 1933-1945 (Hardcover ed. 1975); Alexander G. Hardy, HITLER’S SECRET
WEAPON: THE “MANAGED” PRESS AND PROPAGANDA MACHINE OF NAZI GERMANY (1967); Jeffrey
Herf, THE JEWISH ENEMY: NAZI PROPAGANDA DURING WORLD WAR II AND THE HOLOCAUST (1st
paperback ed. 2008); Robert E. Herzstein, THE WAR THAT HILTER WON: GOEBBELS AND THE
NAZI MEDIA CAMPAIGN (Paperback ed., 1987); David Welch, THE THIRD REICH: POLITICS AND
PROPAGANDA (2d paperback ed., 2002).
64 Herf, “Jewish War,” supra note 63, at 56-57. Herf quotes with approval the British art
historian E.H. Gombrich: “In a 1969 lecture Gombrich drew on his BBC experience
monitoring German wartime radio broadcasts to observe that ‘what is characteristic of Nazi
propaganda is less the lie than the imposition of a paranoiac pattern on world events.’” Id. at
52.
65 Id. at 59; see generally Welch, supra note 63, at 117-156 (Ch. 5, Nazi Propaganda at
War, 1939-1945).
66 Herf, “Jewish War,” supra note 63, at 53 (Nazi propaganda “was effective in fostering
indifference and hostility to the Jews”).
67 Id. at 53-54, 64.
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untruths for the purpose of achieving, if not public skepticism or outright
denial of climate change, then public apathy and inaction in the face of circumstances which ultimately may prove more devastating to humanity at
large than even the Nazi atrocities prosecuted at Nuremberg. With this in
mind, this article examines the Rome Statute to see whether a case may be
made that the denial campaign, to the extent individual culpability can be
established, 68 constitutes a “crime against humanity.”
III. CLIMATE CHANGE DENIAL AS A CRIME AGAINST
HUMANITY
The common sense of mankind demands that law shall not stop
with the punishment of petty crimes by little people. It must also
reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave
no home in the world untouched. –Opening Statement by Mr.
Justice Jackson, Chief Prosecutor for the United States, Nuremburg Tribunal 69
The effects of the deceptive propaganda campaign described above being both universal and long lasting, affecting humanity for centuries to
come, if not millennia, international prosecution for “crimes against humanity” might be the only suitable response. Crimes against humanity as
defined under the Rome Statute that established the International Criminal Court (ICC), and under prior tribunals, are necessarily “international in
character, and subject to international jurisdiction.” 70 However, it must be
stressed that only individuals and not corporations or other organizations
can be brought before the ICC under the Statute. 71 Such crimes are “of con68 It may be objected that the large numbers of people and organizations promoting
climate change denial would make alleging individual criminality in a way that could convince
a court exceedingly difficult. Yet at Nuremberg, prosecutors faced with the same difficulty of
numbers, who might have put on trial all the high-ranking Nazi leadership, instead focused
only on the most culpable, propagandists prominent among them. Similarly, the
International Criminal Court (ICC) prosecutor may have no difficulty narrowing the list of the
most culpable deniers to a representative but manageable number. In Merchants of Doubt,
Oreskes and Conway have documented that relatively few scientists, a mere “handful,” have
played a vocal role in the climate change disinformation campaign. See Oreskes & Conway,
supra note 22. Some even engaged in a career of science “denial,” beginning with their
service to Big Tobacco. Id. at 10-35 (Ch. 1, Doubt Is Our Product). Furthermore, the
responsible corporate officers most at fault may be relatively few. For instance, when the Inuit
population of Kivalina sued for compensation for harm inflicted by climate change, including
a claim that they had been defrauded by the public relations campaign described above, they
only named some two-dozen corporate entities. Native Village of Kivalina, et al. v.
ExxonMobil Corporation, et al., Civ. Action No. CV-08-1138 SBA (N.D. Cal. 26. Feb. 2008),
Complaint, at 1, 5-29; but see Kirk B. Maag, Note: Climate Change Litigation: Drawing Lines
to Avoid Strict, Joint and Several Liability, 98 GEO. L.J. 185, 212-23 (2009) (arguing Kivalina
plaintiffs alleged joint and several liability).
69 NUREMBURG TRIAL PROCEEDINGS, Vol. 2, Second Day, 21 Nov. 1945, (Yale Law School,
Lillian Goldman Law Library, The Avalon Project) http://avalon.law.yale.edu/imt/11-2145.asp (last visited 5 Oct. 2011) (Opening statement of Mr. Justice Jackson for the
prosecution).
70 Adam Jones, CRIMES AGAINST HUMANITY: A BEGINNER’S GUIDE 14 (2008).
71 Id. at 16-17.
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cern to the international community as a whole.” 72 The UN General Assembly has declared that “[t]he fact that internal law does not impose a
penalty for an act which constitutes a crime under international law does
not relieve the person who committed the act from responsibility under
international law.” 73 Thus failure of the U.S. to prosecute the perpetrators
under U.S. law may not exonerate them if their actions violate the norms of
international law as set down in the Rome Statute.
Such crimes “must be inhumane in nature and character, causing great
suffering, or serious injury to body or to mental or physical health,” in the
words of the International Criminal Tribunal for Rwanda (ICTR). 74 Therefore, the acts alleged must “be of a grave nature,” with the damage inflicted
“felt in the long term, if not permanently.” 75 As one legal scholar puts it:
“When the effects of physical or psychological harm last for years or decades–when they may last for centuries, as with dispossession and forced
population transfer . . . then the framing of crimes against humanity is
more strongly supported.” 76
Thus, crimes against humanity are marked by effects that are both
“grave” (causing great suffering or serious injury) and long-lasting (years,
decades, even centuries). In addition, the concept of such crimes is an
evolving one. The wording of the Rome Statute and other authorities is
deliberately broad, so that “new forms of crime against humanity . . . will
not escape international criminal responsibility.” 77 The inclusion of “other
inhumane acts” in the Rome Statute “was instituted with the specific desire
to keep the concept open and flexible,” to both encompass new crimes and
“recast as fundamental violations of human rights and integrity” practices
which may have been long “widely accepted, even institutionalized.” 78 Certainly, the effects of the deception practiced upon the public and government described above are “grave,” with the potential to cause human suffering, illness, and death on a massive scale. The effects are also long lasting, since the warming effects of post-industrial CO 2 emissions will be felt
for centuries, with the possibility of “positive feedbacks” both amplifying
and prolonging the process. 79
A. The Rome Statute: Chapeau Elements
Article 7 of the Rome Statute, which prohibits “crimes against humanity,” consists of two parts: the “chapeau” or general elements, and the specific enumerated acts or crimes. The “chapeau” or general umbrella provisions of Article 7 require that the enumerated acts be “committed as part of
Id. at 14 (citing the Rome Statute’s Elements of Crimes).
Id. (citing Affirmation of the Principles of International Law Recognized in the Charter
of the Nuremberg Tribunal, G.A.Res. 95(I), U.N. Doc. A/RES/95(I) (11. Dec. 1946))
(emphasis added).
74 Id. at 16 (citing Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, (Int’l Crim.
Trib. for Rwanda, 2 Sept. 1998) [hereinafter Prosecutor v. Akayesu].
75 Id.
76 Id.
77 Id. at 18.
78 Id. at 155.
79 See supra Section I.
72
73
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a widespread or systematic attack directed against a civilian population,
with knowledge of the attack.” 80 The purpose of the “chapeau” elements is
to ensure that “crimes against humanity” are international in both scope
and effect, distinguishable from crimes more properly punished under national criminal laws. 81
The ICC has jurisdiction “only with respect to crimes committed after
the entry into force” of the Rome Statute, July 1, 2002, 82 or after the Statute becomes effective with respect to a state party joining after that date. 83
Any state party accepts the jurisdiction of the Court. 84 However, if any
state party refers a case to the Prosecutor, 85 or a non-state party accepting
jurisdiction makes an ad hoc referral under Art. 12(3), 86 or the Prosecutor
initiates an investigation proprio motu, 87 the Court may exercise jurisdiction over a non-state party provided that state accepts the exercise of jurisdiction by the Court with regard to the particular crime in question. 88
1. Widespread or Systematic Attack
The Statute first requires that the acts enumerated under Article 7
must be “committed as part of a widespread or systematic attack.” This
involves four lines of inquiry: (1) the act must be committed “as part of”
the attack, indicating a “nexus” requirement; (2) the term “attack” itself
must be defined; (3) the “attack” must be “widespread or systematic”; and
(4) the “course of conduct” constituting the “attack” must be “pursuant to
80 Larry May, CRIMES AGAINST HUMANITY: A NORMATIVE ACCOUNT 119 (2005) (citing
Rome Statute of the International Criminal Court, art. 17, 17 July 1998, 2187 U.N.T.S. 90).
