In this episode, join host Dr Miranda Melcher as we delve into the fraught and controversial world of climate change protests, with expert guests Juanita van Lunen, an attorney based in The Hague, where she specialises in criminal law and demonstration rights in the Netherlands, and Mirjam Herrmann, a climate activist and law student in Germany, and member of the association Rückendeckung für eine aktive Zivilgesellschaft (RAZ) e.V., which provides legal and psychological support to Letzte Generation and other climate activist groups.

Mirjam Herrmann and Juanita van Lunen – What are climate protests?

[00:00:00] Intro

[00:00:00] Dr Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to some fascinating people, including legal experts, academics, and human rights advocates from all walks of life. Through these conversations, we explore ideas about the future of human rights and improving access to justice for all. Our goal is to educate the wider public and raise awareness about human rights.

[00:00:26] After all, our motto is, everyone can be a human rights defender. My name is Dr. Miranda Melcher, and I’m a senior legal fellow at Just Access and the host of this podcast. In this episode, I have the pleasure of speaking to two people very much on the front lines of climate change protests, one in the Netherlands and one in Germany.

[00:00:45] They’re here to give us their perspective on activism, climate protest, and law, and so much more. Our first guest is Juanita van Lunen, who is an attorney in The Hague working on criminal law and demonstration rights in the Netherlands. And our [00:01:00] second guest is Miriam Herrmann, who is a climate activist and law student in Germany.

[00:01:05] In this first part of our conversation, we discuss how they got involved with the climate movement and some of their experiences so far. In our second part of the conversation, we then talk about some key legal cases and precedents that they have their eye on, given their involvement in this work, as well as advice to law students, lawyers, and the general public on this topic.

[00:01:36] Interview

[00:01:36] Dr Miranda Melcher: So Miriam, I wonder if you can start us off please. You’re here today because of your involvement in the climate protest movement in multiple ways. How did you get involved?

[00:01:50] Mirjam Herrmann: I think the moment I got involved was during COVID times, just sitting around at home, thinking a lot about what my role is in the world and what’s going on. [00:02:00] And I actually watched a documentary It was this documentary about, what’s his name? David Attenborough, ‘My life on this Planet’ is what it was called and he talked about how he, as a 90 year old man, has watched nature degrade and how the climate crisis and this catastrophe is happening right now.

[00:02:18] And I was just sitting there and being like, okay, how am I just going to continue studying law, pretty much for myself, while this is happening and while it’s my generation and my time, like right now, where things have to drastically change, that we will survive pretty much as a society. So then I decided I went to a forest occupation in Germany, where we like climbed on trees and built tree houses there and police had to take us down to cut down the forest to build a street.

[00:02:47] Then later I founded a climate camp in Passau, in the city I was studying in, and we also built a tree house there and made demands to local politics. I was also part of Extinction Rebellion and [00:03:00] Ende Gelände protests and also part of protests in the fall of 2021 against the international car convention in Munich, where I then was imprisoned for five days in preventative custody. I was like one of the first climate activists to be imprisoned under that law. It was like a new policing law in Bavaria at the time and they said they need this new law because of terrorists and to, I don’t know, combat terrorism, the usual, the usual argument for restrictive policies.

[00:03:32] And yeah, then I was in, in prison for a couple of days and thought, okay that’s the situation. All right, I didn’t think that would be possible in Germany. It was really in a way eyeopening for me on what we’re really faced with and then Letzte Generation came up, they started with this hunger strike and then started going into action in January of 2022.

[00:03:55] And yeah, I joined pretty much from the beginning. I was at times like skeptical and like [00:04:00] what they’re doing, but I wanted to support them with a good legal structure because from the beginning, their strategy was like, we can’t wait for any more political decisions. We can’t appeal by being nice and doing a protest march the way they want us to do, so that they can ignore it.

[00:04:17] We have to do protests now that cannot be ignored and we will do it until we are in prison. So I was like, okay, fuck, they need legal support. And then I got into building legal support structures there, but also now and then joined for political actions with that group. Yes. And it’s pretty much still what I’m doing now.

