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Challenging Trump’s Greatest Crimes

One of the best responses to Donald Trump’s energy and environmental policies, that are destroying the Earth by accelerating severe climate change, is for the International Criminal Court (“ICC”) to promptly charge him with several crimes against humanity. On February 26, 2018, I filed a complaint with Fatou Bensouda, the Chief Prosecutor of the ICC, asking her to prosecute Trump and EPA administrator Scott Pruitt for crimes against humanity. The complaint is based on their official acts that are maximizing greenhouse gas (“GHG”) emissions. Trump has moved to gut regulations limiting fossil fuel emissions; he has aggressively pushed forward policies to deregulate and subsidize coal, oil and gas while strangling clean energy; he has stopped implementing the Paris Climate Agreement, and, he has announced that the United States, alone in the world, will withdraw from it. Trump’s policies are locking humanity into a deadly future with extremely high “business-as-usual” GHG emissions. The ICC can further the goals of international criminal justice, it can draw attention to the plight of Trump’s victims and it can impose a political costs on Trump for his criminal acts by bringing charges against him.

Trump has used his Presidential powers to commit three crimes against humanity: extermination, forcible transfer of population and other inhumane acts.  These crimes are prohibited by the Rome Statute – the treaty that created the ICC. The ICC, formed in response to 20th century atrocities occurring during World War II, and in Bosnia and Rwanda, exists to ensure that crimes against humanity, and other mass atrocities, never occur with impunity. During the Nuremburg Trials, the United States and the allied powers held that the Nazis committed crimes against humanity by exterminating Jews and other populations during World War II.  Due to several prosecutions that have occurred since World War II, the prohibition on crimes against humanity under international law is now well established.  Prosecuting Trump for committing these crimes will help to prevent him from acting with impunity.

The Rome Statute defines extermination as “the intentional infliction of conditions of life…calculated to bring about the destruction of a part of a population.” Extermination involves mass killing that is widespread and systematic.  Systematic includes crimes that are the result of an official policy.  Extermination need not be accomplished directly, in the way that murder must be, but rather, it may be accomplished indirectly by creating a climate or environment where people die in huge numbers.

Trump has committed extermination by creating an environmental time bomb that is designed to kill billions of people throughout the Earth.  Presently, climate change kills about 400,000 people per year. By 2030, the climate kill rate will have increased to over 500,000 people per year. The climate change we have experienced at present, and that we will experience through 2030, is mild compared to the extreme climate change in store for humanity in the second half of this century and in the 22nd century with continued business-as-usual emissions. A study by the European Commission concludes that the kill rate in Europe from weather-related disasters in the final 3 decades of this century, if business-as-usual emissions continue much longer, will be about 50 times greater than the present. About 90% of these deaths will be heat-related. Year by year, as climate change accelerates during this century and the next, the total kill rate will increase exponentially.  At least a 50 fold increase in the climate kill rate by the end of this century is a likely outcome of Trump’s policies.  This amounts to a climate kill rate of at least 2 billion people per century.  Trump is systematically committing the most widespread extermination in history.

The number of people who will ultimately be killed by Trump is many times more than the number of civilians killed in the mass murders and genocides perpetrated by the Nazis from 1933 to 1945. The Nazis’ killed about 21 million people, excluding war deaths, by means of genocide and mass murder. Trump’s policies will likely achieve this scale of killing on an annual basis by the end of this century. Unlike the Nazis’ crimes, that primarily occurred in Europe over a dozen years, Trump’s crimes are global and will likely kill billions of people over a period of centuries.

Trump’s crimes are not inevitable and can be limited if the ICC acts promptly.  If the international community had taken steps to prosecute Hiter in 1935, some of the Nazis’ atrocities might have been prevented.  Humanity does not need to meekly allow Trump to slaughter populations like sheep. The ICC needs to aggressively prosecute Trump now, before he can fully carry out the crimes that will make these mass killings unavoidable.

Trump’s second crime against humanity, forcible transfer of population, is defined in the Rome Statute as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” The ICC has concluded that “[t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by…taking advantage of a coercive environment.” Trump’s policies promoting business-as-usual GHG emissions are creating coercive environmental conditions, including global sea level rise and increased global and regional drought, that are forcibly displacing and will forcibly displace populations in many regions of the world.

Trump’s policies are increasing the area of the world being inundated by sea water and are forcibly displacing populations. As GHG emissions cause increased average global temperatures, ice sheets and glaciers melt, oceans expand, sea level rises and land is inundated. Under business-as-usual emissions, average global temperatures are on track to increase by about 7B F (4B C). This amount of global warming will likely result in at least 1 to 2 meters of sea level rise this century, causing about 500,000 square miles along the Earth’s coasts to be inundated. Due to business-as-usual emissions that are occurring now and in the immediate future, the 22nd  century will see even more extreme sea level rise and land inundation. In low lying areas in India, Bangladesh and Myanmar, millions of people are already being displaced annually by flooding and sea level rise. With most of the global population living in coastal zones, at least a billion people are likely to be forcibly displaced in this century and in the 22nd century as a consequence of sea level rise caused by Trump’s policies.

