week 5: civil disobedience, criminal law and defences Flashcards

Question

Case: Geneva (CH 2020)

Answer 1

** Case concerning climate necessity:** ▪ Defendant climate activist that participated in demonstration where red bloody handprints left on Swiss bank (washable, not permanent damage) ▪ Defendant charged w damaging property **First-instance court judgement:** Conviction of defendant **Appellate court:** Acquittal: --> justified by state of necessity (14 Oct 2020) 1. Imminent danger to legitimate interests: - The climate necessity poses a danger to some of most precious individual interests ◊ Notably life and bodily integrity ◊ Assesment in line w recognition of CC dangers as HR -> This danger is acute, concrete and exacerbated by gov inaction 2. Subsidiarity: - From POV of activist there were no other options but civil disobedience in order to pressure bank into fossil fuel divestment ◊ Defendant in good faith acting in belief there were no other options -> ['erroneously assumed state of necessity'] **Further appeal (Swiss Federal Supreme Court (TF 6B_1298/2020 & 6B_1310/2020)):** ▪ Overturned acquittal by Appellate court (28 Oct 2021) reasoning: ◊ The conditions for applying necessity defence under Art. 17 Swiss CC not met -> No state of necessity Court alleged 'vandalism' falls outside protective scope of freedom of expression and assembly short-term immediate danger that could not have been averted otherwise

Answer 2

**Concerned necessity defence in context of animal protective necessity** ▪ systematic animal abuse in factory farming ▪ Animal rights activists received anonymous tip abt animal rights violations in pig breeding facility ◊ Knew from prior experience that reporting animal rights violations to competent authorities wouldn't be pursued/only pursued if corroborated w evidence like videos ▪ 3 activists illegally entered pig breeding facility in night to produce necessary video footage to back claims ◊ Documented massive violations in animal rights ▪ 3 defendants charged w criminal trespassing **Trial court and appellate court** ▪ Both acquitted actions ▪ Held actions justified on basis of necessity -> Confirmed in last instance at regional high court of Naumburg ◊ Animal welfare is firmly entrenched public interest whose endangerment can create state of necessity ◊ Massive violations perpetrated in facility constituted present and enduring danger to legal code of animal welfare ◊ Danger could not have been averted by other means - Engaging relevant authorities would have been futile - Competent authorities had prior knowledge of violations and failed to act on them and even covered them up -> Due to state's inaction activists actions were justified and necessary to protect legal code of animal welfare

Answer 3

Civil disobedience is an ideologically neutral tactic ○ Can we come up with good rule for political necessity that is not sensitive to substance of political cause at hand? Theoretical problem: ○ Civil disobedience involves illegal acts to be committed bc they are illegal ▪ (communicating an ongoing state of injustice) -> accepting punishment (fidelity to RoL) -> Civil disobedients claiming necessity contradict the philosophical foundation of the practice

Answer 4

* Self-defence is a justification: it makes an otherwise illegal act lawful when used to defend against an imminent unlawful attack (by a person). It requires necessity (no less intrusive option) and proportionality (force must match the threat). * Necessity is also a justification, but arises from imminent danger (not necessarily human). It involves choosing the lesser of two evils to protect a more valuable legal interest (e.g., breaking a law to save a life). * Self-defence excess is an excuse, not a justification. It applies when someone uses disproportionate force due to a strong emotion caused by the attack. It acknowledges that the act was wrong, but not blameworthy due to emotional overwhelm. * Key difference: * Self-defence responds to unlawful human attack. * Necessity responds to non-human or general danger. - Excess allows emotional mistakes in otherwise lawful self-defence.

Answer 5

*** Necessity Defence → Justification** ○ Why? Because the act itself is considered the right thing to do in the circumstances. ○ The person breaks the law to prevent greater harm, e.g., breaking into a house to escape a wildfire. ○ The act is not wrongful, as it serves a higher legal interest — it's the lesser evil. ** Self-Defence → Justification** ○ Why? Because defending oneself or another against an unlawful, imminent attack is seen as legally and morally acceptable. ○ The act (e.g., using force) is not wrong if it's necessary and proportionate. ○ The law recognizes the right to self-preservation. **Self-Defence Excess → Excuse** Why? The act is still wrongful (excessive force), but the person is not fully blameworthy. ○ Due to intense emotion caused by the attack (fear, panic, rage), the person loses control. Law excuses the actor, but not the act — acknowledges human frailty in extreme situations.