[00:04:39] Dr Miranda Melcher: What a fascinating combination of things all coming together. Thank you for that introduction. Juanita, can I ask you the same sort of question? How you got involved in this?

[00:04:48] Juanita van Lunen: Yes. Thank you. I’m an attorney now for about seven years. And from the start I thought human rights and as part of that also demonstration law was really an interesting part [00:05:00] of my work. And also during my study, I already thought that’s really interesting and important to focus on.

[00:05:06] I do demonstration law and the last couple of years there are quite some climate activists of course, who needs legal support so that’s why I also help the climate activists in different kinds of ways.

[00:05:20] Dr Miranda Melcher: All right, so with these two perspectives you each have and engagement you’ve had in multiple ways over multiple years, there’s a lot I want to ask you about. But I also want to make sure that our audience is fully on the same page because as much as things like climate protest have been in the news, for a good few years now, there is often a lot of focus on the arrests and the jail and the law and not necessarily on hang on, first principles, what are climate protests? And I think that’s probably a good place to start our discussion to then build on to other things. Particularly given that you’re each working in different countries, there’s obviously some legal aspects in common, but not [00:06:00] everything. Can we start there? What are climate protests?

[00:06:03] Juanita, perhaps from a kind of legal support perspective, how might you define it?

[00:06:08] Juanita van Lunen: When something is a climate protest is maybe not up to me to say, but I can say that according to articles 10 and 11 from the European Convention for the Protection of Human Rights and Fundamental Freedoms that you have the right to peaceful assembly. When it is peaceful, it can be that you break the law and it’s still peaceful because there are different kinds of actions that still have the protection of peaceful right to assembly that can be, for example, sit ins, blockades demonstrations, all different kinds of things, and it’s up to the activists to decide how you want to do your action and how do you want to do it? Whether you want to do a blockade or whether you want to do an manifestation or it’s really up to the activists to decide to the organizers.

[00:06:57] As long as the intentions of the [00:07:00] demonstration or the action are peaceful.

[00:07:04] Dr Miranda Melcher: Mirijam?

[00:07:06] Mirjam Herrmann: That’s such a broad question. In general climate demonstrations are pretty much, you do any kind of demonstration or political action and you have climate for your theme. I think it’s interesting that we used to have more of a environmental activists scene, especially in Germany, that’s where our Green Party came from, like in the 70s, 80s, there was like environmentalists and that kind of changed more for climate activists.

[00:07:33] The more and more we learned about climate change and how that will impact society and of course the pressure that climate activism has inherently, that climate demonstrations have, has risen a lot over the last years, because we had the Paris agreement where a lot of countries said, okay, we want to try to keep global warming to 1. 5 or at least two [00:08:00] degrees. And now we’re at a point where scientists say pretty unanimously that we have already reached 1. 5 degree or will reach it in the next 1 to 2 years. And that’s crazy. We were having like floodings in Germany now, but of course all over the world, we’ve had droughts, heat waves floods, and this is like breaking in on us and we’re on a worse path than all the predictions say or said that scientists had made before.

[00:08:26] What we’re observing, I think, in the demonstration scene around climate is that there is still this climate activism that kind of started it off with Fridays for Future that’s it started from also like a civil disobedient way, Greta Thunberg was like, not going to school, even though she had to, but when it became more mass movement it started obeying to rules, and just doing the big marches, and now it’s doing that for years, and numbers are just declining, because people say that it’s not helping, it’s not doing anything, so we’re seeing more and more disruptive protests that have climate as a [00:09:00] theme worldwide.

[00:09:01] Of course, there’s a big difference in like the countries like the western countries, the global north countries that are responsible for climate change, but aren’t as immediately affected already. While global southern countries have had way less impact on climate change and are now the ones that are really fucked earlier than us.