81 Mohamed Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining
the Elements of Crimes Against Humanity, 5 SAN DIEGO INT'L L.J. 73, 90 (2004) (citing M.
Cherif Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 62 (2nd rev.
ed., 1999)).
82 Rome Statute of the International Criminal Court, art. 11(1), 17 July 1998, 2187
U.N.T.S. 90 [hereinafter Rome Statute] (entered into force 1 July 2002). See Ronald C. Slye &
Beth Van Schaack, ESSENTIALS OF INTERNATIONAL CRIMINAL LAW 51 (2009). Note that the
denial conspiracy is a continuing one, although its inception may be traced prior to 2002.
83 Rome Statute, supra note 82, art. 11(2).
84 Id. art. 12(1).
85 Id. art. 13(a), 14.
86 Slye & Van Schaack, supra note 82, at 56 (these are so-called “self-referrals,” such as
Uganda’s in December, 2003.)
87 Rome Statute, supra note 82, art. 13(c), 15.
88 Id. art. 12(3). The United States is not a party to the Rome Statute, yet failure of the
United States to join the Rome Treaty or consent to ICC jurisdiction may not necessarily be
fatal to a climate change-related action against one or more of its nationals. The ICC’s
jurisdiction (for cases not referred by the U.N. Security Council) is premised upon two
principles of customary international law incorporated in Art. 12(2)(a) and (b) of the Rome
Statute, the “territorial” and “active nationality” principles. Slye & Van Schaack, supra note
82, at 52. Under the “territorial” principle, a state may assert jurisdiction over any individual
of any nationality who commits an offense within its territory. Id. at 53. GHG emissions affect
every nation on Earth, and due to the ubiquity of electronic media, so may propaganda. ICC
jurisdiction premised upon GHG emissions or propaganda designed to further those
emissions could conceivably extend to non-state party nationals whose actions affect the
territory of any state party under the “territorial” principle of Art. 12(2)(a), regardless of
acceptance of jurisdiction by the non-state party of which the perpetrator is a national.
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or in furtherance of a State or organizational policy” (the so-called “policy”
element). 89
The “nexus” requirement indicates that there must be a connection between the act committed and the “widespread or systematic attack,” but it
is not to be regarded as a mens rea element requiring that the accused intended to further the attack. 90 The accused, for example, need not have
any formal connection to the attacking group, nor have been acting from
purely non-personal motives. 91 The International Criminal Tribunal for the
Former Yugoslavia (ICTY) Appeals Chamber in the Tadic case held that to
satisfy the “nexus” requirement, the act or crime must simply be related to
the attack and the accused must have knowledge of that relationship. 92
Since the “attack” in question is the deceptive public relations campaign
described above whose purpose is to continue or increase the current rate
of GHG emissions by avoiding governmental regulation of those emissions,
demonstrating that a particular individual’s actions were related to it
should be a fairly straightforward task. An article, for example, stressing
only the “uncertainties” in climate science, or a book which cherry-picks
data from obscure sources to question the prevailing consensus among
climate scientists while ignoring reputable research to the contrary, could
be evidence of a nexus to an overall plan of deception designed to convince
the public that climate science does not support reductions in GHG emissions. Such evidence would be even more compelling if coupled with a
showing that the organization or individual in question received funding or
other support from energy interests emitting greenhouse gases, or had an
established history of opposing GHG regulation by denying the basic findings of climate science. Similarly, a corporation which has consistently
funded climate “skeptic” or denier groups or individuals would be hardpressed to deny those actions demonstrate a nexus to the overall plan of
deception carried out by the recipients of that funding. 93
The word “attack” may be regarded as an artifact of the Nuremberg
and ICTY requirement that crimes against humanity be committed during
wartime (as in “armed attack”). However, “attack” has been held by the
ICTR to bear no relation to armed conflict. 94 In Akayesu, the ICTR Trial
Chamber I held that an “attack” may be defined as the underlying act itself, and that it may even be non-violent in nature, like imposing a system
of apartheid or exerting “pressure” on a population “on a massive scale or
89 Rome Statute art. 7(2)(a); Simon Chesterman, An Altogether Different Order:
Defining the Elements of Crimes Against Humanity, 10 DUKE J. COMP. & INT’L L. 307, 314
(2000). Note that it is the “attack” and not the act itself which must be pursuant to some
“policy.”
90 Chesterman, supra note 89, at 317; Slye & Van Schaack, supra note 82, at 232-33.
91 Slye & Van Schaack, supra note 82, at 233; Chesterman, supra note 89, at 321 (“the
fact that an act was taken for ‘purely personal motives’ is irrelevant,” citing Prosecutor v.
Tadiü, No. IT-94-1-A, Par. 270 (Int’l Crim. Trib. for Former Yugoslavia, 15 July 1999))
[hereinafter 7DGLü Appeals Chamber].
92 Chesterman, supra note 89, at 320 (citing 7DGLü Appeals Chamber, par. 271).
93 See, e.g., Smoke, Mirrors, supra note 2, at 31-33 (Appendix B).
94 Chesterman, supra note 89, at 315.
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in a systematic manner.” 95 In the context of “crimes against humanity”
under the Rome Statute, it can simply refer to mistreatment of a civilian
population. 96 The Rome Statute defines “attack directed against any civilian population” as “a course of conduct involving the multiple commission
of [the enumerated acts] against any civilian population.” 97 The term “attack” thus indicates a “course of conduct” characterized by either: (a) the
extensive scale and reach of its effects (the “widespread” prong), or (b) the
concerted and organized method of its execution (the “systematic” prong).
In any case, the use of the term “attack” does not appear to add a discrete
requirement to the Article 7 chapeau elements, 98 and should not be read as
requiring large-scale military or other violent actions.
The plan of deception described earlier may qualify as an “attack” in
the sense of a “course of conduct,” which shocks the conscience of humankind and is both widespread and systematic in its execution, transcending
the jurisdictional reach of national or state criminal tribunals. As noted
above, the ICTR held that the “attack” may be “non-violent in nature, like .
. . exerting pressure on the population to act in a particular manner . . . if
orchestrated on a massive scale or in a systematic manner.” 99 Although the
Rome Statute requires that the underlying crime be one listed under Article 5, it is important to note that under Article 25 an individual may be
found liable through a number of modes of participation, including aiding,
abetting or otherwise assisting in the commission of an Article 5 crime,
ordering, soliciting or inducing it, or joining (“acting jointly” or “contributing to”) a conspiracy by others to commit it. 100 Furthermore, an individual may be liable under Article 25 for “attempting” Article 5 crimes, indicating that “attempt,” without more, may be a crime in itself. 101
The ICTR Statute requires that an act be committed as part of a “widespread or systematic” attack. 102 The question of whether this phrase was
conjunctive or disjunctive was debated during the 1998 UN Diplomatic
Conference of Plenipotentiaries on the Establishment of an International
95 Id. (citing Prosecutor v. Akayesu, supra note 74, ¶ 581; the concept of an “attack” may
be defined as an “unlawful act of the kind enumerated in . . . the Statute, like murder,
extermination, enslavement, etc. An attack may also be non-violent in nature, like imposing a
system of apartheid . . . or exerting pressure on the population to act in a particular manner . .
. if orchestrated on a massive scale or in a systematic manner”).
96 Robert Cryer, et al., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND
PROCEDURE 237 (2d ed. 2010).
97 Rome Statute, supra note 82, art. 7(2)(a) (emphasis added).
98 Chesterman, supra note 89, at 316.
99 Id. at 315 (citing Prosecutor v. Akayesu, supra note 74, ¶. 581).
100 Under Art. 25 of the Rome Statute, modes of participation in crimes within the
jurisdiction of the court include: acting jointly with another or “through another person,”
Rome Statute, supra note 82, art. 25(3)(a), “ordering, soliciting or inducing” a crime, id. art.
25(3)(b), “aiding, abetting or otherwise assisting” in the commission of a crime or providing
the means for its commission, id. art. 25(3)(c), or intentionally “contributing to” the
commission of a crime “by a group of persons acting with a common purpose” with the aim of
furthering the criminal purpose of the group and with knowledge of the group’s intentions, id.
art. 25(3)(d).
101 Rome Statute Art. 25(3)(f) specifically prohibits “attempts” to commit a crime by
taking a “substantial step” (with abandonment a defense), and echoes of this concept appear
throughout Art. 25.
