Global warming: make the guilty pay

Countries and corporations that belch out carbon emissions and shun Kyoto might think again if they

The world's most constipated negotiation over an international convention, now going on in Milan, is in search of a laxative. More than a decade after the UN Framework Convention on Climate Change was agreed at the first Earth Summit in Rio, the subsequent deal drafted in Kyoto to make it operational still lacks enough support to kick into action. The announcement in Moscow, by a senior adviser to President Vladimir Putin, that Russia will not sign the protocol "in its current form" makes the prospects for Kyoto gloomier than ever. Warnings of northern Europe being plunged into a big freeze cut little ice (as it were) with Putin. If the global greenhouse switches off the part of the Gulf Stream that warms countries such as Britain and France, why should Russia, with its Siberian wastes, care?

With the US and Australia also out of the Kyoto picture for the foreseeable future, what else can be done? A cheap and increasingly popular option - as global warming offers either drought or floods to swathes of Africa, Asia and Latin America, and as Pacific islands sink beneath the sea - would be for the culprits of global warming to say sorry, as President Clinton did to Hawaiians and Elizabeth II to Maoris and Sikhs during a wave of post-colonial apology. But unless the apology comes wrapped in a multibillion-dollar promissory note to cover the damages, a more likely outcome is that global warming's losers will go to court. The law is one of the few buttons left to press, and it could get the bowels of the climate talks moving.

Using the courts to right historical wrongs and settle disputes between peoples and countries is increasingly popular across the world. As political processes fail, the pursuit of reparations for the guilt of nations and the crimes of corporations becomes more and more a matter for the courts. As well as the actions seeking compensation for slavery and restitution for Nazi looting, the Swiss banks UBS and Credit Suisse have been named in US lawsuits brought on behalf of victims of apartheid in South Africa. An eight-year-old Iranian refugee took a civil action against the Australian government after detention left him with possibly chronic post-traumatic stress disorder. The king of Bunyoro in Uganda sought £2.8bn compensation from Britain for acts of brutality and exploitation admitted in British military diaries dating back to 1894. Perhaps more than anything, the cases against "big tobacco" have made people believe in the potential of the law to tackle great injustices.

The Pacific island of Tuvalu, which could be devastated by climate change effects, has already announced its intention to bring legal action against the world's worst polluters. That is virtually its only option, given its small size and marginal place in world affairs. Its regional neighbour Australia would be first to be taken before the International Court of Justice. Australia, like the US, rejects Kyoto; but unlike the US, it accepts the court. Other low-lying island states, Kiribati and the Maldives, may join Tuvalu to bring the first international class action of its kind.

Such lawsuits reflect the increasing legalisation of international relations. One reason for that is frustration with a complex and constantly undermined United Nations. Another is the success of economic globalisation. As more and more business deals take place across national borders, an increasingly mature and comprehensive body of international law is needed to protect them. Also, wherever the US goes, it tends to take along its uniquely litigious political culture. Around half of all legal cases in the US are tort actions - claims for compensation and punitive damages where injury or harm has resulted from reckless, negligent or improper behaviour. The US is a country where, as Alexis de Tocqueville observed, there is "scarcely any political question . . . that is not resolved sooner or later into a judicial question".

The law is not straightforward. It needs evidence, litigants, appropriate jurisdiction, and the ability to assess compensation commensurate with damages and to constrain the perpetrators of harm. But the law comes down to simple principles: if someone does you harm, they should first stop what they are doing and, second, compensate you for the harm done. The rest is just detail that a queue of hungry lawyers with help from the scientists will help work out.

German interior ministry officials estimated the costs of the great floods that hit Germany in the summer of 2002, affecting a third of a million people, at 9bn euros (£6.3bn). Heatwaves in Paris this year killed about 15,000 people more than the seasonal average, leaving countless aggrieved relatives. The only thing holding back court claims has been the problem of attribution.

