II. ENTER CUSTOMARY INTERNATIONAL CRIMINAL LAW APPLICABLE TO THE UNITED STATES
All of the analysis above of the French and American experience has been done in the domestic law contexts of each country.
What about international law?
First we start with one of the cardinal rules of international law that no state can invoke the provisions of its internal law as justification for its failure to perform a treaty[11] which is also a customary international law rule.
In such a view, the combination of acts and omissions of the executive, the legislator in such immunity legislation or otherwise, and the judiciary in the application of the various doctrines of qualified immunity at the state or local level or otherwise all form together the domestic state response to the COVID-19 pandemic.
One way of thinking about this situation is to consider customary international criminal law rules on crimes against humanity that are applicable to the United States.
I recognize that the United States is not a party signator of the Statute of the International Criminal Court. And there is a debate as to what extent the Statute of the International Criminal Court states customary international criminal law rules (crystallizes rules applicable to all states) or creates new rules (progressive development) that bind only signatories.[12] Prudence is encouraged in approaches to identify customary international criminal law rules and prosecute actors.
“For International practitioners should be cautious in the identification of customary rules in international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality.”[13]
That being said, the Statute of the International Criminal Court defines a crime against humanity as any of a series of acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Those acts include persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law as well as other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. An attack directed against any civilian population is further defined as a course of conduct involving the multiple commission of acts referred to in that section against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack [emphasis added].
Let us think out loud about some of the civilian populations toward which a widespread or systematic attack might be found in the COVID-19 pandemic response of the federal and state level so far. There may be more.
Racial Minorities: While in US domestic law we tend to shy away from the effect of policy and focus on the intent of policy, international law recognizes both purpose and effect. The disproportionate sickness and death toll among racial minorities that appears widespread forms another civilian population under attack by the sum of the responses at all levels.
Workers: if workers are made to “volunteer” to go back to work or face the loss of unemployment and/or CARES Act benefits where their workplace is a death trap such as in the meat industry, then federal, state, local, and business interests are committing such a widespread or systematic attack on those workers. If the local or national worker protection laws as applied do not, in fact, protect workers but endanger them and if the courts turn a deaf ear to the pleas of these workers in harm’s way they are thrown to the wolves. For those workers at grocery stores, gas stations, medical personnel, and any other type of work where COVID-19 can easily spread, the same is true. A significant number of those low-wage workers come from communities of color.
Elderly: given that the specific needs of the elderly in assisted care-living and the workers there have not been met so that we find significant clusters of death at these places, this group of vulnerable population form another type of victim. Even in assisted care living facilities where the elderly residents are not from communities of color, in my experience the staff is predominantly made up of persons from communities of colors who are endangered by the lackadaisical response so far.
Prisoners and persons in detention centers: Clusters of COVID-19 cases for workers and detainees in these places are being found each day. The significant percentage of persons incarcerated and staff from communities of color are clearly endangered under the current lackadaisical response so far.
Customers and students: With the possibility of the suspension of the normal rules of civil and likely criminal liability, any customer or student who gets sick or dies becomes a potential victim of the acts or omissions by the executive, legislative or judicial powers at the state or federal level and the public or private entity immunity. It should be noted that this appears to be a more amorphous group then the other four here to be a true civilian population, but the point is that members of communities of color form parts of both these groups.
As if to emphasize its culpability, the federal government has provided denialism, weak help in addressing the pandemic, and inconsistent and contradictory guidance. The reopening states have ignored even the correct guidance of the federal government and some are hiding statistics of infections as they play with fire. Local communities have acted like the Amity mayor in Jaws trying to keep the beaches open in the face of a clear and present danger. And the business community, maximizing shareholder value, has engaged in price arbitrage on PPE, taken the CARES Act money and run, and now seek that Congress and states shield them from any liability to customers or workers for reopening,
The picture is of course not all one sided for there are many laudable persons and entities at all these level who are doing what they can to attempt to protect these vulnerable populations from the monstrous response.
If local law possibilities do not provide relief or only piecemeal relief in the context of a worldwide pandemic, if we care about workers, the elderly, racial minorities, prisoners and detainees, and potential other civilian populations such as customers and students in more than a lip-service sense, we might consider taking a more international or transnational view of the human rights violations that may rise to be crimes against humanity that are leading to their sickness and death for profit. That, international view, even without criminal prosecution can then help us crystallize our understanding of what is going on.