102 Chesterman, supra note 89, at 312.
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Criminal Court, which ultimately adopted the disjunctive version (“or”) in
the Rome Statute. 103 Furthermore, it is now settled that the two elements
are alternatives under general principles of international law, 104 although
as a practical matter the necessity for an “attack” may incorporate attributes of both terms. 105 The term “widespread” has been defined, with reference to the International Law Commission’s commentary to its 1996 Draft
Code of Crimes, as a “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity
of victims.” 106 But it has also been defined simply as an attack “directed
against a multiplicity of victims.” 107 In that formulation, the deception described above certainly qualifies as “widespread,” since it is directed at the
public in general, with the purpose of reaching as many individuals as possible, including government officials and corporate leaders. 108 Furthermore, it has as its purpose, by opposing and ultimately preventing regulation of GHG emissions, the risk of injury to every person on the planet, as
well as the animal life and vegetation upon which humanity depends. The
term “systematic” was defined in Akayesu as “thoroughly organized and
following a regular pattern on the basis on a common policy involving substantial public or private resources.” 109 But in Kayishema, a “systematic”
attack was simply held to be one “carried out pursuant to a preconceived
policy or plan.” 110 It has also been defined as meaning a “pattern or methodical plan,” or an “organized pattern of conduct.” 111 In that respect, the
climate change denial campaign certainly qualifies as “systematic.”
Finally, as noted above, Article 7(2)(a) of the Rome Statute requires
the “attack” or “course of conduct” to be “pursuant to or in furtherance of a
State or organizational policy to commit such an attack.” 112 Although this
requirement echoes and to some degree is redundant of the “systematic”
requirement above (“pursuant to a preconceived policy or plan”), 113 it is
clear that the drafters of the Rome Statute regarded a governmental or
“group” policy as a component of the crime. 114 In the Nuremburg trials,
Id.
Id. at 313.
105 Cryer, supra note 96, at 236.
106 Chesterman, supra note 89, at 315 (citing Prosecutor v. Akayesu, supra note 74, ¶
580).
107 Id. at 315 (citing Prosecutor v. Kayishema & Ruzidana, Case No. ICTR-95-1-T,
Judgment, ¶ 123 (21 May, 1999) [hereinafter Prosecutor v. Kayishema]).
108 For example, the Action Plan was throughout “national” in scope. See Plan, supra
note 26, at 4-6.
109 Chesterman, supra note 89, at 315 (citing Prosecutor v. Akayesu, supra note 74, ¶
580) (emphasis added); Cryer, supra note 96, at 236.
110 Prosecutor v. Kayishema, supra note 107, ¶ 123.
111 Cryer, supra note 96, at 236.
112 Rome Statute art. 7(2)(a) (emphasis added).
113 May, supra note 80, at 121 n. 60 (citing Phyllis Hwang, Defining Crimes Against
Humanity, 22 FORDHAM INT’L L.J. 495 (1998) (“questioning the wisdom of including this
element as a distinct element since it can be inferred from the other elements”); Badar, supra
note 81, at 100, 113 (questioning whether it is necessary to prove that a policy or plan is
behind an “attack” or whether such proof is but one way to demonstrate the systematic
character of the attack).
114 May, supra note 80, at 121.
103
104
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linking the actions of individual defendants to the greater Nazi conspiracy
was a key component of the prosecution’s strategy. 115 Nevertheless, the
policy “need not be the policy of a state,” and “private individuals with de
facto power or organized in criminal gangs or groups might also commit
the kind of systematic or mass violations of human rights covered by the
[ICTY Statute].” 116 Crimes against humanity have been charged against
non-state actors, such as paramilitaries in Yugoslavia and armed civilian
bands in Rwanda, and other non-governmental organizations (NGO)
might be guilty of such a crime through acts designed to carry out a purely
private but nonetheless “widespread or systematic” policy or political ideology. 117 In that way, the corporations, front groups, and scientists participating in the public relations campaign described above may be regarded
as a non-state “group” carrying out a “widespread or systematic” policy.
2.. Directed Against Any Civilian Population
The Statute requires that the “policy or plan,” “attack,” or “course of
conduct” be “directed against any civilian population.” 118 This requirement
does not necessarily apply to the defendant’s act itself, but to the collective
conduct comprising the plan of which the act is a part. 119 A single act can
constitute a crime against humanity, provided it is committed “as part of a
widespread or systematic attack on a civilian population.” 120 In the Tadiü
case, the ICTY Trial Chamber stated:
The ‘population’ element is intended to imply crimes of a collective
nature and thus exclude single or isolated acts . . . the emphasis is
not on the individual victim but rather on the collective, the individual being victimized not because of his individual attributes but
rather because of his membership in a targeted civilian population. 121
Since there is no discriminatory intent requirement in the Rome Statute, except for the enumerated crime of “persecution,” it is not necessary
that the “population” attacked be an identifiable or discrete group. 122 Nor
is there a requirement under the Rome Statute that the “population” attacked be the civilian population as a whole. 123 Nevertheless, the “widespread or systematic” nature of crimes against humanity does not rule out
Robert E. Conot, JUSTICE AT NUREMBERG 12 (7th ed. 2000).
May, supra note 80, at 122 (citing Prosecutor v. Tadiü, Case No. IT-94-1-T, Judgment,
para. 655 (Int’l Crim. Trib. for Former Yugoslavia, 7 May 1997) [hereinafter Tadiü Trial
Chamber]).
117 Geoffrey Robertson, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE
432 (3d paperback ed., The New Press 2006).
118 Rome Statute art. 7(1) (emphasis added).
119 Chesterman, supra note 89, at 321-22.
120 May, supra note 80, at 120 (citing 7DGLü Trial Chamber, supra note 116, ¶ 649: single
act sufficient as long as there is a link to a “widespread and systematic attack”).
121 Tadiü Trial Chamber, supra note 116, ¶ 644.
122 Chesterman, supra note 89, at 325 (noting that the ICTR Statute requires that the
prohibited acts be part of an “attack against any civilian population on national, political,
ethnic, racial or religious grounds,” but distinguishing the Rome and ICTY Statutes).
123 Id. at 326.
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that a targeted “civilian population” could be, in effect, the entire innocent
population of the world, excluding only the perpetrators. 124
3.. With Knowledge of the Attack
The “chapeau” elements of the Rome Statute require that the perpetrator act “with knowledge of the attack.” This means the general mens rea
element under Article 7 requires only that the defendant knew his or her
actions were part of a widespread or systematic attack on a civilian population. 125 However, the defendant need not know all the details of the overall
plan or policy, and knowledge of the plan can be actual or constructive. 126
According to the ICC Elements of Crimes, the mens rea elements for the
enumerated crimes of “extermination,” “deportation or forced displacement of persons,” and “other inhumane acts” are the same: “[t]he conduct
was committed as part of a widespread or systematic attack directed
against a civilian population,” and “[t]he perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.” 127 Article 30, the
general mens rea provision under the “General Principles of Criminal Law”
of the Rome Statute, provides that “knowledge” means “awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events.” 128 Thus, it would appear that to satisfy the general mens rea requirement the Prosecutor must show at a minimum that (a) the conduct
was related to (“part of”) the plan or attack; and (b) the defendant either
knew of that relation, or intended it. 129
The ICTY cases indicate “awareness, willful blindness, or knowingly
taking the risk that one’s act is part of an attack” is sufficient evidence of
such knowledge, although it is not clear whether the ICC’s standard will be
the same. 130 The ICC Elements of Crimes indicate that such knowledge can
be inferred from relevant facts and circumstances, and “[i]n most conceivable circumstances, the existence of a widespread or systematic attack
would be notorious and knowledge could not credibly be denied.” 131 It
would be difficult if not impossible for the most prominent climate deniers
124 The word “civilian” is an artifact of Nuremberg and the ICTY proceedings involving
armed conflict. Chesterman, supra note 89, at 324-25. Additional Protocol II to the Geneva
Conventions provides that in connection with crimes against humanity, “civilians” would
include “[a]ll persons who do not take a direct part or who have ceased to take part in
hostilities.” Id. at 324 (citing Protocol Additional to the Geneva Conventions of 12 Aug. 1949,
and Relating to the Protection of Victims of Non-International Armed Conflicts, (Protocol II),
8 June 1977, art. 4(1), S. Treaty Doc. No. 100-2 (1987); 1125 U.N.T.S. 608). Therefore, the
better reading of the term “civilian” in this context would encompass all innocent persons
including military and police, and excluding only those taking part in the “attack” itself. Id. at
324-25; Cryer, supra note 96, at 242.
125 Slye & Van Schaack, supra note 82, at 218.
126 Id. (citing Prosecutor v. Kayishema, supra note 107, ¶ 134).
127 International Criminal Court, Elements of Crimes art. 7(1)(k) (emphasis added), ICCASP/1/3(part II-B) (9. Sept. 2002), U.N. Doc. PCNICC/2000/1/Add.2 (2000) [hereinafter
ICC Elements].
