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New Fault Lines? On Responsibility and Disasters

Published online by Cambridge University Press:  20 January 2017

Kristian Cedervall Lauta
Kristian Cedervall Lauta*
Affiliation:
Center for Enterprise Liability, Faculty of Law, University of Copenhagen
*
klau@jur.ku.dk.
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Abstract

This article investigates the L'Aquila decision. It aims to present a theoretical framework from contemporary disaster research and political philosophy to better understand why blame and responsibility has come to play such a prominent role in the aftermath of disasters. Furthermore, it presents a number of examples from criminal law around the world to provide context to the decision. The central claim in tthis piece is that the decision is not an extraordinary, isolated decision on responsibility following disasters; rather the decision is emblematic to an on-going development of disaster responsibility. Thus, after disaster follows a legal process aimed at identifying, and if necessary, penalizing the mistakes leading to the horrifying outcome. In that way disasters are increasingly like any other event in society with major negative implications; it is evaluated and if appropriate adjudicated.

Type
Symposium on the L'Aquila Seven: Re-Establishing Justice After a Natural Disaster
Information
European Journal of Risk Regulation , Volume 5 , Issue 2 , June 2014 , pp. 137 - 145
Copyright
Copyright © Cambridge University Press 2014

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Footnotes

* The article is made as part of a postdoctoral project under the Danish Maritime Cluster. Furthermore, it is published as part of University of Copenhagen 2016 excellence program for interdisciplinary research-project Changing Disasters.

References

1 See also David Alexander, ‘Communicating Earthquake Risk to the Public: The Trial of the “L'aquila Seven“', Natural Hazards, forthcoming (2014) at 1. The critique was not only expressed on the front pages of the global news media. More than 5000 scientists signed a petition against the trial, cf. Ibid., at 5.

2 See for example Editorial, “Shock and Law”, Nature, 23 October 2012.

3 See for example Editorial, “Science on Trial”, Nature Geoscience, 3, 509, 2010. See also Simoncini, Marta: “When science meets responsibility. The Major Risks Commission and the L’Aquila earthquake”, European Journal of Risk Regulation, vol. 2 (2014)Google Scholar

4 See Notaro, Domenico: “Scientists and earthquake risk prediction: ”ordinary” liability in an extraordinary case?”, European Journal of Risk Regulation, vol. 2 (2014).Google Scholar

5 See for instance Prof. Fioritto's case comment in this special issue, cf. Fioritto, Alfredo: “Science, scientists and judges: can judges try science?”, European Journal of Risk Regulation, vol. 2 (2014).Google Scholar

6 Leibniz, G. W., Theodicy (Open Court Publishing Co., 1988).Google Scholar

7 Heinrich von Kleist: “Das Erdbeben in Chili” (1806), made publicly available via “Projekt Gutenberg”: http://gutenberg.spiegel.de/buch/584/1 (last visited April 2014)

8 For an account of pre-Christian conceptions of disasters see for instance Frymer-Kensky, Tikva, ‘The Atrahasis Epic and Its Significance for Our Understanding of Genesis 1–9’, in Dundes, Alan (ed.), The Flood Myth (University of California Press, 1988)Google Scholar, for a general account of flood myths see Hans Kelsen, ‘Retribution in the Flood and Catastophe Myths', in Alane Dundes (ed.), ibid, and finally for an account of disasters as religious myths see Alan Dundes, ‘Introduction', in Alan Dundes (ed.), ibid.

9 The Lisbon-earthquake in 1755 is often mentioned as the turning point for the enlightenment's conception of disaster, see Lauta, Kristian Cedervall, Disaster Law (Routledge, forthcoming, 2014)Google Scholar, chapter 2. Furthermore, the earthquake is often mentioned as the first ever state-coordinated disaster response, cf. Dynes, Russell R., ‘The Lisbon Earthquake in 1755: Contested Meanings in the First Modern Disaster’, TsuInfo Alert, 2/4 (2000a), 10–18 Google Scholar, Dynes, Russell R., ‘The Dialogue between Voltaire and Rousseau on the Lisbon Earthquake: The Emergence of a Social Science View’, International Journal of Mass Emergencies and Disasters, 18/1 (2000b), 97–115 Google Scholar, João Duarte Fonseca, 1755 – the Lisbon Earthquake (2nd edn.: Argumentum, 2005), Quarantelli, E.L., ‘The Earliest Interest in Disasters and Crises, and the Early Social Science Studies of Disasters, as Seen in a Sociology of Knowledge Perspective’, Working Paper (University of Delaware, 2009).Google Scholar

10 Voltaire's world-known Candide expresses this perception of disasters, encouraging us to see the world as it is, cf. Voltaire, , Candide (Dover Publications Inc., 1991).Google Scholar

11 The earthquake that took place in 2008 is estimated to have caused the death of nearly 70.000 people.

12 By this gesture Weiwei wanted to blame the Chinese authorities for covering up the consequences of the earthquake, not least caused by poor building standards for public buildings, leading to the collapse of several schools and kindergartens. Weiwei ex officio initiated an investigation in which he managed to name 5.385 children – the investigation was made without the consent or approval of the Chinese authorities.

