Pandemic and crimes against humanity: the "inhuman character" of health catastrophe management in Brazil /Pandemia e crimes contra a humanidade: o "car
| Autor | Ventura, Deisy de Freitas Lima |
-
Introduction
On April 22, 2020, probably for the first time, a renowned International Law expert pinpointed that certain practices by political leaders during the Covid-19 pandemic could be considered as crimes against humanity (1) . The remark came from no one less than the American ambassador David Scheffer, one of the main negotiators to the Statute of Rome (RS, 1998), which established the International Criminal Court (ICC) (2). Less than three months after the World Health Organization had declared the international emergency to tackle Covid-19 (3), Scheffer claimed:
Public health malpractice could rise to the level of a crime against humanity, as defined in the Rome Statute of the International Criminal Court: an 'inhumane act ... intentionally causing great suffering, or serious injury to body or to mental or physical health' that is 'part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack'. With the death toll due to COVID-19 still rising at alarming rates in many countries, including the United States, the notion is not so far-fetched. For example, political leaders could be tagged as perpetrators of a crime against humanity resulting in tens of thousands of deaths because they intentionally failed to provide timely and widespread testing for the virus, or failed to acquire personal protective equipment for health workers, or failed to order critical social-distancing measures (our emphasis) (4) By referring to "public health malpractice", Scheffer suggests that the notion of "medical malpractice" could well be extended to the field of public health, in order to determine if a certain initiative to protect or promote health represents a "discretionary power" (5), or if it corresponds to an obligation to act, based on the Constitution or on the social contract (6). If the latter is true, the elements making up the responsibility of a health professional for medical malpractice would allow to assess the accountability of officials for "public health malpractice": the existence of a legal obligation to care, the violation of such duty by action or undue omission, the demonstration of an indemnifiable harm and the evidence of a cause-effect nexus between the practice and the harm. By reclaiming such thesis in the context of the pandemic, Scheffer calls the conduct of the political class in the United States into question, parallel to a secondary debate on the contingent responsibility of the Chinese government (7).
Since the publication of the aforementioned article, the harm caused by Covid-19 has been dramatically extended, including in the US. According to WHO, there have been more than 202.6 million confirmed cases of the disease in the world, which resulted in 4.2 million deaths (8). Concentrating nearly half of this death toll, the four countries with the highest numbers--United States, 611,504; Brazil, 562,752; India, 428,309; and Mexico, 244,248--have had uncoordinated responses to the emergency, by downplaying science, denying the potential impact of the pandemic, stalling the organization of a comprehensive response and seeding the mistrust that undermined the efforts to contain the disease (9). A high level of cases and deaths persists in many countries, although contention mechanisms to the disease are thoroughly known. The variants of coronavirus (10) and the imminence of new waves of international dissemination jeopardize the lives and health of millions of people. Worldwide, it becomes clearer that some governments dispose of the material and human means to promote an efficient response, yet consciously and deliberately choose not to do it.
The aim of this essay is to contribute to the technical and theoretical deepening of the debate about the alleged commission of crimes against humanity by public officials during the Covid-19 pandemic, in the realm of state responses to the health emergency. The essay is an original piece, which responds to a question on a well-defined theme, whose relevance and originality must be founded on a dialogue with the "state of the art" literature on the topic, supported by the theoretical references and published empirical pieces (11). Specifically, within legal disciplines, due to their interrogative function and speculative character, the essay may "establish bridges between the law from a positivist standpoint and other worlds" (12). As Antonio Cassesse has pointed out, a formalist approach to the most serious international crimes, under the excuse to avoid "the formulation of value judgements", may result in "an obstacle to the evolution of law", besides providing a "moral license for prominent scholars to be subservient to authoritarian regimes, assuming that jurists must only interpret the law, whatever its content" (13). At this point, it is worth highlighting that, among the different legal perspectives of the topic, we stand as internationalists and human rights advocates.