Trump is also contributing to forcibly displacing populations through extreme average global temperature increases, drought, desertification and water scarcity.  Increased temperatures caused by business-as-usual emissions will make large areas of Southern China, Southeast Asia and the Sahel region of Africa uninhabitable due to extreme heat, drought, water scarcity and declining agricultural yields.  Africa will likely see a 15 to 35 percent decline in agricultural yields this century under business-as-usual emissions.  Many already arid places, like Australia and Southwestern United States, will also experience expanding deserts and declining agricultural yields.  Every continent except Antarctica will undergo the desiccating effects of extreme temperature increases. It is well within the range of possible outcomes that more than a billion people will be forcibly displaced in this century and the next by temperature increases, drought, desertification and water scarcity resulting from business-as-usual emissions.  Based scientific studies, reports from the UN and reports from the World Health Organization, it is highly likely that at least 100 million people will be forcibly displaced this century due to the effects of temperature increases and water scarcity brought about by Trump’s policies.

Trump’s third crime against humanity, “other inhumane acts,” is defined by the Rome Statute as “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” This crime generally concerns grave violations of fundamental human rights that result in victims who are not killed or forcibly displaced, but are subjected to great suffering, serious bodily injuries and harm to their mental or physical health.  Trump is committing the crime of “other inhumane acts” by causing more severe climate change in violation of the fundamental human rights of billions of people to food, water, physical health, mental health and a habitable climate.

Trump’s policies are a cruel, inhumane and criminal attack on large populations of people throughout the Earth who are trapped in horrendous conditions due to climate change and have no means of escape. The effects of business-as-usual emissions have been studied and described in great detail by the UN, the World Bank, the World Health Organization (WHO) and many scientific bodies. High emissions are causing more hunger, malnutrition and undernutrition by increasing droughts and water shortages and lowering agricultural yields.  Hunger, malnutrition and undernutrition in children under the age of 2 cause irreversible cognitive impairments, learning disabilities and other harm to the victims’ health. High emissions increase the prevalence of many diseases.  For example, global warming extends the transmission seasons and ranges of deadly and debilitating diseases such as malaria and dengue that plague hundreds of millions of people. Water shortages and increased temperatures brought about by climate change, in addition to causing suffering from thirst, cause increases in diarrhea, heat stress, heat exhaustion and heat stroke.  In areas some hot areas, such as West Africa and Bangladesh, climate change is making it too hot to work during the hottest hours of the day. Entire populations are being trapped in conditions of hunger, thirst, disease and misery, without any means of escape, due to the geographic scale of climate change. Trump is using his Presidential power to increase GHG emissions that make these calamities more severe.

Trump is guilty of participating in crimes against humanity in the same way as an individual who pours gasoline on an already burning fire can be found guilty of participating in arson. Trump can be found guilty of crimes against humanity based on his participation in committing the crimes. The Rome Statute broadly provides for individual responsibility for all of the major forms of criminal participation. These include ordering the commission of crimes, acting jointly with others to commit crimes, aiding, abetting or assisting in the commission of crimes, attempting to commit crimes and contributing to a criminal conspiracy. Trump has issued orders leading to needless GHG emissions, he acted jointly with others to maximize GHG emissions and he has done nearly everything in his power to make climate change more severe. He has conspired with other individuals in business and government, including EPA administrator Scott Pruitt and Robert Murray, the owner of the largest coal mining company in the United States, to accelerate climate change with unnecessary GHG emissions. By creating policies that maximize the United States’ GHG emissions, Trump has attempted to kill, forcibly displace and severely injure billions of people. He has also contributed to the killing, forcibly displacing and severely injuring of billions of people in the present and in the future. Although Trump is not the only criminal making climate change more severe, he is a leading contributor to these crimes against humanity.

The Chief Prosecutor of the ICC, Fatou Bensouda, has the power and the duty to take steps to charge Trump with crimes against humanity. She has a choice.  She can do nothing while Trump commits the worst crimes against humanity in history – killing, displacing and immiserating billions of people with impunity. Or, she can uphold the highest ideals of humanity and justice by vigorously prosecuting Trump to the fullest extent of the law.

J. Whitfield Larrabee is the founder and executive director of the Resistance Committee Action Fund, a political action committee. Mr. Larrabee is also an influential lawyer. He has initiated dozens of criminal, ethics, civil rights and election law cases against powerful people in government and politics. You can follow him on twitter @jwlarrabee.

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