Coronavirus Criminality: Bolsonaro And The International Criminal Court

This could be the stuff of fiction. But then again, many legal principles began, at some point or rather, in the sludge of speculation before hardening into legal briefs and prosecutorial documents. Holding heads of state to account for crimes against their people remains a perennial project with a patchy record. This is particularly the case when it comes to international tribunals vested with jurisdiction to try such figures. It all reads well in the statute, but when it comes to testing it, the will is often lacking.

Brazil’s President Jair Bolsonaro, along with a set of other leaders, offers an excellent case in point. With many fingers pointing at Chinese culpability for the coronavirus and seeking some legal forum to test Beijing’s “wrongs”, there is a double play at stake. For figures such as US President Donald Trump, the coronavirus is only serious if the light is shone on Chinese wickedness and economic wrongs. Arguments have been made by his administration that Beijing fork out “very substantial damages” by way of compensation. An energetic number of lawmakers in the US Congress have been trying to strip China of its sovereign immunity in US courts. The China Compensation Cart has become a heavy one, indeed.

The other side of the play is one of lessening the effects of the virus, which would seem to undermine the argument of Chinese malice. (Can you be malicious in spreading something ineffectual?) The US commander-in-chief insists on ignoring the seriousness of it all; the disease it causes is merely a sniffle which will go away.

Bolsonaro’s method has been similar, with its inevitable local twist. Be it managing or spreading the coronavirus, everyone else shoulders blame, be it irritating governors, querulous medical advisers and ministers, or a lurking firth column of hysterics. When asked about Brazil’s soaring death toll as it passed China’s, he was nonplussed. “I don’t work miracles. What do you want me to do?” He has been the physical exemplar of repudiation: defying social distancing in meeting supporters in public, attending gatherings without protection; contracting the virus and promoting the snake oil properties of the antimalarial drug, hydroxychloroquine.

When he has gotten on board sanctioning laws ostensibly made to slow viral spread, he has limited their effect. In early July, for instance, he accepted the bill passed by the Chamber of Deputies that masks be made obligatory when in public but vetoed their use in shops, churches and schools.

In the country, the Brazilian Union Network UNISaúde, an umbrella group of social organisations and unions representing health workers decided to take the matter of command responsibility that one step further. On Monday, the group filed a complaint with the ICC claiming that the government had been “criminally negligent in its management of the COVID-19 pandemic – risking the lives of healthcare professionals and of members of Brazilian society.”

According to the filed document, certain “government leaders have underestimated the seriousness of the pandemic, and one of them is the president of Brazil.” Bolsonaro’s “attitude of contempt, neglect, and denial, has brought disastrous consequences, with the resulting intensification of the spread of the illness, completely straining the health services, which were unable to meet the minimum conditions to assist the population, causing deaths without further controls.”

The president’s accusers go further, suggesting, somewhat fancifully, that he might also be guilty of that gravest of crimes. “The failure of the Brazilian government amounts to a crime against humanity – genocide.” The problem with that accusation is that genocide can never be the outcome of negligence or pig headed stupidity, being the cold blooded intention of killing members of a group for reasons of race, ethnicity or religion. Millions have perished because of the colossal ignorance and incompetence of their leaders without making the grade of an Eichmann.

Marcio Monzane of UNI Americas, a key organisation leading the charge to The Hague, acknowledged that it was “a drastic measure, but Brazilians face an extremely dire and dangerous situation created by Bolsonaro’s deliberate decisions.”

This effort to draw attention to the fallible, dangerous leadership of Bolsonaro is not new. Such a figure has an innate capacity to add fuel to the engine of resentment. The number of complaints filed against Brazil’s head of state is starting to bulk in the office of the ICC’s chief prosecutor, Fatou Bensouda. In November 2019, the Brazilian Bar Association for Human Rights and the Arms Commission for Human Rights Defence accused Bolsonaro of crimes against humanity and incitement to genocide of the Amazon indigenous populace. Their preferred choice for investigating such claims? The ICC.

On April 3 this year, the Brazilian Association of Jurists for Democracy filed a complaint with the ICC similarly claiming that the president had committed crimes against humanity. The accusations then focused on shrugging off the “seriousness of COVID-19 and encouraging activities that can only result in the rapid and uncontrolled spread of this deadly illness.” The complainants claimed that a million Brazilians would perish were the WHO recommendations not be met.

The document notes that Bolsonaro’s actions have received the opprobrium of numerous health institutes. In defiance of medical guidance provided by global authorities, the president, in his capacity as head of state, did “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”.

The wheels of justice tend to be slow; that of international justice, slower. What Bensouda makes of these various promptings to launch an investigation into the conduct of the Brazilian government during the coronavirus epidemic may well make legal history. But even the activists concede that the longest of bows is being drawn.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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