Here's how China can be held legally accountable for coronavirus coverup

Many scholars have been arguing and presenting a case against the present political dispensation of the People’s Republic of China in light of the outbreak of the coronavirus pandemic. The civil liability of the Chinese government is being discussed and debated in the intellectual circles with lawsuits being filed in USA and Italy seeking damages. There is also the prospect of dragging China to the International Court of Justice and seek reparations. But is the question just about monetary compensation? Surely, the death of over 1,19,000 people can’t be just brought to justice by paying compensation of billions of dollars by China. If the act done by the Chinese dispensation falls within the contours of a criminal act under the International Criminal Law, then the all the culprits in the Chinese regime need to face trial or at least efforts should be made by nation-states in that direction.

The cardinal principle of any criminal law is that an act must be made criminal before its commission. International criminal law recognises certain acts by individuals that would be considered ‘international crime’. International crime does not mean crime between nationals of two or more different, independent and sovereign citizens. It means a crime which is proscribed by international legal order, of which international criminal law is an important component. International legal order recognises only certain acts, which will be considered as an international crime, and consequently, it would entail individual criminal responsibility. The current framework of the International Criminal Law flows from the Rome Statute under which the International Criminal Court (ICC) has been set up. The Rome Statute identifies 4 crimes under Article 5 within the jurisdiction of the ICC (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The Chinese political dispensation, headed by its President,should be held criminally liable for committing international crimes against humanity and the crime of aggression.

The Crime against humanity which is defined in Article 7 of the Rome Statute as widespread or systematic attack with the connivance of governmental apparatus against the civilian population is a violation of the current international criminal law under which the Chinese regime can be held to be culpable. The widespread nature of the attack of the novel coronavirus is beyond doubt as it has spread to about 209 countries and territories and has infected around 15,00,000 people. The systematic attack of the virus can be understood from the actions of the Chinese regime in handling the COVID-19 virus. Chinese political architecture is highly centralised. It is infamous for hiding the truth and does not have an independent free press. The criminality of the Chinese regime emanates from the fact that the administration downplayed the catastrophic nature of the COVID-19 till February 2020 and also maliciously misguided and misinformed the WHO about the spread of the virus from human to human until January 2020.

As a result of which, WHO issued its advisory to the international community at a very belated stage and induced the damage to be done. The Chinese political dispensation, underPresident Xi, knew the nature and lethality of the virus and yet they let lose it on the international community. When a whistleblower tried to communicate it to Chinese people and the international community about the novel coronavirus, he was silenced and he perished in mysterious circumstances while treating the patients of virus. The act of silencing the whistleblower was aiding and abetting the crime and contribution in the commission of the crime.

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Article 8 of the Rome Statute provides for definition the crime of aggression as planning by a person in control of affairs of a country which would constitute a violation of the UN Charter. An international crime of aggression is nothing but a violation of Article2(4) of the UN Charter which proscribes the use of force by States in their in international relations. Use of force for the purpose of the international crime of aggression is the use of armed force as resolved by general Assembly Resolution 3314 which was adopted by Review Conference of Rome Statute on June 11, 2010. The question is how a spread of the deadly virus by the name of COVID-19 is aggression? In other words, could a virus be considered as use of armed force? Use of armed force would mean the use of violence that results in the death of humans and/or loss of property.

The number of death that COVID-19 has caused, over a period of three months, has crossed 1,19,000. The means and methods of warfare or belligerency in the modern day is not restricted to merely mechanised weapons, it has transformed to war from space and war from biological weapons. COVID-19 certainly qualifies to be a biological weapon. The means and methods of warfare are governed by the Additional Protocol 1 of 1977 of the Geneva Conventions of 1949 and it renders the use of biological weapons as illegal. The unleashing of this virus could have been intentional or criminal neglect, it could also have been with the knowledge of the highest political authority in China. There is little doubt that the use of coronavirus is certainly use of force, and therefore, aggression.

As China is not a party to the Rome Statute, the only way in which Chinese regime responsible for this crime can be brought to the ICC is when it voluntarily submits to the jurisdiction of the ICC or the matter is referred to the ICC by the United Nations Security Council by invoking its power under Art.13 of the Rome Statute. The People’s Republic of China being a global power, submitting itself to the ICC is an absolute impossibility and with it being a permanent member of the Security Council the matter being referred to the ICC is also ruled out due to the veto power it enjoys. In that case, the resort could be taken to United Nations General Assembly Resolution 377A, the “Uniting for Peace” resolution which states that in case the UN Security Council due to lack of unanimity amongst its five members is not able to act to maintain international peace and security, the General Assembly may issue necessary recommendations.

The Chinese regime must be held accountable and the rule of law should prevail, so as to affirmfaith of the nation-states in the rule-based international world order. It is about time that the international legal order in general and international criminal order, in particular, should assert itself to bring criminals of the Chinese regime to justice.

(The article is co-authored by Abhishek Mishra. Abhishekis currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg, Germany)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)