In fact, independent of such criminal liability through prosecutions or applicability of customary international criminal law, it might be possible to turn on its head the analysis of the French Cour de Cassation and think of these customary international criminal law rules as defining a form of political liability. That redefinition then might help galvanize efforts within the United States to understand the multilevel process that intentional or not risks leaving so many members of communities of color and beyond to sicken and die at the hands of COVID-19.
The advantage of this international criminal law approach is that one can begin to think through systematically the effect on human endangerment of a number of what might appear to be at first blush isolated events. Here are some examples.
Voting: The Wisconsin primary end result of the Executive, Legislative and Judicial process at the state level and the US Supreme Court at the federal level was to place voters before a Hobbesian choice between exercising their right to vote and risking their health. In the Ohio primary on March 17, the same kind of Hobbesian choice was presented to voters who had to decide whether to risk their health to early vote at polling locations. For those who (as was their right) decided to take the risk to their health of voting on the primary day, they were confronted with the fact that the primary election went on but the polling places were closed.
Accurate COVID-19 data: The strange situations in some states with respect to the manner in which data on COVID-19 infections or deaths have been manipulated (alleged in Georgia and Florida), or made confidential (Florida) is a concern. The end result is that the ordinary citizen from a community of color or otherwise is unable to have accurate information about what is the health risk they face, even while those states seek to reopen and get them back to work. The same concern arises with respect to the continued accuracy of the data being provided by the CDC. Persons on unemployment are pushed to choose between protecting their health and “volunteering” to go back to work or lose their benefits. Such decisions may decrease burdens on state coffers while placing squarely the risk of endangerment on those workers. The apparent lies and deceit about the numbers bring the situation from a mere failure to act to a willful and deliberate series of actions – from negligent homicide, to manslaughter or reckless endangerment.
Immunity legislation: As described above, someone who risks falling sick and/or dying is placed before another type of untenable Hobbesian choice of risk their health by going to work or starve. And the bad actors are the one’s rewarded as they get immunity rather than accountability.
Inconsistent guidance on Masks: Over the past few months the guidance with regard to the wearing of masks has been confusing. At one point, the guidance of the federal government was that masks were not necessary. Later on in the pandemic the guidance was that masks are useful, but again done in a voluntary manner. Underneath this shifting guidance appears to be a basic problem of rationing the appropriate masks and PPE to prefer health care workers to the detriment of the rest of the population and especially the most vulnerable groups described above. And the principal reason for such rationing was the lack of ramping up of production by the federal government back in January or February 2020. The fact that White House staff are being tested and now wearing masks shows that the administration knows full well the consequence.
Weak guidance on specific industries: As an example in the meat industry where numbers of workers are from communities of color, a seven-level set of word games leads to worker endangerment NOT worker protection. And so the rules and structures to protect worker health and safety end up actually countenancing worker sickness and death.
Level one is the April 28, 2020 Executive Order on Delegating Authority under the DPA(Defense Production Act) with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19. Among the reasons given in the Executive Order for the action were (1) the outbreaks of COVID-19 among workers at some processing facilities that have led to the reduction of some facilities’ production capacity and (2) recent actions in some states that have led to the complete closure of some large processing facilities. In response to these developments, the executive order states that: such actions may differ from or be inconsistent with interim guidance recently issued by the Centers for Disease Control and Prevention (CDC) of the Department of Health and Human Services and the Occupational Safety and Health Administration (OSHA) of the Department of Labor entitled “Meat and Poultry Processing Workers and Employers” providing for the safe operation of such facilities.
Level Two is if one turns to the CDC and OSHA guidance that has been provided to meat-packing plants, one sees a series of what can only be termed mealy-mouthed phrases on worker safety. Reading the executive order and the CDC/OSHA guidance together, one sees that the order is concerned with differences or inconsistencies between what is happening at the meat-packing plants and the guidance. This would seem to be a valid point. However, the guidance has so much precautionary language that it leaves a significant amount of discretion to the management of the meat-packing facility as to how it will protect the workers. This problem was discussed at length on the Rachel Maddow Show on April 28, 2020. And, so workers get sick and workers die if they go back to work.
