UN Rights Experts Challenge Germany's Criminalization of Climate Protests

The letter of the UNHRC Special Rapporteurs:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicati…

Statement of the Federal Republic of Germany
in response to the letter of the Special Rapporteurs: https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=38776

1. Introduction

These two letters refer in a collegial but adversarial manner to matters before the courts in Germany. There is significant consensus that peaceful protest seeks to advance democratic discussion and decision making; however, what constitutes legitimate and peaceful protest, and what is viewed as peaceful assembly, are contested.

There is a perceptible antagonism over legitimate means: principles inform the view of the Special Rapporteurs that protest actions are legitimate insofar as they are peaceful and proportional, in this case to the multiple threats to human rights that the climate crisis represents; against this, the German Government’s view is more narrowly legalistic, maintaining that the possible criminality of actions must be the primary consideration. Consistent with these diverging views, the German Government makes much of the Euro value of all property damage or additional costs caused by Letzte Generation (LG) direct actions, which is central to the criminal case, but at no point do the special rapporteurs indicate concern for the level of property damage or other resulting monetary costs from any of the direct actions.

Central to this exchange of letters is that peaceful protest is not criminal, and that what is criminal, by definition, is not peaceful. The UNHRC Special Rapporteurs are inclined to view the direct action of LG as proportionate, civically minded, legitimate and peaceful protest, whereas the Federal Government of Germany would appear to largely exclude direct action from its definition of peaceful protest.

The special rapporteurs have a tolerant view of direct actions that infringe on the German domestic fossil fuel infrastructure and that limit the enjoyment, especially of the wealthy, of property rights; and, the Special Rapporteurs are critical of the application of the criminal code to direct actions, where the aims guiding those actions are both in advance of government performance and entirely in concert with agreed international goals and principles.
There is no suggestion that the German Government has done anything other than met the requirement “to cooperate with and assist the Special Rapporteur[s] in the performance of his or her [or their] tasks, to provide all information and to respond to the communications transmitted to them by the Special Rapporteur without undue delay” (see 3).

2. The United Nations Human Rights Council

The UN Human Rights Council, responsible for the promotion and protection of human rights around the globe, meets at the United Nations Office at Geneva. The UNHRC is a representative intergovernmental body within the United Nations organisation, made up at any one time of 47 States in a system providing for equal representation of six global regions. Memberships revolve six yearly through two terms of three years. Insofar as the UNHRC has an idea that guides its mission to protect human rights, it is that with respect to human rights all jurisdictions are one, as human rights are universal, indivisible, interdependent and interrelated.

3. Special Rapporteurs

Special rapporteurs are independent experts appointed by the UN Human Rights Council to investigate, monitor, and report on human rights issues from either a thematic (46 mandates) or country-specific (14 mandates) perspective. These are voluntary, non-salaried positions; rapporteurs serve in a personal capacity rather than as UN staff.

Special rapporteurs operate under the UN's special procedures, providing impartial reports and recommendations to the Council, or General Assembly, to uphold international human rights standards. Their role includes engaging with governments, civil society, and victims, conducting country visits, and addressing human rights concerns through formal letters, often directed to heads of government.

Thematic mandates are assigned according to expertise; mandates are held for three years, renewable once, with a maximum tenure of six years. Five thematic special rapporteurs have investigated the criminal prosecutions of LG in Germany.

4. The letter of the Special Rapporteurs

On 1st October 2024 UNHRC special rapporteurs wrote to the German Government about the criminal cases being brought against LG, imposing a 60 day deadline for a response from the German Government.

The subject line of the letter states the five mandates held by the special rapporteurs, the signatories to the letter:

(1) Mary Lawlor, Special Rapporteur on the situation of human rights defenders
(2) Elisa Morgera, Special Rapporteur on the promotion and protection of human rights in the context of climate change
(3) Astrid Puentes Riaño, Special Rapporteur on the human right to a clean, healthy and sustainable environment
(4) Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
(5) Gina Romero, Special Rapporteur on the rights to freedom of peaceful assembly and of association
The letter is addressed “Excellency”, a standard diplomatic usage addressing the head of government, in this case Chancellor Olaf Scholz.