Answer 6

**Issue:** Can the climate activists from "Rescue the Planet" invoke the defence of necessity under Dutch Criminal Code Article 40 to justify their unlawful protest (throwing soup at Vermeer’s The Milkmaid and gluing themselves to the museum wall), despite being charged with property damage? **Rule** Under Dutch law necessity defence is justification -> act itself is not considered wrongful if it was committed to avert a greater harm necessity requirements: 1. Imminent danger to legitimate interest (e.g. life, health, bodily integrity); 2. Subsidiarity: act was the least harmful means to avert danger; 3. Proportionality: harm caused less serious than the harm prevented (lesser of two evils) Climate necessity defences have been argued in countries like Switzerland and Germany but with mixed results depending heavily on immediacy of danger, availability of alternatives, and whether interest protected was individual/ collective. **Application:** 1. Imminent Danger The activists argue climate change poses an imminent danger to life, health, and future generations. This aligns with Swiss and German courts recognizing climate change as a serious and legitimate threat. However, courts often demand short-term, concrete danger to justify necessity. Climate change is often viewed as a long-term structural threat, which Dutch courts might not interpret as sufficiently “immediate.” 2. Subsidiarity (Least Harmful Means) activists may claim that legal methods (e.g. protests, lobbying, petitions) have failed to produce results, and civil disobedience was the only way to draw attention and provoke action. Yet, courts could argue that less harmful means (e.g. lawful protest) still exist, and damaging property crosses the line of necessity, especially given the symbolic rather than direct nature of the act. 3. Proportionality The activists only damaged the frame, not the painting itself. They may argue that the symbolic act (throwing soup) caused minimal material damage compared to the global and irreversible harm caused by climate inaction. Still, courts may hold that targeting art — even symbolically — is disproportionate given its cultural value and public access function. 4. Comparative Case Law Like the Lausanne and Geneva cases in Switzerland, Dutch courts may conclude that climate change, while serious, does not justify criminal damage under necessity unless: □ The danger is short-term and personal; □ All lawful alternatives are exhausted; □ The act is directly capable of averting that danger. * In Germany’s animal rights case, the necessity defence succeeded because: □ Authorities were proven unresponsive; □ The activists documented specific, ongoing abuse; □ No alternatives existed. This fact-specific success is harder to apply to general climate protests. Conclusion: While morally compelling and politically principled, invoking the defence of necessity to absolve the “Rescue the Planet” activists is legally unlikely to succeed in Dutch courts. The danger of climate change is real, but may not meet the legal criteria of immediacy, subsidiarity, and proportionality. The courts are likely to distinguish civil disobedience from legal justification, emphasizing that climate urgency does not automatically justify damaging property — especially symbolic targets like cultural heritage. Still, even if the necessity defence fails, the case could serve as an opportunity to argue for leniency in sentencing, based on the conscientious, non-violent, and sincere nature of the protest — key traits of civil disobedience.

Answer 7

✅ Yes — “Rescue the Planet” engages in civil disobedience. Despite committing an unlawful act, the group’s protest satisfies the core elements of civil disobedience as described by Rawls and Brownlee: **1. John Rawls' Definition** Rawls defines civil disobedience as a public, non-violent, conscientious, political law-breaking act aimed at changing laws or policies. 1.Public: - The activists acted openly, filmed their protest, and shared it on social media. 2. Non-violent: - No person was harmed, and the act targeted symbolic property (protected art). 3. Conscientious: - The activists acted out of moral conviction concerning the climate emergency. 4. Political aim: - Their stated goal was to pressure governments to end fossil fuel licensing and production — a clearly political objective. ✅ Conclusion under Rawls: The group’s actions fall squarely within Rawls’ definition of civil disobedience. ****2. Brownlee’s Features of Civil Disobedience Brownlee offers a more detailed framework, focusing on principled disobedience and civility: (1) Principled Disobedience 1. Law-breaking: - Yes, they unlawfully damaged property (the painting’s frame). 2. Principledness: - Their action was aimed at drawing attention to a climate crisis, motivated by serious moral concern. 3. Conscientiousness: - Their protest was deliberate, sincere, and serious — not done out of recklessness or self-interest. (2) Civility 1. Communication: - The act was expressive and symbolic (soup = "code red" for the planet). 2. Publicity: - It was conducted openly, not secretly. 3. Non-violence: - No violence was used against people. 4. Non-evasion: - They accepted arrest and did not resist police — showing willingness to face legal consequences. 5. Decorum: - While provocative, their conduct did not involve obscene or degrading behaviour. (3) Fidelity to law: - By submitting to legal consequences, they acknowledged the legal system while appealing to higher principles of justice. ✅ Conclusion under Brownlee: "Rescue the Planet" meets the core standards of principled, civil, and conscientious disobedience. **Potential Challenge: ** Property Damage * Some may argue that damaging the artwork’s frame crosses a moral or legal line. But many scholars (including Brownlee) recognize that symbolic, minimal, or reversible damage does not disqualify an act from being civil disobedience — especially when: □ The target is symbolic (cultural rather than personal); □ The harm is limited and not wantonly destructive; □ The goal is clear communication of injustice. **✅ Conclusion** Yes, "Rescue the Planet" engages in civil disobedience under both Rawls’ and Brownlee’s frameworks. Their protest was deliberate, public, non-violent, symbolic, and morally driven, aimed at triggering political reform. The fact that it involved property damage does not negate its status as civil disobedience — it highlights the tension between legality and moral urgency that defines such acts.

week 5: civil disobedience, criminal law and defences Flashcards

(31 cards)