COVID-19 Symposium: COVID-19 and International Criminal Law

[Fabricio Guariglia is Director of Prosecutions, Office of the Prosecutor, International Criminal Court. The opinions in this article are solely the author’s and should not be attributed to the Office of the Prosecutor or the International Criminal Court.]

As we move further into the uncertain, our offices turned virtual, our children at home, our social habits transformed, our concerns for ourselves and others guiding our daily routines, questions as to the shape of the post-COVID-19 world flood the internet. Alongside them are questions, such as the one at the heart of Opinio Juris’ very pertinent symposium about the role of international law in responding to the crisis. One sub-question that may not come immediately to our minds is the relevance, if any, of international criminal law (ICL) and international criminal justice vis-à-vis pandemics like the COVID-19 one. Are notions of individual accountability and of criminal conduct relevant in this particular context?  Is there a role for international criminal justice in the prevention of, and response to public health emergencies of this kind?

Many will advance a negative answer to these questions, some because of the lack of a clear and direct connection between international crimes and epidemics; others, because they will fail to see how the prosecution of international crimes may help prevent or solve a crisis of this nature. There is some truth in this, and criminal law is not – and should not situate itself – in the first line of defence in this context. And yet, as I hope to suggest, it has a role to play, if viewed through the correct lens. But before discussing this further, one important point of clarification: my analysis is confined to the relevance of international criminal law and international criminal justice in the current context; it does not touch on the distinct issue of resort to domestic criminal law by States in their responses to COVID-19, a matter that has been critically discussed by Nina Sun and Livio Zilli in this Symposium (see here and here).

A necessary basis for assessing the potential relevance of ICL entails accepting some basic truths underlying the COVID-19 crisis, which have been already noted by many: we are, regardless of whether we like it or not, a deeply interconnected world, and our security relies as much in global responses as in local ones. We have seen the evidence of this for years, but perhaps without grasping the extent of it. We have witnessed repeatedly how a humanitarian crisis created by atrocities in one part of the world could lead to a migrant crisis elsewhere, frequently accompanied by a surge in transnational organized crime feeding from both.

Still, the interplay between international criminal law and public health is less obvious. Do war crimes and impunity, for instance, contribute to a pandemic, or, conversely, can the prevention of such crimes contribute to a healthier world? How does global lawlessness impede the ability to respond to save lives and protect rights? There are no quick answers to these questions, but they deserve careful reflection as we move from immediate responses to the longer-term vision of our world. We can start configuring the answer to this question by examining some real-life scenarios where the conduct of actors involved in international crimes also seriously disrupts the ability to contain public health crises:

• In 2017, Médecins Sans Frontières (MSF) expressed concern about the safety and well-being of humanitarian organizations in the field, who were being targeted by armed groups terrorizing the Sahel region, including the groups at the heart of the crimes prosecuted by the International Criminal Court (ICC) in the Al Mahdi and Al Hassan cases.  The targeted organizations included those trying to contain an Ebola outbreak and prevent a spread of the virus to neighbouring countries (see, inter alia, here)
• In 2018, Human Rights Watch (HRW) requested the ICC to prosecute the perpetrators of a number of killings in the Kivu region of the Democratic Republic of the Congo, noting that ‘the attacks complicate efforts to stem an Ebola virus outbreak that has left at least 70 people dead since August. The risks of the outbreak worsening are heightened, with health workers unable to access some areas due to the insecurity and neighboring Uganda facing an “imminent” threat, according to the World Health Organization’ (see here).
• In 2009, then-President of Sudan, Omar al-Bashir responded to the warrant of arrest issued against him by the ICC by expelling from the country 13 humanitarian organizations, including Oxfam, International Rescue Committee and Save the Children, working in war-torn Darfur. The World Health Organization (WHO) warned at the time that ‘the decision could lead to the increase of mortality and morbidity due to the interruption of health services, the decline of immunization coverage and the lack of therapeutic feeding and nutrition services for children’ (see here). In sharp contrast, with al-Bashir in custody and awaiting justice, be it national or international, for the crimes for which he was indicted by the ICC, the same Save the Children announced a few days ago that a fleet of its vehicles equipped with loudspeakers and signboards had moved through North Darfur and Kordofan in Sudan this week, sharing messages about handwashing, social distancing and other ways to prevent the spread of COVID-19. Save the Children also said that it was ‘working closely with the Sudanese Ministry of Health to distribute facemasks and hand sanitizers to all health facilities in the region, with 1200 masks distributed and 1200 litres of sanitizer procured to date. The agency is also working with the Ministry of Health to establish isolation centres to ensure people who test positive to the virus can recover at a safe distance from the rest of the community’ (see here). 

These are only illustrations. There are more scenarios where humanitarian assistance (local, international, state and non-state actors) and the provision of basic health care and support, that we see as crucial across the globe today, has been impeded by those who enjoy impunity for war crimes and crimes against humanity.

