11

State and individual

accountability for the
manufacture and spread of
COVID-19: Options under
international law

Evelyne Asaala*
Abstract
This contribution seeks to initiate a debate on both state responsibility and
individual criminal accountability relating to the manufacture, transfer
and spread of COVID-19. The paper explores two possible scenarios
where COVID-19 may have emanated from: an act of nature or artificial
sources. It then focuses more attention on the latter, assuming that its
origin and/or initial act of spreading may have resulted from deliberate
or negligent actions, thereby attracting accountability under international
law. The trending accusations and counter-accusations between the
United States of America (the US) and China on the manufacture of
COVID-19 inform this inference. More so, reference is made to the
allegations of collusion between the World Health Organisation (WHO)
and China in the virus’ initial stage that contributed to its spread. As
such, it is important for investigations to be conducted with the aim
of bringing the individuals responsible for the manufacture and who
were deliberate, negligent or complicit in the spread of COVID-19 to
account. This chapter, thus seeks to establish that the events related to
the manufacture, transfer or spread of COVID-19 fulfil the threshold
of state responsibility or crimes against humanity and genocide within
the competent jurisdiction of the International Criminal Court (ICC).
The chapter also seeks to establish the most appropriate forum, both at
the international and national levels, for prosecuting those implicated in
these crimes.

* Evelyne is a lecturer of law at the University of Nairobi. She holds a PhD from the
University of Witwatersrand (South Africa).

295
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1 Introduction
International crimes derive their original conception from the 1600s
prosecution of the crime of piracy, and the 1800s prosecution of slavery
and slave trade.1 The perpetrators of these crimes were considered hostis
humani generis, the ‘enemy of all mankind’.2 The latter was founded on the
belief that there exists ‘a community of nations and peoples whose values
and interest needed to be protected’.3 Those who violated these norms
became the enemies of mankind and therefore deserved to be punished.

The alleged manufacture or transfer and spread of COVID-19 has

had a devastating global impact. At the time of writing, official records
indicated that 684 million people had contracted the disease and out
of this number 6.83 million people had died.4 This chapter makes a
fundamental assumption that COVID-19 may not be an act of nature
to which no form of accountability attaches. Rather, it hypothetically
establishes that its origin and or initial act of spreading is likely to have
resulted from a deliberate or negligent act of state(s), institutions and
individuals in order to establish the framework to discuss possible state
responsibility or individual criminal responsibility under international law.
If established, the chapter argues that the states or individuals responsible
for the manufacture, transfer or spread of COVID-19 would have violated
the norms of international law and thus deserve to be held to account in
appropriate fora. Therefore, responsibility, where attributed to the state or
an individual(s) may relate to the ‘manufacture’ or ‘transfer’ or ‘spread’ of
COVID-19. This forms the central focus of this chapter.

However, this chapter does not touch on the aspect of finding the
specific state, or individuals or institution to be held accountable. Instead,

1 MC Bassiouni ‘Sources and subjects’ in C Bassiouni (ed) International Criminal

Law 3 ed Vol 1 (2008) at 130; MC Bassiouni ‘Sources and theories of international
criminal law’ in C Bassiouni (ed) International Criminal Law 2 ed (1999) at 83; J Garson
‘Commentary on handcuffs or papers: Universal jurisdiction for crimes of jus cogens,
or is there another route?’ (2007) 2 Journal of International Law and Policy 4; K Coombes
‘Universal jurisdiction: A means to end impunity or a threat to international relations?’
(2011) 43 The George Washington International Law Review 427; D Hoover ‘Universal
jurisdiction not so universal: Time to delegate to the International Criminal Court’
(2011-20012) 8 Eyes on the ICC 79.
2 A Sammons ‘The under-theorization of universal jurisdiction: Implications for
legitimacy on trials of war criminals by national courts’ (2003) 21 Berkeley Journal of
International Law 126.
3 Bassiouni ‘Sources and subjects’ (n 1) 130.
4 Worldometer ‘COVID-19 coronavirus pandemic’ [Link]
coronavirus/ (accessed 17 September 2021).
 State and individual accountability for the manufacture and spread of COVID-19 297

it initiates the individual criminal accountability debate by making an

argument that the events related to the manufacture, transfer or spread of
COVID-19 amount to crimes against humanity and genocide within the
competence of the International Criminal Court (ICC). It also examines
the most viable forum for prosecuting these individuals under international
law.

To the extent that it discusses state responsibility, the arguments

and counter-arguments between the United States (US) and China are
used to demonstrate the potential role of the state(s) involvement in the
manufacture of COVID-19. Thus, necessitating a discussion on state
accountability. Concerning allegations of the World Health Organisation’s
(WHO) institutional complicity, this requires investigations into WHO’s
elaborate decision-making process in declaring a global public health
emergency, which is beyond the scope of this paper.

The paper is divided into three substantive sections. The first section
contextualises the facts on the emergence and initial spread of COVID-19.
In particular, it establishes the arguments traded among the US, China and
the WHO on accusations and counter accusations of the manufacture and
or negligence and ‘collusion’ in the initial spread of the virus. The second
section makes the argument that the events relating to the manufacture,
transfer or spread of COVID-19 fulfils the threshold of state responsibility,
crimes against humanity and or genocide. The third section establishes
the most appropriate forum for prosecution. The final section draws a
conclusion and makes recommendations on the way forward.

2 Facts on the emergence and spread of COVID-19

COVID-19’s origin has fuelled arguments between the US and China
who accuse each other for having manufactured the virus.5 On one hand,
China accuses the US for introducing the virus on its territory as an act of
bioterrorism.6 Conversely, the then-American president, Donald Trump,
persistently asserted that the virus was ‘made in China’7 and allegedly
manufactured at the Wuhan Virology Institute. The fact that the outbreak
occurred near Wuhan’s most sophisticated bioweapons laboratory,

5 L Kuo ‘American coronavirus: China pushes propaganda casting doubt of virus

origin’ The Guardian 12 March 2020 [Link]
mar/12/conspiracy-theory-that-coronavirus-originated-in-us-gaining-traction-in-
china (accessed15 December 2020).
6 R Kelinfeld ‘Do authoritarian or democratic countries handle pandemic better?’
[Link]
countries-handle-pandemics-better-pub-81404 (accessed 8 December 2020).
7 As above.
298 Chapter 11

coupled with the Chinese Ministry of Science and Technology directives

‘on strengthening biosecurity management in microbiology labs that
handle advanced viruses like the novel coronavirus’8 have convinced some
scientists and experts that the virus may have accidentally escaped into the
atmosphere.9 While the COVID-19 virus’ origin remains contested, there
is the underlying possibility that the virus may have been manufactured
and was, therefore, not an act of nature. This controversy necessitates
solidarity among the global community to ensure further investigations
and appropriate accountability measures imposed on the state(s) and
individuals involved in the virus’ manufacture, or transfer or initial act
of spreading. For example, if investigations establish negligence or
deliberate conduct in the manner in which China dealt with the virus in
its initial stages and also for its alleged ‘collusion’ with WHO in a way that
undermined early efforts to curb the virus, then the state and individuals
involved must be held to account.

