15 May Trump’s Coronavirus Response: Genocide By Default?
Last week, The Huffington Post published an article with the provocative title, Epidemiologist Slams U.S. Coronavirus Response: ‘Close To Genocide By Default’. The epidemiologist in question was Prof. Dr. Gregg Gonsalves, PhD (Public Health, Yale University), who, according to his online curriculum vitae, is an Assistant Professor in Epidemiology of Microbial Diseases at the Yale School of Public Health, as well as an Associate (Adjunct) Professor of Law and Research Scholar in Law at Yale Law School, co-director of the Yale Law School/Yale School of Public Health Global Health Justice Partnership, and the Yale Law School/Yale School of Public Health/Yale Medical School Collaboration for Research Integrity and Transparency. In light of his bona fides, Gonsalves’ claim deserves a considered response.
As noted in the HuffPo article, after President Trump announced that he was going to ‘wind down’ the White House’s coronavirus task force (a decision which Trump later reversed), Gonsalves posted a number of tweets in which he opined that Trump’s actions were ‘getting awfully close to genocide by default’ and in which he questioned whether Trump could be held responsible under international law. To fully address Gonsalves’ questions, it is worth quoting his tweets in full and then addressing his questions in turn:
How many people will die this summer, before Election Day? What proportion of the deaths will be among African-Americans, Latinos, other people of color? This is getting awfully close to genocide by default. What else do you call mass death by public policy? #COVID19 #coronavirus [5:19 AM – May 6, 2020]
So, what does it mean to let thousands die by negligence, omission, failure to act, in a legal sense under international law? #COVID19 #coronavirus [5:59 AM – May 6, 2020]
And I am being serious here: what is happening in the US is purposeful, considered negligence, omission, failure to act by our leaders. Can they be held responsible under international law? [6:05 AM – May 6, 2020]
While I cannot answer the epidemiological questions Gonsalves poses above (although, sadly, I do not think anyone knows to a reasonable degree of scientific certainty how many people will perish from this pandemic in the US), I can analyze his many legal questions. Before addressing these issues, however, I must briefly discuss as a preliminary matter whether a global pandemic may be properly considered under the auspices of the crime of genocide.
Pandemics As Genocide?
Proponents of the ‘pandemics can be genocide’ argument have a steep mountain to climb, as demonstrated by the plain language enumerating the acts of genocide in Articles II(a) – (e) of the Genocide Convention. Article II defines ‘genocide’ as the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ through the commission of one of the following acts: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; or (e) forcibly transferring children of the group to another group. (Emphasis added). This definition is repeated verbatim in Article 6 of the Rome Statute of the International Criminal Court. As with all crimes, both the intent (mens rea) and the act (actus reus) must be present in order to convict a person for the crime of genocide. (The former requirement – intent – will be discussed in greater detail in the next section.)
In interpreting the meaning of the above-italicized words, Article 31(1) of the Vienna Convention of the Law of Treaties notes that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. Based on the ordinary meaning of the aforementioned terms, as well as the object and purpose of the Genocide Convention (See Reservations to Genocide Convention opinion, at 23), it is clear that the actus rei of the crime of genocide enshrined in Articles II(a) – (e) of the Genocide Convention, and later adopted verbatim in Article 6 of the Rome Statute, were concerned with the prohibition, prevention, and punishment of the man-made physical destruction of national, ethnic, racial, and religious groups, as such; they were not intended to address natural phenomena, such as pandemics or climate change, which inadvertently caused such destruction. The exception to this conclusion is, of course, whether there is proof that, by way of example, a virus was intentionally created and deliberately released by certain individuals with the specific intent to destroy one of these four protected groups.
In this case, however, there is no proof that Trump (or those under his command) either created COVID-19 or released the novel coronavirus on the American population with the specific intent to destroy, in whole or in part, certain racial or ethnic groups. Apart from a few unsubstantiated conspiracy theories (which will not be repeated here), the general scientific consensus at this time seems to be that COVID-19 originated somewhere in Wuhan, China, and that the virus spread organically worldwide, as natural pandemics have historically done. Thus, while it is understandable to invoke the term ‘genocide’ whenever there is large-scale death, from a legal standpoint, it is simply inaccurate and inappropriate as applied to pandemics unless there is proof that the pandemic was man-made and was deliberately released with the specific intent to destroy a national, ethnic, racial, or religious group.
Genocide By Default?
Notwithstanding this lack of evidence, Gonsalves claims that Trump’s incompetent response to the COVID-19 pandemic in the US is ‘getting awfully close to genocide by default’. Gonsalves supports his claims by arguing that Trump has ‘let thousands die by negligence, omission, [and his] failure to act’. While the latter is arguably true, there is simply no such thing as ‘genocide by default’ under international law. In addition to the actus rei noted above, Article II of the Genocide Convention and Article 6 of the Rome Statute define ‘genocide’ as the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The sine qua non of the crime of genocide is that it is a specific intent (or dolus specialis) crime. Although there are some variations between the common law and civil law legal traditions, and the international criminal legal system they inform, there is a distinction between specific intention, general intention, recklessness, and negligence, which Gonsalves does not appear to appreciate based on his comments. While I will not explicate each level of mens rea here (merely because this is a blog post and I do not have the space), I will say that specific intent crimes require the highest level of intent under the law.