The opening paragraph is a verbatim restatement of the subject line with this addition: “pursuant to Human Rights Council resolutions 52/4, 48/14, 55/2, 52/9 and 50/17”; five resolutions codifying and clarifying the respective human rights standards in the five mandates of the special rapporteurs. Individually and collectively these resolutions represent a potential archive of legal defense, given the characterisation of LG by the special rapporteurs as human rights defenders.

Overview of the letter: a summary of fact finding with respect to the criminal proceedings against LG is followed by a request for information from the government, which is followed by a strongly worded insistence that the German Government both prevent and sanction judicial overreach. The list of signatories follows and the letter concludes with an annex, “Reference to Human Rights Law”, which references articles 17, 19 and 21 of the International Covenant on Civil and Political Rights ICCPR.
The special rapporteurs’ view of LG is initially clearly stated: “Letzte Generation is a climate activism group. It engages in non-violent, public civil disobedience with the aim of bringing about lasting change in the approach to the climate crisis by the German Federal Government.”

A major discrepancy in the application of the law is pointed out: “We note that section 129 is primarily used to target organised criminal groups seeking to enrich themselves through illegal acts, or who pose a threat to the public, and underline our fear that in this case it appears to be being misused to sanction acts of civil disobedience.”

Further, the special rapporteurs find a disparity between the criminal charges and the peaceful, transparent, rational and public spirited conduct of LG: “Without wishing to express agreement or disagreement with the form of activism taken by Letzte Generation, we underline our strong concern that such a serious charge has been brought against members of the group, the acts of which are non-violent, carried out publicly, appear to pose no threat to the public, and are motivated solely by legitimate, well-founded concerns about climate change and its impact on human rights.”

It is illuminating to read the description of the charges that are provided by the special rapporteurs, with in each instance context provided, most frequently on the aims of the protest actions, but also on transparent communications with police, conduct indicative of due diligence, statements on the limitedness of disruptions and lack of danger. It is assumed by the special rapporteurs that protest has to be context relevant, i.e. situated where relevant infrastructure is and where protested activities take place. Relevant direct action targets clearly include: disruption of fossil fuel infrastructure; interrupting the excessive and wasteful consumption of the wealthy; and, making passionate challenges to discrepant systems of social valuation, for example publicly contesting the valuation attached to collecting art in the context of the climate and biodiversity crises.

Re. “21 May 2024, the Neuruppin state prosecutor’s office issued a press release announcing charges of forming a criminal organisation, as defined in section 129(1) of the German Criminal Code, brought against Ms. Herrmann, Mr. Jeschke, Mr. Schulz, Mr. Popp and Mr. Beyer based on their activism as members of Letzte Generation.”

“The acts cited by the state prosecutors as the basis for these charges included the blockade of a fuel depot and shutting off or attempting to shut off oil pipelines by turning valves designed to stop the operation of such pipelines in emergencies, in both instances to call for an end to the development of fossil fuel infrastructure; throwing food on the glass and frame of a painting in the Barbarini Museum, without damaging the painting, to draw attention to the climate crisis; entering the runway at Berlin-Brandenburg airport and disrupting air traffic for 90 minutes to call for the public to stop traveling by air and for the Government to end subsidies for air travel and expand subsidies for travel by train, in an action they informed the police of in advance; and entering the runway at Schönefeld airport and spraying a private jet with orange paint. For each of these actions, they wore high-visibility vests.”

Re. “19 June 2024, the Flensburg prosecutor’s office issued a press release announcing charges brought against Ms. Meyer on the basis of her activism as a member of Letzte Generation.”