According to media reports, on 17 November 2019, the first COVID-19

case was reported in China.10 Yet, China did not officially report the first
COVID-19 case until 8 December 2019.11 As a state party to the WHO
Constitution,12 this contravened China’s obligation. State parties to the
WHO Constitution are obligated to constantly assess events in their
territory and alert the WHO within 24 hours of all unusual public health
events that constitute a Public Health Emergency of International Concern
(PHEIC).13 This notification should be timely, continuous and detailed
enough to give accurate and sufficient information. Where possible, the
notification should comprise of

case definitions, laboratory results, source and type of the risk, number of
cases and deaths, conditions affecting the spread of the disease and the health

8 SW Mosher ‘Don’t buy China’s story: The coronavirus may have leaked from a lab’
New York Post 22 February 2020 [Link]
story-the-coronavirus-may-have-leaked-from-a-lab/ (accessed 9 December 2020).
9 ‘Complaint before the ICC - Crimes against Humanity and Genocide by Development
of Outlawed Biological Warfare Weapons by the People’s Republic of China’ (4 April
2020) paras 47-48 [Link]
the%20International%20Criminal%20Court%[Link] (accessed 9 December 2020).
10 H Davidson ‘First COVID-19 case happened in November, China government
records show-report’ The Guardian 13 March 2020 [Link]
world/2020/mar/13/first-covid-19-case-happened-in-november-china-government-
records-show-report (accessed 23 September 2020).
11 As above.
12 Alphabetical List of WHO Member States [Link]
demography/by_country/en/ (accessed 25 September 2020).
13 Articles 6 & 7 of the WHO International Health Regulations 3rd ed (2005) (IHR).
 State and individual accountability for the manufacture and spread of COVID-19 299

measures employed; and report, when necessary, the difficulties faced and
support needed in responding to the potential public health emergency of
international concern.14

Relying on the information received from a state, the WHO then conducts
independent verification and assessment to establish whether the risk
constitutes a PHEIC thus, necessitating a coordinated international
response.15

China officially acknowledged the outbreak of COVID-19 almost one

month after the first case was reported. This evinces the claim that China
violated its obligation to report within 24 hours of an outbreak. Yet, on
several occasions, the WHO relied on the Chinese government’s position
on different aspects that may have misled countries on how to deal with
the virus. Later, the WHO often shifted positions and announced contrary
stances, thereby implying that the previous statements were merely
borrowed from the Chinese government without WHO’s independent
verification and assessment as the law required. For instance, the Chinese
government’s announcement that it had discovered that human-to-human
transmission of the virus was impossible,16 was disproved via claims that
while Taiwan had alerted the WHO that human-to-human transmission
of the virus was possible in December 2019, the WHO failed to alert
countries.17

In the meantime, the Chinese government was accused of a series

of cover-ups, including destruction of laboratory evidence, conducting of
arbitral arrests and disappearance and unexplained death of doctors and
experts who raised alarm, all aimed at hiding the outbreak’s magnitude.18
China’s authoritarian government was harshly criticised for censoring

14 Article 6(2) of the IHR.

15 Article 11 of the IHR
16 B Baumann ‘WHO’s senior advisor had an astonishing response when asked
about Taiwan’ TownHall 28 March 2020 [Link]
bethbaumann/2020/03/28/watch-whos-senior-advisor-hangs-up-on-a-reporter-for-
asking-about-taiwan-n2565899 (accessed 9 December 2020).
17 B Baumann ‘Taiwan: We tried to warn WHO about the Wuhan coronavirus’ Townhall
21 March 2020 [Link]
we-tried-warning-who-about-the-wuhan-coronavirus-n2565422 (accessed 9 December
2020).
18 B Baumann ‘Australian Reporter Rita Panahi takes the WHO, Chinese regime to
task over coronavirus lies’ Townhall 28 March 2020 [Link]
bethbaumann/2020/03/28/australian-reporter-rita-panahi-takes-the-chinese-regime-
totask-over-the-spread-of-the-wuhan-coronavirus-n2565898 (accessed 9 December
2020).
300 Chapter 11

and suppressing information in the pandemic’s initial stages.19 This

vital information could have helped contain the virus. A University of
Southampton study, which implicates China’s responsibility for the virus’s
initial spread, argues that China’s early intervention20 would have reduced
COVID-19’s spread by up to 95 per cent.21 Yet, despite the first case
having been reported on 17 November 2019,22 the WHO did not declare
that COVID-19 was a public health risk of international concern until 30
January 2020.23 Four months later, on 17 March 2020, the WHO declared
the crisis to be a global pandemic.24

To some commentators, this period of time demonstrated WHO’s

laxity in delivering its mandate. However, it is the shifting of positions
based on unverified information and how it handled the pandemic in its
initial stages that earned the WHO the most criticism. According to its
rules, upon receiving such information, the WHO should consult with
and verify from the State Party in whose territory the event is occurring,
then make the information received available to other State Parties.25 The
obligation to share information with State Parties under this provision is
not equivalent to declaring that an event is a PHEIC. Thus, the WHO
failed to discharge the duty to share crucial information with State Parties,
a duty that perhaps could have curtailed the virus’s destruction.

19 Davidson (n 10); L Kuo ‘Coronavirus: Wuhan doctors speak out against authorities’
The Guardian 11 March 2020 [Link]
coronavirus-wuhan-doctor-ai-fen-speaks-out-against-authorities (accessed 9 December
2020).
20 Early intervention in this context means that China should have accepted the medical
reports on the magnitude of the outbreak and took early steps towards isolation,
contact tracing, and treatment as happened in the previous instances of SARS.
21 University of Southampton ‘Early and combined interventions crucial in tackling
COVID-19 spread in China’ (11 March 2020) [Link]
news/2020/03/[Link] (accessed 23 September 2020); See also MedRxiv
‘Effect of non-pharmaceutical interventions for containing the COVID-19 outbreak in
China’ [Link] (accessed
23 September 2020).
22 Davidson (n 10).
23 WHO Bulletin ‘Novel coronavirus (COVID-19)’ [Link]
online_first/COVID-19/en/ (accessed 17 December 2020).
24 WHO ‘WHO Director-General’s opening remarks at the media briefing on COVID-19’
(11 March 2020) [Link]
s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (accessed
23 September 2020).
25 Article 9 of WHO International Health Regulations (IHR Rules).
 State and individual accountability for the manufacture and spread of COVID-19 301

Arguably, the WHO’s laxity, coupled with the misinformation that

characterised China’s notification of the WHO demonstrates that the
WHO’s negligence contributed to COVID-19’s rapid spread.26 Hitherto,
one has to consider that the WHO is a political institution whose legitimacy
is dependent on Member States. As such, in executing its mandate, it has
to ensure that it maintains a delicate political balance between sustaining
diplomacy with the State Party on whose territory the event is occurring
and maintaining neutrality with all other State Parties. However, this does
not imply that WHO cannot be held accountable for any misconduct.27

Yet, the COVID-19 pandemic is not without antecedents. Despite its

inherent contextual differences, the HIV and AIDS pandemic offer some
comparative examples on how the WHO has previously performed, in
response to emergencies. In the HIV and AIDS epidemic’s initial stages,
the WHO launched international surveillance in order to assess the global
HIV and AIDs situation,28 without necessarily relying on information
from specific countries, for example the US, which by then had reported
the largest number of persons infected with the condition.29 The WHO
also constantly received statistics from states on the disease’s spread and
research findings from different institutions.30 It shared the information
publicly without fear of losing political legitimacy with the countries from
whom the information had been received. Nonetheless, one must also
appreciate the WHO’s elaborate decision-making process and the different
contextual facts inherent in the two pandemics. Unlike COVID-19, whose
potential drastic effects are instant, HIV and AIDs usually takes a little bit
longer. Further, while the HIV and AIDS pandemic was initially reported
in more democratic countries where a free flow of information exists,
COVID-19 was initially reported in a country with authoritarian rule.

