THE RIGHT OF HARMFUL PROTEST

PROPORTIONATE FERAL DEFENCE OF WILD NATURE

How could international law—its specific regimes and on the whole—change in order to better curb problems of global warming? What could a different law look like? Why does such a law not (yet) exist; what would it take to come into being?

This article links the International Humanitarian Law (IHL) principle of proportionality in attack to legal actors exercising an extreme form of International Human Right Law (IHRL), a “harmful public protest” in self-defence of the Earth. This at first glance will be unpopular, dangerous and politically baron, but arguably pragmatic considering the nihilistic challenges global warming will present. It is submitted that attaching the well-developed principles of IHL to all legal persons, particularly eco-terrorists (and inadvertently other fanatical actors) will in the long-term save civilian lives, foster deradicalisation in extremists and contribute to curbing problems of global warming by proportionally disrupting corporations with environmentally unfriendly business practices. I call this proportionate international eco-vigilantism.

1. INTRODUCTION

Section 2 begins with a comment on the 2019 Extinction Rebellion (XR) UK High Court case, considered a win by XR, upholding the people’s fundamental right to peaceful protest.[1] Section 3 sketches out a Black Mirror style dystopian future, where environmental protest has been taken to the extreme. Section 4 makes the case for the IHL principle of proportionality to be applied to the IHRL principle of protest, in an novel effort to curb global warming. Section 5 recognises the numerous problems involved in such an exercise.

Revolution is easier than reform.[2]

2. THE BEGINNINGS

On 6 November 2019 the UK High Court of Justice maintained an ‘increasingly liberal attitude’ to the widening scope of legal persons[3] who have standing to bring ‘real and genuine’ claims that ‘represent the public interest’.[4] By allowing three claimants judicial review (a form of administrative review) the London Metropolitan Police’s October 2019 blanket ban of Extinction Rebellion’s (XR) peaceful climate emergency protests was quashed,[5] rendering the arrests of hundreds of protestors unlawful.  

Though the XR case is more nuanced than the remit of this paper allows, when XR’s right to “peaceful” protest is considered in comparison to the right of protest for non-peaceful extremist persons, sometimes labelled ‘eco-terrorists’, what should international law’s response be to a more radical form of often transnational protest? This radical form of protest is unlikely to ever be legal under the European Convention on Human Rights[6] or the International Covenant of Civil and Political Rights,[7] the lex lata of the Human Rights regime, but as we stand closer to the global warming precipice are extremist protests necessary? Are we at a point where revolution really is easier than reform?

3. BLACK MIRROR SCENARIO

This paper will proceed envisaging an exaggerated but realistic hyper-globalised near-future where militant green anarchism and eco-terrorism has proliferated, gaining some social and political support, shifting the Overton window from unthinkable to radical. The extremists have to an extent become indistinguishable from their far-right ‘gun-toting thugs in bulletproof vests’[8] counterparts.

Across much of the world, the green anarchists, championed by the Mexico-based Individualidades Tendiendo a lo Salvaje (ITS), and a catch-all unity movement of those citing freedom of expression, including the influentialanti-vaccine and anti-lockdown (AVAL) coalition have organised into a populist political alliance, gaining influence across the globe. Regional independence groups and stop-the-war movements, rejecting mainstream politics, have sympathy with the ‘Direct Action’ coalition.

After two terms the Republicans lose power to an 83-year-old socialist Democrat with environmental policies at the center of his campaign, vowing to immediately encourage action supporting any measure to tackle global warming.

Attempting to widen the ratione personae of the UN Charter, the protestors claim their legal basis for any threats of or use of force in the inherent right of self-defence, in defence of the Earth, or make tenuous links to statements by UN organs vis-à-vis the Security Council regarding fighting climate change as legal authorisation.

4. THE RIGHT OF HARMFUL PROTEST: PROPORTIONATE ‘FERAL DEFENCE OF WILD NATURE’

Public protest, linked to freedom of expression, ranges from peaceful expression of views to rioting and violence.[9] The more forceful end of the spectrum is known as ‘Direct Action’ and though cannot be termed ‘speech’ it is justified in order to draw attention to a cause of immense importance in a democracy, previous examples including the Suffragette and the Civil Rights movement. In European jurisprudence, forms ‘Direct Action’ has historically been found to fall within Article 11 ECHR.[10]

This paper is premised on the fact that harmful protests [‘in feral defence of wild nature’][11] are highly likely to happen. International law should be pragmatic and try to minimise collateral damage. To achieve this, legal persons conducting harmful protests should be subjected to the IHL principle of proportionality in attack. This should not in any way legitimise or condone acts of terrorism. This is not a jus ad bellum discussion. This will attempt to regulate the collateral damage of what some consider imperative measures to curb problems of global warming. In doing so, industry that flagrantly disregards its global warming commitments will be legally subject to harmful protest, forcing them to reconsider their practices.