128 Rome Statute art. 30.
129 Chesterman, supra note 89, at 320.
130 Cryer, supra note 96, at 244 (emphasis added).
131 Id.
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to claim they were not aware of the public relations plan described above,
since its existence has been widely known for some time, particularly
among climate change “skeptics.” Furthermore, “willful blindness” will not
insulate a defendant from such knowledge, which may be inferred from
circumstantial evidence. Thus, given their fiduciary responsibilities, the
CEOs of energy companies cannot be presumed to be ignorant of basic
climate science, even if they have themselves conspicuously avoided it or
derived their knowledge of climate science from exclusively “contrarian”
sources. “Knowingly taking the risk,” that one’s act is related to the “attack” is also sufficient, a standard related to though not synonymous with
“reckless indifference.” 132 Thus, the failure of a perpetrator to take into
consideration the risk, no matter how small, that the specific actions contemplated by that individual might contribute to widespread injury to human health and the environment could constitute “knowingly taking the
risk” of a nexus to the overall plan. As Paul Krugman, a Princeton University professor of economics and columnist for The New York Times, put it:
For years now, large numbers of prominent scientists have been
warning, with increasing urgency, that if we continue with business as usual, the results will be very bad, perhaps catastrophic.
They could be wrong. But if you’re going to assert that they are in
fact wrong, you have a moral responsibility to approach the topic
with high seriousness and an open mind. After all, if the scientists
are right, you’ll be doing a great deal of damage. 133
Nor is incomplete knowledge of the plan of deception a shield, since the
mens rea requirement may be met even without “knowledge of all characteristics of the attack or the precise details of the plan or policy.” 134
B. The Rome Statute: Crimes
1. Extermination
Article 7(1)(b) of the Rome Statute prohibits “extermination,” defined
as including “the intentional infliction of conditions of life, inter alia the
deprivation of access to food and medicine, calculated to bring about the
destruction of a part of a population.” 135 Extermination is often contrasted
with the Statute’s prohibition of “murder,” the Rwandan Tribunal having
distinguished the two as follows. “Extermination is a crime that by its very
nature is directed against a group of individuals. Extermination differs
from murder in that it requires an element of mass destruction, which is
Id.
Paul Krugman, The Truth, Still Inconvenient, N.Y. TIMES, (4 Apr. 2011) (Op-ed page),
http://www.nytimes.com/2011/04/04/opinion/04krugman.html
(emphasis
added)
(describing a recent Congressional hearing on climate science as “a farce.” However, the joke,
Krugman continues, “is on the human race.”)
134 ICC Elements, supra note 127, art. 7 (Introduction).
135 Rome Statute, supra note 82, art. 7(1)(b), 7(2)(b).
132
133
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not required for murder.” 136 One writer even suggests that extermination
“is a result crime, requiring proof of multiple deaths, rather than a crime of
intent.” 137
However, a second crucial difference is that the act of extermination is
defined more broadly than that of murder because the killing may be “indirect.” 138 The ICC Elements of Crimes provides that for the crime of extermination it must be proved that the perpetrator “killed one or more persons,” and such conduct “constituted, or took place as part of a mass killing
of members of a civilian population.” 139 Yet a footnote clarifies that this
“could be committed by different methods of killing, either directly or indirectly.” 140 Furthermore, as if to emphasize that such “killing” may be
“indirect,” the phrase “killed one or more persons” is followed by a reprise
of the Statute’s definition of “extermination”: “including by inflicting conditions of life calculated to bring about the destruction of part of a population.” 141 Another footnote completes the statutory definition: The infliction
of such conditions could include the deprivation of access to food and medicine. 142 A third footnote was probably designed to cover the instance
where the perpetrator initiated or participated at the inception of a “mass
killing” which had not yet taken place: The term ‘as part of’ would include
the initial conduct in a mass killing. 143
Therefore, it is not clear, despite the element requiring the defendant
to have “killed” one or more persons, that any specific deaths necessarily
be directly caused by the perpetrator’s actions, since the crime can be
committed by, for example, “deprivation of access to food or medicine.”
Secondly, the requirement of nexus to the “mass killing” is met through
initial action—that is, presumably, before any “mass killing” has taken
place. And thirdly, the crime of extermination could include acts of omission, such as failure to adequately feed or provide medical care, as long as
such failure to act is linked to a larger “mass killing.” Thus, a defendant
could be liable for “extermination” by taking non-violent actions, or by
simply failing to act, as by failing to provide adequate food and medicine,
without any deaths directly resulting from such actions or omissions as
long as they initiated or were part of a larger “mass killing.”
Therefore, although extermination must be regarded as something
more than just murder on a mass scale, 144 the crime of extermination may
reach behavior that would constitute neither murder nor genocide under
the Rome Statute. 145 The chief difference may be the lesser mens rea ele136 Chesterman, supra note 89, at 334 (citing Prosecutor v. Akayesu, supra note 74, No.
ICTR-96-4-T, ¶¶ 591-92, and noting that extermination is included in art. 3(b) of the ICTR
Statute.)
137 Slye & Van Schaack, supra note 82, at 237.
138 ICC Elements, supra note 127, art. 7(1)(b) n. 8 (“The conduct [killing] could be
committed by different methods of killing, either directly or indirectly.” Emphasis added.).
139 Slye & Van Schaack, supra note 82, at 237-38; ICC Elements art. 7(1)(b).
140 ICC Elements, supra note 127, art. 7(1)(b)(1) n. 8 (emphasis added).
141 Id. art. 7(1)(b)(1); Rome Statute, supra note 82, art. 7(2)(b).
142 ICC Elements, supra note 127, art. 7(1)(b)(1) n. 9.
143 Id. art. 7(1)(b)(2) n. 10.
144 Chesterman, supra note 89, at 335.
145 Id. at 336.
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ment. Cherif Bassiouni would even include unintentional killing among
crimes against humanity of extermination:
[E]extermination implies intentional and unintentional killing.
The reason for the latter is that mass killing of a group of people
involves planning and implementation by a number of persons
who, though knowing and wanting the intended result, may not
necessarily know their victims. Furthermore, such persons may
not perform the actus reus that produced the deaths, nor have
specific intent toward a particular victim. 146
Thus, the Rome Statute provides a definition of “extermination” which
does not require the mens rea of intending to bring about the death of a
particular individual: the prohibited behavior may include, without limitation, “the intentional infliction of conditions of life . . . calculated to bring
about the destruction of a part of a population.” 147 Furthermore, it can be
“indirect.” 148 Thus, climate change “deniers” participating in a general plan
or conspiracy to obscure the facts of climate science in order to continue
their harmful carbon emissions might be prosecuted for “extermination” as
a crime against humanity, where their actions may be regarded as indirectly causing “mass deaths” by intentionally inflicting “conditions of life,”
such as a harsh and dangerous environment, “calculated to bring about the
destruction” of populations living under it. Given that climate science predicts that mass deaths from heat, drought, extreme weather events, and
sea level rise, among other causes linked to global warming, will result
should GHG emissions continue unabated, the plan of deception previously described can plausibly be characterized as one “calculated to bring
about the destruction of a part of a population.”
Yet the lesser mens rea requirement should be regarded as balanced
by the requirement of scale in the actus reus: the accused’s actions must
constitute or be part of a “mass killing.” 149 Furthermore, this element may
be established through a showing of “constructive” intent, where, for example, the perpetrators “knew, or evidently should have known, that
[their] policies would have a destructive impact, even if that destruction
was incidental to another purpose or motive.” 150 Extermination thus may
be especially relevant where “mass killing is more indirect and/or institutionalized,” 151 such as “the enormous human destruction” associated with
“environmental despoliation.” 152
The impacts of global climate change are expected to be long lasting
and cause human suffering on a vast scale, including mass deaths. Indirect
146 Bassiouni, supra note 81, at 302; quoted in Prosecutor v. Kayishema, supra note 107,
¶ 143. Note that Bassiouni was writing prior to adoption of the Rome Statute.
147 Rome Statute art. 7(2)(b) (emphasis added).
148 See Chesterman, supra note 89, at 337 n. 154 (citing Bassiouni, supra note 81, at 302:
an accused “may not perform the actus reus that produced the deaths, nor have specific
intent toward a particular victim”).
