An article written by Alexandre Guerreiro*
Times of crisis provide fertile ground for the restriction of human rights and also for serious political disorders able to put in jeopardy democracy, the rule of law and the stability of a society. The current pandemic is no exception to this, not only because of its magnitude, but also because COVID-19 is still a challenge with features not entirely known to mankind.
Thus, because at stake are human lives, people’s health and individual freedoms, options made by national authorities to minimize the severity of the pandemic are rarely the result of consensus between all political and social actors. If the world is still searching for the most effective solution to deal with the threat in order to be able to return to a normal life, decisions adopted by national Governments that tend to privilege or sacrifice individual freedoms could bring more political and social unrest because of the likely divergence of opinion between different political parties and movements as well as different social groups formally or informally created and organized on the basis of the principles and vision of the society shared between its members.
In this context, human rights and (international) criminal law are closely connected in two very different respects: firstly, criminal prosecutions and sanctions constitute serious interferences in fundamental human rights. Secondly, (international) criminal law is an indispensable instrument in protecting human rights from the most serious violations. The second aspect is the subject of this contribution, which proposes exploring the possibility of Heads of State or Government to face international criminal responsibility in case they pursue a strategy to address the pandemic other than the one proposed by the community of health experts. For this purpose, this contribution will focus on the events of April 2, 2020, when the Associação Brasileira de Juristas pela Democracia (ABJD) filed a criminal complaint against the President of Brazil, Jair Bolsonaro, before the International Criminal Court (ICC). ABJD requested the Office of the Prosecutor to initiate investigations proprio motu (under articles 15(1) and 53 of the Rome Statute) into crimes against humanity that the Head of State of Brazil allegedly committed against Brazilian citizens by failing to protect their human rights to live and health.
In particular, ABJD suggests that Jair Bolsonaro should be held responsible for violations of article 7(1)(k) of the Rome Statute which consist of doing “everything in his power to minimize the severity of the pandemic and to encourage the spread of COVID-19 by instructing the nation of Brazil to act in a manner inconsistent with the sound recommendations of the health professionals”.
In this framework, one should ask what consequences such complaint could have for the Brazilian President and what impact it could have on other States Parties, in particular to Heads of State or Government pursuing a strategy divergent from recommendations issued by the World Health Organization (WHO) or seen as inertia by political authorities.
B. Setting the precedent
First, it should be pointed out that criminal responsibility of sitting Heads of State or Government – who do not enjoy immunity according to Art. 27 of the Rome Statute – for actions related to public health is not a new reality to the ICC. The best example of this comes from the second arrest warrant issued on July 12th 2010, against Omar al-Bashirunder the Situation in Darfur (Sudan), which underlined Bashir’s “methods of destruction” including the “denial and hindrance of medical and other humanitarian assistance needed”. According to a 2008 ICC report, such methods led to “thirst, starvation and disease”.
Before the second arrest warrant was issued, the WHO recognized that Omar al-Bashir’s decision to expel 13 leading aid groups from Darfur right after the issuance of the first arrest warrant “could lead to the increase of mortality and morbidity”. More recently, Human Rights Watch (HRW) recommended that the Prosecutor of the ICC “should expand its Congo investigation to cover the attacks that began in Beni on October 2, 2014”, arguing that such attacks “complicate efforts to stem an Ebola virus outbreak”. HRW added that the “risks of the outbreak worsening are heightened” given that the worsening of the security situation in the region created a situation of insecurity that prevent health workers to access some areas.
That said, it is undisputable how important the role played by non-governmental organizations could be in the delivery of healthcare to peoples in need, mainly in contexts where States are unwilling or unable to provide such care. At the same time, actions taken by State officials in order to deprive citizens of basic healthcare might constitute a crime against humanity.
C. The flaws of a strategy that favours ICC as a solution
Considering ABJD’s criminal complaint, it is very doubtful whether it will succeed, because the request to the Office of the Prosecutor contains flaws that might endanger any chances of prosecution against Jair Bolsonaro.
First, ABJD disregards the principle of complementarity embodied in the preamble and Art. 1, 17 of the Rome Statute. Both ABJD and other Brazilian civil society organizations had not exhausted local remedies and failed to demonstrate that political and judicial authorities from Brazil have no intention to investigate alleged crimes committed by Jair Bolsonaro. Like in many other countries, the Brazilian political system provides mechanisms (including impeachment and suspension from duties procedures) that could halt further activity by the President. Brazil’s criminal law system also offers some options to the country’s civil society. Indeed, ABJD cites explicitly in the document it filed with the ICC certain norms from domestic instruments it considers to have been infringed, such as Brazil’s Penal Code or the Code of Criminal Procedure. Even though some of these norms should be questioned – because such rules were created with the specific intent to be applied to cases where the suspect creates the danger against the civilian populationand ABJD’s arguments seem to consider that Jair Bolsonaro is responsible for the pandemic Brazil – it is up to the Brazilian Public Prosecutor’s Office to take a stance on the issue.