26 Paragraphs 68-74 of ‘Complaint before the ICC (Treaty of Rome, Art. 15.1 and 53)
in the matter of Crimes against Humanity and Genocide by development of outlawed
biological warfare weapons by the People’s Republic of China’ [Link]
zw/blog/200330-Complaint%20Before%20the%20International%20Criminal%20
Court%[Link] (accessed 23 September 2020).
27 ‘Acquired immunodeficiency syndrome − An assessment of the present situation
in the world: Memorandum from a WHO Meeting’ (1984) 62 Bulletin of the World
Health Organisation 419 [Link]
(accessed 16 December 2020); ‘A timeline of HIV and AIDs’ [Link] [Link]
[Link]/hiv-basics/overview/history/hiv-and-aids-timeline (accessed 16 December
2020).
28 As above.
29 By the end of 1981, the US had reported a total of 337 cases of persons with severe
immune deficiency. See ‘A timeline of HIV and AIDS’s’ (n 27).
30 See generally ‘History of HIV and AIDs: Overview’ [Link]
professionals/history-hiv-aids/overview#footnote5_ut61b3j (accessed 16 December
2020).
302 Chapter 11

Overall, the WHO has tried to dispense its mandate objectively. However,
the highly politicised environment within which it operates as well as the
different democratic levels of the countries that constitute its State Parties
has limited its ability to realise this objective. Yet, as a political entity, the
WHO’s legitimacy remains at the mercy of its member states.

3 The origin, transfer and spread of COVID-19 vs

state and individual accountability threshold
3.1 State accountability for the origin, transfer and spread of
COVID-19

China’s failure to exercise due diligence when the first COVID-19 case was
reported later contributed to the virus spreading globally − the adverse effects
of which continue to unfold, which outrightly violates both conventional and
customary international law. Its failure to act quickly and diligently was not
only negligent but also a blatant violation of WHO’s International Health
Regulations (IHR),31 that consequently resulted in uncontrolled spread of
COVID-19. This negligence should attract some form of state responsibility.
Similarly, the international community of states must take steps to ensure that
the alleged involvement of China and the US in the manufacture of the virus is
investigated and the state(s) found responsible are held accountable.

State responsibility can be established on the basis of acts or omissions

that amount to deliberate or negligent spread of biological or chemical
agents. COVID-19 can be designated as a biological weapon that could
potentially threaten international peace and security.32 Indeed, speaking on
the relationship between the impact of conflicts and COVID-19’s spread,
the UN Security Council has acknowledged that the ‘unprecedented extent
of the COVID-19 is likely to endanger the maintenance of international
peace and security’,33 thereby necessitating global solidarity in combating
the virus.34

31 These regulations were first adopted in 1969 and last revised in 2005. According to the
WHO Constitution, these regulations create obligations for WHO member states.
32 While the circumstances surrounding COVID-19’s development remain contested, the
arguments seem to suggest that the virus may have been developed for use as a weapon
for biological warfare. Biological weapons are ‘microorganisms like virus, bacteria,
fungi, or other toxins that are produced and released deliberately to cause disease
and death in humans, animals or plants’. They fall within the category of weapons
classified as weapons of mass destruction. see, WHO ‘Biological weapons’ https://
[Link]/health-topics/biological-weapons#tab=tab_1 (accessed 25 September
2020).
33 UN Security Council, Resolution 2532 (2020) adopted by the Security Council on
1 July 2020, UN Doc S/RES/2532 (2020).
34 Resolution 2532 (n 33); UN General Assembly, Resolution 74/270. Global solidarity
 State and individual accountability for the manufacture and spread of COVID-19 303

A state is held accountable under international law for violating

its international obligations when the state is responsible for the act or
omission constituting the breach.35 An act or omission is attributed to
the state when a state agency carries out the act or is responsible for the
omission36 or persons exercising government authority or persons acting
under the direction of the state or private persons whose activities have
been adopted by the state carry out the breach.37 This implies that for any
state to be subjected to any accountability measures for manufacturing or
spreading COVID-19, it has to be established that the persons involved
were acting under the authority or directions of the relevant state or if
they were private entities, their governments had adopted their activities
or that the respective governments failed to exercise due diligence to stop
the act or omission.38 Ultimately, the act or the omission in question must
be attributed to the state itself. Historically, a state’s primary responsibility
is ‘to compensate or make reparations for injuries suffered by nationals
of other states’.39 Any country found to have deliberately manufactured
COVID-19 must therefore make good reparations to victims who are its
nationals and those from other nationals.

3.1.1 Reparations

The state(s) responsible for an internationally wrongful act is obligated to

make full reparations for the injury caused.40 Such injury could either take
the form of material or moral damage resulting from the wrongful act.41
COVID-19’s possible ‘manufacture’ and negligent or deliberate spread
has had devastating consequences and caused both economic and moral

to fight the coronavirus disease 2019 (COVID-19), 3 April 2020, UN Doc A/

RES/74/270 (2020).
35 Article 2 of the Responsibility of States for Internationally Wrongful Acts, 2001.
36 The Salvador Commercial Case (1902) RIAA Vol XV 467
37 Article 5 & 8 of the ILC Draft Articles on Responsibility of States for Internationally
Wrongful Acts, 2001. See The Home Missionary Society Claim (1920) RIAA, Vol VI
44; Pulp Mills on the River Uruguay Case [2010] ICJ Reports 14, para 197. The Court
attributed private conduct to the state in the case of a state failure to exercise due
diligence in anticipating and preventing the private persons acts from breaching the
state’s international obligation. Where the private acts are spontaneous, the state still
has the responsibility to exercise continuing due diligence by restoring the status quo, if
possible and holding the respective individuals accountable under the law and e-assure
other states the non-repetition of the acts/omission.
38 See The Home Missionary Society Claim (1920) RIAA, Vol VI 44; Pulp Mills on the River
Uruguay Case [2010] ICJ Reports 14, para 197.
39 S Sucharitkul ‘State responsibility and international liability under international law’
(1996)18 Loyola of Los Angeles International and Comparative Law Journal 823.
40 Article 31(1) of the Draft Articles on State Responsibility.
41 Article 31(2) of the Draft Articles on State Responsibility.
304 Chapter 11

damage to the globe. Accordingly, any reparation could be in the form

of economic restitution42 of the affected states, or compensation43 of the
victims of COVID-19 – where the damage cannot be cured by restitution –
or satisfaction, where the damage cannot be cured by both restitution and
compensation.44 Acknowledgement of the wrong, acts of apology or any
acts of modality are examples of satisfaction.45 Thus, any accountability
measure taken against the responsible state(s) must ensure full reparation
measures. Additionally, injured states may also seek orders of cessation46
of any biological or chemical processes that lead to or are related to the
‘manufacture’ of COVID-19, where this may still be continuing.47

3.1.2 UN Charter-based measures

The UNGA and UNSC play a role under the UN Charter-based measures
for holding UN agencies or bodies or any state accountable for violating
international peace and security. Yet, neither the UNGA nor the UNSC
has discussed accountability for either the ‘manufacture’ or spread of
COVID-19.48 The UNSC has merely pointed out the potential nature of
COVID-19 to threaten international peace and security.49 In spite of that,
there is no doubt that the alleged manufacture and subsequent spread of
COVID-19 shattered international peace and security. For instance, the
world suffered a complete lockdown of its economy, social relations,
international travels for several months due to the insecurity that exposure
to COVID-19 poses. Further, the death of more than 6 million people in