13 Hurricane Katrina has provided a strong argument for the vulnerability approach to disaster since it was widely understood and processed as a result of imprudent planning, horrible engineering, and discriminatory management Bullard, Robert D. and Wright, Beverly, Race, Place, and Environmental Justice after Hurricane Katrina : Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast (Boulder, CO: Westview Press, 2009)Google Scholar, Tierney, Christine Bevc Kathleen, Kuligowski, Erica, ‘Meaphors Matter: Disaster Myths, Media Frames, and Their Consequences in Hurricane Katrina’, The Annals of the American Academy of Political and Social Science, 604 (2006)CrossRefGoogle Scholar, Verchick, Robert, Facing Catastrophe (Harvard University Press, 2010)Google Scholar., according to some even prompting a “paradigm shift” in contemporary disaster research Steven Picou, J., ‘Introduction. Katrina as Paradigm Shift: Reflections on Disaster Research in the Twenty- First Century’, in Brunsma, David L., Overfelt, David, and Steven Picou, J. (eds.), The Sociology of Katrina: Perspectives on a Modern Catastrophe (Lanham, Md.: Rowman & Littlefield Publishers, 2007), xx, 282 pGoogle Scholar, Furedi, F., ‘The Changing Meaning of Disaster’, Area, 39/4 (Dec 2007), 482–89CrossRefGoogle Scholar. The hurricane's destruction generated more than 1 million legal claims, and more than any event domestically affected the reputation of President George W. Bush.

14 See e.g. Ben Lewis, “The Legal Aftershocks of Fukushima”, brought on law.com 26 January 2012.

15 For an elaborate analysis of the facts of the case see Hall, Stephen S., ‘At Fault’, Nature, 477 (2011), 264–69.CrossRefGoogle ScholarPubMed

16 Case n.380, 22.10.2012, Victims of the earthquake v/ Barberi et alii, (members of the National Commission for Major Risks), Tribunal of L’Aquila, grounds delivered on the 29. 01. 2013; (first degree of judgment).

17 Elsewhere also L’Aquila Six however in the following “the L’Aquila Seven”.

18 The numbers varies depending on the source, Scientific American reports an official death toll of 309, David Bressan, “April 6, 2009: The L'Aquila Earthquake”, Scientific American, April 6, 2012, http://blogs.scientificamerican.com/history-of-geology/2012/04/06/april-6-2009-the-laquila-earthquake/ (last visited 21 maj). David Alexander reports of 308 deaths and 1500 injured, 202 of them seriously, cf. Alexander, ‘Communicating Earthquake Risk to the Public: The Trial of the “L'aquila Seven“'.

19 Enzo Boschi, Guilio Selvaggi, Franco Barberi, Claudio Eva, Mauro Dolce and Gian Michele Calvi.

20 The former vice-president of the Italian Emergency Management Agency, Bernardo De Bernardinies.

21 According to the Civil Protection Department, Protezione Civile's website, the Commission was established in order to serve as a ”connecting structure between the National Service of Civil Protection and the scientific Community” in accordance with law no. 225 dated 1992, article 9 and a Decree of April 3 2006 by the Prime Minister defining its operation and the organization. See http://www.protezionecivile.gov.it/jcms/en/commissione_grandi_rischi.wp?request_locale=en (last visited May 21, 2013). According to the website the Commission's task is “technicalscientific and consultancy as regards predicting and preventing various risk situations”. The mandate and compostion of the commission was changed by a recent decreed, see decreto del Presidente del Consiglio dei Ministri del 7 ottobre 2011.

22 Editorial, “Science on Trial”, Nature Geoscience 3, 509 (2010)

23 Ibid.

24 The verdict does still not exist in a translated version. The account of the verdict applied in the article is therefore based upon several scholarly accounts, hereunder the contributions in this special issue, and Alexander, ‘Communicating Earthquake Risk to the Public: The Trial of the “L'aquila Seven“’.