149 Id.
150 Jones, supra note 70, at 36 (emphasis added).
151 Id. (emphasis in original).
152 Id. at 38.
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threats to human health through food shortages include increasing
droughts and floods leading to lower crop yields and reduced fisheries and
loss of coastal ecosystems such as salt marshes and coral reefs. 153 The
number of malnourished people will increase, placing them at greater vulnerability. 154 Negative impacts upon human health associated with global
warming, predicted by the Intergovernmental Panel on Climate Change
(IPCC) with “high confidence” are an increase in malnutrition; increase in
deaths, disease and injuries from extreme weather events; an increase in
cardio-respiratory diseases from changes in air quality; and changes in the
ranges of infectious disease vectors. 155 Warming is expected to increase the
global population at risk from malaria by 220 to 400 million. 156 And, it
should be kept in mind, the warming process is dynamic: it will not stop in
the year 2050, or 2100. Without action that is sufficient to stop global
warming, according to the IPCC, “things will continue to get worse for
many centuries.” 157 Furthermore, it is not necessary to wait: a number of
global warming-related deaths have already been documented, such as
American deaths related to Hurricane Katrina in 2005 and Russian deaths
associated with the summer heat wave and resulting fires near Moscow in
2010. 158 The European heat wave of 2003, which “likely was the hottest
summer at least since the year 1500,” caused at least 35,000 deaths. 159
Tropical cyclones caused 250,000 deaths between 1980 and 2000, and
higher sea levels will increase these impacts as such storms increase in severity leading to more deadly and extensive storm surges. 160
Under the Rome Statute it is sufficient for the prosecution to show that
the defendant intentionally inflicted “conditions of life . . . calculated to
bring about the destruction of a part of a population,” including but not
limited to deprivation of “access to food and medicine,” a definition which
could include the indirect “infliction” of a harsh and unforgiving environment, one marked by frequent floods, storms, droughts, tropical hurricanes, lengthy summer heat spells, and destruction or loss of coastal urban
areas, all with the potential for causing mass deaths. The necessary intent,
as indicated above, may be established by demonstrating “constructive”
intent: that the perpetrators knew or should have known their policies or
plan “would have a destructive impact,” even if incidental to another motive, such as maximizing an energy company’s profits. Nor should it present a difficulty for the prosecution that the accused’s actions cannot be
linked to specific “deaths” indirectly caused, since an accused “may not
perform the actus reus that produced the deaths, nor have specific intent
Id. at 170-178.
Id. at 176.
155 Id. at 177. See also Michael E. Mann & Lee R. Kump, DIRE PREDICTIONS:
UNDERSTANDING GLOBAL WARMING 133 (2008).
156 Archer & Rahmstorf, supra note 15, at 178.
157 Id. at 150.
158 Mann & Kump, supra note 155, at 52-57, 136-37; BBC NEWS, Death Rate Doubles In
Moscow As Heatwave Continues, (9 Aug. 2010) www.bbc.co.uk/news/world-europe10912658 (last visited 9 Nov. 2011).
159 Archer & Rahmstorf, supra note 15, at 159.
160 Id. at 174.
153
154
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toward a particular victim.” 161 All that is required is that the actions are
linked to or are “part of” the broader mass killing or attack, and
“knowledge of all characteristics of the attack or the precise details of the
plan or policy” is not necessary. 162 This kind of “attack” may be termed
“structural violence,” which is “often far more exterminatory than conventional wars and genocides, but may be so deeply embedded in our cultures
as to be almost invisible.” 163
2. Deportation or Forcible Transfer of Population
Article 7(1)(d) of the Rome Statute prohibits “deportation or forcible
transfer of population,” defined as “forced displacement of the persons
concerned by expulsion or other coercive acts from the area in which they
are lawfully present, without grounds permitted under international
law.” 164 “Deportation” is usually considered to involve movement of the
affected population across national boundaries, while “forcible transfer”
may include both trans-national and internal movements. 165
The ICC Elements of Crimes provides the following act-specific elements: (1) “The perpetrator deported or forcibly transferred, without
grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. (2) Such person or
persons were lawfully present in the area from which they were so deported or transferred. (3) The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.” 166 That forcible
transfer may occur through “coercive acts” of a nonviolent nature is indicated by another footnote defining the term “forcibly” as follows:
The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of
Chesterman, supra note 89, at 337 n. 154.
ICC Elements, supra note 127, art. 7.
163 Jones, supra note 70, at 38-39 (emphasis added).
164 Rome Statute, supra note 82, art. 7(2)(d).
165 Cryer, supra note 96, at 249 (crossing national boundaries distinguished from
“forcible transfer”). Deportation or forcible transfer of populations historically include: the
expulsion of the Jews from Spain in 1492; the forced removal of Irish Catholics to “hell or
Connaught” under Cromwell through the English Acts of Settlement in 1652; the persecution
and subsequent emigration of the Huguenots from France through the Edict of Fontainebleau
in 1685; and in the United States, numerous Native American removals including the
infamous “Trail of Tears” Cherokee, Choctaw, Creek, Chickasaw, and Seminole removals (by
forced march) to the Oklahoma Territory under the Indian Removal Act of 1830, and the
forcible relocation and internment of approximately 110,000 civilians of Japanese descent
during
World
War
II.
WIKIPEDIA,
Population
Transfer,
http://en.wikipedia.org/wiki/Population_transfer (last visited 8 Mar. 2011).
166 ICC Elements, supra note 127, art. 7(1)(d) (emphasis added). As with all the
enumerated offenses, the last two of the five elements for this crime simply restate the Rome
Statute’s chapeau elements: “4. The conduct was committed as part of a widespread or
systematic attack directed against a civilian population. 5. The perpetrator knew that the
conduct was part of or intended the conduct to be part of a widespread or systematic attack
directed against a civilian population.” Id. Compare Rome Statute, supra note 82, art. 7(1).
161
162
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power against such person or persons or another person, or by
taking advantage of a coercive environment. 167
Therefore, forcible transfer does not require the use of actual physical
force, but may include threats, psychological oppression, or environmental
coercion. 168
The threat of global warming, with attendant sea level rise and the expansion of drought-prone areas, is expected to force population transfer on
an unprecedented scale. Global warming is predicted to increase during
the twenty-first century by from 1.1 to 6.4 decrees Celsius, with an associated additional sea level rise projected by the IPCC of 18-59 cm by 2100. 169
The impact upon populations in low-lying coastal areas will be severe: Holland and Norway may find technological solutions or may abandon some
areas to the sea to save others, 170 but a third-world country like Bangladesh
will face a catastrophe of unimaginable proportions, involving potentially
large population migrations. 171 Coastal deltas will become increasingly vulnerable: the IPCC’s 2007 report predicts that over one million people will
be displaced by “current sea level trends” by the year 2050 in river deltas
with “extreme” vulnerability, specifically the Nile, Ganges-Brahmaputra,
and Mekong deltas; between 50,000 and one million people in areas of
“high” vulnerability—the Mississippi, Godavari, and Chang Jiang deltas;
and between 5000 and 50,000 in areas of “medium” vulnerability, including the Amazon, Rhine, Niger, and Indus river deltas among others. 172
Small island populations are especially vulnerable to extreme weather
events and rising sea levels, and may suffer water shortages due to reduced
rainfall and salt-water intrusion, leading to abandonment of homes. 173 Already, Inuit communities in the Aleutian chain face resettlement due to
thawing permafrost and coastal erosion due to loss of winter sea ice;
homes in Papua New Guinea’s Cateret Islands have been washed away by
rising seas; and in the Indian Ocean the Maldives are in peril from rising
sea levels. 174
3. Other Inhumane Acts and Human Rights
The Rome Statute also prohibits “other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or
to mental or physical health.” 175 The crime against humanity of “other inhumane acts” was incorporated into the Nuremberg Statute in Article 6(c),
as well as statutes of other tribunals including ICTR Article 3(i), ICTY ArtiICC Elements, supra note 127, art. 7(1)(d) n. 12 (emphasis added).
Id.; see also Cryer, supra note 96, at 249-50.
169 Dessler & Parson, supra note 8, at 95, 97.
170 Archer & Rahmstorf, supra note 15, at 188.
171 Id. at 227-28 (discussing vulnerability of poorer nations such as Bangladesh to climate
change and the equities of global response); Mann & Kump, supra note 155, at 110, 125, 190.
172 Archer & Rahmstorf, supra note 15, at 176.
173 Id. at 185.
174 Id. at 183, 188; Sara C. Aminzadeh, A Moral Imperative: The Human Rights
Implications of Climate Change, 30 HASTINGS INT’L & COMP. L. REV. 231, 249-50 (20062007).
175 Rome Statute, supra note 82, art. 7(1)(k) (emphasis added).
167
168
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cle 5(i), and the Special Court for Sierra Leone (SCSL) Article 2(i). 176 Although “other inhumane acts” are not further defined in the Rome Statute,
except by reference to the other enumerated acts, the ICC’s “Elements of
Crimes” gives the following elements for the crime. (1) “The perpetrator
inflicted great suffering, or serious injury to body or to mental or physical
health, by means of an inhumane act.” (2) “Such act was of a character
similar to any other act referred to in article 7, paragraph 1, of the Statute.”