42 Article 35 of the Draft Articles on State Responsibility.

43 Article 36 of the Draft Articles on State Responsibility.
44 Article 37 of the Draft Articles on State Responsibility. For further reading on
reparations see Reports of the International arbitral awards, Case concerning the
difference between New Zealand and France concerning the interpretation or
application of two agreements, concluded on 9 July 1986 between the two States and
which related to the problems arising from the Rainbow Warrior Affair (the Rainbow
Warrior case),Vol XX (30 April 1990) para 111-123.
45 Article 37(2) of the Draft Articles on State Responsibility.
46 Article 48(2)(a) of the Draft Articles on State Responsibility.
47 An order of cessation of the wrongful act is only relevant if the wrongful act is still
continuing at the time of the judicial pronouncement. See The United States Diplomatic
and Consular Staff in Teheran Case ICJ Reports (1979) 21, paras 38-41, and (1980) para
95, No 1; The Case Concerning Military and Paramilitary Activities in and Against Nicaragua
ICJ Reports (1984) 187, and (1986) para 292, p 149.
48 So far, the UNGA has only adopted two resolutions on solidarity in the global fight
of COVID-19, UN General Assembly, Resolution 74/270 (n 34); and UN General
Assembly, Resolution 74/274. International cooperation to ensure global access to
medicines, vaccines and medical equipment to face COVID-19, 21 April 2021, UN
Doc A/RES/74/274 (2021).
49 Security Council Resolution 2532 (n 33).
 State and individual accountability for the manufacture and spread of COVID-19 305

less than three years and the isolation or hospitalisation of almost 500
million others in constrained health facilities robs people around the world
of the peace needed for daily life. Had the UNSC made a determination
in accordance with article 39 of the UN Charter that the manufacture
and subsequent spread of COVID-19 threatened international peace and
security, it would have provided a basis for the Council to hold the relevant
states accountable either through peaceful settlement of the dispute or
through its enforcement mechanisms. Regarding the latter, the Council
can resolve the issue either through sanctions or military intervention.50
In light of the realities surrounding biological warfare whose combatants
are invisible, military intervention is not a viable option in. This leaves
the UN Security Council with the single option of sanctions against the
offending state.

The UN Charter has a wide sanctions regime which includes

economic, transport, communication and diplomatic relations.51 Noting
that imposing sanctions is a highly sensitive political issue and the fact
that there is a high possibility that one or more of the permanent 5 might
be implicated in the COVID-19 virus’ manufacture or initial spread, one
cannot rule out the possibility of the veto compromising this process.52
The possibility of this politics playing out in accountability efforts of
states involved in the COVID-19 virus’s manufacture and initial spread
is not remote. However, practice evidences that where the UN Security
Council has failed to act because of a veto, the UNGA has appropriated
the responsibility to make ‘recommendations to Members for collective
measures,’ including on the use of force.53 Given the probability of a veto,
the UNGA ought to seize the opportunity to make the decision on state
accountability for COVID-19.

50 Article 41 & 42 of the United Nations, Charter of the United Nations, 24 October
1945, 1 UNTS XVI (UN Charter).
51 Article 41 of the UN Charter.
52 For example, China and Russia vetoed a UN Security Council attempt to adopt
a resolution imposing sanctions on Syria following increased widespread and
systematic violation of human rights by the Syrian authorities, UN General Assembly,
Resolution 67/262: The situation in the Syrian Arab Republic, 4 June 2013, UN
Doc A/RES/67/262 (2013) [Link]
(accessed 17 June 2020); the UN Security Council also failed to discuss the matter
when the plot to assassinate the Ambassador of Saudi Arabia to the United States of
America was disrupted, UN General Assembly, Resolution 66/12: Terrorist attacks on
internationally protected persons, 2 February 2012, UN Doc
A/RES/66/12 (2012).
53 UN General Assembly Resolution 377(V): ‘Uniting for peace’, 3 November 1950, UN
Doc A/RES/377(V) A (1950), part A, para 1.
306 Chapter 11

The fact that the UN Security Council has never determined that
COVID-19’s adverse impacts are a threat to international peace and security
undermines the effectiveness of its enforcement powers to adequately hold
the responsible state(s) accountable under the UN Charter-based system.
Alternatively, any UN Charter member state aggrieved by the virus’s
production and initial negligent acts or collusion between China and the
WHO, that contributed to the rapid global spread of the virus, may initiate
any peaceful settlement mechanisms with the states involved. These
mechanisms include a referral of the matter to the International Court of
Justice (ICJ) independent of the UN Security Council. In the latter’s case,
the ultimate goal will be reparations for the victims of COVID-19 who are
nationals from the affected states.

Thus, the ICJ offers another accountability option under the Charter-
based system. Yet this Court is wrought with inherent weaknesses and
challenges that pose potential threat to effective state accountability for
COVID-19. For instance, the ICJ does not have compulsory jurisdiction
over disputes involving its member states. It is only but one of the measures
provided under the Charter for pacific settlement of disputes.54 Moreover,
parties to the dispute must be states55 that are signatories to the UN
Charter and must voluntarily consent to submit the case to the Court.56
If the trending accusations and counteraccusations on the manufacture
and spread of COVID-19 between the US and China is anything to go by,
the possibility that state(s) alleged to have manufactured or deliberately
spread COVID-19 may refuse to voluntarily subject themselves to the ICJ’s
jurisdiction, in the absence of a standing declaration under article 36 of
the ICJ Statute, cannot be under-written. Yet, the unabated state referral
of cases to the court, coupled with a satisfactory record of states enforcing

54 Article 33(1) of the UN Charter.

55 Article 34 of the United Nations, Statute of the International Court of Justice, 18 April
1946 (ICJ Statute).
56 Article 38(2) of the ICJ Statute; Mavrommatis Palestine Concessions, Judgment of 30 August
1924, PCIJ Series A No 2, at 16. In this case the Court underscored the fact that it
could only exercise its jurisdiction where state consent has been given. This was further
emphasised in Case of the monetary gold removed from Rome in 1943 (Preliminary Question)
Judgment of June 15th 1954, ICJ Reports 1954, at 32. There are three main ways a state
can give consent to the Courts’ jurisdiction. First, through the making of declarations
under article 36(2) and (5) of the ICJ Statute. Second, under compromissory clauses
under international treaties. It should be noted that both the BWC and the CWC do
not expressly provide the ICJ as a mechanism for dispute settlement. This leaves the
accountability options for COVID-19 with the option of declarations or through the
conclusion of special agreement called the compromise or the forum prorogatum as the
forms of expressing state consent to submit the matter to the jurisdiction of the Court.
 State and individual accountability for the manufacture and spread of COVID-19 307

the court’s decisions57 evidence the fact that the ICJ is a viable option of
holding the responsible states accountable for the virus’ manufacture and
spread. In any event, if the relevant state(s) fail to adhere to the court’s
decision, the court may refer the matter to the UN Security Council which
can call into action its enforcement mechanisms under chapter VII of the
Charter.

Besides the Court, state parties to the UN Charter, in consultation with

the offending state(s), may also explore negotiation, enquiry, mediation,
conciliation, arbitration, resort to regional agencies or other peaceful
means acceptable among them.58

3.2 Individual accountability: The production, transfer or

spread of COVID-19 as international crimes

The Rome Statute of the International Criminal Court (Rome Statute)

deals with individual criminal responsibility. The Rome Statute’s status
as an accountability measure is only triggered when an international
crime is committed. One of the central concerns relating to this mode
of accountability is whether the COVID-19 virus’ fabrication, spread and
impact fulfil the threshold of any of the international crime requirements
listed under the Rome statute. This paper argues that the circumstances
surrounding COVID-19’s manufacture, spread and impact fit the crimes
against humanity and genocide criteria under the Rome Statute. The
following sub-sections delve into these two international crimes and how
the manufacture, or transfer or impact of COVID-19 fulfils their threshold
under the Rome Statute.