[00:09:21] Yes, but the protests are getting, I don’t know how to describe that, there’s more urgency involved. And when we do sit ins and roadblocks and when we close emergency wheels of pipelines and when we spray paint on private jets or block airports and stuff, then a part of society perceives that as violence in a way, or the parts of the law perceive it as violence in German law, which is really fucked, I can talk about that later. But it is not in general violent. It’s non violent civil disobedience that [00:10:00] Letzte Generation is doing. But of course, there is also already groups, for example, that blew up a electricity tower next to the Tesla Gigafactory that’s built in Brandenburg or something. And I do think that it’s possible that we will see more of that, because it cannot, it can’t be that just like rich people and fossil fuel companies just consume our world and our future like this.

[00:10:22] Dr Miranda Melcher: So is then, in your opinion Mirjam, is urgency a key way in which climate protest is different from protests on other topics?

[00:10:33] Mirjam Herrmann: Not necessarily. If we look to pro Palestinian protests right now, there’s a lot of urgency there and whenever we have a war involved or whatever, I think if anything, maybe the urgency sometimes is the weakness of climate protests because it’s sometimes so hard to communicate and to feel that and only a specific part of society is open to emotionally feel and understand that urgency and [00:11:00] really go into action and a big part of society doesn’t feel that.

[00:11:04] I think maybe that’s more what’s succinct to climate protests is that there is actually real urgency and there is so many there’s scientists are so unanimous on we need to do way more. Our government in Germany each and every year gets like a really bad grade for their climate action, and like scientists are like, okay, you’re not doing enough to reach the Paris agreement or even your own laws for climate protection.

[00:11:30] And also in Germany, we actually have climate protection and protection of the world for future generations. in our constitution and the constitutional court has said in several instances in different, of course, very complicated and annoying ways that what the government is doing isn’t enough. So we actually have so many things fighting for more climate justice, but the influence of fossil fuel companies and so on is just so big that we have a great dissonance between the [00:12:00] law that binds the state, also towards demonstrations, and the law that, for example, says that blocking a road is coercion that is immediately deployed against activists.

[00:12:10] So we are starting to have this transition from freedom and fundamental rights and human rights to the law and order kind of rhetoric. And I think climate protests show that very well that we’re having this change because they used to be oh, the climate protests are the good people, they just want something good, but now as the pressure rises the narrative changes. But maybe now I started like a real big topic where ee should leave that.

[00:12:35] Dr Miranda Melcher: No, this is interesting! Juanita, I’d actually love to bring you in on this because you work on criminal law and demonstration law, not just for climate activists. So from your perspective about European law, thinking about Dutch law, is there something on the legal side that makes climate protest a different kind of protest?

[00:12:55] Juanita van Lunen: No, legally it’s not different from other protests because we refer [00:13:00] to, or at least I refer a lot to the for example the European convention that I just talked about and that is the right to freedom of expression and the freedom to peaceful assembly. And then I also think it’s important that it’s not up to the state to decide what you’re demonstrating about, what your action is about.

[00:13:20] Because if there’s a difference between climate action, or something else like pro Palestine action, then the state is saying what cause is more important and I think it’s not up to the state to say something about what you’re protesting about.

[00:13:40] Dr Miranda Melcher: Got it. That’s good to have clarified. Miriam, you want to come in?

[00:13:43] Mirjam Herrmann: Yes, I think that’s actually a really interesting point. And maybe we’re, we have a difference there between the Netherlands and Germany, because that’s actually an argument we are faced with in courts all the time that we say no, it has to be recognized [00:14:00] somehow that what we’re protesting for here is something that is part of our constitution and where the government explicitly isn’t doing its job and isn’t keeping with the constitution. So it gives us the right to impact more on society when we have that as our frame for demonstration. So this, in particular, becomes like, necessary to argue this when we have people in front of courts for coercion.

[00:14:29] And so coercion is if you force someone to do something or not do something using violence. That’s the law in Germany. And then there’s this weird construction that violence can, that it’s also violence when people sit on the road because they’re psychologically stopping the first row of cars to stop and then this row of cars is physically in the way of the second row, so you’re exerting violence via the first row on the second row. It’s really fucked up, but that’s how it is. So they argue roadblocks are violence, [00:15:00] but because then coercion becomes such a big thing, when you’re always I don’t know, pushing someone away from the bus or whatever to get in, it’s already coercion that doesn’t really make sense.