The definition of the guiding question on this essay aims to displace the Brazilian debate around the topic, which consists mostly of probabilistic estimates about the admission of complaints before the ICC, or the unfoldings resulting from the work at the Parliamentary Committee of Inquiry related to Covid-19, the "Pandemic PCI", established in the Federal Senate in April 2021 (14). We understand that, regardless of what the international and national jurisdictions will be able or willing to do with regard to such complaints, it is a duty of the Brazilian society and particularly its academic community, to advance the studies on the practices which have made the pandemic an instrument of unparalleled efficiency to cause hundreds of thousands of avoidable deaths, in such a short period of time, under the veil of fatality, among other excuses; as well as to ponder on the meaning to be attributed to the upcoming legitimation, impunity and precedents related to such practices. On the other hand, the scholarship in the field of public health, both historical and technical, is essential to correctly verify the elements of the crimes under scrutiny. Therefore, we intend to build on the issue raised by Scheffer--to know whether certain acts and omissions by political leaders may constitute crimes against humanity, on grounds of the Art. 7.1 k RS, that is, whether they represent "other inhumane acts--adding the following question: what are the criteria to assess the "inhumane" during a pandemic?
The answers to the questions have been organized in six sections. The two first bring insights from the realm of public health, such as the historical recurrence of crimes through public health (2) and the political and ideological determination of the response to Covid-19 (3). Further, based on the ideas of Hannah Arendt and Mireille Delmas-Marty, we present the evolving character of the crimes against humanity (4), and underline that national jurisdictions are natural and primary when it comes to crimes against humanity (5). We then go on to explore a paradigmatic case, which is the Brazilian response to the pandemic, as an exercise to assess the elements of a crime against humanity as typified in Article 7.1RS (6).
Although the commission of such crimes is also debated in other countries (15), the selection of the Brazilian case is based on three elements. Firstly, the international repercussion of the Brazilian response, which has been deemed a humanitarian catastrophe (16) and the worst worldwide (17). The President Jair Bolsonaro has already been referred to as a "threat to global health" (18). Brazil, named "a pandemic pariah" (19), has been repeatedly called upon by international organizations, among which WHO and the United Nations Human Rights High Commissioner (UNHRC) (20), besides receiving three precautionary measures by the Inter-American Commission on Human Rights (21).
Secondly, the prominence of Brazil in this realm. In the words of the Brazilian Bar Association Commission on Covid-19, presided over by the former Supreme Court Minister Carlos Ayres Brito, "by means of systematic acts and omissions, the Bolsonaro administration ended up taking hold of the pandemic, had it under control, and used it deliberately as an instrument of attack (biological weapon) and submission of the whole population", so much so that there are "grounded and enough reasons for President Bolsonaro to be held accountable, on the international level, for a crime against humanity (22).
The Rapporteur to the Pandemic PCI, Senator Renan Calheiros, as of the establishment of such a committee, declared: "it was not by chance or godsent curse we have come to this situation. There are people responsible for it, of course. There are culprits, for action, omission, neglect or incompetence. (...) crimes against humanity do not ever expire and are transnational" (23). Thirdly, the existence of a study carried out by the Center for Research and Studies in Health Law (CEPEDISA), at the University of Sao Paulo (USP), recently updated at the request of the Pandemic PCI, which systematized more than two hundred pieces of evidence of an intentional plan to disseminate the disease (24).
We start off by recalling that the deliberate practice of atrocities against the civil population during epidemics is not a historical novelty.
-
Crime and public health: past and present
Over the centuries, sanitary crises have proved to be conducive to the promotion of serious human rights violations. Among the crimes burgeoning at these occasions, the selection and persecution of scapegoats stands out particularly. From the 14th century through to the 18th century in Europe, the accounts on the bubonic plague record the slaughter of thousands of Jews, who were burned alive in bonfires or at home, after being falsely accused of spreading the disease (25). Other groups were also chased after, such as Muslims or people suffering from leprosy, because "the potential...
Para continuar a ler
PEÇA SUA AVALIAÇÃOCOPYRIGHT GALE, Cengage Learning. All rights reserved.
