Could Fossil Fuel Companies Ever Be Tried for Crimes Against Humanity?


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Illustration: Elena Scotti (Photos: PixelSquid)

Someone does something wrong, and is held accountable for it. It’s a pleasant notion, one with no bearing whatsoever on the world of the super-rich, whose various plunderings, deceptions, and general anti-humanity behaviors have gone and will continue to go unpunished. But does it have to be this way? Might we one day see an oil exec slumped on the stand, eyes silently begging the jury for mercy? Might we watch that exec whimper piteously as the cuffs are secured? I’m not talking accounting fraud, I’m talking Crimes Against Humanity. Could the fossil fuel companies be tried for them?

The list of damages is long from turning parts of the Amazon into a toxic sacrifice zone to lying about climate change for decades and locking up the political means to deal with it, putting humanity in grave danger. For this week’s Giz Asks, we reached out to a number of experts to find out.

 Professor, International and Comparative Environmental Law, American University

There is little political will among the most powerful governments to hold fossil fuel companies responsible for crimes against humanity, so the possibility is likely low. But these companies should be held accountable, and steps are being taken to make it happen.

For at least a decade now, advocates within the international law community have been talking about ecocide as a crime against humanity. Groups like the Center for International Environmental Law and the Stop Ecocide Foundation have been working on the legal strategy and building up the factual basis: e.g., what Exxon knew and when they knew it. These kinds of things are necessary for bringing a case.

Recently, the Stop Ecocide Foundation empaneled a number of leading international law experts, who provided a technically credible and well-thought-out definition of ecocide that would include deliberate, reckless acts committed knowing that the acts are substantially likely to cause severe and widespread or long-term damage. The definition is part of a proposal to amend the Rome Statute, which is the treaty that sets out the crimes that can be prosecuted by the International Criminal Court. Two-thirds of the member countries will have to vote in favor of the amendment, although any one country can recommend it. Vanuatu has publicly supported adding ecocide as the fifth international crime as has France, so it’s very possible a country will formally recommend it, and the members will have a debate about it. (That said, it’s important to note that the US is not a party to the Rome Statute.)

One of the major advantages of the crimes-against-humanity framework is that it would reinforce the moral line crossed by fossil fuel companies that have promoted their products while undermining climate science. Attaching the label of ecocide can build momentum for other advocacy against the fossil fuel companies—actions in domestic courts by the victims of hurricanes, wildfires and flooding increasingly shown to be exacerbated by fossil fuel-induced climate change, or by getting contributions to some kind of international fund to support the victims of climate change, as an alternative to being prosecuted. If you build up enough credibility for a potential prosecution, the companies may look for some political way out. As ever, companies want to avoid being declared responsible.

PhD Candidate, History, Stanford University, where he studies the history of climate change politics and fossil fuel companies.

Yes, they could. The law constantly evolves in light of changing historical conditions, and what might seem implausible today may become inevitable in time. So let’s look at the evidence.

By the late 1970s, the US oil industry’s main trade association, the American Petroleum Institute, had a secret task force, including scientists from nearly every major oil company, to monitor climate change research. That task force was warned in 1980 that fossil fuels, if not replaced with safer energy sources, would cause “globally catastrophic effects” by the middle of the 21st century. The next year, a research director at Exxon sent an interoffice memo again observing that the company’s long-term business plans could “produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s population).” In 1986, Royal Dutch Shell internally predicted that global warming from its fossil fuel products could lead to changes “the greatest in recorded history,” imposing “costly” adaptations and a slew of damages, including “destructive floods,” abandonment of entire countries such as Bangladesh, and forced migration around the world.

Years earlier, in 1979, another Exxon employee analyzed options for avoiding a catastrophic buildup of carbon dioxide, finding that limiting greenhouse gases to a “relatively safe level” would require prompt action to develop and deploy renewable energy technologies, that coal and shale oil could never become major energy sources, and that all told, over 80% of recoverable fossil fuel had to be left in the ground. In other words, the oil industry knew there were options.

What should you do when you learn your products, if used as intended, will cause worldwide, irreversible catastrophe in the foreseeable future? First, you should warn people, including the public and governments. Then you should act to avoid the catastrophe. Fossil fuel companies could have coordinated among themselves and with governments to replace fossil fuels with safer energy products, beginning in the early 1980s. They didn’t. Instead they concealed their knowledge. Then, in the late 1980s and early 1990s, when governments around the world sought to act and minimize the damage, fossil fuel companies invented and promoted climate denial, convincing policymakers and large segments of the public that climate science was uncertain and global warming not a threat, contradicting the industry’s own internal documents. Deception became the industry’s business model.

Since then, Big Carbon has pursued a cabinet of strategies to delay the necessary replacement of fossil fuels: blocking climate legislation, framing climate change as a consumer choice problem (the same way the tobacco industry did with cigarettes), and promoting a variety of false or distracting solutions, including methane gas, hydrogen (which is mostly made from methane), carbon capture (which the industry has privately acknowledged since the early 1980s is uneconomical), an exclusive focus on efficiency, and even reforestation (which, while good in itself, served to distract attention away from coal, oil and gas). Today, the industry’s main tactic isn’t denial, it’s anything that can induce delay and prolong the reign of fossil fuels.

With climate, the problem with delay is that it’s predatory: every year of wasted time translates to irreversible impacts that will be felt effectively forever. Fossil fuel companies intentionally imposed this path on the world, knowing the consequences: droughts, storms, floods, crop failures, famines, forced migrations, and the even the dissolution of entire countries. In the industry’s own words, consequences “the greatest in recorded history.” Why? For a buck.

Today, we already feel the consequences of the industry’s history of deception and delay. And we’re just getting started. In 10 years, that history will still matter, even more. In 100 years, it will still matter. Long after the industry is a cautionary relic, the world will still be living in the fallout from decisions made in the 1980s and since. In 500 years, the names of the fossil fuel majors might still be known: as those who knowingly sold out the world, and humanity’s future history, for another few decades of lucrative sales.



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