“The acts cited by the prosecutors as the basis for these charges included shutting off and attempting to shut off oil pipelines by turning valves designed to stop the operation of such pipelines in emergencies, to call for an end to the development of fossil fuel infrastructure; entering the security area of Munich International Airport and blocking the northern runway for approximately 40 minutes, causing minor delays but no flight cancellations, in a protest calling for stronger climate action; entering the security area of the Berlin-Brandenburg International Airport, riding bikes to the terminal used by private and business planes, and spraying a private jet with paint to protest against the climate impact of high-wealth individuals, in an action which at no point posed a danger to air traffic, according to Berlin police; entering into the security area of Sylt Airport, spraying a private jet with paint, unfurling banners in protest against the climate impact of high-wealth individuals and recording a speech calling for stronger environmental regulation and laws in Germany, in action that did not affect air traffic; entering a golf course at a hotel and planting trees and flowers on the green to draw attention to the climate impact of highwealth individuals and water scarcity; and tossing tennis balls soaked in white paint at the facade of the Bavarian State Parliament building as a method of drawing attention to storms in the state and call for action to prevent future extreme weather events.”

The Special Rapporteurs conclude: “In particular, we express our concern at the necessity and proportionality of the investigation into Letzte Generation on the basis of section 129 of the German Criminal Code, including the specific investigative measures taken. We note that section 129 is primarily used to target organised criminal groups seeking to enrich themselves through illegal acts, or who pose a threat to the public, and underline our fear that in this case it appears to be being misused to sanction acts of civil disobedience. …we underline our strong concern that such a serious charge has been brought against members of the group, the acts of which are non-violent, carried out publicly, appear to pose no threat to the public, and are motivated solely by legitimate, well-founded concerns about climate change and its impact on human rights. We also note with serious concern that the accusation of forming a criminal organisation would not only criminalise the members of Letzte Generation, but any person deemed to be supporting them, exposing any such person to a sentence of up to three years’ imprisonment. We also express our concern about the failure to guarantee members of the climate action group Letzte Generation their right to peaceful assembly and free expression as well as to guarantee the group their right to access and managing [sic. - “managing” should read “manage”] resources, that is an intrinsic part of the right to freedom of association.”

The Special Rapporteurs letter has an Annex, in effect a separate document, “Reference to international human rights law,” which “cites international human rights instruments and standards relevant to these allegations.”

The Annex begins with this statement: “In connection with above alleged facts and concerns, we would like to refer your Excellency’s Government to articles 17, 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Germany on 17 December 1993, which guarantee the rights to privacy, freedom of expression and peaceful assembly.”

Of particular interest are remarks in relation to article 21 of the ICCPR, in the UNHRC’s general comment No. 37 (that this is relevant law is acknowledged in the letter of the German Government): “Elaborating on the obligations of state parties to the Covenant stemming from article 21, the Human Rights Committee, in general comment No. 37, has stressed that peaceful assemblies “can in some cases be inherently or deliberately disruptive and require a significant degree of toleration. ‘Public order’ and ‘law and order’ are not synonyms, and the prohibition of ‘public disorder’ in domestic law should not be used unduly to restrict peaceful assemblies.” Concerning direct action and civil disobedience, the Committee further stressed that collective civil disobedience or direct action campaigns “can be covered by article 21, provided that they are non-violent” (Human Rights Committee, General Comment No.37, CCPR/C/GC/37, paras 44 & 15-17).

5. Statement of the Federal Republic of Germany in response to the letter of the Special Rapporteurs

The German Government responded within the 60 day deadline, on 18th November 2024, to the letter of the special rapporteurs.

The statement is presented in paragraphs grouped in three sections:

• A. Status of the proceedings (paras 2-9);
• B. Legal observations (paras 10-23); and,
• C. Conclusion (para 24).

Section A., Status of the proceedings, is a more or less factual summary/overview of the cases.

