WAGING A PANDEMIC – A CRIME AGAINST HUMANITY?

*Chandni Ghatak

INTRODUCTION

In the wake of the ongoing pandemic, the world has come to a standstill whose future continues to remain unknown. Nations all over the world are responding to this global crisis in their own ways, be it in the ways they are tackling the spread of the disease in their own jurisdictions or in the manner they are preventing its spread to other countries. Considering the scope of a pandemic is necessarily trans-national, it inevitably raises new dimensions to the subject of public international law. One of the possible questions which require ascertainment is whether a state if found to wage a pandemic purposely, commits a crime against humanity?

In view of this backdrop, this post shall analyse the above stated question that if in case a State  is proven to have waged a pandemic against the world to cause various socio-economic difficulties and the larger threat to life for the world community, could it be accused of having committed a crime against humanity? The author shall demonstrate how such inclusion in the current framework of customary international law is challenging and why there is an urgent need for revisiting the same.

MEANING OF CRIMES AGAINST HUMANITY

The term “Crimes Against Humanity” (“CAH”) emerged largely during the onset of the Nuremberg trials. However, over the years and evolution of customary international law, the widely accepted definition as incorporated under the Rome Statue of International Criminal Court (“Rome Statute”) does not require the presence of an international armed conflict for the application of these provisions. All it requires it to be is a systematic attack targeted to any civilian population. Therefore, one must first undertake the task of viewing the definition of such crimes considering such “peaceful” pandemic.

Upon a perusal of the definition incorporated under Article 7(1) of the Rome Statute, specific attention in this context must be paid to sub-clause (k), which reads as follows:

(k). Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health

It is necessary to view that sub-clause (k) must not be read in isolation of the other more specific crimes defined under other sub-clauses of Article 7(1) and (2). The words of a “similar character” clearly showcase that the threshold of proving that a pandemic is of similar character to the crimes more specifically defined. If we peruse the Rome Statute as it stands today, the acts described are more barbaric and gruesome which makes accommodating a pandemic situation as it stands today, a challenge.

As is known, the Covid19 crisis bears the character of a pandemic which means several countries are largely affected. This being a pandemic, several individuals across ethnicities are suffering not only by being direct victims of the disease but also to other social inequities such as loss of work, hunger and poverty. In many instances, it is also being debated that pandemics have historically also seen to create waves of mass violence and other civil tensions. However, due to their being little or no authority on this specific aspect of the definition, bringing the current crisis under its sweep is hardly possible.

LACUNAE WITHIN THE ROME STATUTE

Additionally, another hurdle emerges. The rule of “nullum crimen sine lege” provides that no one ought to be punished for an act which was not a criminal offence at the time of commission. This is a coveted principal of criminal laws of most nations and has been a recurring question as far as the Nuremburg trials itself.

Similarly, if China were to be accused, experts would first be required to overcome such hurdle. The definition of crimes against humanity has been an elusive one, even more so because of the lack of specific conventions to this effect. As a rebuttal however, experts may attempt to use the principle of first notion, that the violator was aware that the planned systematic attack could attract individual criminal responsibility. While this may have somewhat been the argument during the Nuremburg trials, charging officials of a State would be legally implausible because of this principle having been expressly enshrined within Article 22 of the Rome Statute. The World Health Organization’s International Health Regulations – 2005 is specifically designed to deal with the “prevention of the international spread of disease”. Article 7 of these Regulations calls upon State Authorities to report to the WHO in the case of unusual public health events, which naturally calls for state authorities to immediately report a spike in cases of any kind. Assuming a country fails to do so, if this may be used to establish the necessary intent required to launch a systematic attack on a civilian population, meeting the definitional requirement is still difficult as “other inhumane act” continues to remain undefined. The above demonstrates the need for a re-evaluation of the Rome Statute itself. Akin to the specific classifications it has made in a laudable way as far as crimes concerning sexual violence is concerned through its wording of Article 7 (1) (g), there now requires to be the inclusion of situations such as the present pandemic. With increasing concerns of biological warfare etc, the need to expand of the “other inhumane acts” category becomes more urgent.

AID OF OTHER INSTRUMENTS – THE NEED FOR A CONVENTION ON CRIMES AGAINST HUMANITY

In 2017, the ILC presented to the UN for the first time the first reading of the “Draft Articles” for a proposed Convention on Crimes Against Humanity. These draft articles represent a giant leap for international humanitarian law generally and can be particularly useful in the context of persecuting those responsible for crimes such as waging a pandemic.

Draft Article 2 provides that States have a general obligation to punish CAH as a crime under international law whether committed during armed conflict. This allows the possibility of those crimes committed in peace time such as that of waging a pandemic, to be treated as a CAH. Additionally, the Draft Articles also provide for a set of six obligations to be honoured by the states, namely –

  1. States must not commit CAH
  2. States must prevent others from committing CAH to the extent they are able
  3. Obligation to adopt national laws which criminalize CAH
  4. States must cooperate with one another
  5. States shall not send any person to a state wherein they stand at a risk to be victims to a CAH
  6. States must punish CAH

A set of such obligations only help establish liability for waging a pandemic more clearly. First, it considerably provides for attribution of state responsibility. Second, it bears a responsibility to prevent commission of such crimes, meaning thereby preventing lapses from its own authorities ( analogous to the obligation under the International Health Regulations- 2005 as illustrated earlier). Third, by adopting municipal laws which can criminalise such action, extradition may also become less of a challenge. Fourth, the principle of “non-refoulement” in this context goes a long way in protecting the rights of the vulnerable sections of the masses. All these factors combined can pave the path in increasing international accountability, greater focus on public health infrastructure and lesser human rights violations.

The above stated position clearly illustrates the increasing urgency in resolving to translate the Convention against Crimes Against Humanity into reality. It bears a dynamic approach, necessary in today’s modern world wherein crime does not only mean traditional armed conflict. Public international law can only be useful if it is immediate in its response to such changing times and the ongoing pandemic provides the world community an opportunity to consider the same to confront the unknown dangers of biological warfare etc. Human resources are touted as being a nation’s single most valuable resource and thus, propagation of disease remains its biggest threat which if left unchallenged can only wreak more havoc in the world.

Chandni Ghatak is an advocate practicing at the Delhi High Court & an alumnus of National Law University, Jodhpur.

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