Looking at how the insurance market works for the science journal Nature, Myles Allen, an Oxford University physicist, thinks that problem is now largely solved. All you have to do, he says, is work out "a 'mean likelihood-weighted liability' by averaging over all possibilities consistent with currently available information". Unpacked, it means that if past greenhouse gas emissions have increased flood risk tenfold, 90 per cent of the damage caused by a flood can be attributed to past emissions. Because carbon dioxide mixes itself in the global commons of the atmosphere, "an equitable settlement would apportion liability according to emissions", argues Allen.

According to Andrew Strauss, a US professor of international law, people harmed by global warming could sue their own government in the domestic courts; or they could sue the most guilty corporations in either domestic or foreign courts; or they could get governments hauled up before an international tribunal.

Some cases are under way. The US cities of Boulder, Colorado, and Oakland and Arcata, California, together with Greenpeace, Friends of the Earth and affected individuals, are suing the US export credit agency over its funding of fossil-fuel projects. Another action by the International Centre for Technology Assessment and the US conservation group the Sierra Club is trying to apply the Clean Air Act to force the Environmental Protection Agency to impose mandatory greenhouse gas reductions.

A less direct route could prove more effective than any of the above. In the context of world trade agreements - already the locus of disputes between Europe and America over steel tariffs and genetically modified foods - it could be argued that the US opt-out from Kyoto, by avoiding the costs of reducing carbon emissions, is in effect a subsidy to domestic US businesses. The EU could calculate the value of that subsidy and apply countervailing measures or "border tax" adjustments to a selection of US exports until America started to play ball again. The US could then take a complaint to the dispute mechanism at the World Trade Organisation. Trade sanctions, imposed collectively by countries in defence of a multilateral environmental agreement, are, however, entirely legitimate in international law and the decision would very likely go against the US.

If there is a problem with using the law to tackle the slackers over climate change, it is that ad hoc legal processes cannot replace the need for an effective global climate deal. Nothing can replace the need to set a target for shrinking emissions that is sufficient to prevent runaway climate change. Nor can anything substitute for a proper constitutional framework that allows an orderly convergence in the amount of fossil fuel that each person on the planet uses. But as we work painfully towards that end, the litigation laxative might just get things moving.

Andrew Simms is policy director of the New Economics Foundation. A new briefing, Free Riding on the Climate, is available at

This article first appeared in the 08 December 2003 issue of the New Statesman, Way out

An artist's version of the Reichstag fire, which Hitler blamed on the communists. CREDIT: DEZAIN UNKIE/ ALAMY
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The art of the big lie: the history of fake news

From the Reichstag fire to Stalin’s show trials, the craft of disinformation is nothing new.

We live, we’re told, in a post-truth era. The internet has hyped up postmodern relativism, and created a kind of gullible cynicism – “nothing is true, and who cares anyway?” But the thing that exploits this mindset is what the Russians call dezinformatsiya. Disinformation – strategic deceit – isn’t new, of course. It has played a part in the battle that has raged between mass democracy and its enemies since at least the First World War.

Letting ordinary people pick governments depends on shared trust in information, and this is vulnerable to attack – not just by politicians who want to manipulate democracy, but by those on the extremes who want to destroy it. In 1924, the first Labour government faced an election. With four days to go, the Daily Mail published a secret letter in which the leading Bolshevik Grigory Zinoviev heralded the government’s treaties with the Soviets as a way to help recruit British workers for Leninism. Labour’s vote actually went up, but the Liberal share collapsed, and the Conservatives returned to power.

We still don’t know exactly who forged the “Zinoviev Letter”, even after exhaustive investigations of British and Soviet intelligence archives in the late 1990s by the then chief historian of the Foreign Office, Gill Bennett. She concluded that the most likely culprits were White Russian anti-Bolsheviks, outraged at Labour’s treaties with Moscow, probably abetted by sympathetic individuals in British intelligence. But whatever the precise provenance, the case demonstrates a principle that has been in use ever since: cultivate your lie from a germ of truth. Zinoviev and the Comintern were actively engaged in trying to stir revolution – in Germany, for example. Those who handled the letter on its journey from the forger’s desk to the front pages – MI6 officers, Foreign Office officials, Fleet Street editors – were all too ready to believe it, because it articulated their fear that mass democracy might open the door to Bolshevism.

