Shannon Maree Torrens is an international and human rights lawyer from Sydney, Australia. She has worked at the United Nations international criminal tribunals and courts for the former Yugoslavia, Rwanda, Sierra Leone and Cambodia, and with the International Criminal Court.
The World Health Organization has sent a team to China, intent on investigating the origins of the novel coronavirus. Depending on the outcome of this trip and any potential formal international inquiry – the likes of which have been called for by leaders in Australia and the U.S. – there could finally be answers on who should be held accountable for the pandemic.
If it does turn out that particular individuals within the Chinese government are responsible for or at least contributed to the widespread devastation of this situation, it will validate the feelings and anger of many – from world leaders to random folks I overhear at the supermarket – who believe that Beijing must be held accountable in some way.
But accountability is not as simple, linear nor efficient a process as one might hope – and it should not be our immediate priority.
Rather than asking whether it is possible to hold states or individuals to account, we should be considering whether accountability – however we might want to define that – is our best way forward in the present moment. After all, while accountability is a noble aspiration – whether through domestic or international prosecution, or some combination of litigation, sanctions or compensation – it will not stop the pandemic nor bring back the dead.
People are still dying from COVID-19 around the world, and there’s still so much we do not know about the nature and origins of the novel coronavirus. As the pandemic rages on, we should be focusing on transparent, international collaboration in pursuing a cure and a vaccine in concert with China, which would bring far more benefit to the entire world than an exercise in antagonistically apportioning blame. If we are to ostracize China and reject constructive engagement now, it will only extend the pandemic. This is not naive; it is pragmatic.
This is not to say that accountability measures are unnecessary in the future. But court cases, trials, compensation and damages are expensive and time-consuming processes that even in the best of circumstances often do not come to fruition. And while this heated moment may feel ripe for such an investigation, that’s another good reason to be patient – such cases can take years. When I worked on the trial of former Liberian president Charles Taylor, it took a decade to go from indictment to appeal judgment; another, at the International Criminal Tribunal for the former Yugoslavia in The Hague, has lasted even longer. The Khmer Rouge Tribunal was established almost 25 years after the fall of the Khmer Rouge.
A hostile approach to any government also makes it less willing to assist in investigations. Political interference is a constant threat, as the U.S. showed when it opposed International Criminal Court prosecutions against its citizens for alleged crimes in Afghanistan. The U.S. was able to do so because it is not a state party to the Rome Statute of the ICC; China is also not a party to the statute. Other avenues offer dim hopes too; Beijing has rejected the jurisdiction of the International Court of Justice, and the establishment of United Nations ad hoc courts or hybrid courts would be nearly impossible because of the dynamics at the UN Security Council table.
A hostile investigation now might actually hinder the work in the long run. Already hamstrung by limited budgets and logistical constraints in the best of times, many of the people who would need to be involved would be unable to leave their own homes. Under current conditions, the odds are low that an independent process governed by the rule of law could successfully investigate and hold any party to account.
These avenues for accountability therefore should be much later steps in the unfolding global response to this pandemic, which will come only after actually working out what took place, such as through an investigation and potentially an inquiry that should focus on diplomacy and collaboration rather than apportioning blame at this stage. We have to be practical in this moment and focus on diplomacy, so this pandemic can be brought to an end and so we can ensure to the best of our ability that such wide-scale devastation never happens again.
Once that work is done, then yes – questions will need to be asked and responsibility may need to be taken if it is found that a country or an individual anywhere in the world facilitated or enabled this pandemic to start and spread. But we’re a long way from that step.
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