3.2.1 The production, transfer and spread of COVID-19 as crimes against

humanity

As noted above, identified perpetrators should first be charged with

crimes against humanity if investigations establish that COVID-19 was
manufactured and deliberately or negligently released to cause death and
intense human suffering. This would constitute murder, which is one of
the acts that could constitute a crime against humanity59 and crimes against

57 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua);
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
Compensation, Judgment, ICJ Reports 2012, at 324; Ahmadou Sadio Diallo (Republic of
Guinea v Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010 (II), at
692, para 165, subpara (2). In all these cases, the Courts decisions were complied with
within months after delivery of the judgments.
58 Article 33(1) of the UN Charter.
59 Article 7(1)(a) of the UN General Assembly, Rome Statute of the International
308 Chapter 11

humanity of other inhumane acts if ‘committed as part of a widespread

or systematic attack directed’.60 While for murder as constituting a
crime against humanity it has to be established that one or more persons
were killed,61 for crimes against humanity of inhumane acts it has to be
established that ‘the perpetrator inflicted great suffering, or serious injury
to body or to mental or physical health, by means of an inhumane act’.62
In both instances, it must be demonstrated that the acts were committed
as part of a widespread or systematic attack directed against civilian
population and that the perpetrator knew or intended their conduct to be
part of the widespread or systematic attack against civilians.63

The blurry distinction inherent in the notion of ‘widespread or

systematic’ nature of crimes against humanity does not escape our
discussion. While the International Criminal Tribunal of Rwanda (ICTR)
limits the definition of ‘widespread’ to numbers,64 or ‘massive, frequent,
large-scale action, carried out collectively with considerable seriousness
and directed against a multiplicity of victims’,65 the ICC has consistently
defined ‘widespread’ as referring to ‘the large-scale nature of the attack’,66
and ‘the number of targeted persons’.67 On the other hand, the ICC
associates ‘systematic’ to the ‘organised nature of the acts of violence’68 or
‘a pattern of repeated conduct or the recurring or continuous perpetration
of inter-linked, non-random acts’.69 Systematic ‘reflects the organized
nature of the acts of violence’.70 It is ‘a pattern of conduct or the
methodological plan’.71 It is the non-accidental repetition of these acts that
demonstrates their systematic nature. It should be noted that contrary to

Criminal Court (last amended 2010), 17 July 1998, ISBN 92-9227-227-6 (Rome
Statute).
60 Article 7(1)(k) of the Rome Statute.
61 Article 7(1)(a) ICJ, Elements of Crimes, ISBN 92-9227-232-2 (2011) (Elements of
Crimes).
62 Article 7(1)(k) of the Elements of Crime.
63 Article 7(1) of the Rome Statute & Elements of Crime.
64 Prosecutor v Akayesu Case ICTR-96-4-T, Judgment (1998), para 580.
65 Prosecutor v Akayesu (n 64); Prosecutor v Kayishema, Case ICTR-95-1-T, (1999) 123.
66 Prosecutor v Germain Katanga, Judgment, ICC-01/04-01/07, (Judgment pursuant to
article 24 of the Statute) 7 March 2014, paras 1098 & 1123; Prosecutor v Jean-Pierre
Bemba Gombo, ICC-01/05-01/08, para 83.
67 Prosecutor v Germain Katanga (n 66) para 1123.
68 Prosecutor v Germain Katanga (n 66) para 1098.
69 Prosecutor v Germain Katanga (n 66) para 1113.
70 Prosecutor v Germain Katanga (n 66) para 1123.
71 ME Badar ‘From the Nuremberg Charter to the Rome Statute: defining the elements
of crimes against humanity’ (2004) 5 San Diego International Law Journal 111.
 State and individual accountability for the manufacture and spread of COVID-19 309

the ICTR and some scholars who define systematic as being synonymous
to the existence of a policy or plan,72 the ICC has maintained that the
existence of a policy is not the defining feature of ‘systematic’ nor is a
policy synonymous to systematic.73

The practice of the tribunals in distinguishing between the two

aspects seems pretty clear. The global spread of COVID-19 as a biological
weapon fit within the definitions of widespread and systematic. While
the circumstances surrounding the development of COVID-19 remains
contested, the trending arguments suggest the possible intention for its
development to be that of use as a biological weapon in warfare. Besides,
the empirical facts of the devastating impacts of COVID-19 to humans on
the globe attest to the underlying purpose for which the virus may have
been manufactured to deliberately cause disease and death to humans.

Thus, the highly infectious nature of the virus which triggered its
large-scale spread illustrates that COVID-19 is widespread. More so, the
non-accidental pattern in which the virus transmits demonstrates that its
architects intended to create a highly infectious virus, thus, fulfilling the
systematic requirement. Yet, the potential for the two notions overlapping
in practice cannot be ignored. The fact that an attack is widespread could
in itself evidence its systematic nature.74 For instance, the large-scale
global spread of COVID-19 illustrates the non-accidental repeat pattern
the responsible parties intended. Yet, the alternative nature of ‘widespread
or systematic’ remains a settled matter of customary law.75 Here, the
prosecution is required to choose and prove the existence of at least one
of the two has been fulfilled.76

Another essential element of crimes against humanity is that of

‘attack’. While the International Criminal Tribunal of the former
Yugoslavia (ICTY) limited definition of ‘attack’ to armed conflict,77 the

72 S Chesterman ‘An altogether different order: Defining the elements of crimes against
humanity’ (2000) 10 Duke Journal of Comparative and International Law 307 at 314-315;
the ICTR in Kayishema case (n 65) para 580, defined systematic as referring to ‘carried
out pursuant to a preconceived plan or policy’.
73 Prosecutor v Germain Katanga (n 66) para 1111.
74 Prosecutor v Jelisic, Case IT-95-10-T, Judgment of 14 December 1999 para 53.
75 Chesterman (n 72) 313; the Prosecutor v Mile Msksic, Miroslav, and Veselin Ijivan-anin,
Case IT-95-13-R61, (ICTY 3 April 1996) (also referred to as Vukovar Hospital Decision)
para 30; Prosecutor v Tadic, Case IT-94-1-T (ICTY 7 May 1997) 646-48; Prosecutor v
Tadic, Case No IT-94-1-A, (ICTY 15 July 1999) para 271.
76 Badar (n 71) 109.
77 Article 3 Statute of the International Criminal Tribunal for Rwanda; Akayesu case (n
64)581.
310 Chapter 11

ICTR and the ICC has maintained that an ‘attack’, as a component of

crimes against humanity, is not necessarily equivalent to a military attack.78
In Akayesu, it was underscored that an attack could also be non-violent in
nature.79 Thus, any

course of conduct involving the commission of multiple acts, referred to in

paragraph 1, against any civilian population, pursuant to or in furtherance of
a state or organizational policy to commit such attack80

qualifies as a crime against humanity.

This flexible definition of what amounts to an ‘attack’ accommodates

biological inventions of mass destruction such as the COVID-19 virus. In
the absence of a military-like attack, COVID-19’s infectious nature which
enables it to spread rapidly, cause death and intense human suffering
suffices as proof of an attack. The ICC has interpreted the ‘course of
conduct’ in this context to mean ‘an operation or a series of actions
directed against a civilian population’ as opposed to a single isolated act.81
This does not mean that a single act causing suffering of a magnitude like
COVID-19 has done does not fall within the ICC’s jurisdiction. Instead,
it implies that an isolated act can amount to crimes against humanity if
it is committed as part of a policy or plan.82 The ICC has observed that
‘a single event may well constitute an attack … provided that the other
elements of that article are met’.83

The course of conduct must be carried out ‘pursuant to or in

furtherance of a state or organizational policy’. This implies that the
prosecution must establish that the said course of conduct, in particular, the
manufacture and spread of COVID-19, was done in furtherance of a state
or organizational policy. The policy must express a state or organisation’s
intention to carry out an attack against a civilian population.84 A state or
organisation’s failure to take appropriate action, which in turn encourages
the attack, can also evidence an implementation of the policy to cause

78 Akayesu Case (n 64) para 581; Prosecutor v Jean Pierre Bemba Gombo ICC-01/05-01/08
(Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute) 15 June 2009, para
75; Prosecutor v Germain Katanga (n 66) para 1102.
79 Akayesu Case (n 64) para 581.
80 Article 7(2)(a) of the Rome Statute.
81 Prosecutor v Germain Katanga (n 66) para 1101.
82 Prosecutor v Tadic Case IT-94-1-T (ICTY 7 May 1997) para 694; Badar (n 71) 110.
83 Prosecutor v Germain Katanga (n 66) para 1101.
84 Prosecutor v Germain Katanga (n 66) 1108.
 State and individual accountability for the manufacture and spread of COVID-19 311

harm.85 Yet, this policy need not be express, it can be implied from a
series of events.86 It also need not be formally adopted as a state policy –
it suffices for an organisation or group to formally adopt it.87 Ultimately,
while the need to prove the attack’s systematic nature and existence of
a policy are separate, the two aspects form part of the same transaction
because the methodical commission of the proscribed acts has to be linked
to a policy or plan.88 Essentially, any investigations must establish a nexus
between the widespread or systematic attack and the acts of suspected
accused persons.