[00:15:09] So there’s another part of the law that says that it also needs to be immoral or wrong the way you coerce. And there we always have this thing of okay, if we look at the right to assembly or other fundamental rights, we have to weigh it against the rights of those who have been coerced and in this weighing things against each other, a lot of judges say, okay, there we can’t factor in that

[00:15:36] this is about climate. Because we have to stay neutral, like you’re saying Juanita and some judges have followed our argumentation, but that’s definitely the fewer judges that follow that, that no, because there’s a specific right in the constitution that says the government needs to protect the future of coming generations and their livelihoods.

[00:15:58] Because that’s [00:16:00] specifically in the constitution and it’s broken by the government and it needs to be factored in that a roadblock can be more okay than if you would do a roadblock, I don’t know, against or for abortion or something like this. And that’s actually, I think, an interesting argument if you should depart from this neutrality here or not.

[00:16:22] Dr Miranda Melcher: Absolutely fascinating. Thank you for adding that in. Juanita, do you want to come in?

[00:16:27] Juanita van Lunen: Yes it’s, it is very interesting but I think it’s also somewhat dangerous because it also means that if the government doesn’t agree with something that you’re protesting about that you have less rights to demonstrate. But the freedom of expression is there that you can talk about anything you want, so also when people don’t agree with you, you still have the right to express yourself and also to protest and if people don’t agree with you, then it’s up to the state to protect your [00:17:00] rights. So I do think it’s very interesting, but it’s also somewhat dangerous when the government doesn’t agree with the thing you were protesting about that it can also be negative.

[00:17:12] Dr Miranda Melcher: Juanita, I wonder if you can tell us a bit about what happens in terms of police and government response to climate protest in the Netherlands. Miriam’s told us a little bit about the reaction that these protests get in Germany. What about in the Netherlands?

[00:17:25] Juanita van Lunen: We see some concerning trends in the Netherlands, I maybe can explain you what I do for activists. Mostly prior to an action, I can explain to people what they can expect and what their rights are and then during the action I stand by for questions from activists and also for legal assistance when they, for example, are arrested and then when that arrest ends up into a court case, then I can assist them during the court case and then I refer a lot to human [00:18:00] rights. And that sometimes ends up in a conviction and sometimes not and also a conviction without a punishment.

[00:18:08] So we have the example of the Vermeer painting Meisje met de Pavel in the Hague. And that the activists were arrested for quite some time, for a few weeks, they were detained, but then the higher court of appeal decided that they were convicted, but without a punishment. That is something that can happen and then also sometimes the judges say that the arrest already was a breach of the article standing 11 of the European convention of for the protection of human rights. And we do see some trends that are quite alarming, because when there is a big group then most cases get mostly dismissed, for example, when we have the highway block here in The Hague, then many, sometimes thousands of people, block the highway and then most of them most of [00:19:00] the cases get dismissed, but we do see that some of them are charged with more serious crimes like blocking a highway, which is a crime in the Netherlands. And also even sedition when people say let’s go to this demonstration on the highway that people got charged with sedition. And also preparing even blocking a highway, which is on paper, quite a serious crime.

[00:19:22] We see different things that on one side, when it’s a big group that most people don’t get charged with also not with minor offenses but with smaller groups do get charged with some more serious offenses.

[00:19:35] Dr Miranda Melcher: Yeah, I wonder if I can ask about your role in this, especially as you mentioned the kind of working with activists before an action during and after. Are there particular kind of ethical dilemmas that you experience working with these activists and how do you navigate that?

[00:19:52] Juanita van Lunen: No, not really. I just assist the activists and I explain what the rights are and that’s, I think my [00:20:00] role and that’s what their right is to know what their rights are also during the demonstration. I don’t know if you’re referring to a specific situation or,

[00:20:09] Dr Miranda Melcher: No, I think it’s just an interesting thing to think about, we often. perhaps reduce a protest down to there’s the protesters on one side and there’s the police on the other and that’s everyone who’s involved, right? But Juanita, particularly your role tells us there’s a lot more going on before a protest and after a protest.

