By James Rowles*
(Doctor of Juridical Science in International Law and former Lecturer on Law, Harvard Law School)
UPDATE 2
October 26, 2021
The Brazilian Senate has recommened that some 70 persons, including President Jair Bolsonaro, be prosecuted for a number of crimes related to mismanagement of the Covid-19 pandemic, which has cost over 600,000 lives in the country.
The Congressional Investigating Committee’s report, which the Senate approved today, estimates that 120,000 persons died as a result of Bolsonaro’s crimes. The Senate recommended that Bolsonaro and others, including a general who served as one of four health ministers, be prosecuted for crimes against humanity.
It is quite possible that the International Criminal Court (ICC) will open proceedings against Bolsonaro for crimes against humanity. Brazil ratified the Rome Staute of the ICC in 2002, conferring jurisdiction on that body.
The case is particularly significant because the legal grounds justifying indictment of Bolsonaro could apply to other national leaders, such as Donald Trump, who might also be accused of crimes against humanity–and even one day prosecuted by the International Criminal Court.
See,
1) Naiara Galarraga Gortázar (São Paulo), “El Senado de Brasil pide el procesamiento de Bolsonaro por crímenes contra la humanidad por la covid-19; El informe final de la comisión de investigación estima que “la estrategia macabra” del Gobierno causó 120.000 muertes evitables, ” El país, el 26 de octubre 2021 (19:36, Actualizad 21:24 EDT);2) Da Redação, “CPI da Pandemia aprova relatório final de Renan Calheiros por 7 votos a 4; Texto pede o indiciamento de 78 pessoas, entre elas o presidente Jair Bolsonaro, e 2 empresas por crimes relacionados à pandemia,” Veja,o 26 de outubro 2021 (20h25, atualizado às 20h38).
UPDATE 1
October 20, 2021
Brazilian President Jair Bolsonaro may be indicted for mass murder and crimes against humanity for his malfeasance during the Covid-19 pandemic. A Congressional Investigation Report has recommended such actions, with supporting documentation.
See,
1) Tom Phillips (Rio de Janeiro), “Bolsonaro should be charged with crimes against humanity, Covid inquiry finds
Brazilian president savaged for ‘macabre’ and ‘slovenly’ response to pandemic and ‘deliberate neglect’ of indigenous people,” The Guardian, October 20, 2021 (16:22 BST);2) Veja Redação, “CPI da Pandemia pede indiciamento de Bolsonaro em relatório final; Relator Renan Calheiros faz a leitura do documento, que pede o indiciamento de Jair Bolsonaro; votação deverá ficar para a próxima semana,” Veja, o 20 de outubro 2021 (às 08h20, atualizado às 13h53).
3) “Aziz: Tipificações de genocídio e homicídio foram retiradas do relatório; Presidente Jair Bolsonaro deverá ser indiciado por crimes como infração de medida sanitária, charlatanismo, crime contra a humanidade e de responsabilidade,” Veja, o 19 de outubro (Atualizado às 22h56, Publicado em 19 out 2021 às 22h44).
4) Ricardo Rangel (opinião), “O relatório da CPI explica muito. E pergunta ainda mais; É inacreditável que, diante de tanto horror, Bolsonaro não seja denunciado, não sofra impeachment e ainda tenha apoio popular,” Veja, o 20 de outubro 2021 (16:33 h, atualizado às 16:36 h).
The indictment of Bolsonaro would be an important precedent for indicting other public officials for flouting science and politicizing the response to the Covid-19 pandemic, withthe foreseeable consequence of the loss of hundreds of thousands of lives.
***
Original Article
May 7, 2020
United Nations Covenant on Civil and Political Rights (1966)
Article 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
…
Article 61. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
…
Article 7No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
***
United States Constitution
No person shall be…deprived of life, liberty, or property, without due process of law…
Section 1.