Crimes against humanity arise where ‘any civilian population’ is the

primary target of an attack.89 It is undisputed that the civilians were the
primary target of the deliberate release of COVID-19 agents. Although
non-civilians are also likely to contract the virus, the most affected
population are civilian. Therefore, it must have been the manufacturer’s
obvious and primary objective to target many civilians with a highly
infectious virus that did not discriminate against who it infects.

The final distinguishing feature of crimes against humanity is the

requirement of knowledge of the attack. The perpetrator must know or
intend their conduct to be part of the systematic civilian attack.90 This
neither requires that an accused person had knowledge of the precise
details of the attack and policy nor that the accused subscribed to the
state or organization’s criminal design.91 It suffices that ‘the perpetrator
deliberately intended his or her act to form part of the attack against
the civilian population’.92 It must be established that an accused person
‘willingly accepted and knowingly took the risk of participating in the
implementation of that context’.93 Or that the accused person ‘was wilfully

85 Prosecutor v Germain Katanga (n 66) 1107.

86 Prosecutor v Germain Katanga (n 66) 81 para 203.
87 Akayesu (n 64) para 580; Draft Code of Crimes Against the Peace and Security of
Mankind: Report of the International Law Commission on the Work of its Forty-
Eighth Session, 6 May-26 July 1996, [Link], 51st Session, Supp No 10 article 18
at 93, UN Doc A/511101 (1996), revised by UN Doc A151/10/Corr.1 (1996).
88 The Prosecutor v. Tihomir Bla[ki] IT-95-14-T, Trial Chamber of the ICTY (2000) 81 para
201.
89 Prosecutor v Kunarac Case IT-96-23/1-A, Judgment (12 June 2002) para 85.
90 Article 7(1) of the Rome Statute & Elements of Crime.
91 Prosecutor v Germain Katanga (n 66) para 1125.
92 As above.
93 Prosecutor v Tihomir Bla[ki], IT-95-14-T, Trial Chamber of the ICTY (2000) 81, para 251.
312 Chapter 11

blind to facts, to circumstances that would bring his or her acts within the
scope of a crime against humanity’.94

Generally, the Rome Statute links the mental element to three

instances: the conduct, consequences, and circumstances.95 Regarding
conduct, it must be established that the accused person ‘means to engage
in the conduct’.96 The ICC has interpreted this to mean that the Court
must ascertain whether ‘the suspect deliberately acted or failed to act,
without any regard to the expected result of the action taken’.97 Regarding
the consequences, it must be proven that either the accused person ‘means
to cause that consequence’ or ‘is aware that it will occur in the ordinary
cause of events’.98 These terminologies have been interpreted to refer to the
‘likelihood’ or ‘possibility’ or ‘[virtual] certainty that that consequence will
occur in future’.99 It has also been referred to as ‘oblique intention’.100 So,
an accused person must have known that ‘his or her actions will necessarily
bring about the consequence in question’.101 While consequence manifests
in the future, a circumstance is in the present. Thus, it must be proven
that an accused person was aware that a certain circumstance exists or
existed.102

3.2.2 The production, transfer and spread of COVID-19 as genocide

Genocide is the other probable offence under which the individuals

responsible for the manufacture and initial spread of COVID-19 could be
held accountable. One can be charged with genocide for ‘killing members
of the group’103 or ‘causing serious bodily or mental harm to members of
the group’104 ‘with intent to destroy, in whole or in part, a national, …[or]
racial… group, as such’.105

94 R v Finta (1994) 1 SCR 701.

95 Article 30(2) of the Rome Statute.
96 As above.
97 Prosecutor v Germain Katanga (n 66) para 774.
98 Article 30(2)(b) of the Rome Statute.
99 Prosecutor v Germain Katanga (n 66) para 775-776.
100 Prosecutor v Germain Katanga (n 66) para 776.
101 Prosecutor v Germain Katanga (n 66) para 777.
102 Article 30(3) of the Rome Statute.
103 Article 6(a) of the Rome Statute.
104 Article 6(b) of the Rome Statute.
105 Article 6 of the Rome Statute.
 State and individual accountability for the manufacture and spread of COVID-19 313

Given that ‘killing’106 or ‘causing serious bodily or mental harm’

as pertaining to the manufacture or spread of COVID-19 are easily
understood, they do not need further definition. These can be established
by pointing out the statistics of persons that have died from the virus or
those that have suffered serious bodily or mental harm from direct contact
with the virus or its impacts. It is the word ‘group’ embodied in these acts
that require some consideration.

According to the Rome Statute, a group denotes ‘… a national,

ethnical, racial or religious group, as such’.107 While it is true that this list
is not exhaustive,108 one of the questions likely to arise is which group did
those responsible target? One scenario is to assume that a true account
of who the actual victims of the manufacture and spread of COVID-19
are must be understood within the context of inter-state and intra-state
conflicts and developing global economic trends. Therefore, the states
involved in the virus’ manufacture or negligent spread may have intended
‘a certain group of states’ to fall victim to the virus. Drawing analogy from
numerous intra-state and inter-state conflicts around the world, the quest
for economic, political, and cultural dominance underlie most, if not all,
of these conflicts.109 Evidence of countries attacking other countries to
subjugate them and control their political and economic power abound.110
Similarly, this contribution argues that COVID-19, as a biological weapon,
could have been developed to target ‘a certain group of states’ to either
dominate their economies, politics, ideologies and cultural lives, to simply
subjugate them or to eliminate them from global economies altogether.

The question then is, why was the spread of the virus not limited within
the targeted states? Answering this question is likely to be an extremely
difficult mission to undertake. However, it can be argued that it would be
easier for the virus to spread around the globe and achieve the object for
which it was intended. On the question of how the perpetrators themselves
would escape the virus’ effects, any future investigation must seek to

106 Article 6(a) of the Rome Statute.

107 Article 6 of the Rome Statute.
108 In Akayesu case, this has been interpreted as referring to any stable group ‘constituted
in a permanent fashion and membership of which is determined by birth’ as opposed
to mobile groups whose membership is determined by individuals commitment to join.
Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, Para 511, 516.
109 RC North & N Choucri ‘Economic and political factors in international conflicts
and integration’ (1983) 27 International Studies Quarterly 443; GK Brown & F Stewart
‘Economic or political causes of conflicts: An overview of some policy implications’
CRISE Working Paper 81 (2014).
110 For example, oil-based conflicts in Iraq, Syria, Nigeria, South Sudan, Ukraine, the East
and South China Seas.
314 Chapter 11

establish whether the perpetrators established a protective mechanism,

like a vaccine or related method developed to shield themselves from the
virus. Thus, ‘group’ within the context of genocide denotes ‘a certain
group of states’ as opposed to those involved in the actual manufacture or
initial deliberate or negligent spread of the virus.

