A Climate of Repression

Since last year, an activist group known as Die Letzte Generation (“the last generation”) has made headlines across Germany for setting up road blockades, vandalizing famous artworks, and engaging in other civil disobedience to draw public attention to the climate crisis. Arguing that the world is nearing irreversible climate tipping points, the activists’ spectacular and disruptive actions seek to express the urgency of climate change and shift the public conversation in the country and beyond — and based on the amount of attention they’ve gotten, it seems to be working.

Yet not everyone is impressed. Motorists held up by Letzte Generation blockades are unsurprisingly outraged by the delays, and have occasionally engaged in violence against the activists. The police, for their part, have resorted to painful pressure-point holds to remove the activists, and the state has promised harsher consequences in the future. Many critics on the Left argue that their intrusive tactics do more to discredit the cause than build support for climate action. Yet all criticisms aside, the growing repression against the group raises more fundamental questions about the limits of civil disobedience and the role of police in society.

Is the state overstepping its bounds in the way it has chosen to prosecute Letzte Generation? What could the long-term consequences be for the public sphere in Germany? Criminologist Tobias Singelnstein spoke with the Rosa Luxemburg Foundation’s Henning Obens about these questions and more.

We’re currently witnessing a very tense situation. Activists from Letzte Generation are frequently on the streets, blocking traffic, or engaging in other actions. Members of the public have expressed a willingness to respond with extreme violence. From a criminological perspective, where do these popular expressions of vigilantism and a readiness to use violence spring from?

On the one hand, people are showing how upset they are at being disturbed while trying to go about their daily lives. But that doesn’t suffice to explain the huge outbursts of rage and aggression.

My belief is that these blockades demonstrate to people that in the future, we will no longer be able to continue to live the way we do now. Many people don’t want to know about what the climate crisis means for us and the fact that we are going to have to place restrictions on ourselves and simply won’t be able to continue to do certain things.

In addition, we have to realize that people in the media and politics are carrying on a very incendiary discussion, which is being directed against the actions taken by Letzte Generation and other groups. That has given rise to a deep polarization.

In criminology, we often talk about moral panic. Given that these blockades and other offences generally tend to be very minor by the standards of the criminal law, it is definitely possible to apply the term moral panic to the way they’re being talked about.

Again and again, we see police officers using pain compliance holds to carry off Letzte Generation activists. Often, the police officers give explicit notice that the holds cause pain. Are police officers permitted to use pain-inducing techniques against sit-down blockades like these?

When a sit-in no longer has the status of a protected assembly, and when the police then have the right or even obligation to break up the blockade, then under certain circumstances police officers may apply direct force.

However, they may only do this if the blockade cannot be dispersed in other ways, by communication for example. The police are obliged to use the least forceful means available to them. As a rule, in the case of peaceful sit-ins, that means carrying people off: two officers approach the person from either side, lift them up, and carry them to the side.

No one is talking any longer about the actual problem of the climate crisis, the challenges it creates for all of us, and the question of how we will have to change our way of life.

From a legal point of view, pressure-point holds and pain techniques such as we’ve seen on several videos are not permitted in such a situation. In general, pressure point holds are legally very controversial. Some experts take the view that on the basis of the laws currently in place, they’re completely impermissible.

Let’s talk about the reaction of the judiciary. The first legal judgments convicting members of Letzte Generation of the offence of coercion were handed down, and several activists were sentenced to prison without the possibility of probation. Considering the minor nature of the offences, these tough sentences raise issues of proportionality. How can the sentences be explained?

When considering the response of the criminal legal system to the Letzte Generation blockades, we need to distinguish two levels.

Firstly there’s the level of legal evaluation, meaning an inquiry into whether or not what took place leads to any kind of criminal liability at all. Here, there are already several points of possible controversy. For example, you could ask whether this is an emergency situation that justifies the blockade, or you inquire into whether the blockades involve the elements of the crime of unlawful coercion and whether, considering their objectives, they are indeed “reprehensible” within the meaning of the criminal code.[1]

These legal questions have been argued before the courts and several rulings have considered the blockades under these various aspects and arrived at quite different assessments. However, the dominant opinion remains that the blockades do involve liability for the offence of coercion. No other line of reasoning has gained acceptance.

The second level concerns sentencing and the issue of which sanctions are applied. During preliminary proceedings, there is the option of dismissing the case for being too trivial or under the proviso of certain conditions. If the matter goes to trial and results in a conviction, the court has to decide whether to impose a fine or prison sentence.

At this point, there have in fact been particular cases where the court has concluded that imprisonment is necessary, in some cases without the possibility of probation. From the perspective of criminology or criminal jurisprudence, the question that arises is of course the degree to which such sentences are appropriate and proportionate.

The rationale given for the rulings is that the accused say they intend to take part in blockades again in the future, that is, to commit further offences. The courts then argue that a prison sentence is justified by considerations of general and individual deterrence. From a criminological perspective, that is highly dubious.

