Featured Image: The Hague, administrative center of the Netherlands
and global hub of international criminal law
Taken by author on site, 3/26/17
Late on Sunday, April 5, Ohio State Representative Tavia Galonski tweeted out her plan to refer the president to The Hague (without mentioning the ICC) for prosecution for crimes against humanity over his pushing an unproven drug to address the coronavirus crisis in the United States. That drug, hydroxychloroquine, which is normally prescribed as an anti-malarial as well as an immunosuppressant to treat rheumatoid arthritis and lupus, has only been tied anecdotally to success in patients suffering from COVID-19 and can be highly toxic if dosed incorrectly.
Rep. Galonski’s heart is in the right place; the president’s conduct here is grossly negligent, incompetent, and a threat to the public health. He should, full stop, not be peddling hydroxychloroquine as a miracle game-changer drug to treat patients with COVID-19. His conduct would not, though, constitute a crime against humanity as described in the Rome Statute. Even if it did, trying to get a criminal referral to the ICC for the president under current procedures would be little more than a fool’s errand.
Public Health and Crimes Against Humanity
The Rome Statute, which is the founding instrument of the International Criminal Court and the document that outlines the Court’s charges, rules, and procedures, specifically denotes what can constitute a crime against humanity. While it had been in the past, the concept is no longer abstract. Crimes against humanity are defined in the Statute’s (linked here) Article 7. Note that crimes against humanity are reserved for especially grave acts that are “widespread,” “systematic,” and done with full “knowledge of the attack.”
Crimes against humanity as defined in Article 7 include (but are not limited to) murder, extermination, enslavement, and torture. These are charges of the utmost gravity, reserved for tyrannical despots and warlords who act with impunity, outside of the reach of national judicial systems. It is difficult to imagine the president’s pushing of hydroxychloroquine as meeting this kind of gravity, but for the sake of argument, let’s explore the possibility.
Article 7(1)(k) notes “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to the body or to mental or physical health” can constitute crimes against humanity. It is possible that an argument exists as to if his conduct meets this definition. After all, hydroxychloroquine is unproven for treatment of COVID-19 and it can cause serious injury to bodily and physical health (due to its potential side effects and lethality).
This line of argument is flimsy at best. Looking back to the preface of Article 7, we see the words “widespread,” “systematic,” and “with knowledge;” this implies intent to target and harm large populations. Proving this kind of intent here would be exceedingly difficult—as immoral and as terrible as the president’s conduct is vis-à-vis hydroxychloroquine, it is incredibly far-fetched to assert that the goal here is to hurt people with this drug. It is far more likely that the explanation here is that the president is putting stock in a drug with some anecdotal success in hopes that he can go back to golfing and holding his never-ending string of campaign rallies.
Outside of intent, there is nothing systematic or widespread about his conduct here. He is not employing the arms of government to force wide swaths of people to take hydroxychloroquine. This is the kind of horrifying systematic and widespread conduct that would better fall under Article 7 guidelines, and this scenario is certainly not playing out. There are no federal mandates forcing large groups of people to take this drug, just one rather impatient man who happens to be the president who does not understand the facts.
In late March, a couple in Arizona ingested chloroquine phosphate in the form of fish tank cleaner. One of them died and his wife was left critically ill in a hospital. To imply the president has committed a crime against humanity by pushing hydroxychloroquine (or similar drugs thereof) is to imply that the president should be held liable for this man’s unfortunate death. It is reasonable to say that the president’s reckless conduct could compel someone to take fish tank cleaner, but he is not criminally liable; he did not force this couple to take it.
It is clear that the president’s conduct does not constitute a crime against humanity. Is it reckless? Certainly. Should he be doing it? Not at all. Being grossly incompetent is not a heinous crime of international concern.
There is another issue that takes precedence over the question of crimes against humanity, which is that a referral of the president to the ICC would be virtually impossible. The Court can only exercise its jurisdiction freely within the territory of a state-party (or on territories in which a citizen of a state-party is a victim). A state-party is a country that has ratified the Rome Statute, which the United States is not. As it stands, the ICC cannot exercise its jurisdiction within the territory of the United States.
Rep. Galonski indicated that she would be “referring” the president to the Court. States that are not ratifiers of the Rome Statute can refer situations happening within their own borders to the ICC (this has happened in Mali and in Uganda), but there is a catch here. A local representative cannot make this referral. Such a referral must come from a national government. In the United States, that would be the federal government; there is no way the federal government will refer the president for prosecution in The Hague.
