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“Civil Disobedience is Not a New Phenomenon” — 5in10 with Philipp Schönberger

Philipp Schönberger studied International Relations in Dresden and Law at the Humboldt University of Berlin. After his second state examination in February 2022, he started working for the environmental law NGO Green Legal Impact Germany e.V. in Berlin as a legal advisor for climate policy and the protection of climate activists. At the same time, he works as a freedom of information lawyer for the transparency initiative FragDenStaat, focusing on access to environmental information. Since 2019, he has been coordinating a litigation project against the violation of migrants’ human rights at the EU’s external borders, successfully representing more than fifty applicants before the European Court of Human Rights (ECtHR) in both interim measures and ordinary proceedings. Previous work experiences include stays at the Institute for Advanced Sustainability Studies in Potsdam, the European Centre for Constitutional and Human Rights in Berlin, the European Court of Human Rights in Strasbourg and two law firms specializing in climate litigation.

Philipp Schönberger, Photo: Private.

1. How would you explain your research to someone who is not an expert?

My research looks into how states react to the recent rise of disruptive climate protests. Civil disobedience as a form of protest poses significant challenges to the rule of law in a liberal democracy. On the one hand, state institutions are expected to react to the deliberate and public violation of a norm under the rule of law. On the other hand, any such response inevitably interferes with essential individual freedoms that are constitutive for a democracy, such as the freedoms of assembly, expression, and association, and must therefore meet strict justification requirements. Habermas aptly described this balancing act a “litmus test for the democratic constitutional state”.[1]

Civil disobedience is not a new phenomenon—historic examples include the Suffragettes fighting for women’s rights, Ghandi’s independence movement or the civil rights movement in the United States. Similarly, debates in political and legal philosophy over the definition of civil disobedience, its legitimacy, justification, and the (ir)relevance of the concept in the legal sphere are longstanding.

However, the recent wave of disruptive protests by climate movements such as Ende Gelände, Just Stop Oil, Soulèvements de la Terre, Letzte Generation, Extinction Rebellion, or Scientist Rebellion all across Europe has reignited discussions on how to deal with civil disobedience in liberal democracies. And with the numerous criminal proceedings that followed these protests, this debate has also gained traction in criminal law. How much the judiciary is struggling to find an adequate answer to these protests is evident in the wide range of court decisions, spanning from acquittals to prison sentences without parole.

Against this backdrop, my re:constitution fellowship focuses on an especially severe form of criminalization of civil disobedience: the prosecution of climate activist groups as “criminal associations” based on provisions that were created to combat organized crime. The penal codes of most European States define the membership in, or contribute to a criminal association, understood as a stable organization of people with a shared purpose of committing punishable acts, as a standalone offence. Characterized by a mixed nature as abstract endangerment, per se and inchoate crime, these organizational offenses consider the mere existence of an organized collective as a threat to society, irrespective of any harm caused and the individual contribution thereto. This significantly expands criminal liability regarding the timing and nature of punishable conduct and the range of potential participants. Departing from fundamental principles of liberal criminal legal theory, such as the harm principle, individual autonomy and proportionality, this expansion of criminal liability has met criticism from many scholars for lacking justification.

Applying this category of offense to the non-violent civil disobedience by climate activism goes far beyond punishing specific unlawful acts committed during protests (such as sit-ins or property damage). Instead, the charge of forming a criminal association penalizes the collective participation in public debate as such. This encroaches upon the human rights to freedom of assembly and association, which are by definition exercized collectively, as well as the participatory and deliberative ideas liberal democracy is based on.

My research project examines the legal framework in Germany and Spain—two European countries where climate activists currently face charges of forming a criminal association. Using these two case studies, I analyze the human rights and democracy concerns surrounding the application of organizational offenses to peaceful protest movements. Based on a review of the structural particularities of organizational offenses on the one hand, and a discussion of the concept of civil disobedience in democratic theory on the other, I aim to carve out the risks of these developments for liberal democracy and to propose solutions for how these concerns can be addressed both within the existing legal framework (de lege lata) and, ideally, through legislative adjustments introducing additional safeguards (de lege ferenda).

2. What were academic or personal inspirations that led to your current research?

The inspiration for this project came from my work on environmental democracy and the protection of climate protest at the NGO Green Legal Impact. For several years, we have been observing the increasing repression against peaceful environmental protests and the shrinking of civic space—not only in Germany, but also across Europe and beyond.