25 See e.g. Nosengo, Nicola, “L’Aquila verdict row grows”, Nature 491, p. 15–16, 1. November 2012.CrossRefGoogle ScholarPubMed

26 See the article by Professor Alfredo Fioritto in this special issue of the EJRR.

27 Hard pressed the public prosecutor Picuti in 2011, at the opening of the trial, told Nature: “I’m not crazy. I know they can't predict earthquakes”, cf. Editorial, “Shock and Law”, Nature, 23 October 2012, available on the internet at www.nature.com/news/shock -and-law-1.11643 (last accessed on 1 March 2013). Judge Billi also clearly emphasizes this in the judgment, see furthermore Alexander, ‘Communicating Earthquake Risk to the Public: The Trial of the “L'aquila Seven“'.

28 Modern disaster research, dating back to the early 1920s, has its foundation in American sociology, see Carr, Lowell Juilliard, ‘Disaster and the Sequence-Pattern Concept of Social Change’, American Journal of Sociology, 38/2 (1932), 207–18CrossRefGoogle Scholar, Prince, Samuel Henry, Catastrophe and Social Change, Based Upon a Sociological Study of the Halifax Disaster (1st AMS edn.; New York,: AMS Press, 1968) 151 Google Scholar, Quarantelli, E. L., Disasters : Theory and Research (London ; Beverly Hills, Calif.: Sage Publications, 1978) 282 Google Scholar, Quarantelli, E. L., What Is a Disaster? : Perspectives on the Question (London New York: Routledge, 1998) xiii, 312 Google Scholar, Perry, Ronald W. and Quarantelli, E.L. (eds.), What Is a Disaster - New Answers to Old Questions (International Research Committee on Disasters, 2005).Google Scholar

29 Perry and Quarantelli (eds.), What Is a Disaster – New Answers to Old Questions at 345.

30 See supra, note 13.

31 Anthony Oliver-Smith and Susannah M. Hoffmann suggests “predisaster conditions” as the epistemological frame for disasters: social structures, built environments, cultural perceptions etc., and these conditions thereby determine how a given society is able or unable to cope with a hazard Oliver-Smith, Anthony and Hoffman, Susannah M., The Angry Earth: Disaster in Anthropological Perspective (New York: Routledge, 1999) xiii, 334 p. at 4.Google Scholar

32 Shklar is born in Riga in 1929 from where her parents migrated first to Sweden and later to Canada, she taught at Harvard from 1956 to her death in 1992.

33 Shklar, Judith N., The Faces of Injustice (New Haven: Yale University Press, 1990) vii, 144 p. at 58.Google Scholar

34 Shklar claims thereby that there is no “natural” content to justice or more precisely to injustice, as Rousseau or natural law thinkers would claim, but that we maneuver in a socially drawn border between the two categories.

35 Shklar, The Faces of Injustice at 65.

36 See Neiman, Susan, Evil in Modern Thougt (Princeton University Press, 2004)Google Scholar, Leibniz, Theodicy. See also Shklar, The Faces of Injustice.

37 This is in a sense similar to Hayek's description of the Marked in The Mirage of Social Justice from 1976, cf. Hayek, Freidrich A., Law, Legislation, and Liberty, vol. 2, The Mirage of Social Justice, University of Chicago Press, Chicago, 1976 Google Scholar – the sentence is rephrased from Shklar's analysis of Hayek's idea of social justice and capitalism, see Shklar, The Faces of Injustice at 80.

38 Ibid., at 86.

39 Shklar is herself very sceptical towards law's ability to adjust to the dynamic switches between misfortune and injustice. In fact, for Shklar the distinction is as much a devise to criticise existing institutions and law.

40 Robert Verchick uses this exact rationale to investigate what he refers to as Disaster Justice – a concept closely connected to social vulnerability as introduced by Susan Cutter – in an American context. Thus, while Verchick uses Shklar's rationale to focus on social inequality and structural injustice (social vulnerability), I will use it merely to establish disasters as a sphere for legal responsibility, and the consequences of this on a theoretical level. See Verchick, Facing Catastrophe, Verchick, Robert, ‘Disaster Justice’, Duke Environmental Law and Policy Forum, 23 (2012).Google Scholar

41 Some would claim that I am making a very uncontroversial claim here. Obviously, disasters have been occurrences involving discussions of justice and injustice always. Even in pre-enlightenment time disasters were subject to imaginations of justice – in fact perhaps this was the primary idea of disaster and Rousseau already in the aftermath of the Lisbon earthquake points to the people as responsible for their own misfortune (living close together in tall buildings a.s.o.) However, these claims of injustice were, I would argue, not part of a common conception neither in the research community nor in the populations affected.