(3) “The perpetrator was aware of the factual circumstances that established the character of the act.” 177 A footnote explains that “[i]t is understood that ‘character’ refers to the nature and gravity of the act.” 178 Thus,
the statutory mens rea element is satisfied if it can be shown, not that the
accused considered his or her actions “inhumane,” but that the accused
was aware of the factual circumstances that established the nature and
gravity of the act (including, presumably, its foreseeable consequences),
and knew the conduct was linked to a widespread or systematic “attack” in
the sense, not of a military action, but of a “course of conduct,” policy or
plan directed against a civilian population. 179
It may be objected that “inhumane acts” must be of a similar “character” to other enumerated crimes, which include such violent acts as murder
and rape, and engaging in public deception of a purely propagandistic nature does not rise to that level. 180 Yet “inhumane acts” may not necessarily
need to be interpreted as similar only in “character” to other enumerated
acts under the Statute, since a footnote explains that to be similar in “character” means to be similar in both “nature” and “gravity.” 181 As to their “nature,” it may not be appropriate to regard “inhumane acts” as necessarily
violent, or directly resulting in mass deaths or displacements of persons,
since another listed crime, “extermination,” may include the infliction of
“conditions of life . . . calculated to bring about the destruction of a part of
a population.” 182 Furthermore, it can be “indirect”, without resulting in
deaths directly. 183 Similarly, another crime, forcible transfer of populations, may be accomplished through “coercive acts” of a nonviolent nature,
including “psychological oppression . . . or by taking advantage of a coercive environment.” 184 Thus, acts limited to propaganda alone may be regarded as similar in “nature” to other acts punishable under the Rome
Statute; and as to their “gravity,” it is difficult to imagine an outcome graver than the mass deaths and displacements predicted by climate science
176 Kjell Follingstad Anderson, Dictionary of Gross Human Rights Violations: Other Inhumane Acts, the Crime Against Humanity of, at 1, SHAREDHUMANITY.ORG,
http://www.sharedhumanity.org/LibraryArticle.php?heading=Other%20Inhumane%20Acts,
%20the%20Crime%20Against%20Humanity%20of (last visited 8 Mar. 2011).
177 ICC Elements, supra note 127, art. 7(1)(k).
178 Id. art. 7(1)(k), n. 30.
179 Id. art. 7(1)(k); Cryer, supra note 96, at 244-45.
180 See ICC Elements art. 7(1)(k)(2).
181 Id. art. 7(1)(k)(2), n. 30.
182 Rome Statute, supra note 82, art. 7(2)(b).
183 Chesterman, supra note 89, at 337 n. 154 (citing Bassiouni, supra note 81, at 302: an
accused “may not perform the actus reus that produced the deaths, nor have specific intent
toward a particular victim.”).
184 ICC Elements, supra note 127, art. 7(1)(d)(1) n. 12 (emphasis added).
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should denial propaganda succeed in delaying regulation of GHG emissions for much longer.
Although this provision (“other inhumane acts”) has been criticized as
violating the “specificity principle” of international criminal law, 185 it has
been interpreted as necessary to guarantee certain basic rights, such as
those found in the UDHR, which otherwise might be left unprotected under the Rome Statute. 186 The ICTY Trial Chamber has defined “inhumane
acts” as “intentional acts or omissions which infringe fundamental human
rights causing serious mental or physical suffering or injury of a gravity
comparable to that of other crimes covered by Article 5 [the article of the
ICTY Statute defining “crimes against humanity”].” 187 Although the right
to a healthy and safe environment is not specifically mentioned in the
UDHR, it is certainly implied in the collective rights enumerated there,
including the rights to life, security, and an “international order” protective
of those rights. 188
Aside from the 1948 UDHR, the primary source texts for “human
rights” are the 1966 ICCPR and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which both derive from the
UDHR. 189 The two Covenants are legally binding on ratifying states parties,
which represent the vast majority of world states. Regional human rights
treaties also exist, such as the American Declaration of the Rights and Duties of Man adopted by the Organization of American States (OAS) in 1948,
and the American Convention on Human Rights, adopted by the OAS in
1969, which came into force in 1978. 190
Global warming may present “the most profound moral issue ever to
face the human species,” since it constitutes “a grand experiment on the
only earth we have” which “if unchecked, is likely to dramatically and irreversibly alter the entire planet, changing the ecosystems to which we and
all the other species on the earth have adapted for millennia.” 191 Professor
Amy Sinden of Temple University argues that this profound moral issue
demands “a profound response from law,” and that human rights represent “the law’s best response to profound, unthinkable, far-reaching moral
transgression.” 192 Human rights, she argues, which derive from the U.S.
Bill of Rights and the French Declaration of the Rights of Man, were intended originally to counteract “the disparity of power between the state
Anderson, supra note 176, at 1.
Id.
187 Slye & Van Schaack, supra note 82, at 235 (emphasis added) (citing The Prosecutor v.
Kupreškiü et al., Case No. IT-95-16, Judgment, ¶ 818 (Int’l Crim. Trib. for the Former
Yugoslavia, 23 Oct. 2001)).
188 See UDHR, supra note 47, art. 3, 5, 17, 22, 27(1), 28.
189 Stephen Humphreys & Robert Archer (eds.), Climate Change and Human Rights: A
Rough Guide, in INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY (2008),
www.ichrp.org/files/reports/45/136_report.pdf. [hereinafter ICHRP Rough Guide] ICCPR
supra note 49; International Covenant on Economic, Social and Cultural Rights, 16 Dec.
1966, S. Exec. Doc. D, 95-2 (1978); 993 U.N.T.S. 3 [hereinafter ICESCR].
190 ICHRP Rough Guide, supra note 189, at 12; Aminzadeh, supra note 174, at 238-39.
191 Amy Sinden, Climate Change and Human Rights, 27 J. LAND RESOURCES & ENVTL. L.
255, 257 (2007).
192 Id.
185
186
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and the individual” at a time when “the largest aggregation of power was
the state.” 193 Now, of course, great concentrations of power exist in corporate and private hands as well as governments, leading to power imbalances worldwide between private groups and individuals. 194 Human rights
may therefore provide a framework for the protection of weaker states and
individuals from the influence of multi-national corporations that can rival
states in wealth and power. 195
To the extent that such imbalances give certain groups and individuals
undue influence in the formulation of public policy, the assertion of human
rights may be seen “as correctives for distortions in government decision
making processes caused by power imbalances.” 196 Professor Sinden asserts that, in particular, the “imbalance of power between the fossil fuel
industry and the public has resulted in a massive political failure in the
United States over the past two decades,” which has been “exacerbated by
a massive disinformation campaign orchestrated by the fossil fuel industry.” 197 The problem we face, she maintains, is political failure resulting
from undue corporate influence in the public policy debate:
The more intractable and fundamental problem—the problem that
is really at the root of our two decades of paralysis in the face of
strong evidence that our continued emissions of greenhouse gases
are creating a significant possibility of catastrophic global harm—is
the political failure brought on by the gross imbalance of power between those who stand to gain and those who stand to lose from
climate change regulation. 198
Those who stand to gain are human and other living beings; those who
stand to lose are corporations, legal fictions immune from mortal hurt and
subject to only one imperative: “The primary purpose and duty of protecting short-term share price.” 199 Yet corporations, due to their extensive resources, have a voice that, in the public discourse, wields enormous influence. Framing the climate change issue in terms of human rights, therefore, is not only to “counter the exploitation of the weak by the powerful,”
but also to emphasize the human impact and dimension of global warming
and to imbue climate change “with a sense of gravity and moral urgency
that communicates to all of us.” 200
Human rights violations have formed the basis of legal actions alleging
harm from climate change impacts. The Inuit people, through the Inuit
Circumpolar Conference, an international NGO representing 150,000 aboriginal inhabitants of Alaska, Canada, Greenland, and Russia, on DecemId. at 259-60.
Id. at 261 (citing John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL
REVIEW 75, 103-179 (1980); the evolving concept of equal protection under the Fourth and
Fourteenth Amendments is an example of legal remedies to address such private imbalances).