Secondly, one may not just invoke an abstract provision from the Rome Statute without understanding its scope. A crime against humanity under the Rome Statute requires that acts were committed (i) “as part of a widespread or systematic attack”, that (ii) such acts are “directed against any civilian population” and that (iii) there is “knowledge of the attack” (article 7(1)). Finally, in the COVID-19 context, it also needs to be demonstrated that such “attacks” caused “serious injury to […] physical health” (article 7(1)(k)).
The continuous pursuance of a strategy against COVID-19 might well fit the first element as there is already a large number of victims and each person living in Brazil could be a potential target. Such acts are also directed against the civilian population. The right to health is undisputable as a right likely to be infringed and able to fit in the last element as the violation of such right may have consequences to life and physical health of civilians.
However, the intention to commit the attack is also an element of crimes against humanity. Negligence is not. This means that, taking Christopher K. Hall and Kai Ambos’ thought, Jair Bolsonaro “must know that there is an attack on a civilian population” and accept the consequences. ABJD not only fails to demonstrate both the intention and that Bolsonaro’s approach caused and/or causes injuries to physical health, as well as that the Brazilian President intentionally committed attacks against the civilian population by not taking the necessary actions that should have been taken in order to tackle the threat posed by COVID-19. At the very least, it should be possible to identify dolus eventualis in the behavior expressed by Jair Bolsonaro
Third, the fact that ABJD only considers Jair Bolsonaro the author of an attack against the inhabitants of Brazil raises doubts whether ABJD’s intentions are inspired by a duty towards the Nation or simply politically motivated. In effect, it is hard to conceive a scenario where the sitting Brazilian President acts alone and targets an entire population with a reckless strategy against the threat represented by COVID-19 without at least collusion from other State officials and bodies.
Another aspect that should be emphasized is related with Jair Bolsonaro’s unwillingness to promote social isolation, the use of masks and to adopt WHO recommendations. As we all know, WHO issues non-binding recommendations to States Parties under International Health Regulations (2005). Thus, Brasilia is free to decide whether to adopt WHO recommendations the same way some countries decided not to impose measures leading to social isolation. In fact, if, as Armin von Bogdandy and Pedro Villarreal point out, the WHO “has not issued a recommendation to impose mass quarantines or even lockdowns”, how could the Brazilian Government be legally or even morally forced do adopt such measures?
Fifth, the evidence submitted by ABJD is more than questionable. One should highlight the fact that no evidence was submitted showing that Jair Bolsonaro is intentionally depriving the Brazilian people of tough measures that would certainly protect them against COVID-19. Besides mere interpretations from some disputable facts, a significant part of ABJD’s allegations are also based on press reports. Here, it should be remembered that the International Court of Justice has already considered (Nicaragua v. United States of America) that media reports are regarded not as “evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact”.
Finally, it is not possible to identify a clear causal between Jair Bolsonaro’s reaction to the pandemic and the number of cases and deaths caused by COVID-19. In fact, ABJD also failed to demonstrate what concrete approach would have mitigated the number of victims in Brazil and also that the Head of State and the Government officials were aware of its effectiveness but deliberately chose not to adopt it.
In view of the above considerations, although Brazil is a State Party to the Rome Statute since July 1st 2002, it is doubtful whether Jair Bolsonaro will ever be convicted or even investigated by the ICC. However, given the policy of selective justice pursued by the Prosecutor – as already emphasized by Douglas Guilfoyle – and the known cases, crimes and individuals already investigated or under investigation by the ICC it is not unlikely that the Court will someday investigate State officials for acts or omissions related to public health.
* Dr. Alexandre Guerreiro holds a PhD in Law (International and European Legal Sciences) by the University of Lisbon School of Law and is an Associate Researcher at the University of Lisbon School of Law Centre for Research in Public Law.
 https://drive.google.com/file/d/145crctPIZfPRq4NTrWelJpPwKEpa502v/view (12/09/2021)
 https://www.icc-cpi.int/CourtRecords/CR2010_04826.PDF (12/09/2021).
 https://www.icc-cpi.int/RelatedRecords/CR2008_04753.PDF (12/09/2021).
 https://news.un.org/en/story/2009/03/293182-expulsion-aid-groups-darfur-will-have-wide-impact-un-agencies-warn (12/09/2021).
 Like article 132 of the Brazilian Penal Code, that punishes the person that exposes the life or health of others to direct and imminent danger.
 Hall/Ambos, in: Triffterer/Ambos (eds.), The Rome Statute of the International Criminal Court: a Commentary, 2016, Art. 7, para. 26 et 102-104, pp. 175-176, 240-241.
 https://verfassungsblog.de/the-law-of-the-who-covid-19-and-the-multilateral-world-order/ (12/09/2021).
 https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf (12/09/2021).
 https://www.ejiltalk.org/part-ii-this-is-not-fine-the-international-criminal-court-in-trouble/ (27/08/2021).
Suggested Citation: Guerreiro, Alexandre, Can the refusal of a government to adapt expert ideas in their COVID-19 framework reach the status of crime against humanity?, jean-monnet-saar 2021, DOI: 10.17176/20220427-145854-0