– an essay by Climáximo’s Legal Team
§1. Climate justice activists don’t expect to get arrested in protest. They are aware that they will get arrested and eventualy sentenced to fines or imprisonment, because they comprehend the nature of the state apparatus.
As is well-documented elsewhere, the European states have been using their legislative, executive and judicial forces to increase repression. The repressive tactics range from banning protests and preemptive arrests to physical violence and imprisonment. They do this, because they are aware of risks: if the word circulates widely that the governments and corporations are deliberately destroying everything we love, then the public might take their social license to rule over us.
§2. However, there are two misunderstandings on the practical side of this story.
First of all, the people doing the actual act of oppression are not members of the 1%, they are not governors nor CEOs. While embedded in a structure of oppression, they are mostly ordinary people (we say “mostly”, because in many parts of the world, judges are part of the socioeconomic elite). They might as well not do the oppression. It is optional, and they have a planet to win by not cooperating.
Non-cooperation may take the shape of civil disobedience, but it may be subtler. Most of oppressive tactics involve taking initiative, interpreting, and making choices. They could actually not do the oppression. And cases of this abound.
§3. There is a mainstream media and social media trap here. When a police officer injures an activist, it makes news. When he doesn’t, it doesn’t. When a prosecutor presents a hyperbolic accusation, it makes headlines. When he archives a case, it doesn’t. When a judge silences activists who defend their action based on climate emergency, it produces outrage. When he listens to them, it doesn’t.
This trap produces the impression that repression is worsening uniformly and the less-risky options for active citizenship are diminishing uniformly.
This is incorrect. In fact, with more frequent mobilizations and actions, state officers are having more opportunities to make the right choices for their loved ones by supporting the climate justice movement.
Don’t misread us. As an overall trend, repression is supposed to get tougher in the short- to medium-term: either because climate justice movement loses, so the climate collapse brings about fascism; or because actions for climate justice increase, triggering a reaction from the status quo.
However, the trend should not shadow decisions being made daily. The possibility for a liveable planet is hidden in these choices and decisions, by the general public as well as by the state employees involved in the repressive mechanisms.
These choices are real, recurring and open. In this essay, we want to present a short list of empirical evidence for them. Nothing is being done purely “in due process” or “due to regulations”, no one is “just doing their job”. They are all making choices, through and through.
§4. Does the police have to stop a protest?
No.
As happened in a slow march in Lisbon, the police can arrive at the site, analyze the situation, conclude that the peaceful protest should take place, and divert the traffic accordingly. (This was, in fact, the third consecutive slow march in a week. In the first one, the organizers got arrested; and in the second one, everyone got arrested.) This way, the road safety would be provided by the police, rather than becoming an accusation to the activists.
§5. Does the police have to identify people?
No.
As it happened in the Ende Gelände action in 2022 or in the Extinction Rebellion (XR) Netherlands’ rolling actions in the A22 highway in 2023, the police might decide to open the road to traffic (shame!) but can just carry people off the road without even identifying them. This is also what the Portuguese police had done to the Extinction Rebellion action in 2019 and the We Are the Anti-bodies action in 2020.
§6. Does the police have to arrest people?
No.
Imagine the police deciding to identify the protesters (shame!) because the chief of police wants to manage risks for himself. Then what?
Then nada. Look at what happened with XR Netherlands who blocked a road in front of Total. The police did not file a complaint because the police chief says “they [the people blocking the road] did not commit any punishable acts, so we are not filing a report”. These activists did not go to court to be absolved. There was no court nor accusation, because there no complaint to start with.
§7. Does the police have to put activists in custody?
No.
Duh! Even if arrested, the identification can take place in situ and a possible complaint or accusation may arrive by letter. This is what happened to the activists protesting the Electric Summit sponsored by the fossil fuel company Galp in 2022. Instead of being taken to custody and spending hours in a police station, they were taken out of the summit, identified, and released.
§8. Does the prosecutor have to accept a complaint filed by the police?
No.
Of this, we have the best example.
It was June 2013. There was a general strike, with a march in Lisbon, ending in the parliament. At the end of the march, a group of 300-400 people launched a spontaneous demonstration, marched for some three kilometers accompanied by the police stopping traffic (see §4), reached the entrance to the 25 April Bridge, and there 226 people got arrested in the middle of the city for six hours (shame!). The police’s complaint report mentioned three things: endangering road traffic, unauthorized protest, and defamation (because they saw an “A.C.A.B.” banner).
This then went to a public prosecutor.
The public prosecutor said: if the police blocked the road (kudos), then there was no danger to road traffic. There is no such thing as unauthorized protests, this was a spontaneous action. And “A.C.A.B.” was followed by “Capitalism kills”, so it should be read as directed at the institution of police and not to individual police officers.
So the case was simply archived. No court hearings took place. No judge was even allocated.
This is not the only example, though. In October 2022, two people sprayed orange paint on the front facade of Harrods. In June 2024, the case was dropped as there was no evidence of damage.
§9. Does the judge have to accept the arguments in an accusation?
No.
In May 2024, three Just Stop Oil activists were found not guilty of a slow march because the judge said there wasn’t that much disruption and their action was proportional. Judges stating there is not significant disruption has become common, with several instances in recent months.
In Spain, nine activists using lock-ons to block a road in 2021 were found not-guilty because the judge said they exerted no violence or intimidation.
§10. Can the judge emphasize the right to assembly?
Yes.
Quite a few examples of this come from France:
In February 2024, two activists of Derniere Renovation in France were acquitted after an action throwing paint at the Ministry of Environment because the judge said they had a right to assembly.
Similarly, other activists blocked the circulation of a private jet at the Cannes airport and were acquitted on the basis of freedom of speech. The judge said that the protest aimed at raising awareness on a topic.
Others were acquitted for blocking the circulation of a train on the basis of freedom of speech.
§11. Can the judge consider the climate crisis?
Yes.
In December 2022, a German judge acquitted a tree occupier at a private construction site, on the grounds that the action was aiming at climate protection.
In February 2023, an activist of Letzte Generation was acquitted from a road blockade because the judge said car drivers are “largely responsible for CO2 emissions and thus part of the climate problem”. So, according to the judge, the obstruction to road traffic and the goals of the protest were coherently linked.
In May 2024, three Just Stop Oil activists were found not guilty of a slow march because the judge said “they had a lawful excuse for taking action”.
In June 2024, seven activists of Derniere Renovation in France were acquitted in the second instance. The court found them guilty of road blockade. The higher court said that the action had no private interest attached to it and the means were proportional to the ends (a safe climate for all).
§11.1. Even when the judge doesn’t consider the climate emergency, the jurors can.
This happened in a wonderful case of Just Stop Oil activists disrupting oil pumps. The judge refrained three activists from talking about the climate emergency, restricting the debate to technicalities of the action, possible damages, etc. However, the jury knew these were climate justice activists. So the jury acquitted them exactly because there is a climate emergency and the action was proportional.
§12. These are just some recent examples of how other options are available for police officers, for public prosecutors and for judges. We didn’t even make a profound research to prepare this essay. We just asked around, got hold of some verdicts, and already got dozens of cases.
We insist on this point. There are quite a few choices, at each step of the way, done by a lot of people (people who will lose everything they love if we don’t stop the climate crisis). Repression is structural and systemic, but not automatic.