195 Id. at 262.
196 Id. 261.
197 Id. at 265-66.
198 Id. at 268.
199 Id. at 268.
200 Id. at 271.
193
194
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ber 7, 2005 filed a petition with the Inter-American Commission on Human Rights (IACHR) claiming that the U.S., by failing to take action on
climate change, had violated their human rights under the American Declaration of the Rights and Duties of Man. 201 Impacts on the Inuit from
global warming included more rapid warming than in any other region,
including melting permafrost endangering infrastructure, thinning sea ice,
and rising sea levels making coastal and island communities more susceptible to storms and storm-surges. 202 The Inuit petition alleged violations of
the rights to life, well-being, preservation of health, residence and movement, and inviolability of the home. 203
Existing human rights standards must be flexible enough to adapt “to
the emergence of new threats to human dignity and well-being.” 204 There
are many broad rights in the UDHR, the ICCPR, and the ICESCR, as well
as other conventions, which may be invoked to address the threat climate
change poses to humanity at large. Although human rights law “places very
few obligations directly on private actors,” 205 states have responsibilities
under these international human rights instruments “to take action to
remedy the direct and indirect threats to these rights posed by climate
change.” 206 Indeed, global warming represents a threat to human rights
which may be regarded as “inherently global,” requiring “coordinated action on a global scale to solve,” thus triggering obligations of states parties
to the UN Charter to cooperate in addressing both the causes of global
warming (mitigation) and the costly impacts of climate change (adaptation). 207 The International Council on Human Rights Policy (ICHRP)
maintains that under these instruments states “carry the primary responsibility for protecting human rights,” including acting “to ensure that other
actors, including private and international actors, are not permitted to violate the right.” 208 The ICHRP further holds that such responsibilities extend to “the negotiation of a solution to climate change.” 209
Aminzadeh, supra note 174, at 239-40.
Id. at 244.
203 Id. at 240. The IACHR declined to review the merits of the petition on procedural
grounds, since “the information provided does not enable us to determine whether the alleged
facts would tend to characterize a violation of rights protected by the American Declaration.”
Id. at 240-41. See also id. at 238 (citing Gbemre v. Shell Petroleum Dev. Co. Nigeria Ltd. et
al., (2005) A.H.R.L.R. 151 (Ng. H.C. 2005), at para. 7(a)) (“gas flaring” held a human rights
violation because it “contributes to adverse climate change.”).
204 Hon. John von Doussa QC, et al., Background Paper: Human Rights and Climate
Change (Australian Human Rights and Equal Opportunity Commission, 2008), at 3,
http://www.humanrights.gov.au/sites/default/files/content/pdf/about/media/papers/hrand
climate_change.pdf. (last visited 24 Oct. 2011) (citing Philip Alston, Conjuring Up New
Human Rights: A Proposal for Quality Control, 78 AM. J. INT’L L. 607, 607 (1984)).
205 John H. Knox, Climate Change and Human Rights Law, 50 VA. J. INT’L L. 163, 165
(2009).
206 Doussa, supra note 204, at 4.
207 See generally Knox, supra note 205, at 212-18.
208 ICHRP Rough Guide, supra note 189, at 13.
209 Id. Although human rights law requires states to respect the rights of those outside
their own territory, there are legal, political, and practical obstacles to extending human
rights protections embodied in such instruments to transboundary harm, such as the harm
associated with GHG emissions. Professor John Knox suggests that the best approach may lie
with extending environmental human rights law to encompass climate change through the
201
202
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The “right to life” itself is protected by both the UDHR and ICCPR. 210
The impacts of climate change upon life can be immediate, as with deaths
associated with extreme weather events, or gradual, such as increased susceptibility to disease, reduced access to food and water, and diminished
health generally. In Oneryildiz v. Turkey, the European Court of Human
Rights found the Turkish government had violated the right to life contained in Article 2 of the ECHR for failing to prevent an explosion of methane gas from a garbage dump which killed 9 members of the applicant’s
family. 211 Therefore, failure of a government to take reasonable measures
to prevent environmental harm from climate change could constitute a
violation of the right to life.
The right to adequate food is specifically recognized in Article 11(1) of
the ICESCR, which recognizes the right “of everyone to an adequate standard of living . . . including food, clothing and housing,” and Article 11(2)
which requires states parties to ensure “the fundamental right to freedom
from hunger and malnutrition.” 212 The right to water is implied in a number of rights under the ICESCR, including the right to health (Article 12)
and the right to food (Article 11). The right to water is specifically included
in Article 24 of the Convention on the Rights of the Child (CRC) and Article
14(2)(h) of the Convention on the Elimination of Discrimination against
Women (CEDAW). 213 Water and food shortages may be expected to occur
in drought-stricken areas as well as areas fed by rivers with their origins in
shrinking glaciers, such as the Ganges, Indus, Brahmaputra, Mekong,
Yangtse, and Yellow Rivers. 214
Article 25 of the UDHR protects the right to health, providing that
“everyone has the right to a standard adequate for the health and wellbeing of himself and his family.” 215 Article 12(a) of the ICESCR recognizes
the right to “the enjoyment of the highest standard of physical and mental
health.” 216 Article 24 of the CRC requires states parties to ensure “the highest attainable standard of health” for every child. 217 Climate change poses
significant health risks, including, among other things: the worsening of
duty of international cooperation incorporated in Article 2(1) of the ICESCR and Articles 55
and 56 of the UN Charter. Knox, supra note 205, at 200-12. For example, Article 2(1) of the
ICESCR requires that each state party “take steps, individually and through international
assistance and cooperation” to achieve the goals of the Covenant. Id. at 206 (emphasis
added).
210 UDHR, supra note 47, art. 3 provides “everyone has the right to life, liberty and
security of person”; ICCPR art. 6(1) provides “every human being has the inherent right to
life.”
211 Aminzadeh, supra note 174, at 251 (citing Oneryildiz v. Turkey (GC), 2004-XII, Eur.
Ct. H.R. 657 (2004)).
212 ICESCR, supra note 189, art. 11(1), (2).
213 Doussa, supra note 204, at 5 (citing Convention on the Rights of the Child, art. 24,
opened for signature 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 Sept. 1990)
[hereinafter CRC]; Convention on the Elimination of Discrimination against Women, art.
14(2)(h), opened for signature 18 December 1979, 1249 U.N.T.S. 13 (entered into force 3 Aug.
1981)).
214 Id. at 6.
215 UDHR, supra note 47, art. 25.
216 ICESCR, supra note 189, art. 12(a).
217 CRC, supra note 213, art. 24.
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air pollution due to warming resulting in increased asthma attacks; stressrelated illnesses such as heat stroke; and the spread of infectious, rodentborne, and insect-vector diseases, including malaria and dengue fever. 218
The rights of indigenous populations, such as the Inuit, are protected
under the 2007 Declaration on the Rights of Indigenous People, including
the right to traditional cultural practices, customs, and institutions. 219 Because the cultural life of indigenous peoples tends to be intimately linked
to the natural environment, indigenous populations may be disproportionately affected by climate change. 220 The right to property, recognized by
Article 17 of the UDHR, may be of particular relevance to low-lying,
coastal, or island communities affected by sea level rise and increasing
vulnerability to storm surge and other extreme weather events. Because of
rising sea levels, homes in Papua New Guinea’s Cateret Islands have been
washed away and resettlement may be the only alternative. 221 The Maldives, consisting of 1200 coral islands in the Indian Ocean, are vulnerable
to tsunamis and storm surge from rising sea levels, and its former President Gayoom fears that, despite adaptation measures, “an environmentally
secure future” for the islands is in doubt. 222 In addition, the right to property has been recognized to guarantee the rights of indigenous peoples to
use their land for traditional cultural and subsistence uses. In the Belize
Maya case, the IACHR stated that the right to property is impeded “when
the State itself, or third parties acting with the acquiescence or tolerance of
the State, affect the existence, value, use, or enjoyment of that property.” 223
The right to privacy and family life is recognized under Article 12 of the
UDHR, Article 17 of the ICCPR, and Article 8 of the ECHR. 224 The European Court of Human Rights, in upholding a claim that pollution from a water plant violated a nearby resident’s right to her private and family life,
recognized that “the consequence of environmental degradation may so
affect an individual’s well being as to deprive her of the enjoyment of her
private and family life.” 225 In a case brought before the European Court of
Human Rights by residents living near London’s Heathrow Airport alleging the government’s failure to adequately regulate airport noise interfered
with their rights to privacy and family life under Article 8 of the ECHR, the
Chamber recognized the legitimacy of human rights-based jurisprudence
in the environmental context by requiring that the government balance the
Doussa, supra note 204, at 6; Aminzadeh, supra note 174, at 253.
Doussa, supra note 204, at 7 (citing United Nations Declaration on the Rights of
Indigenous Peoples art. 5, 9, 11, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (13 Sept. 2007)).
220 Id.
221 UDHR, supra note 47, art. 17; Aminzadeh, supra note 174, at 249.
222 Aminzadeh, supra note 174, at 250.
223 Maya Indigenous Communities of the Toledo District v. Belize (Belize Maya), Case
12.053, Inter-Am. Comm’n.H.R., Report 40/04 (2004)(Belize) at para. 140.
