As we watch the revival of the first wave and anticipate an inevitable second wave, the intentionally inept federal, uneven and dangerous state and local, and self-interested business response to the COVID-19 pandemic is a horrifying experience. As the reality of the situation unfolds, the breach of public trust is breathtaking. The clear indifference of large swathes of the governing class to the welfare of the citizens whom they are sworn to protect is monstrous.
When does that monstrosity start to look like a crime or even a crime against humanity?
I. Domestic Crime – A French Precedent
From the start of the AIDS epidemic around 1983 until 2000, I lived in France. One of the most dramatic events in the course of that epidemic was the case of the French government response with respect to blood transfusion testing for HIV/AIDS. Families of hemophiliacs accused the former Prime Minister, the former Minister of Social Affairs and National Solidarity, and the former Secretary of State for Health of the crimes of involuntarily causing the death or involuntarily causing the poisoning of certain hemophiliac persons who received transfusions of non-heated blood infected with HIV during a period in which a heated blood method was available from an American laboratory.
As detailed in the commission for instruction report of the French Court of Justice of the Republic when the decision was made to send some of the cases to the criminal courts, the argumentation might be of interest as we look at the government response to the current COVID-19 pandemic in the United States.
With respect to the then-Prime Minister, the commission of instruction noted that:
A head of government who says he is determined to act against what he considers an epidemic, who announces that the testing of blood donors would permit the avoidance of several hundred people each year developing AIDS, cannot argue he was diligent while tolerating that the contamination of the receivers of the blood be prolonged for several weeks, with the sole reason being the French manufacturer of the test was not yet operational.[“] We are forced to note, contrary to appearances, that the approach taken by [the then-Prime Minister] with respect to the testing matter does not correspond to what we have the right to expect in terms of public health.”
While rejecting responsibility for the Prime Minister on this second point of the delay with the diffusion of the heated blood, the commission of instruction was also very tough on the Minister of Social Affairs and National Solidarity and Secretary of State for Health, to wit:
“[T]heir negligence, inattention, and lack of prudence and security, their lack of response to an order on the selection of blood donors, the lack of prohibition of collection of blood from risky populations, created conditions that made the injury of the hemophiliacs in question possible. With respect to the lack of follow-up with those who had received transfusions (to see whether they had or had not been contaminated in the months of high risk), the magistrates noted that the Minister of Health having abstained from taking any initiative to make these follow-up interviews mandatory must bear the liability in part for these indirect contaminations which could have been easily avoided.”
What is instructive for us today in the United States is that these excerpts point to a focus on both acts and omissions of these high governmental officials with dramatic consequences for the hemophiliacs. This concept of evaluating both acts and omissions of high governmental officials on health in another epidemic in a foreign country causes one to ponder the acts and omissions of high governmental officials here in the United States now in the current COVID-19 pandemic.
Due to the statute of limitations, only a subset of the cases presented were allowed to go forward. Ultimately, the highest court in France, the Cour de Cassation, weighed in on the matter in deciding to acquit the former Prime Minister and the former Minister of Social Affairs and National Solidarity and condemn the Secretary of State for Health on one count. However, due to the 15 year passage of time since the events, they ordered him not to have any punishment.
The Cour de Cassation noted that the French Constitution at Article 68-1 confirmed the autonomy of the criminal liability of members of a government in cases of serious crimes or other major offences committed by them during their office without making a distinction between voluntary and involuntary infractions.
It noted also that it was not for a Court – whose role is to apply the positive law – to evaluate whether it is appropriate to apply such law.
It further noted that political choices are for the legislature, and the Court in exercising its judicial functions was not to arrogate to itself a role of arbitrator of the French political life without compromising the normal functioning of the institutions of the French Republic.
In particular, the Cour de Cassation made short work of the prosecutor’s argument highlighting the risk that ministers in the future would be required to explain their political choices before the Court of Justice of the Republic, with a result of substituting judicial oversight for what should be a subject of democratic oversight. This would create a “regrettable confusion of powers” in subjecting the actions of the executive power to the appreciation of judges.
The Court stated that political liability – even if the idea, its criteria and its implementation were defined specifically, which is not the jurisdiction of the Court – is not exclusive either of civil or administrative liability of the State nor of criminal liability.
