Research project Public Health Crisis Management and Criminal Liability of Members of Government
- A Comparative Study At the Example of the 2019-2020 Corona virus pandemic
The COVID-19 pandemic has put a strain on societies all of the world and put stress on individual human beings. Meanwhile, governments around the globe has made several decisions during the pandemic, by for instance limiting the freedom of movement for citizens and imposed rules and norms how we should behave during the pandemic. In addition, national governmental agencies have issued advice and recommendations on how we should behave in order to contain the corona virus. The pandemic and the government’s response to this crisis raises several legal questions, such as: What is the constitutional mandate for a government to make decisions during a crisis such as the COVID-19 pandemic? What constitutional features and characteristics can explain why various governments in different countries have handled the pandemic differently? Under what circumstances is it possible to hold a member of government criminally responsible for decisions made (or not made) during the pandemic?
The above-mentioned questions are looked into in an international research project, whose working title is ”Public Health Crisis Management and Criminal Liability of Members of Government: A Comparative Study At the Example of the 2019-2020 Corona virus pandemic”. The main purpose of this project is to identify the constitutional framework regarding the possibility to hold a member of government criminally responsible for decisions made (or not made) during the pandemic.
Project description
In his part of this international project, Dennis Martinsson, LL.D. in Criminal Law at Stockholm University focuses on the constitutional framework and the possibilities to hold a member of the Swedish government criminally responsible for decisions made (or not made) during the pandemic. He concludes that the constitutional and administrative tradition and culture have direct bearing for the possibilities to hold a member of the Swedish government liable for the policy and the legal response (or lack thereof) to the pandemic. There are mainly four constitutional cornerstones that explains why the possibility in Sweden to hold a member of government criminally responsible is almost zero:
- The Swedish government makes decisions collectively.
- The Swedish “dualism” of strong and rather independent government agencies which have a responsibility e.g. to adopt non-binding guidelines on what measures Swedish citizens should adopt during the pandemic.
- The Swedish constitution forbids a member of government to interfere with decisions that falls under a government agency.
- The central government is not primarily responsible for all policy areas; the regions and municipalities are responsible for implementing various welfare policies and allocating welfare resources such as health care.
More about the overall project
We can see across a number of countries vast differences in government responses to the current pandemic. This can be divided in the choice of strategies (herd immunity, test-and-trace, lockdown etc.) and the question of the quality and speed of government implementation of such strategies. Both factors have in one way or another had an impact on the number of infections and casualties.
It is not outlandish to consider forms of criminal liability for failure of individual members of government, including specific public authorities, to act to the best of their abilities, as timely as possible, and in accordance with expert advice. This study is meant to address potential avenues of criminal liability, especially for causing death and bodily harm. Major factors to be investigated are individual and corporate liability, causation, act or omission, mens rea, as well as rules of participation and possible defences.
The study will cover domestic responses and possible liability under international criminal law for crimes against humanity. The latter category of crimes under international criminal law is adopted as a frame of analysis, rather than the crime of genocide, which requires the element of specific genocidal intent. The systematic and quantitative aspects of crimes against humanity are therefore more appropriate elements to analyse for the purposes of this project.
Apart from performing a thorough stocktaking exercise, the study is meant to serve as a benchmark for evaluating government conduct in the future.
Project members
Project managers
Michael Bohlander
Professor
Mark Webster