[00:20:25] It’s not just these two binary groups. So I was just, I was curious about that and it’s interesting to hear your perspective. In a lot of ways it’s quite encouraging, right? We think about the law as being about people having rights and knowing what their rights are and ensuring that they remain as, we’re Just Access right, that they have access to justice, access to their rights.

[00:20:45] In a lot of ways it’s quite encouraging to hear you say, yeah, my job is to tell people what their rights are and that’s what I go and do, because that’s lot of ways we hope the system works.

[00:20:55] Juanita van Lunen: I think that it’s really important that people know what they can expect and not only what their rights [00:21:00] are, but also how the police may respond. That’s not always the same thing and I think that’s really important for people to know because otherwise when they think there’s nothing going on and they go to an action and then there is, for example, police violence it’s of course a big thing. It’s good when people know before what they can and cannot expect. But of course there can always be new things, new tactics from the police , or the public prosecutor. So I can’t always say what will happen, only what is more or less likely to happen.

[00:21:37] But I do think it’s important for people to know that before they enter a demonstration.

[00:21:41] Dr Miranda Melcher: That makes a lot of sense. Mirjam, I wonder if on the same sort of point I can ask you obviously in that kind of overly reductionist picture I just painted of protesters on one side, police on the other, and that’s it. We’ve got Juanita’s perspective of advising people on their rights. You are both of those things at once.

[00:21:58] How does that [00:22:00] work? Are you equally both at once? Are you more a lawyer sometimes, more an activist at other times? How do you think about these two roles?

[00:22:07] Mirjam Herrmann: I think the combination of the two roles is super valuable. It doesn’t need to be combined in one person, but that’s something we try to do, like now with our association, when we assist people that we combine law students or also lawyers that help us with activists and they work together and supporting people in defending themselves before court or also educating them beforehand.

[00:22:34] And I think the important value that this has is that, as Juanita also said, like what the law prescribes, for example, prescribes police to do, like what the law says on paper is very much not what is happening actually in real life, or of course, sometimes it is and whatever, but it’s valuable to approach [00:23:00] repression in that way, also from an activist viewpoint.

[00:23:03] So what I do, try to do in my work, and also we as an association, Is to strike the balance between we are educating people on the consequences that their action might have. As well that you might be charged before court, but also police violence that you might encounter being in custody and stuff like that.

[00:23:24] But at the same time, we also want to encourage people to face that head on. And we also want to encourage people to see that maybe. It is time to also endure that because if we are afraid of all the consequences of all the consequences, the consequence that will hit us as society and as humanity and which is already happening, I just talked about, I mentioned the floods in southern Germany.

[00:23:52] will just be so much worse. So it’s always striking a balance between educating people. No one should go into these situations, not [00:24:00] knowing what the consequences might be for them. But also trying not to demotivate people because of that. And that’s sometimes a hard balance to strike, and sometimes we sway more in one or more in the other direction.

[00:24:13] It also depends a lot on the individual activists. There’s always the people who just do so much, and they’re in the flow and they’re in full resistance and then there’s the people who just sat on the road maybe two or three times and they try to navigate it in a way that the punishment will be like so small that they can go on with their normal lives and then we always have to go into their specific needs to figure out this way.

[00:24:39] But I think the combination is super important. I know some other legal teams from movements where there’s just lawyers working there, and that oftentimes leads to, at some point, the entire structure breaking apart. So I know a lot of legal teams in, in, in Europe, and it sometimes makes it hard because the sense of urgency sometimes isn’t [00:25:00] so strong there. Yes. So it’s sometimes hard to strike the balance, but I think it’s valuable to have that, to make that effort.

[00:25:07] Dr Miranda Melcher: And it’s one of the reasons that we’re so pleased that both of you are here to talk to us about all of this so we get the nuanced perspectives.

[00:25:14] Outro

[00:25:14] Dr Miranda Melcher: Thank you so much, Miriam and Juanita, for speaking with us. And to listeners, thank you for listening. In our next episode, we’ll continue our conversation with Miriam and Juanita. You’re definitely going to want to tune in for the second part of our conversation, so make sure you hit the follow button and you won’t miss a single episode.

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