Level Three is that a company that reopens or increases production may say to laid-off workers that it is seeking volunteers to come back. That way, the worker who “volunteers” is in some sense assuming a risk in going back to the workplace, thus providing a defense for the company if anything happens to them on the worksite. With respect to volunteering, the unemployed worker is faced with the Hobbesian choice between protecting their health or going back to an unhealthy workplace where a COVID-19 pandemic is rampant.
Level Four is if there is a job available and a worker does not take it, there are reports that some governors are saying that the unemployed worker will no longer be entitled to unemployment compensation and maybe even more. Under the CARES act, these workers are almost certainly getting more in unemployment benefits than they would have in wages. The CARES act created the Federal Pandemic Unemployment Compensation (FPUC) program, which provides a fixed or flat amount of $600 to state-level unemployment benefits. Because the FPUC payment is a defined amount, the result is that workers with wages of about $55,000 a year or less will actually receive more in unemployment benefits than they would have in wages. Each state’s unemployment benefit level is different, some states have extremely low unemployment benefits. While the numbers change by state, the same issue applies everywhere.
The FPUC benefit expires on July 31, 2020, so the impact of the program is relatively short-lived. The Department of Labor issued guidance to the states earlier this week indicating that a laid off or furloughed employee who refuses to come back to work in order to keep drawing the higher unemployment benefits would be disqualified from receiving benefits at all (hat tip to Robert C. Rice for this line of analysis). So not only is the Hobbesian choice one about whether to protect one’s health (and under community spread those in your family and those with whom one has contact) or go to an unhealthy workplace but also, if one chooses to protect one’s health one loses money thus endangering one’s ability to feed oneself and one’s family.
Level Five is that if by some happenstance the worker gets sick and/or dies, there may be arguments about whether the worker actually contracted COVID-19 at the workplace or out in the community as a way to deny liability for the worker’s sickness and/or death. And because people with COVID-19 may die of underlying problems that are made more severe by COVID-19, even if COVID-19 can be proved to have been contracted at the plant, the question will be raised as to whether a given sickness or death is a “true” COVID-19 sickness or death.
Level Six is that with reopening being subject to the Defense Production Act, the plant could assert a form of governmental contractor qualified immunity (similar to the Agent Orange cases from the Vietnam era) or in the torture cases.
Level Seven is as noted above, if the first six levels are not good enough, there is an effort by business groups to get Congress and states to pass legislation to limit liability for COVID-19 for reopening.
Pernicious COVID-19 Contractual waivers: As recently reported, with the reopening of the New York Stock Exchanges, persons on the floor are required to sign what is called a COVID-19 waiver (https://www.nbcnews.com/business/markets/new-york-s-famed-stock-exchange-prepares-reopen-masks-waiver-n1214561). The text of such a waiver is unclear but its effect pernicious. In the absence of clear state or federal public policy delineating that such waivers are void as against public policy, it is not clear they will be unenforceable. They are problem throughout the economy, I have been made aware of such waivers being required of parents of children with disabilities in order to continue the accommodations to which they are entitled under the Americans with Disabilities Act (ADA). Parents desperate to have their children learn are put in a spot where to get what their child needs they have to put their child in front of a COVID-19 risk. In situations of unequal bargaining power as experience by employees from communities of color, the end result is to put them at further risk for contracts and torts, and potentially sideline other statutory claims. Moreover, with the ubiquity of arbitration clauses, the likelihood is that private arbitral tribunals and not courts will be making determinations about such clauses which should be a concern as the private arbitral tribunals are faced with a presumption in favor of contracts being enforced that can be rebutted only by a clear public policy. Such a clear public policy may be very hard to discern in the current confusion.
Assisted care living facility patient takeback immunity: The limitation of liability for assisted care facilities in New York State in order to make them take back their residents who were found to be positive for COVID-19 might on the one hand be seen as a positive development. On the other hand, the reasons that these elderly persons became sick possibly due to the manner of management or mismanagement of such assisted care living facilities is swept under the rug except, if at all, for the most egregious cases.