Firstly, these prison sentences hardly have a preventive effect. Secondly, we find that they are associated with serious negative effects. If someone has to go to prison for several months, rather than leading to re-socialization, it has a de-socializing effect. People lose their freedom, have their social relationships curtailed, may lose their job and their flat. The degree to which that will improve a person — which is how the law formulates it — is highly questionable.

Letzte Generation activists often claim that we are in an emergency that justifies their actions. Some court decisions, too, have said that the sit-down blockades are defensible in view of the climate crisis. Is there a debate among experts in law and criminology regarding the extent to which such an emergency constitutes a valid legal defence?

Legal experts are indeed engaged in a debate on the question of whether the climate crisis and the seriousness of its consequences amount to a climate emergency that can justify certain actions, for example coercion by means of blockades. But far and way the prevailing opinion among lawyers and legal experts is that that is not the case and so is no justification.

We are witnessing an explosive public debate, in which overblown formulations such as “climate terrorists” are by no means a rare occurrence. Is this debate having an effect on the legal decisions? What’s the relationship between public reactions and legal assessments? Is there interaction between them?

I think it’s certainly true that the courts and the police investigators aren’t operating in a vacuum. They’re part of society, and to an extent they’re influenced by public debate. The enraged denunciations of the blockades and the inflammatory language of the debate, which in some cases is out of all proportion considering the low level of the offences involved in this form of protest, are not without their effects on the courts and the police.

Public debate is deeply polarized, with former ministers of justice calling for tougher penalties. How can this polarization be explained? Does the reason for it actually lie in the blockades or is this debate an indirect way of talking about other issues?

From my perspective, the discussions reflect not only the blockades and the anger that they trigger. In Germany, the whole debate over climate change has been narrowed to some extent by the focus on these blockades. No one is talking any longer about the actual problem of the climate crisis, the challenges it creates for all of us, and the question of how we will have to change our way of life.

Policing and jurisprudence are continually changing, and the various approaches that are developed in response to the Letzte Generation blockades will certainly not be restricted to those sorts of actions.

It almost seems as if these blockades were a welcome distraction, something for people to pounce on and concentrate on, to express their rage and thus to avoid having to face the essential problems.

What discussions are currently taking place in the political sphere around the toughening of the legal response to actions by Letzte Generation and groups engaging in comparable acts of civil disobedience?

So far, I’ve only heard vague suggestions along those lines. But it would be grotesque. The blockades involve minor offences, even if one wishes to categorize them as coercion. Criminal law already has at its disposal all of the instruments it needs to be able to respond to protests like this. In my view, discussions about extending the criminal law amount to a purely symbolic contribution to the public debate.

At the European Police Congress, Berlin’s minister of the interior, Iris Spranger, made it very clear that she intends to use everything in the legal arsenal to combat Letzte Generation and their supporters. What’s your assessment of her statements?

If I remember correctly, Ms. Spranger was speaking about the fact that there are business owners who have said they intend to absorb the cost of fines and monetary penalties faced by Letzte Generation activists. From the point of view of politicians like Ms. Spranger, that obviously poses a problem. But from a criminal law perspective, it’s clear that footing the bill for someone else’s financial penalty provides no grounds for criminal liability.

The idea of introducing a five-day preventive custody for climate demonstrators has been mooted. Is this reaction proportionate? Could the five-day detention work as a substitute for legal sanctions?

The preventive custody provided for by policing laws is a deeply problematic instrument. It allows for a person to be deprived of their liberty — a very grave interference with a fundamental right — in cases where it is determined that there is a danger that they may commit an offence in the near future. It is then possible to deprive them of their liberty in order to prevent those offences.

Firstly, however, these prognoses are always very difficult to make: how are we to say whether someone will commit an offence in the future, unless they themselves say so? Secondly, there is a danger that this instrument will be used as an anticipatory sanction. That is why it has long been handled in a very restrained way in Germany, and in some states it is still the case that the custody may only last for two days.

That said, in Berlin people are now discussing an extension of the possible duration to five days, and in some states much longer durations are already possible. These developments are highly problematic from a constitutional point of view.

A further change that is being discussed concerns an increase in the fees levied by police. Repeat-offenders would have to pay “processing fees” of up to 2,000 euro. Are these suggestions part of a general tendency?

The tendency to shift the costs of policing activities onto the people who occasion them has been around for some time now. It may be that in other contexts, and to a certain extent, that makes sense. In the case of political protest, it seems to me to be a problematic approach, since it also has the effect of adding to the sanctions that are imposed on political protest.

Does it seem possible to you that the repressive arsenal being tested on Letzte Generation activists will become the standard in dealing with all social movements and civil disobedience actions?

Policing and jurisprudence are continually changing, and the various approaches that are developed in response to the Letzte Generation blockades will certainly not be restricted to those sorts of actions. They will likely be used in other situations and thus become part of the way the police operate.