The IHL principle of proportionality in attack is a customary principle of international law in both international and non-international armed conflicts (IAC and NIAC).[12] The principle is also codified in various international weapons conventions, as well as the near universal Additional Protocols I and II of the Geneva Conventions.[13]

The principle, enunciated in Rule 14 of the ICRC’s IHL Database is:

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.[14]

The ‘military advantage’ aspect will need to be redefined, perhaps simply exchanging ‘military’ for ‘environmental’. Of course, the devil will be in the accompanying commentary’s detail. For guidance, one may look to general principles in Rule 8, again exchanging ‘military’ for ‘environmental’:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[15]

Whilst feeling uncomfortable in legalising a proportionate attack causing collateral damage to civilians, and controversially advancing the applicability of IHL principles firmly on non-State actors (or even renegade “lone-wolves”), to the preclusion of criminal law, the objective of this exercise is to delimitate and manage harmful protests of eco-terrorists and to discredit and undermine those who unreasonably cross the proportionality threshold.

4. CONCLUSION

The satirical Black Mirror tone taken in Section Two demonstrates to a degree of realism how society may shift in support of eco-terrorism. Chaos would ensue. Industry, society and the democratic world could collapse by the extremist actions taken in the name of the environment, or those using environmentalism as a thin veneer for anarchism.

It is unlikely that XR will launch a massive cyber and kinetic strike on the planet’s entire oil industry, or authorise the assassination of all meat-eating civilians, citing collateral damage of global protest. But, by setting established IHL principles as limitations upon IHRL principles of protest this paper suggests that proportionate international eco-vigilantism will be a radical and novel form of checks and balances that is required on industry to contribute to curbing global warming.

5. RECOGNISED PROBLEMS

  • Reconceptualisation of fundamental IHL principles.
  • Extreme stretching of IHRL principles.
  • Widening of international legal personalities.
  • Unlikely assessment that anarchists and extremists will respect proportionality rules.
  • Political impossibility.
  • Extension of Art 51 Self-Defence.

[1] Zoe Blackler, ‘Extinction Rebellion wins landmark legal challenge to Met Police ban on peaceful protest’ [6 November 2019]  https://rebellion.earth/2019/11/06/extinction-rebellion-wins-landmark-legal-challenge-to-met-police-ban-on-peaceful-protest/ accessed 10/05/2020

[2] T. Kaczynski ‘Industrial Society and Its Future’ [1995]

[3] Nollkaemper et al Guiding Principles on Shared Responsibility in International Law’ in European Journal of International Law [2020]

[4] Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure [2013]

[5] Jones et al v The Commissioner of Police for the Metropolis, UK High Court [2019] at para 77

[6] Particularly, Articles 9 to 11 European Convention on Human Rights [1953]

[7] Particularly, Articles 18 to 22 International Covenant on Civil and Political Rights [1966]

[8] NowThis ‘Author Confronts Anti-Lockdown Protestors Along With Warning for November Election’ [5 May 2020] https://news.yahoo.com/author-confronts-anti-lockdown-protesters-214000015.html accessed 11/05/2020

[9] Fenwick, ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’ [1995]

[10] Christians against Racism and Fascism v UK, UK House of Lords [1980]

[11] Individualistas Tendiendo a lo Salvaje, ‘Manifesto of the End’ [20 June 2019]

[12] ICRC, ‘Rule 14 Proportionality in Attack’ https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14 accessed 11/05/2020

[13] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. And Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

[14] Ibid 12

[15] ICRC, ‘Rule 8 Definition of Military Objectives’ https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule8 accessed 11/05/2020

Published by Luke James

Visiting Professional Political and Security analyst at the ICC, research associate Center for the Study of Democracy, Defence Human Security Advisor Legal research interests in conflict and security law, emerging technologies and the intersection with human security.

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