Another phantom communist insurrection opened the way to a more ferocious use of disinformation against democracy. On the night of 27 February 1933, Germany’s new part-Nazi coalition was not yet secure in power when news started to hum around Berlin that the Reichstag was on fire. A lone left-wing Dutchman, Marinus van der Lubbe, was caught on the site and said he was solely responsible. But Hitler assumed it was a communist plot, and seized the opportunity to do what he wanted to do anyway: destroy them. The suppression of the communists was successful, but the claim it was based on rapidly collapsed. When the Comintern agent Gyorgy Dimitrov was tried for organising the fire, alongside fellow communists, he mocked the charges against him, which were dismissed for lack of evidence.

Because it involves venturing far from the truth, disinformation can slip from its authors’ control. The Nazis failed to pin blame on the communists – and then the communists pinned blame on the Nazis. Dimitrov’s comrade Willi Münzenberg swiftly organised propaganda suggesting that the fire was too convenient to be Nazi good luck. A “counter-trial” was convened in London; a volume called The Brown Book of the Reichstag Fire and Hitler Terror was rushed into print, mixing real accounts of Nazi persecution of communists – the germ of truth again – with dubious documentary evidence that they had started the fire. Unlike the Nazis’ disinformation, this version stuck, for decades.

Historians such as Richard Evans have argued that both stories about the fire were false, and it really was one man’s doing. But this case demonstrates another disinformation technique still at work today: hide your involvement behind others, as Münzenberg did with the British great and good who campaigned for the Reichstag prisoners. In the Cold War, the real source of disinformation was disguised with the help of front groups, journalistic “agents of influence”, and the trick of planting a fake story in an obscure foreign newspaper, then watching as the news agencies picked it up. (Today, you just wait for retweets.)

In power, the Nazis made much use of a fictitious plot that did, abominably, have traction: The Protocols of the Elders of Zion, a forged text first published in Russia in 1903, claimed to be a record of a secret Jewish conspiracy to take over the world – not least by means of its supposed control of everyone from bankers to revolutionaries. As Richard Evans observes, “If you subject people to a barrage of lies, in the end they’ll begin to think well maybe they’re not all true, but there must be something in it.” In Mein Kampf, Hitler argued that the “big lie” always carries credibility – an approach some see at work not only in the Nazis’ constant promotion of the Protocols but in the pretence that their Kristallnacht pogrom in 1938 was spontaneous. (It is ironic that Hitler coined the “big lie” as part of an attack on the Jews’ supposed talent for falsehood.) Today, the daring of the big lie retains its force: even if no one believes it, it makes smaller untruths less objectionable in comparison. It stuns opponents into silence.

Unlike the Nazis, the Bolshevik leaders were shaped by decades as hunted revolutionaries, dodging the Tsarist secret police, who themselves had had a hand in the confection of the Protocols. They occupied the paranoid world of life underground, governed by deceit and counter-deceit, where any friend could be an informer. By the time they finally won power, disinformation was the Bolsheviks’ natural response to the enemies they saw everywhere. And that instinct endures in Russia even now.

In a competitive field, perhaps the show trial is the Soviet exercise in upending the truth that is most instructive today. These sinister theatricals involved the defendants “confessing” their crimes with great
sincerity and detail, even if the charges were ludicrous. By 1936, Stalin felt emboldened to drag his most senior rivals through this process – starting with Grigory Zinoviev.

The show trial is disinformation at its cruellest: coercing someone falsely to condemn themselves to death, in so convincing a way that the world’s press writes it up as truth. One technique involved was perfected by the main prosecutor, Andrey Vyshinsky, who bombarded the defendants with insults such as “scum”, “mad dogs” and “excrement”. Besides intimidating the victim, this helped to distract attention from the absurdity of the charges. Barrages of invective on Twitter are still useful for smearing and silencing enemies.