Let’s suspend the impossibility and say somehow the ICC gets jurisdiction over this situation. What happens next? State-parties are liable to arrest and deport any individual with an ICC arrest warrant to the Netherlands for prosecution; would a country do that to the American president? What kind of consequences would that reap for the country acting upon the warrant? The United States is no stranger to taking unilateral economic and military action—the consequences would assuredly be severe.
There is actually an example here to work from. Before he was deposed last year, Sudanese president Omar al-Bashir was the only active head of state to have an ICC arrest warrant out on him for crimes in Darfur, which was a UNSC Chapter VII referral to the Court (the third way to give the ICC authority to act). He was able to travel around the world as head of state, including to countries that were in theory liable to arrest and deport him. Only once was there serious consideration granted to doing so (one time when he was in South Africa for an African Union summit), and even then, nothing materialized. Imagine the magnitude of apprehension had that been the American president in his place. Needless to say, no state in their right mind would even think about it.
Note that there are also laws on the books, designed to protect American soldiers who could end up in The Hague, that call for using any force necessary to protect them against prosecution in an international court. It is aptly nicknamed “The Hague Invasion Act,” and I encourage you to do a quick search on that to learn more.
Why This Thinking is Harmful
While I must note that the president’s conduct in recent weeks has been exceptionally abhorrent, we must not take charges of crimes against humanity (or any other grave crime of an international nature) lightly. What he is doing is bad, yes, but to characterize it as an existential and immediately grave crime—equated with charges of extermination and torture—trivializes what the International Criminal Court does. The Court tries war criminals and brings justice to those who have experienced the absolute worst of humanity. The ICC has convicted war criminals who have conscripted child soldiers and attacked UN peacekeepers; who have indiscriminately massacred villages of innocent civilians; and who have raped, tortured, and pillaged with impunity. To imply the president’s conduct at all rises to this level is to not fully appreciate the gravity of conduct it should take for the Court to act. It trivializes its function and diminishes its status as an organization of last resort.
As a judiciary of last resort, the ICC is meant to pick up where national judicial systems cannot function, particularly in situations where governments are either unable to act or are complicit/allegedly a part of heinous conduct. The United States maintains an independent judiciary, which would keep the ICC from intervening in situations even if it did have jurisdiction, much like state-parties with independent judiciaries in Europe.
Taking a Step Back
The president’s recent obsession with hydroxychloroquine is a problem. He is touting an unproven drug that can be potentially lethal if dosed incorrectly, most likely in naïve hopes of ending this crisis and returning to the everyday life he typically enjoys. It has created a run on the drug, making access for those who need it very difficult. It is conduct unbecoming of an American president, not unlike his conduct in normal times.
His conduct, though, does not constitute a crime against humanity. Such a charge implies criminal activity of an especially heinous and grave nature, like extermination and torture. Some have implied that the president’s conduct here may qualify as such, and that thinking is harmful.
The matters that the ICC deals with should not be equated with the conduct of the president on hydroxychloroquine, no matter how grossly incompetent it is. Notwithstanding the fact that procedurally it would be impossible to bring any American official to The Hague let alone the president, pushing this simply trivializes the gravity of international criminal law. This is not to say that we should give the president a pass here; there is nothing good about what he is doing, and he should be called out for it. Unless there is good reason, though, we should leave the ICC out of it.
Of utmost importance in this pandemic is listening to the advice of the experts who can best advise us on how to proceed. Listen to Drs. Fauci and Birx. Listen to the public health professionals. In the middle of a crisis like this, try not to listen to individuals make recommendations they are uninformed about.
After all, in uncertain and trying times, real leaders know that true leadership means doing what is best for all, especially if it means acknowledging what you do not know and deferring to others.
- Da Silva, Chantal. “Trump Should Be Tried for ‘Crimes against Humanity’ over Hydroxychloroquine Remarks, Says Ohio State Rep.” Newsweek, April 6, 2020. https://www.newsweek.com/trump-crimes-against-humanity-hydroxychloroquine-fauci-coronavirus-tavia-galonski-149628
- FOX Television Stations, and AP Wire Service. “Arizona Man Died, Wife Critical after Taking Fish Tank Cleaner to Prevent Coronavirus Infection.” FOX6Now.Com (blog), March 23, 2020. https://fox6now.com/2020/03/23/arizona-man-died-wife-critical-after-taking-fish-tank-cleaner-to-prevent-coronavirus-infection/.
- International Criminal Court. “The Rome Statute of the International Criminal Court.” International Criminal Court, 2011. https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.
- Torres, Olga Lucia. “Opinion | Trump Keeps Putting the Lives of Lupus Patients at Risk.” The New York Times, April 6, 2020, sec. Opinion. https://www.nytimes.com/2020/04/06/opinion/coronavirus-hydroxychloroquine-lupus.html.