224 UDHR, supra note 47, art. 12 (“No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence . . .”); ICCPR art. 17 (“No one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence . . .”; ECHR art. 8(1) (“Everyone has the right to respect for his private and
family life, his home and his correspondence.”)
225 Aminzadeh, supra note 174, at 247 (citing Lopez Ostra v. Spain, 20 Eur.Ct. H.R. 277
(1995)).
218
219
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“economic well-being of the country” against “the rights of others,” holding
that: “States are required to minimize, as far as possible, the interference
with these rights, by trying to find alternative solutions and by generally
seeking to achieve their aims in the least onerous way as regards human
rights.” 226
The right to human security will be jeopardized by the impacts of climate change. Article 3 of the UDHR provides that everyone has the “right
to life, liberty and the security of person.” Article 9(1) of the ICCPR similarly recognizes that everyone “has the right to liberty and security of person.” Yet, the unabated global warming sought by climate change deniers
will undermine human security by reducing access to natural resources
necessary for survival, increasing the vulnerability of many populations to
poverty and social deprivation. 227 It is also likely to impair the ability of
governments to provide security as well as services necessary to enable
people to sustain themselves, increasing the risk of violent conflict. 228 In
the Yanomami case, the IACHR held that the Brazilian government, by
allowing the construction of a highway through indigenous territory resulting in the spread of contagious disease among the Yanomami, had violated
their right to life, liberty, and personal security by failing to protect the
integrity of their environment. 229 International Alert, a U.K.-based NGO,
has identified 46 countries containing 2.7 billion people where climate
change impacts, in combination with and perhaps exacerbating existing
economic, social, and political problems, will create a high risk of violent
conflict. 230
Of particular relevance with regard to climate change denial are a
number of rights to information and public participation incorporated in
both the UDHR and ICCPR. 231 The UDHR also protects the right to “share
in scientific advancement and its benefits,” a right which has arguably been
denied the public through the deceptive public relations campaign described in the earlier pages of this article. 232 Article 15(1)(b) of the ICESCR
similarly recognizes the right “to enjoy the benefits of scientific progress
and its applications.” The 1992 Rio Declaration on Environment and Development approved by the UN General Assembly included the following
principle:
226 Id. at 247 (citing Hatton and Others v. UK, Eur. Ct. H.R. 17 (2001)) (overturned on
appeal on the grounds that the correct balancing of the two interests had been performed,
Hatton and Others v. UK (GC), 2003-VIII Eur.Ct.H.R. 34 (2003)).
227 Doussa, supra note 204, at 8; Jon Barnett & W. Neil Adger, Climate Change, Human
Security And Violent Conflict, 26 POL. GEOGRAPHY 639, 651 (2007).
228 Barnett & Adger, supra note 227, at 651.
229 Martin Wagner, Global Warming and Human Rights: Testimony of Martin Wagner
Before the Inter-American Commission on Human Rights, EARTHJUSTICE (1 Mar. 2007), at 2,
http://earthjustice.org/sites/default/files/library/legal_docs/testimony-before-iachr-onglobal-warming-human-rights-by-martin-wagner.pdf (last visited 24 Oct. 2011).
230 Doussa, supra note 204, at 8.
231 ICHRP Rough Guide, supra note 189, at 49; UDHR, supra note 47, art. 19, 21; ICCPR
art. 19, 22, 25.
232 UDHR, supra note 47, art. 27(1).
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Environmental issues are best handled with the participation of all
concerned citizens . . . . At the national level, each individual shall
have appropriate access to information concerning the environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the
opportunity to participate in decision-making processes. States
shall facilitate and encourage public awareness and participation
by making information widely available. Effective access to judicial
and administrative proceedings, including redress and remedy,
shall be provided. 233
This principle, Rio Principle 10, is incorporated in the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters (Aarhus Convention). 234
Article 7 of the Aarhus Convention specifically addresses public participation, providing that: “Each Party shall make appropriate practical and/or
other provisions for the public to participate during the preparation of
plans and programmes relating to the environment, within a transparent
and fair framework, having provided the necessary information to the
public.” 235 Arguably, the public relations campaign designed to confuse
both the public and the government itself about climate change has violated this principle by preventing public participation in the policy debate
“within a transparent and fair framework.” 236
IV. CONCLUSION
They go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all
powerful to be impotent. The era of procrastination, of half
measures, of soothing and baffling expedients, of delays, is coming to a close. In its place, we are entering a period of consequences. —Winston Churchill 237
233 United Nations Conference on Environment and Development, Rio de Janeiro, Braz.,
3-14 June, 1992, Rio Declaration on Environment and Development, Principle 10, U.N. Doc.
A/CONF.151/26/Rev.1 (Vol. I) Annex I (12 Aug. 1992).
234 Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters, Aarhus, Denmark, 25 June 1998, 2161 U.N.T.S.
447 [hereinafter Aarhus Convention].
235 Id. art. 7 (emphasis added).
236 Note also that the International Council of Science (ISCU), an NGO with global
membership of scientific bodies representing 141 countries, has established the Principle of
the Universality of Science based on general principles of human rights embodied in the
UDHR, including the “right to share in scientific advancement and its benefits.” See Bengt
Gustafsson, Scientists In Contemporary Wars, 55 DEV. DIALOGUE 13, 15 (The Dag
Hammarskjöld Centre, Uppsala, Sweden, Mar. 2011), www.dhf.uu.se/wordpress/wpcontent/uploads/2011/03/dd55_web.pdf. Climate change denial may infringe upon this
right. Parallel human rights protections can be found in the Fourth Geneva Convention of
1949 and its protocols, the 1966 ICESCR and ICCPR, the UNESCO World Heritage
Convention, and other international treaties. Id. at 15-18.
237 Al Gore, THE ASSAULT ON REASON 209-10 (2008) (quoting Churchill on the coming
crisis of World War II; Gore adds the following: “The warnings about global warming have
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As a strong consensus began to emerge in the 1990s among climate
scientists worldwide that human caused global warming and its climate
effects posed a grave threat to humankind, certain elements within the fossil fuel industry and its dependents began an extensive, well-funded, and
organized public relations campaign to keep that knowledge from the public and governmental policymakers. As a tribute to the power of corporate
propaganda, it appears to have been highly successful. Thus, not only is
governmental response to the crisis paralyzed, but the ability of the United
States as the world’s leading superpower to take the lead on climate change
has been compromised. Without such leadership, international bodies may
be powerless to act in time to save humanity from the worst effects of climate change. The public relations campaign described above is, therefore,
extremely harmful to humankind and in its broad effects infringes upon
countless human rights.
The concept of “crimes against humanity” was first developed in the
Nuremberg prosecutions to characterize an unprecedented conspiracy of
such magnitude and contempt for humanitarian norms as to have no
name, a “being without a face,” to borrow a phrase from the Haudenosaunee. 238 Among those crimes was the use of propaganda, without which
the Nazi and Rwandan genocides may not have been possible. Naming a
crime that has been committed, however, no matter how broad and audacious was not intended to shield future crimes of international scope or
concern from sanction through a restrictive definition. Such crimes have
no “face” but should not escape punishment through the cloak of invisibility a narrow reading of the Rome Statute would give them. Thus, it was
recognized that the concept of “crimes against humanity” was to be an
evolving one, broad enough to encompass “new forms” of harmful acts of
concern to the international community as a whole, with grave and longlasting effects upon large populations. Certainly, the plan to conceal the
dangers of climate change from the public in the pursuit of profit described
above qualifies under this definition.
The Rome Statute was designed to be flexible enough to punish such
devastating and far-reaching affronts to humanity, even if the world had
previously no experience of, nor need to specifically sanction them. The
Industrial Revolution has magnified our ability to alter the natural environment: in the past few decades, it appears that we have arrived at the
point where it is within our power to destroy the natural world, 239 calling
into question “the most deeply held assumptions of Western civilization–
that the Earth’s resources are infinite and that humans have a right to exploit them without restraint for their own benefit.” 240 With such vast new
powers come commensurate obligations; those that, arguably, the interna-
been extremely clear for a long time. We are facing a global climate crisis. It is deepening. We
are entering a period of consequences.”).
238 The Haudenosaunee or “People of the Longhouse” are also known as traditional
Iroquois. See John Bierhorst, IN THE TRAIL OF THE WIND; AMERICAN INDIAN POEMS AND
RITUAL ORATIONS 89 (1971).
239 See, e.g., Hansen, supra note 7, at 223-36 (Ch. 10, The Venus Syndrome).
240 Hamilton, supra note 22, at 37-38.
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tional community has both the right and the moral duty, if not the selfinterest, to enforce.