The mens rea element of this crime also requires some detailed analysis.
To prove genocide within the context of COVID-19, it must first be
established that the accused persons had the general intention to commit
the prohibited acts: ‘killing members of the group’ or ‘causing serious
bodily or mental harm to members of the group’. Secondly, it has to be
established that the accused person carried out the offence with the special
‘intent to destroy, in whole or in part, a national … [or] racial … group, as
such’. To ‘destroy’ can either be physical or biological. In the absence of
a military-like attack, the COVID-19’s deadly nature fulfils the ‘destroy’
requirement. ‘[I]n whole or in part’ denotes a substantial target.111 The
group being targeted must be of a number substantial enough to impact
the group as a whole. Several factors are considered when determining
whether the target group is substantial. Concerning the manufacture and
spread of COVID-19, the area of the perpetrators’ activities and control
and the possible extent of their reach;112 and the size of the targeted part
of the group as compared to the group’s overall size113 are significant
indicators. If the targeted part is essential for the groups’ survival, then this
is a good indicator of the intention to destroy a substantial part thereof.114
The COVID-19 virus’ highly infectious nature could only have been
intended to either wipe out the ‘targeted states’ or a significant portion
thereof. It can be argued that the COVID-19 virus intended to destroy
the population of ‘certain other states’ either entirely or substantially.
Investigations must, therefore, gather evidence to demonstrate that the
perpetrators specifically intended to destroy certain specific nation(s), to
fulfil the threshold of the requirement ‘to destroy in “whole or part” of a
national group’ in establishing the offence.

111 Prosecutor v Radislav Krstic ICTY Appeal Chamber Judgment IT-98-33-A (19 April
2004) para 8; Report of the International Law Commission on the Work of its Forty-
Eighth Session, 6 May-26 July 1996, p.89; WA Schabas Genocide in International Law
(2000) 238; P Drost The Crime of State Book II, Genocide (1959) 89.
112 Prosecutor v Radislav Krstic (n 111) para 13.
113 Prosecutor v Radislav Krstic (n 111) para 12.
114 As above.
 State and individual accountability for the manufacture and spread of COVID-19 315

3.3 The forum for prosecuting COVID-19 related international

crimes

Holding individuals responsible for engaging in international crimes is

primarily done through prosecution. The individuals responsible for the
‘manufacture’ or deliberate or negligent release of the COVID-19 virus,
can thus be prosecuted for crimes against humanity or genocide. These
measures can be pursued at both the international and national levels.

At the international level, as the body with a primary mandate to

maintain international peace and security, the UN Security Council has
the power to refer the offending state to the ICC.115 The UN Security
Council’s practice has been to refer to the ICC both member states and
non-member states to the Rome Statute. In the case of non-member states,
the ICC has underscored the fact that so long as a state is party to the UN
Charter, it suffices to bestow upon it obligations under the Rome Statute,
as was the case in Sudan and Libya.116 The Statute also makes it possible
for a non-member state to be hauled before the ICC where the citizens of a
member state (or a non-member state which makes a declaration accepting
the jurisdiction of the ICC over an identified period of time)117 are victims
of an international crime recognised under the Statute. This implies that in
the event the state(s) responsible for the manufacture and initial spread of
COVID-19 is not a party to the Rome Statute, the ICC could still conduct
investigation and prosecution of the responsible individuals.

Concerning the events relating to COVID-19, the possibility that the

UN Security Council might be called upon to refer the situation on the
territories of China or the US is not too remote. Given that these two are
both permanent members of the UN Security Council, one cannot rule
out the possibility of the politics of the veto compromising such a process.
The practice of the UN Security Council demonstrates a general trend
where the veto power is utilised to frustrate any adverse decision against

115 Article 13(b) of the Rome statute.

116 UNSC Resolution 1593 (2005), adopted at its 5158th meeting, 31 March 2005, UN
Doc S/RES/1593 (2005) – referring Sudan to the ICC; United Nations Security
Council Resolution 1970, UN Doc S/RES/1970 (2011) – referring Libya to the ICC.
With regard to Sudan, the ICC observed that the UN Security Council resolution
referring the matter to the Court had the effect to subject Sudan to rights and duties
analogous to those of States Parties to the Statute. Prosecutor v Omar Hassan Ahmad Al
Bashir (Decision under article 87(7) of the Rome Statute on the non-compliance by
South Africa with the request by the Court for the arrest and surrender of Omar al-
Bashir) ICC-02/05-01/09-302 (6 July 2017) Pre-Trial Chamber II, para 88.
117 Article 12(3) of the Rome Statute.
316 Chapter 11

any of the permanent 5 or their allies.118 It is almost certain that this

politics is likely to play out in relation to any efforts towards individual
criminal accountability of persons originating from states implicated in
the manufacture and initial spread of COVID-19. However, in the event
that the UN Security Council does not act because of a veto, states parties
to the Rome Statute or the prosecutor can also refer the states responsible
to the ICC for investigation and eventual prosecution of individuals.119
In the case of the latter two instances, the state being referred to the ICC
must not only be party to the Rome Statute but it has to be established that
the COVID-19 was manufactured on its territory or the accused persons
are nationals of the state.120

Prosecuting crimes against humanity and genocide as they relate

to COVID-19 at the national level triggers states primary obligation to
prosecute under international law. Generally, it is agreed that customary
international law prohibits genocide, war crimes, crimes against humanity,
and acts of aggression.121 States’ obligation to prosecute arises from its
conventional obligation122– and in some instances – from customary
international law.123 Yet, while the Genocide Convention limits the basis
of prosecution to genocide alone, the Geneva Convention limits the scope
of this duty to prosecute grave breaches that occur within the context of

118 For example, China and Russia vetoed a UN Security Council attempt to adopt a
resolution imposing sanctions on Syria following increased widespread and systematic
violation of human rights by the Syrian authorities, Resolution 67/262 (n 52); the
UN Security Council also failed to discuss the matter when the plot to assassinate
the Ambassador of Saudi Arabia to the United States of America was disrupted, GA
Resolution66/12 (n 52).
119 Article 13(a) and (c) of the Rome Statute.
120 Article 12(2) of the Rome Statute.
121 T Meron Human rights and humanitarian norms as customary law (1989) 210;
D Orentlicher ‘Settling accounts: The duty to prosecute human rights violations of a
prior regime’ (1991) 100 The Yale Law Journal 2552; Prosecutor v Duško Tadić (Opinion
and Judgment) IT-94-1-T (7 May 1997) ICTY Trial Chamber, paras 618-623 on the
general history of crimes against humanity; G Mettraux ‘Crimes against humanity in
the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and
for Rwanda’ (2002) 43 Harvard International Law Journal 244; The Princeton Principles
on Universal Jurisdiction, Principle 2(1); C Angermaier ‘The ICC and amnesty: Can
the Court accommodate a model of restorative justice?’ (2004) 1 Eyes on the ICC 131
at 140.
122 Articles 4 and 6 of the Convention on the Prevention and Suppression of the Crime
of Genocide (1948); articles 49 and 54 of the Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (1949); article 7,
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and
Punishment (1984).
123 Y Dinstein International Criminal law (1985) 225; Orentlicher (n 121) 2552.
 State and individual accountability for the manufacture and spread of COVID-19 317

an international armed conflict.124 This implies that this Convention does

not envisage the application of the absolute duty to prosecute genocide in
relation to biological warfare as is the case with COVID-19. Nonetheless,
the Rome Statutes’ definition of genocide is not limited to armed conflict
in the manner contemplated under the Geneva Convention. Thus, state
parties to the Rome Statute can comfortably prosecute crimes against
humanity and genocide as it relates to COVID-19 under the principle of
universal jurisdiction.