II. Return to America: What We Can Learn from the French
What is instructive in the above French case was that criminal liability was sought and imposed against high government officials for acts and omissions in dealing with the health crisis in that country. The fact that they were high governmental officials at the time they did these acts did not protect them from criminal liability – the French Constitution made that explicit. he fact that they had made policy choices within the scope of their work and would suffer some ill-defined political liability did not make the state immune from civil or administrative liability, nor these ministers immune from criminal liability when those acts and omissions were so devastating for injured and dead citizens.
In the United States no such explicit rule is found in our U.S. Constitution with respect to the criminal liability of high governmental officials. The only specified process in that Constitution is the political process of impeachment which we saw this year which if convicted has the person removed from office and no longer able to hold office in government, but results in no civil, administrative, or criminal liability.
The Supreme Court in a series of cases going forward from In Re Neagle, (1890) has provided a form of qualified immunity for federal officers operating in the scope of their authority. And no doubt the same issues of qualified immunity are addressed in various manners by state law and judicial decisions. And such qualified immunity might be extended to government contractors who do work for the government in the current COVID-19 crisis pursuant to an order under the Defense Production Act. In the presence of a federal or state order on how private citizens are to act, it is possible that private businesses might be able to assert compliance with governmental orders in a form of quasi-immunity for civil and possibly de facto criminal liability.
Having looked at this area of law over the years with respect to criminal prosecutions of high-level governmental officials and a former President for torture and other crimes, without going into too much detail, the path is murky. However, unlike what we see enshrined in French law, through case law or prosecutorial discretion it does appear that there is a path through for such governmental officials or private businesses to escape any criminal liability for their acts or omissions in addressing the COVID-19 pandemic.
But that murky way through is clearly a concern.
At least in Ohio and in Congress, there are efforts to pass COVID-19 Immunity Bills. The Ohio version of such a bill (Ohio Senate Bill 308) ostensibly seeks to revise the law governing immunity from civil liability and professional discipline for health care providers during disasters or emergencies, to provide qualified civil immunity to service providers providing services during and after a government-declared disaster, and to declare an emergency. The act is to apply retroactively to the date a disaster is declared by the federal government, state government, or political subdivision of the state.
One can question whether it is appropriate to provide such immunity to health providers extracting them from the ordinary duties of care required of them in their addressing those who come to them.
But, this bill goes farther.
Tucked in the end of the bill is a definition of services and service providers that encompasses pretty much all of the private or not-profit activity in Ohio. Article A(4) defines “Services” as meaning
“providing lodging, sheltering, groceries, pharmaceutical products, fuel products, other products, retail merchandise, manufacturing, care, religious or nonprofit services, or other acts that are part of or outside the normal scope of a person’s business or nonprofit activities during the period of a declared disaster and not more than one hundred eighty days after the end of the period of the declared disaster.”
The bill goes on to define “service provider” in Article A (5). “Service provider” means any person providing the services described in division (A)(4) of this section, including that person’s owner, officer, director, employee, or agent.
And all these persons are granted immunity except if it is established by clear and convincing evidence that the service provider’s act or omission is intentional, willful, or wanton misconduct. Thus, the preponderance of the evidence standard of proof in civil matters is thrown out for a higher standard. And this higher standard in these civil cases of clear and convincing evidence coupled with the kinds of intentionality, willfulness, or wanton disregard seems to exclude civil liability for recklessness. As to a criminal case, given this proposed law and prosecutorial discretion if a relevant statute were present, the kind of criminal case that was brought in France would appear highly unlikely to prosper in any but the most extreme case against a person in a public or private entity in Ohio. And if a version of this Ohio draft were passed at the federal level, such cases would be unlikely to prosper for the same reasons across the United States.
In sum, on the domestic front, through a combination of executive, legislative and judicial approaches at both the federal and state level the ordinary citizen that is sickened or dies due to the act or omissions of public or private entities risk being at an impasse in seeking civil or criminal accountability of either public or private actors for how they treat ordinary people in the COVID-19 pandemic.
III. Enter Customary International Criminal Law
All of the analysis above of the French and American experience has been done in the domestic law contexts of each country.
What about international law?
First we start with one of the cardinal rules of international law that no state can invoke the provisions of its internal law as justification for its failure to perform a treaty which is also a customary international law rule.
In such a view, the combination of acts and omissions of the executive, the legislator in such immunity legislation, and the judiciary in the application of the various doctrines of qualified immunity at the state or local level all form together the domestic state response to the COVID-19 pandemic.
While one could look in international human rights law for grounds for civil liability, this note is much more interested in criminal liability if one considers these acts or omissions at all levels of society monstrous.