42 See similarly three prominent legal sociologists’ suggestion for a program for studying the emergence of new types of conflicts, Willima L.F. Felstiner, Richard L. Abel, and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claming …', Law and Society Review, 15/3/4 (1980/81).

43 Coleman, Jules L., ‘The Practice of Corrective Justice’, in Owen, David G. (ed.), Philosophical Foundations of Tort Law (Oxford University Press, 1995) at 95.Google Scholar

44 Obviously this rough genealogy does not accurately cover the historical complexity. There have always been pockets in societies where these ideas have co-existed.

45 See e.g. Kaplan, Casey P., ‘The Act of God Defense: Why Hurricane Katrina & Noah's Flood Don't Qualify’, Review of Litigation, 26 (2007), 155–81Google Scholar, Kristl, Kenneth T., ‘Diminishing the Divine: Climate Change and the Act of God Defense’, Widener Law Review, 15 (2010)Google Scholar, Binder, Denis, ‘Act of God? Og Act of Man? A Reappraisal of the Act of God Defense in Tort Law’, Review of Litigation, 15/1 (1996), 1–80 Google Scholar, Chocheles, Christopher T., ‘No Excuses: Hurricanes and the “Act of God” Defence to Breach of Contract Claims’, Louisiana Bar Journal, 57 (2010)Google Scholar, Hall, C.G., ‘Un Unsearchable Providence: The Lawyer's Concept of Act of God’, Oxford Journal of Legal Studies, 13 (1993).CrossRefGoogle Scholar

46 See e.g. Hinghofer-Szalkay, Dagmar, Naturkatastrophen: Haftung Des Staates Für Schäden Der Opfer: Rechtsvergleichende Überlegungen, USA-Österreich (Jan Sramak publishing house, 2012)Google Scholar, Issues in Legal Scholarship, Farber, Daniel and Faure, Michael (eds.), Disaster Law (Edward Elgar Publishing, 2010)CrossRefGoogle Scholar, Michael G. And Bruggeman Faure, Véronique, ‘Catastrophic Risks and First Party Insurance', SSRN, (2007), Organisation for Economic CoOperation and Development., Large-Scale Disasters : Lessons Learned (Paris, France: Organisation for Economic Co-operation and Development, 2004) 98.Google ScholarPubMed

47 Perhaps most relevant today, see “Spain train-driver held “for reckless manslaughter””, 27 July 2013, BBC news, available at http://www.bbc.co.uk/news/world-europe-23477316.

48 Costa Concordia is only the latest in a long line of criminal cases mounted in the aftermath of shipwrecks, see “Five Guilty in Costa Concordia trial”, BBC News, 20 July 2013, available at http://www.bbc.co.uk/news/world-europe-23388680.

49 See for example Andrea Rothman & Matthew Campbell, “Air France Charged with Manslaughter Over Fatal Airbus Crash”, Bloomberg, 18 March 2011, available at http://www.bloomberg.com/news/2011-03-18/air-france-charged-over-airbus-a330-crash-into-atlantic-in-2009.html.

50 E.g. the Hillsborough investigation, see Arthur Martin & James Tozer, “Two Hundred police officers facing probe over Hillsborough in manslaughter investigation that could be biggest ever”, Mail Online, 13 October 2012 available at http://www.dailymail.co.uk/news/article-2216713/Hillsborough-disaster-inquiry-Prosecutors-told-look-bringing-criminal-charges-police.html.

51 See for instance the aftermath to the Gleision Colliery mining accident, in which the mine manager, Malcolm Fyfield, was facing four counts of manslaughter by gross negligence. See “Gleision disaster: Mine manager charged over four deaths”, 18 January 2013, available at http://www.bbc.co.uk/news/uk-wales-21081302.

52 See e.g. the Mont Blanc tunnel fire from 2002. BP pleaded guilty on all eleven counts of manslaughter following the Deep Water Horizon explosion and fire, see e.g. Michael Muscal, “BP pleads guilty to manslaughter in 2010 gulf oil spill”, Los Angeles Times, available at http://articles.latimes.com/2013/jan/29/nation/la-na-nn-bp-pleads-guilty-to-manslaughter-in-2010-gulf-oil-spill-20130129.

