CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 27, 2020

Davis on COVID-19 Human Endangerment

Benjamin Davis (University of Toledo College of Law) has posted COVID-19 Human Endangerment As A Domestic Crime or an International Crime Against Humanity on SSRN. Here is the abstract:
To analyze human endangerment in the COVID-19 pandemic in the United States as a crime, this paper starts with a review of domestic law in a comparative manner.

The experience in France with regard to high government officials being charged with domestic crimes for the contaminated blood scandal during the AIDS epidemic is presented and analyzed noting the key legal rules expressed by the French courts in that context.

This paper goes on in a comparative approach in the context of the COVID-19 pandemic to examine such criminal liability in the US system with a discussion of the murky and complex issues of qualified immunity.
It further highlights the efforts to have legislation passed to provide robust immunity for civil claims. And it posits that these immunities for civil claims likely reduce any likelihood of criminal process for acts and omissions of both public and private actors, except in the most egregious cases.

Finding a likely impasse through these mechanisms, the article turns to international law and in particular customary international criminal law to see if it can provide a method of analyzing the human endangerment. Drawing from the Statute of the International Criminal Court as a possible crystallization of certain types of crimes against humanity, I identify particular groups against which such crimes might be seen as being in the process of being perpetrated.

But, even if the particular crimes against humanity in the Statute of the International Criminal Court are seen as progressive development rather than crystallization, the article suggests that they are useful tools in helping to have an organize principle as to how to address the monstrous US response to the COVID-19 pandemic.

The article ends with examples of how this method can help those concerned with human life to examine in a clear eyed manner the hundreds or thousands of intentional acts being done by public and private actors that endanger human life. And it also points a way as to how to think about the myriad acts being done by persons to protect human life.

In the end, the monstrous response is seen as placing populations and particularly vulnerable populations before Hobbesian choices between protecting their health and venturing out into society in a time of uncertain information, uncertain resources, and pressure to reopen and pressure to reopen or lose unemployment or other benefits.

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