One way of thinking about this is whether there are customary international criminal law rules on crimes against humanity that might be applicable to the United States. For example, the Statute of the International Criminal Court defines a crime against humanity as any of a series of acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Those acts include persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law as well as other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. An attack directed against any civilian population is further defined as a course of conduct involving the multiple commission of acts referred to in that section against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack [emphasis added] (Hat/tip Professor Leila Sadat, Washington University in St. Louis School of Law).
There is a debate as to what extent the Statute of the International Criminal Court states customary international criminal law rules (crystallizes rules applicable to all states) or creates new rules (progressive development) that bind only signatories. Prudence is encouraged in approaches to identify customary international criminal law rules and prosecute actors.
“For International practitioners should be cautious in the identification of customary rules in international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality.”
But, independent of such criminal liability through prosecutions or applicability of customary international criminal law, it might be possible to turn on its head the analysis of the French Cour de Cassation and think of these customary international criminal law rules as defining a form of political liability. That redefinition then might help galvanize efforts within the United States to understand the multilevel process that intentional or not risks leaving so many to sicken and die at the hands of COVID-19.
Let us think out loud about some of the civilian populations toward which a widespread or systematic attack might be found in the COVID-19 pandemic. There may be more.
If workers are made to “volunteer” to go back to work or face the loss of unemployment and/or CARES Act benefits where their workplace is a death trap such as in the meat industry, then federal, state, local, and business interests are committing such a widespread or systematic attack on those workers. If the local or national worker protection laws as applied do not, in fact, protect workers, but endanger them and if the courts turn a deaf ear to the pleas of these workers in harm’s way they are thrown to the wolves. For those workers at grocery stores, gas stations, medical personnel, and any other type of work where COVID-19 can easily spread, the same is true.
Given that the specific needs of the elderly in assisted care-living and the workers there have not been met so that we find significant clusters of death at these places, this group of vulnerable population form another type of victim.
While in US domestic law we tend to shy away from the effect of policy and focus on the intent of policy, international law recognizes both purpose and effect. The disproportionate sickness and death toll among racial minorities that appears widespread forms another civilian population under attack by the sum of the responses at all levels.
Clusters of COVID-19 cases for workers and detainees in prisons and detention centers are being found each day.
With the suspension of the normal rules of civil and likely criminal liability, any customer or student who gets sick or dies becomes a potential victim of the acts or omissions by the executive, legislative or judicial powers at the state or federal level and the public or private entity immunity. It should be noted that this appears to be a more amorphous group then the other four here to be a true civilian population, but the point is that we are thinking in terms of political movements.
As if to emphasize their culpability, the federal government has provided denialism, weak help in addressing the pandemic, and inconsistent and contradictory guidance. The reopening states have ignored even the correct guidance of the federal government and some are hiding statistics of infections as they play with fire. Local communities have acted like the Amity mayor in Jaws trying to keep the beaches open in the face of a clear and present danger. And the business community, maximizing shareholder value, has engaged in price arbitrage on PPE, taken the CARES Act money and run, and now seek that Congress and states shield them from any liability to customers or workers for reopening.
The picture is of course not all one sided for there are many laudable persons and entities at all these levels who are doing what they can to attempt to protect these vulnerable populations from the monstrous response.
If local law possibilities do not provide relief or only piecemeal relief in the context of a worldwide pandemic, if we care about workers, the elderly, racial minorities, prisoners and detainees, and potential other civilian populations such as customers and students in more than a lip-service sense, we might consider taking a more international or transnational view of the human rights violations that may rise to be crimes against humanity that are leading to their sickness and death for profit. That, international view, even without criminal prosecution can then help us crystallize our understanding of what is going on.
With that understanding, we may then be able to galvanize efforts to resist the forces of monstrosity and encourage the forces that protect the human condition and preserve human life. We can do that by finding what levers within society would vindicate the customary international criminal law rules identified through either civil, criminal, political, or democratic actions.
This COVID-19 pandemic may be calling us to that kind of response when we fear that the double security of the rights of the people so touted by James Madison might be being flouted rather than helped in our separation of powers and federalism.
For more on COVID-19, see our special coverage.
Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law specializing in International Law and Alternative Dispute Resolution. He contributes to JURIST and the SALTLAW Blog.
Suggested citation: Benjamin G. Davis, How Covid-19 Human Endangerment Might Be Approached as a Domestic Crime or an International Crime Against Humanity, JURIST – Academic Commentary, May 20, 2020, https://www.jurist.org/commentary/2020/05/benjamin-davis-covid19-criminal-liability/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