Section B., Legal observations, is introductory remarks and commentary in two sections

Section C. Conclusion, concludes the letter in a cordial spirit: “The Federal Government appreciates that the Special Rapporteurs are paying close attention to this matter; however, it is convinced that the independent judiciary of the Federal Republic of Germany will achieve appropriate outcomes that are consistent with human rights principles.”

The reply rejects the “allegation of misuse of section 129 of the Criminal Code to sanction acts of civil disobedience”, maintaining that the judiciary functions independently: “Courts in the Federal Republic of Germany are not subject to the influence of the executive branch”.

The reply makes interesting use of the observation that the matters are not yet adjudicated: “That the activities of Letzte Generation fulfill the constituent elements of section 129 of the Criminal Code cannot be entirely ruled out…until the matter has been examined by the court. In any event, there is contentious debate surrounding this issue in the legal literature.” While on the face of it this is the government expressing low confidence in the likely success of the criminal prosecution, it is also a moment mixing scholarly objectivity with polite diplomatic accommodation, signaling respect for the views of the special rapporteurs; further, it is a way for the government to indicate its lack of involvement in the prosecutions and freedom to dispassionately observe from the sidelines. And, in doing so, dispensing with the grave tone that predominates elsewhere in the letter.

The reply acknowledges the standing of UN treaty obligations in German law: “Ultimately, however, it is the assessment of the courts that counts, and these must take into account Germany's international obligations, including those arising from the ICCPR [International Covenant on Civil and Political Rights].”

Paragraph 16 refers to the existence of the judicial obligation for criminal investigation, due to the “principle of mandatory prosecution.” Therefore, “the [criminal] investigations are by no means an arbitrary act, but rather a lawful procedure.”

Paragraphs 17 & 18 provide a grim description of the actions and charges against members of LG cited from the prosecution.

Paragraph 20 has an interesting error, or typo: “The Federal Government believes that the German system of rule of law and judicial review makes a reasonable distinction between interference in democratic decision-making and permissible civil obedience in the pursuit of a political goal, while ensuring that international and constitutional requirements are taken into account.” The word “obedience” here should read “disobedience” as otherwise the statement is that limits exist on permission for civil obedience, which is surely not the point being made. Ironically, of course, the deeper truth is that there are necessary moral limits on civil obedience, which is the mandate of LG: the dictates of responsible citizenship require departing from strictly law abiding conduct: where the state fails in its responsibilities, a rendezvous with the judiciary is the destiny of courageous groups and individuals.

Paragraph 22 is a statement requiring that peaceful protests cause minimal to no disruption and so forgo the whole suite of creative and potentially effective acts of civil disobedience. This paragraph commends the option of taking legal action through the courts: “the German legal system provides extensive opportunities to publicly address legitimate concerns through assemblies, expressions of opinion or even legal action and to thereby bring about the adoption of relevant measures. The association “Environmental Action Germany” (Deutsche Umwelthilfe e.V.), for example, has successfully taken aspects of the climate-change crisis to the German courts on several occasions.”

This can be viewed as encouragement of a pathway other than civil disobedience to bring matters to the attention of the courts. All in all this represents the tenor of the government’s letter: an arm’s length expression of high confidence in the independence and integrity of the judicial system in Germany that goes so far as to recommend that environmental groups test its capacity to have change legally mandated.

6. The personal touch.

We’ll need a lot of patience and money in court: As a group, our lawyers will cost about 400'000 €. I, too, want to pay Rita, my lawyer! Please donate to Umwelt-Treuhandfonds; put “129 Verfahren Letzte Generation” in the purpose text box for the money to reach us. The two aspects that make this court case expensive is the amount of data in our files. My personal file just for this accusation of § 129 StGB is more than 30’000 pages. And the amount of court dates: probably 40 days per court level - and this is expected to go up in the court system.

I also want my personal letters, my phone and my computer back, from when my home was raided by the German anti-terror police.