Given the difficulties evident in states accepting liability and initiating

their own independent individual criminal accountability in relation to
COVID-19, this chapter finds it essential to explore the possibility of
individual criminal prosecution in foreign national courts.

Customary international law provides two basis upon which a

state may prescribe certain conduct to be criminal: under the territorial
principle and the extraterritoriality principle.125 Under the former, a state
may prosecute cases committed on its territory regardless of whether it
is committed by its nationals or non-nationals.126 While the territorial

124 Article 2 of the Geneva Conventions I, II, III, and IV.

125 Council of European Union ‘AU-EU Expert report on the principle of universal
jurisdiction’ 12 Doc.8672/1/09/REVI, 16 April 2009 (AU-EU expert report on the
Principle of Universal Jurisdiction); D Ireland-Piper ‘Prosecution of extraterritorial
criminal conduct and the abuse of rights doctrine’ (2013) 9 Utrecht Law Review 72;
SS Lotus (France v Turkey) 1927 Permanet Court of International Justice (ser A) No
10, at 18-19 (7 Sept). In this case, a French steamer, the Lotus and a Turkish steamer,
the Boz Kourt collided in the high seas leading to the death of 8 Turkish sailors and
passengers. Turkey prosecuted and imprisoned the officer in charge of the French
vessel, Mr M Demons. The French argued that it was against international law for
the domestic courts of Turkey to bestow upon themselves criminal jurisdiction over
foreign citizens. French further argued that such jurisdiction belonged exclusively to
French courts. Although the court underscored that jurisdiction is generally territorial
except by virtue of permissive rule derived from international custom or a convention,
it further emphasised that this does not bar a state from exercising jurisdiction in its
own territory with respect to acts that have occurred abroad and in which it cannot
rely on any permissive rule under international law. In this regard, the court observed
that international law gives states a wide measure of discretion which is only limited
in certain cases with prohibitive rules. There was however no such principle of
international law prohibiting a state from exercising its criminal jurisdiction in the
circumstances described above. It should however be noted that the charges in this
case was involuntary manslaughter which was not so grave as to attract the exercise
of universal jurisdiction. Some scholars like M El Zeidy ‘Universal jurisdiction in
absentia: Is it a legally valid option for repressing heinous crimes?’ (2003) Oxford
University Comparative Law Forum 4 also support the view that a restrictive rule of
international law barring the exercise of absolute universal jurisdiction is lacking;
Ireland-Piper (in this note) 76.
126 AU-EU expert report on the Principle of Universal Jurisdiction, para 12; Coombes (n 1) 424;
Ireland-Piper (n 125) 72.
318 Chapter 11

principle is generally accepted under international law, international

customary law supports jurisdiction over extraterritorial acts in limited
circumstances: first, under the nationality or active personality principle
– where the accused is a national of the state. Second, under the passive
personality principle – where the victim is a national of the state; and
third, under the protective principle, which vests jurisdiction in a state
over extraterritorial acts committed by non-nationals when the state’s
national interests are threatened.127 While the territorial principle has
inherent limitations in so far as prosecuting international crimes related
to COVID-19 is concerned, the extraterritorial principle is permissive
enough to allow most states to prosecute the perpetrators as almost every
state has had its nationals fall victim to the virus and also in light of the
real and potential threats the virus poses to state security, the health sector,
economic sector as well as social and cultural sectors.

Yet, despite its controversial nature, the final customary law basis
upon which a state can exercise extraterritorial jurisdiction is under the
universality principle.128 Jurisdiction is here derived from the nature of
the crime committed regardless of the fact that the crime was committed
outside the territory of the state, by and against non-nationals and that
the state’s interests were not endangered.129 Some scholars call this
practice absolute universal jurisdiction.130 This is where a state exercises
jurisdiction over a matter even against the wishes of the state having
territorial jurisdiction.131 Essentially, ‘there is no link of territoriality or

127 AU-EU expert report on the Principle of Universal Jurisdiction, para 12; Coombes (n 1) 425;
M Chadwick ‘Modern developments in universal jurisdiction: Addressing impunity
in Tibet and Beyond’ (2009) International Criminal Law Review 361; Ireland-Piper
(n 125) 72-77; L Chenwi ‘Universal jurisdiction and South Africa’s perspective on
the investigation of international crimes’ (2014) 131 The South African Law Journal 30;
LR Brownlee ‘Extraterritorial jurisdiction in the United States: American attitudes
and practices in the prosecution of Charles “Chuckie” Taylor Jr.’ (2010) 9 Washington
University Global Studies Law Review 335-336; United Nations General Assembly
(UNGA) ‘The scope and application of the principle of universal jurisdiction: Report
of the Secretary-General prepared on the basis of comments and observations of
governments’ 6th-5th session, A/65/181, 29 July 2010, para 4.
128 AU-EU expert report on the Principle of Universal Jurisdiction, para 12; Coombes (n 1) 425;
Chadwick (n 127) 361; Ireland-Piper (n 125) 72-77; Chenwi (n 127); Brownlee (n 127)
335-336; United Nations General Assembly (UNGA) (n 127) para 4.
129 Coombes (n 1) 425; N Arajarvi ‘Looking back from nowhere: Is there a future for
universal jurisdiction over international crimes’ (2011) (2011) Tilburg Law Review 5 at
6-7.
130 M Inazumi Universal jurisdiction in modern international law: Expansion of national
jurisdiction for prosecuting serious crimes under international law (2005) 110.
131 A Cassese International Criminal Law (2003) 286; Chadwick (n 12) 338; Arajarvi (n 129)
14; C Kreß ‘Universal jurisdiction over international crimes and the Institute de Droit
international’ (2006) 4 Journal of International Criminal Justice 567.
 State and individual accountability for the manufacture and spread of COVID-19 319

nationality between the State and the conduct of the offender, nor is the
state seeking to protect its security or credit’.132

4 Conclusion
This chapter has sought to initiate a debate on state accountability and
individual criminal accountability relating to the manufacture, transfer
and spread of COVID-19. It began by suggesting two likely sources of
COVID-19 – either from natural sources or through deliberate or negligent
acts of states, institutions and individuals. The work then decided to adopt
the second scenario for the sake of developing arguments to determine if
and how responsibility could be traced to a particular country under the
principle of responsibility of states for internationally wrongful acts or as
an international crime which should be attributed to certain individuals.
To build on these scenarios the chapter relied on the trending accusations
and counter-accusations levelled by the US against China and vice versa
on the manufacture of COVID-19 to inform this inference. The work also
refers to the claims of possible collusion between the WHO and China in
the virus’ initial stage that contributed to its spread.

The chapter concludes that the events related to the manufacture,

transfer or spread of COVID-19 fulfil the threshold of state responsibility
or crimes against humanity and genocide within the competent jurisdiction
of the ICC. Yet, the referral mechanisms under the Rome Statute is likely
to pose a challenge. While states might be reluctant to refer the implicated
states, the chapter also warns against the veto power-politics that could
frustrate the referral of these states’ situations to the ICC. More so, if the
trending arguments is anything to go by, the chapter argues that it will
be very difficult for the implicated states to conduct investigations and
prosecution of individuals within their own territories. This necessitates
the need to explore foreign national prosecutions of the implicated
individuals under the principle of universal jurisdiction.

132 AU-EU expert report on the Principle of Universal Jurisdiction, para 8; L Reydams
‘Universal Jurisdiction, International and Municipal Legal Perspectives’ (2003) 5 as
cited in Palestinian Centre for Human Rights work in the occupied Palestinian territory, The
principle and practice of universal jurisdiction (2010) 15-16; Princeton Principles on Universal
Jurisdiction (2001), Principle 1(1) [Link]
(accessed 8 March 2010); Arajarvi (n 129) 15.
320 Chapter 11

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