…No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Defending Human Rights During the Coronavirus Pandemic
Human rights defenders need to be vigilant and to fight against violations of fundamental human rights by governments which put values aside in their desperate search for measures that might help control and defeat the spread of the coronavirus pathogen.
The erosion of human rights’ protection sometimes seems to be spreading like a pandemic across the world.
The Right to Life
No right is more basic or fundamental than the right to life. Yet government leaders are adopting policies, or failing to adopt measures, which directly endanger the right to life of tens of thousands of people.
In the United States, President Donald Trump seems to have failed to undertake the actions that would be necessary to provide doctors, nurses, first-responders, and other medical workers the Personal Protective Equipment (PPE) that could protect them from catching the virus, and in some cases dying.
He also appears to have failed to organize the nation’s resources and productive capacities, which only the federal government can do (e.g., by employing the Defense Production Act), which could provide citizens with the masks, ventilators, testing, and contract tracing which might help prevent them from catching the virus, being hospitalized, put on ventilators, and dying.
Because of these shortages, some governments, including state governments, have developed guidelines for the rationing of life-saving equipment such as ventilators on the basis of criteria, including age, which violate the individual’s rights to Equal Protection under the 14th and 5th amendments of the U.S. Constitution.
The withdrawal of medical support from a person based on criteria including age which leads to an individual’s death may be construed as murder, and potentially prosecuted as criminal homicide.
In Brazil, President Jair Bolsonaro appears to have followed a policy based on denial of the reality of the coronavirus pandemic, publicly urging citizens to ignore recommendations or requirements by state and local governments to stay at home, use masks, and to maintain physical distancing in order to control transmission of the virus. Similarly, the government of Belarus appears to have adopted policies based on a denial of the existence of the coronavirus pandemic.
The actions of governments led by leaders such as Bolsonaro are likely to lead to greater spread of the virus, as indicated by an acceleration in (or failure to reduce) the infection rate and the resultant hospitalizations, intensive care cases, intubations with ventilators,and deaths in hospital settings. Given Brazil’s comparatively poor medical infrastructure, particularly in poorer parts of the country and poorer sections even of urban areas, many other Covid-19 deaths may occur outside of hospital settings.
Because of these actions and government policies, the rights to life of tens of thousands if not millions of people are likely to be violated.
Crimes Against Humanity
The right to life of potential victims of the coronavirus pandemic must be protected from government actions, whether these be affirmative actions or failures to act when the consequences of such failures to act are predictable.
Such actions, which may lead to the deaths of tens of thousands or millions of people, should be considered to be crimes against humanity.
There may be a need to delineate a new kind of crime against humanity because the actions and failures to act arguably do not fit within the strict definition of crimes against humanity as currently embodied in Article 7 of the Rome Statute of the International Criminal Court.
There is the further issue of whether a crime against humanity may consist not only of actions but also of failures to act, of omissions, when the consequences of such failures or omissions are foreseeable.
Yet we are faced with entirely new phenomena, on an unprecedented scale. A government has a duty to protect its population against avoidable causes of wide-scale death. When it breaches that duty, e.g., by doing nothing to protect the population against a lethal virus, we need to learn to think of its actions in a new way, as constituting the commission of an international crime, a crime against humanity.
The international crime of genocide had not been authoritatively defined before the Nuremberg Charter was adopted in 1945. The facts on the ground demanded its creation. This was also the case with apartheid, which became recognized as a crime against humanity and is now included under Article 7 of the Statute of the ICC.
It is time to hold leaders and governments accountable for their actions and failures to act which result in violations of the right to life of individual human beings, on a massive scale.
No human right is more fundamental than the right to life, and no human right is more strongly protected in both domestic and international law. It is a right from which no derogation is permitted, under any circumstances, under applicable international human rights treaties.
A social worker from the domestic violence team in a local authority used human rights arguments to get new accommodation for a woman and her family at risk of serious harm from a violent ex-partner. She based her case on the local authority’s obligation to protect the family’s right to life and the right not to be treated in an inhuman or degrading way.