The prosecution of Letzte Generation as a criminal association (Section 129 of the German Criminal Code) in 2023 marked a new level of escalation. Prosecuting a road blockade as coercion or convicting activists for spray-painting public buildings is one thing. However, using criminal offenses originally designed to combat organized crime against them is something entirely different. I witnessed the far-reaching consequences of the investigations under Section 129 in Germany: Homes were raided, phones and laptops seized, communication surveyed and bank accounts frozen. The police uploaded a warning on the groups’ confiscated website that (unlawfully) declared the movement a criminal association, making any donation a potentially punishable act. Moreover, several third parties with only loose or no ties to the movement were targeted by the investigations. A lawyers’ office was raided, and documents unlawfully seized. The operator of the non-profit payment platform “elinor” was accused of being a supporter of the criminal association and a total of 700.000 Euro belonging to group accounts of school classes, self-help groups and sport associations were unlawfully frozen. In consequence, the platform had to shut down. The police raided a printing shop and an event equipment company and seized the contact details of 5.000 participants of a Fridays For Future protest. NGOs supporting the climate movement could not access money collected on crowdfunding platforms due to ongoing compliance procedures for potential support of criminal organizations. Organizations started to review their cooperations with Letzte Generation to avoid any risks to their recognition as non-profit-organizations.

Even without a conviction, the criminal investigations had massive chilling effects on civil society and spaces for political participation. This is not just a German phenomenon—Spain, Italy, and Austria have also seen law enforcement authorities investigating climate movements as criminal organizations. Deterring disruptive protest with such measures undermines the very idea of a free and democratic society—and it sets dangerous precedents for the criminalization of dissent in times of rising authoritarian forces.

However, in the legal debate on the application of the offense to acts of civil disobedience, the collateral damage to the human right of peaceful assembly and association and to democratic spaces received little attention so far. One key reason is that the legal provisions are defined too broadly, so their wording allows them to be applied to disruptive protests as well. With my research project, I hope to contribute to the ongoing discussion in scholarship as well as the judiciary by deducing limitations to the treatment of civil disobedience as organized crime from human rights law and political philosophy and to propose ways of incorporating them within the existing legal framework.

3. Which stations of your professional journey were particularly formative to you?

Though unrelated to my current research, leading a successful litigation project before the European Court of Human Rights on the living conditions of asylum seekers in a Greek refugee hotspot has been the most challenging yet rewarding experience of my legal career. By collaborating with clients from diverse cultural and national backgrounds, building effective teams and networks, developing litigation strategies, and managing cases in foreign jurisdictions and at the Strasbourg court, I could learn many invaluable lessons that law school does not cover. The journey from the initial contact with the applicants to the execution of the judgements has taught me a lot about the empowering potential of human rights law as well as the illusory nature of its aspirations.

4. How are you ‘doing’ research? What are your most important research methods?

As a legal practitioner, scientific research methods are usually not part of my daily work. That is why I am very grateful and excited about the opportunity to immerse myself in academic research methods again as part of the fellowship. In my research project, I combine doctrinal with comparative legal research and try to incorporate insights from political philosophy.

5. What book, article, film, exhibition or song would you recommend, and why?

For German speakers interested in the debate on civil disobedience, I strongly recommend Samira Akbarian’s doctoral thesis “Ziviler Ungehorsam als Verfassungsinterpretation” (civil disobedience as constitutional interpretation). Her understanding of civil disobedience as an act of interpretation of constitutional norms brings a fresh and radical-democratic perspective to the discussion. It highlights the emancipatory potential of civil disobedience to realize democratic ideals under imperfect democratic conditions while upholding the rule of law (a more easily digestible version of the thesis has been published in the book titled “Recht brechen. Eine Theorie des Zivilen Ungehorsams”).

Outside the box of my current research, a book that I really enjoyed reading was “East West Street” by international law scholar and professor at UCL Philippe Sands which is a fascinating combination of the authors’ pursuit of his own Jewish family history during the Second World War and the evolution of two core concepts of international criminal law, the crime of genocide and crimes against humanity.  

If you are neither interested in philosophical debates on civil disobedience, nor in the history of international criminal law, and you need to get your thoughts off today’s troubling geopolitical developments, I recommend the book I am currently reading to my daughter at bedtime, “Grüffelo where are you?”. It has six pages with adorable illustrations and felt flaps you can flip. 


Notes

[1] Jürgen Habermas, Civil Disobedience: Litmus Test for the Democratic Constitutional State, Berkeley Journal of Sociology, Vol. 30 (1985), pp. 95-116. https://www.jstor.org/stable/41035345?seq=1


Citation: “Civil Disobedience is Not a New Phenomenon” — 5in10 with Philipp Schönberger, in: TRAFO – Blog for Transregional Research, 24.04.2025, https://trafo.hypotheses.org/56789


OpenEdition suggests that you cite this post as follows:
Forum Transregionale Studien (April 24, 2025). “Civil Disobedience is Not a New Phenomenon” — 5in10 with Philipp Schönberger. TRAFO – Blog for Transregional Research. Retrieved May 20, 2025 from https://doi.org/10.58079/13swo


Forum Transregionale Studien

The Berlin-based Forum Transregionale Studien promotes the internationalization of research in the humanities and social sciences. It provides scope for collaboration among researchers with different regional and disciplinary perspectives and appoints researchers from all over the world as Fellows. More...

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