None of this should come as a surprise. Epidemics and international crimes, more often than not, feed from the same toxic elements: systemic poverty, lack of education, of basic services, of state protection, of respect for individual rights, including the most basic socio-economic human rights. The groups and communities that are particularly vulnerable vis-à-vis epidemics tend to be those at the heart of the victimization in war crimes or crimes against humanity scenarios. And as real life examples show, the actors behind those crimes are rarely sensitive to public health considerations: armed groups who extensively victimize civilians for military, political and/or financial gain are prone to forcibly remove anything or anyone that they perceive to be a potential threat to their criminal plans, be it a priest, a children’s rights NGO or a group of health workers, regardless of the consequences; genocidaires, almost by definition, do not care about the health and well-being of their own civilian population, even if they have the responsibility, and the power, to protect it, like al-Bashir did. Meanwhile, as we are starting to see as the impact of COVID-19 goes global, systemic crimes strip communities and states of the resources and resilience needed to effectively react.

Admittedly, none of this is really new. But what the COVID-19 crisis is showing us, is that the consequences of epidemics spiralling out of control, even if long known to specialists, can go beyond anything we could have imagined from the comfort of our offices, our classrooms, or our homes. An armed group systematically preventing the containment of a deadly virus in a place that may seem remote to us can lead to a health crisis reaching our doorsteps, thousands of kilometres away (for encouraging contrary examples, see here). The interconnectedness of the world, our mutual dependence – considerations actually lying at the heart of the very notions of crimes against humanity, war crimes and genocide – have become inescapable realities.

International criminal justice (understood as the aggregate of national jurisdictions applying international criminal law and international and/or internationalized criminal courts and tribunals) undoubtedly offers only a limited response, and its effects can often only be seen after a prolonged period of time. But it can help isolate the actors behind the crimes, generate awareness of their actions and their potential consequences, and galvanize efforts to counter them. It can expose environments of dangerous misinformation (that we see today) and stubbornly remind the world that when we protect those who have brutally victimized their population and rendered it vulnerable, we do so at our peril; it can also lead to moments of potentially rich expressive value, such as Al Mahdi’s plea at the ICC, repudiating the violence of the armed groups he was part of in Timbuktu and asking others not to become involved in the types of acts in which he became involved ‘because they are not going to lead to any good for humanity’. Finally, it can send the message that in extreme situations, increasing the vulnerability of your population may bring accountability, no matter how much time has passed, as cases such as Habré reveal. In short, international justice can and should be one piece of a much more comprehensive response, one that tackles the actions of war criminals and their damaging consequences, as well as the chronic underlying factors that have contributed to a world much less secure, in many different ways, than we may have thought. Maybe in the post-COVID-19 world we will pay more attention to a comprehensive approach to security and to its protection.

The current crisis may also lead the international law community (courts, practitioners, academics, and states) to re-think some of our international criminal law categories and concepts. For instance, we may decide to make more and better use of the war crimes provision banning intentional attacks on humanitarian personnel (ICC Statute, Article (8) (2) (b) (iii)) – a crime the ICC Office of the Prosecutor (OTP) confirmed in its 2016 Policy Paper on Case Selection and Prioritisation that it would pay ‘particular attention to’ (see here), making sure that its construction captures deliberate attacks on impartial and independent health workers operating in the context of an armed conflict (for an interpretation of this provision see Abu Garda Confirmation Decision, paras. 68-74). We may decide to explore the applicability of different modes of responsibility to actors placed in situations of power who deliberately fail to take all necessary steps to contain the propagation of a potentially deadly virus, in full awareness of the consequences. Or we may inquire as to how we might potentially characterize evidence of an intentional failure to provide adequate health information, support, and facilities to a targeted group suffering a life-threatening epidemic. As we learn more about the connections between climate change and health crises such as COVID-19, we may also renew efforts to support ongoing initiatives to develop the category of international environmental crimes, or, at least, demand that more emphasis be placed on the environmental consequences of existing crimes (see the declaration of intent in this regard at para. 41 of the 2016 OTP Policy Paper on Case Selection and Prioritisation, referred to above). Finally, it is not outside the realm of possibilities that the international criminal justice system be asked to hold to account those who use the COVID-19 crisis as an excuse to commit or perpetuate crimes against humanity or war crimes.

One thing is clear: as Philippe Sands stresses in his contribution to this symposium, relying also on a thought-provoking article by Yuval Harari, we need a global response. And global responses imply the international rule of law, global governance and accountability dimensions. The response should put the responsibility to protect human beings at its centre, supported by, among others, multilateralism and effective international institutions. Most of all, we need to return to the values and principles that led States back in 1998 to write inspiring, almost poetic words in the Preamble of the Rome Statute – words that today resonate with particular force – when they reminded us ‘that all peoples are united by common bonds, their cultures pieced together in a shared heritage’ and expressed concern ‘that this delicate mosaic may be shattered at any time’.

We believed in these words then. It is imperative that we believe in them now.    

The author wishes to thank Helen Duffy, Rod Rastan, Hans Bevers, Xabier Agirrre and James Stewart for their helpful comments and suggestions.