53 Seven ATMB (Autoroutes et Tunnel du Mont Blanc) and SITMB (Società Italiana per Azioni per il Traforo del Monte Bianco) employees, the driver of the HGV, Volvo, the mayor of Chamonix, some safety regulators and a senior official of the Ministry of Public Works.

54 See for instance “Manslaughter convictions follows Mont Blanc Fire”, New Civil Engineer, available at: http://www.nce.co.uk/manslaughter-convictions-follow-mont-blanc-fire/537562.article (last visited at 30. juli 2013).

55 See supra, note 52.

56 Case of Öneryildiz v. Turkey (48939/99).

57 A phrase borrowed from Chester W. Hartman and Gregory D. Squires’ book on Hurricane Katrina of the same name, cf. Hartman, Chester W. and Squires, Gregory D., There Is No Such Thing as a Natural Disaster: Race, Class, and Hurricane Katrina (Routledge, 2006).Google Scholar

58 Green's general presumption is that disasters often are systematic mass human rights violations.

59 Penny Green, ‘Disasters by Design: Corruption, Construction and Catastrophe', The British Journal of Criminology, /45 (2005), 528–46.

60 Green, Penny and Ward, Tony, State Crime : Governments, Violence and Corruption (London ; Sterling, Va.: Pluto Press, 2004) viii, 255.Google Scholar

61 See also for a more politico-legal contribution on international criminal law and disasters, Russo, Francesca, ‘Disasters through the Lens of International Criminal Law’, in De Guttry, Andrea, Gestri, Marco, and Venturini, Gabriella (eds.), International Disaster Response Law (Springer, 2012).Google Scholar

62 Case of Budayeva and others v. Russia (15339/02).

63 See also Murillo Saldías and Others v. Spain from 2006 (76973/01).

64 Cf. Budayeva and others v. Russia, supra, note 62.

65 See ibid para. 136

66 Ibid para. 137

67 Ibid para. 137 in fine

68 The form of investigation may vary according to the circumstances. In the sphere of negligence, a civil or disciplinary remedy may suffice (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002I, and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002VIII).

69 Ibid para. 138

70 See “City officials in flood trial face manslaughter charges”, Arab News, 1 October 2011, available at http://www.arabnews.com/node/393103 (last visited 1 August 2013).

71 See Pascale Bonnefoy, “Chilean Judge Upholds Manslaughter Charges Linked to 2010 Tsunami”, New York Times, May 16, 2016. Available at http://www.nytimes.com/2013/05/17/world/americas/chilean-judge-upholds-manslaughter-charges-against-officials-over-tsunami-alert.html (last visited May 2014).

72 Echoing Shakespeare's Julius Cesar: “But since the affairs of men rest still uncertain, let's reason with worst that may befall”, William Shakespeare, Julius Caesar, Act 5, scene 1.

73 The prosecutor according to the New York Times said: “If the accused had been fulfilling their duties, lives would have been saved”, New York Times, supra, note 71.

74 It even seems suggestive that blaming can be an obstacle to a successful disaster management regime. In disaster research, attribution of blame in a community in general is widely depreciated. See for instance Whittingham, R. B., The Blame Machine (Elsevier Butterworth-Heinemann, 2004)Google Scholar, Reason, James, ‘Human Error: Models and Management’, British Medical Journal, 380 (1990b)Google Scholar, Reason, James, Human Error (Cambridge University Press, 1990a)CrossRefGoogle ScholarPubMed. The Dutch Professor of Human Factors Sidney Dekker even distinguishes between a “blame culture” and a “just culture”, describing attribution of blame as part of a fallacy of quick fixes. See e.g. Sidney Dekker, The Field Guide to Understanding Human Error (Ashgate, 2006) at 183ff. And of course Sidney Dekker, Just Culture. Balancing Safety and Accountability (2nd edn.: Ashgate, 2012). Many legal theorists are also critical to this point. Linda Ross Meyer describes the legalization of disasters as a colonization of the catastrophe “reframing it as injustice, expanding the bounds and jurisdiction of law, and consequently expanding the zone of human control and responsibility”, cf. Meyer, Linda Ross, ‘Catastrophe: Plowing up the Ground of Reason’, in Sarat, Austin, Douglas, Lawrence, and Umphrey, Martha Merrill (eds.), Law and Catastrophe (Stanford University Press, 2007) at 21.Google Scholar

75 Douglas, Mary, Risk and Blame: Essays in Cultural Theory (Routledge, 1992) at 25.CrossRefGoogle Scholar