Dealing with the (legal) risks of decision-making in times of crisis
Last month, the French Senate adopted an opportunistic provision shielding all public and private deciders from criminal pursuits related to the COVID-19 crisis, with both retroactive and pre-emptive effects. Indeed, the period covered lasted for the whole duration of the public health state of emergency, from 23 March to 10 July 2020. The provision, inserted in Article 1 of the law extending the duration of the state of public health emergency, effectively exonerated everyone from being charged for acts or omissions that have exposed or contributed to the exposure of individuals to contamination by COVID-19. Ultimately, this provision was replaced in the last stage of parliamentary discussions by another, benign, one.
The original Article 1 was proposed and adopted by the French Senate in the context of extensive public debate about the responsibility of public deciders regarding the appalling gestion of PPE stocks, of dozens of lawsuits filed against members of the government, and just months before senators face re-election by French ‘high electors’, i.e. public officials covered by the provision. The drafting and adoption of that provision by the Senate was undeniably opportunistic, but it also worryingly allowed for unaccountable exercise of power. In that sense, it constituted a general impunity law exonerating all decision-makers from having to face the legal consequences of their decisions in dealing with the current health crisis. The repercussions, were this provision promulgated, would have been immense and deeply damaging for both democracy and human rights.
Yet, the opportunistic character of the provision and its potentially damaging effects should not distract us from the very real fear experienced by decision-makers when available information is incomplete and the interests in the balance all seem gigantic and incompatible. The Senate’s attempt to pre-emptively exonerate everyone from criminal responsibility as part of the state of emergency is a symptom of the fear that elected officials, employers, governments and generally all decision-makers have faced both during the acute state of the crisis and now (at least in Europe) in the transition to its aftermath.
The rationale behind accountability laws
Accountability is a tool to hold power wielders to account and control how they exercise such power. In a democracy more than anywhere else, power necessarily entails a correlative duty to account for its exercise. If the exercise of power (including the decision not to exercise one’s power) leads to criminal behaviour, equality before the law and democratic principles require that those wielding the power face criminal charges like any other citizen would.
The ordinary regimes of criminal and civil responsibility have not been designed to apply only in peaceful, non-crisis times. Hence, they should not be displaced in times of crisis: we rely on our (elected) leaders and hierarchical superiors to make the right decisions for us, to protect our lives and health to the best of their capacities and powers. In order to allow them to make decisions without full knowledge of all variables when the situation so requires, we also accept that existing legal regimes preclude undue criminal pursuits. Deciders have the power to balance the various interests and rights at stake, but all power breeds responsibility, and thus potential accountability. Therefore, when leaders decide to prioritise, such as placing the economy over public health and human lives, citizens should be allowed to question their choices. Including, if these choices constitute criminal acts, before criminal courts.
Decision-making in times of crisis
When decision-makers are afraid of being held criminally accountable for their decisions (or lack thereof – inaction is not necessarily neutral), it may first be an issue of confidence in the quality of the law or in the procedural fairness of judicial decision-making. In most democracies, however, decision-makers are generally assured in the law that their criminal responsibility will not be unduly engaged and that, when facing criminal charges, their voice and individual circumstances will be fairly heard and taken into account.
In most cases, decision-makers become worried about criminal pursuits when they are involved in difficult balancing acts. With regard to the COVID-19 crisis, this has meant balancing important economic interests with the safeguarding of public health and individual lives. Yet, this apparently insoluble dilemma should not make us think that the balancing act is a neutral one. In fact, what becomes clear on closer inspection is that the interests being balanced are not universal, but rather involve interpersonal trade-offs. Current examples include: ‘the economic interests of a business owner to keep it open vs the health of their employees’; ‘the government’s reputation in managing public finances vs the capacities of the public health system to deal with a crisis’; ‘opening borders in order to re-start the tourism industry vs public health’; and so on.
This is applicable in many other situations that may, at first sight, appear ethically unsolvable. Think of counter-terrorism, for instance. Most people are favourable to harsh counter-terrorism measures, extensive police powers, and sometimes even torture to fight terrorist threats because they assume that such powers will affect other people, the (suspected) terrorists, and not themselves. We willingly trade what we think are other peoples’ rights in order to protect our security, and we approve of harsh executive measures to achieve that aim. Yet, the fact that this actually diminishes everyone’s rights and security through the increase of state power is usually lost on us. A similar point can easily be made in the context of the current crisis and its aftermath, in which everyone’s health is dependent on everyone else’s: trade-offs involving other people’s rights and interests bring risks for our own health and human rights as well.
A safe and sound approach to balancing
Hence, if balancing is not neutral, then decision-making is not as risky a legal business as we might have originally thought, despite the evolving nature of available information. The law, including the criminal laws that decision-makers fear, by design takes context, available means and existing scientific knowledge into account. In order to avoid engaging their criminal responsibility, deciders must thus avoid interpersonal trade-offs, and focus on protecting the interests of everyone (note that I didn’t write ‘the majority’, as the notion implies interpersonal trade-offs with the interests of a minority). Hence, the decision whether to open schools should consider and balance the interests of all involved parties (children, teachers, parents), but the state’s economic interest in having parents able to resume working should not be included in the equation.
Lawful and effective decision-making is best achieved by following human rights-compliant approaches to governance, whether the crisis be one of terrorism or public health. Because human rights are supposed to restrict trade-offs and cannot be traded-off themselves, international human rights law imposes strict conditions for their restriction and provides well-established tests for dealing with ‘conflicts’ between rights. Generally speaking, permissible restrictions (to those human rights that can be restricted) should be non-discriminatory, necessary, proportionate, and serve a legitimate aim, including and especially in times of emergency. These guidelines and analytical tools guarantee the quality and legality of decisions and should be the primary balancing device used by decision-makers.
As many states near the end of the acute stage of the pandemic, the impact of emergency and transition measures on individuals’ rights must be constantly (re-)assessed and justified by decision-makers to ensure their legality. This not only ensures that deciders will not be held criminally responsible, but also that the measures taken abide by the rule of law and are effective.
Despite the obvious attraction of a general impunity clause for decision-makers during times of emergency, even the French Parliament ultimately perceived that effective governance would be compromised by a lack of accountability. Decision-makers worldwide have imposed lock-downs, demonstrating that the rights to life and to health can be at the forefront of their considerations despite the enormous economic costs.
Decision-makers will probably face a trickier balancing exercise while transitioning out of states of emergency and re-starting their economies. Yet, while the rights and interests involved surely are manifold, the device remains the same: the law has not changed.
Sophie Duroy is a Ph.D. Researcher in the Law Department. Her current research focuses on the regulation of intelligence activities under international law. Her most recent publication is the chapter ‘Remedying violations of human dignity and security: state accountability for counterterrorism intelligence cooperation’, in Human dignity and human security in times of terrorism.