‘Specific intent’ is defined as ‘a state of mind that exists where circumstances indicate that an offender actively desired certain criminal consequences, or objectively desired a specific result to follow his act or failure to act.’ (Criminal Law § 114). More critically, a ‘specific intent’ crime is
one in which an act was committed voluntarily and purposely with specific intent to do something the law forbids; the defendant acts not only with knowledge of what he or she is doing, but also does so with the objective of completing some unlawful act. That is, a specific intent crime requires not simply the general intent to do the immediate act with no particular, clear, or undifferentiated end in mind, but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result; mere knowledge that a result is substantially certain to follow from one’s actions is not the same as the specific intent or desire to achieve that result. A crime requires proof of specific intent when the statute’s description of the proscribed act refers to the defendant’s intent to do some further act or achieve some additional consequence; the specific intent is linked to the proscribed act and therefore must be present at the time of the proscribed act. (Criminal Law § 114).
Thus, while the HuffPo article rightly points out that the Center for Disease Control (CDC) has acknowledged the fact that, after several months of data from hospitals it has become apparent that in some areas, certain racial and ethnic groups, in particular African Americans, have been disproportionately affected by COVID-19, both in terms of infection and fatality rates, there is nevertheless no evidence that President Trump, for all his persistent racist and nationalist language, specifically intended for people of color to get sick and die. More importantly, for purposes of the crime of genocide, there is no evidence that President Trump specifically intended to physically destroy, in whole or in part, these racial or ethnic groups by failing to marshal the full resources of the federal government to assist the states in battling the pandemic. If anything, it appears that President Trump’s specific intent for failing to assist the states has always been political and personal (and perhaps even psychological): because Trump does not want to be blamed for the alarming coronavirus death toll during an election year, he has made fighting the virus the primary responsibility of the states by hiding behind the conservative doctrine of ‘federalism’; and because Trump cares only about himself and his immediate family (and perhaps because Trump suffers from an extreme case of narcissistic personality disorder), he has required state governors to figuratively ‘bend the knee’ by showing how ‘appreciative’ they are of his help before he will send federal aid. As immoral, repulsive, and outrageous as these motivations are, they are not evidence that Trump harbored specific intent to commit genocide.
Mass Death By Public Policy?
Gonsalves nevertheless asks, ‘What else do you call mass death by public policy?’ If I were to be glib, I would say a new plank in the Republican Party platform. But from a legal perspective, it is worth noting that in the Mladić case, the Trial Chamber held that, ‘where direct evidence of specific intent [to commit genocide] is absent, the specific intent may be inferred from the surrounding facts and circumstances’. (Mladić, at para. 3457). These facts and circumstances may include, inter alia, ‘the existence of a plan or policy’. (Mladić, at para. 3457). In the Krstić case, the Trial Chamber held that the defendant possessed the specific intent to commit genocide after it concluded that a plan to commit such crime existed based on the fact that, ‘following the takeover of Srebrenica of July 1995, the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave’. (Krstić, at para. 82). Moreover, in Jelisić, the Appeals Chamber noted that evidence of such a plan or policy may be reflected in ‘the number and nature of the forces involved, the standardized coded language used by the units in communicating about the killings, the scale of executions, [and] the invariability of the killing methods applied’. (Jelisić, at paras. 85-7).
These international legal standards of what constitutes a ‘plan or policy’ obviously have little bearing on whether Trump had the specific intent to commit genocide by failing to support, and at other times by blocking, the efforts of states in their fight against the novel coronavirus. But perhaps that is the point: we are comparing apples to oranges. Not all instances of mass death and not every involvement of a sociopathic tyrant justify the invocation of the word ‘genocide’. Unless there is proof that Trump had both the actus reus and the mens rea of the crime of genocide, then the use of the ‘g-word’ during this pandemic only weakens the norms regarding the prohibition, prevention, and punishment of genocide, which are vital to the international community of states as a whole and national, ethnic, racial, and religious groups everywhere.
But just because Trump has not committed the international crime of genocide does not mean he has not committed a domestic crime under federal or state law and thus cannot be held responsible for his crimes in federal or state court. According to the eminent Professor Laurence Tribe, Trump can likely be tried for manslaughter, and perhaps even murder, at the domestic level in light of the testimony of whistleblower Dr. Rick Bright, former director of the Biomedical Advanced Research and Development Authority (BARDA), the federal office charged with developing countermeasures for infectious diseases. Of course, a more thorough investigation needs to be done, but if Dr. Bright’s testimony from this past week is any indication, this is looking all the more likely.