The show trials were effective partly because they deftly reversed the truth. To conspire to destroy the defendants, Stalin accused them of conspiring to destroy him. He imposed impossible targets on straining Soviet factories; when accidents followed, the managers were forced to confess to “sabotage”. Like Hitler, Stalin made a point of saying the opposite of what he did. In 1936, the first year of the Great Terror, he had a rather liberal new Soviet constitution published. Many in the West chose to believe it. As with the Nazis’ “big lie”, shameless audacity is a disinformation strategy in itself. It must have been hard to accept that any regime could compel such convincing false confessions, or fake an entire constitution.

No one has quite attempted that scale of deceit in the post-truth era, but reversing the truth remains a potent trick. Just think of how Donald Trump countered the accusation that he was spreading “fake news” by making the term his own – turning the charge on his accusers, and even claiming he’d coined it.

Post-truth describes a new abandonment of the very idea of objective truth. But George Orwell was already concerned that this concept was under attack in 1946, helped along by the complacency of dictatorship-friendly Western intellectuals. “What is new in totalitarianism,” he warned in his essay “The Prevention of Literature”, “is that its doctrines are not only unchallengeable but also unstable. They have to be accepted on pain of damnation, but on the other hand they are always liable to be altered on a moment’s notice.”

A few years later, the political theorist Hannah Arendt argued that Nazis and Stalinists, each immersed in their grand conspiratorial fictions, had already reached this point in the 1930s – and that they had exploited a similar sense of alienation and confusion in ordinary people. As she wrote in her 1951 book, The Origins of Totalitarianism: “In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true.” There is a reason that sales of Arendt’s masterwork – and Orwell’s Nineteen Eighty-Four – have spiked since November 2016.

During the Cold War, as the CIA got in on the act, disinformation became less dramatic, more surreptitious. But show trials and forced confessions continued. During the Korean War, the Chinese and North Koreans induced a series of captured US airmen to confess to dropping bacteriological weapons on North Korea. One lamented that he could barely face his family after what he’d done. The pilots were brought before an International Scientific Commission, led by the eminent Cambridge scientist Joseph Needham, which investigated the charges. A documentary film, Oppose Bacteriological Warfare, was made, showing the pilots confessing and Needham’s Commission peering at spiders in the snow. But the story was fake.

The germ warfare hoax was a brilliant exercise in turning democracy’s expectations against it. Scientists’ judgements, campaigning documentary, impassioned confession – if you couldn’t believe all that, what could you believe? For the genius of disinformation is that even exposure doesn’t disable it. All it really has to do is sow doubt and confusion. The story was finally shown to be fraudulent in 1998, through documents transcribed from Soviet archives. The transcripts were authenticated by the historian Kathryn Weathersby, an expert on the archives. But as Dr Weathersby laments, “People come back and say ‘Well, yeah, but, you know, they could have done it, it could have happened.’”

There’s an insidious problem here: the same language is used to express blanket cynicism as empirical scepticism. As Arendt argued, gullibility and cynicism can become one. If opponents of democracy can destroy the very idea of shared, trusted information, they can hope to destabilise democracy itself.

But there is a glimmer of hope here too. The fusion of cynicism and gullibility can also afflict the practitioners of disinformation. The most effective lie involves some self-deception. So the show trial victims seem to have internalised the accusations against them, at least for a while, but so did their tormentors. As the historian Robert Service has written, “Stalin frequently lied to the world when he was simultaneously lying to himself.”

Democracy might be vulnerable because of its reliance on the idea of shared truth – but authoritarianism has a way of undermining itself by getting lost in its own fictions. Disinformation is not only a danger to its targets. 

Phil Tinline’s documentary “Disinformation: A User’s Guide” will be broadcast on BBC Radio 4 at 8pm, 17 March

This article first appeared in the 08 December 2003 issue of the New Statesman, Way out