It is a well-worn cliché that viruses do not respect borders. Yet, as SARS-CoV-2 has swept across the globe, its impact, in both health and economic terms, has been felt much more severely in some countries than others. There are many reasons for this, including luck (with small island states more easily able to restrict travel) and preparedness (even if not as assessed by conventional measures), but there is now no doubt that political decisions have played a major role. From early on it was clear that countries whose leaders espoused populist policies and messaging had fared especially badly, often as a consequence of delay or inaction. For example, some estimates suggest that perhaps half of all deaths in the first wave of the pandemic in the UK could have been avoided if Boris Johnson had imposed a lockdown a week earlier. Given these observations, Kamran Abbasi asked, in a recent BMJ editorial, whether the leaders of countries that have experienced very high numbers of deaths from covid-19 should be held accountable for “social murder.”
Of course Engels’s concept of “social murder” is different from the legal definition of murder, where it is necessary to show that the person charged had a mens rea, or guilty mind, acting with the intention of killing someone. There are legal avenues that could be pursued where a political leader displays gross negligence, such as impeachment or, in the United Kingdom, Misconduct in Public Office. But as events unfolding in Washington show, the former is far from simple, while British legal commentators argue that the latter lacks clarity and precision. And even if their decisions are not considered criminal, politicians’ decisions may be unconstitutional or illegal, procedurally unfair, or irrational and subject to judicial review, as was Boris Johnson’s 2019 advice to the Queen to prorogue Parliament. However, in areas such as a pandemic response, where politicians must often exercise judgement, there are many barriers to applying legal remedies.
The alternative is the political process, where citizens hold their political leaders to account, either through their representatives in the legislature or at the ballot box. It seems very likely that his catalogue of failures in the pandemic played a role in ex-President Trump’s defeat. Of course, this assumes a functioning democracy, something that is more of an aspiration than a reality in many countries where opposition leaders face arrest or exile, and where governments have effective control of the media. However, it is also a problem where there is extreme polarization in the legislature, with the people’s representatives voting on party lines regardless of the issue, or where the governing party has an unassailable majority, especially in a system like that in the United Kingdom, where there are few constitutional checks and balances. Hearings of the House of Commons Health and Social Care and Science and Technology Committees have been uncomfortable experiences for British ministers and officials, but their powers are limited. Similarly, the All Party Parliamentary Group on Coronavirus has stepped up to conduct the inquiry that the government has refused to hold, but with little evidence that ministers have been willing to learn from it.
So, if there are few obvious means in the domestic arena to hold politicians to account for failure to respond effectively to a pandemic, is there some way to do so in the international arena? There are two considerations. The first concerns the harm done to their own citizens, such as the 100,000 people who, had they the good fortune to have lived in New Zealand rather than the United Kingdom, would very probably still be alive. The international community has traditionally been very wary about acting in such circumstances. This has, however, changed in the past two decades with the emergence of the concept of “Responsibility to Protect”. This argues that state sovereignty brings both rights and responsibilities. The primary responsibility for the welfare of its citizens lies with the state itself. Where it cannot offer that protection, the international community has a residual responsibility to act when a state is either unwilling or unable to fulfil its responsibility to protect or is itself the actual perpetrator of crimes or atrocities. Although the subsequent United Nations resolution limits the international community’s scope to act to “genocide, war crimes, ethnic cleansing and crimes against humanity”, it is at least arguable, in the aftermath of the current pandemic, that this might be extended to states whose leaders preside over the unnecessary deaths of tens of thousands of their citizens when they are caused by uncontrolled spread of a virus rather than from acts of violence.
A failure to control a pandemic is not, however, a concern limited to those living within the borders of the state in question. Countries to which a microorganism might spread also have an interest in the policies being pursued by others. This principle is well-established, for example in the International Health Regulations (IHR). Again, the historical primacy of national sovereignty has been limited, for example by admitting many more sources of data on suspected outbreaks and not simply relying on official reports from countries that may have incentives to cover them up. It is, however, far from clear that the IHR are adequate to deal with situations where, for example, failure by a government to control transmission of a microorganism creates the conditions that permit dangerous mutations to develop and spread beyond its borders.
The many failings in the global response to the pandemic have led to demands to do things differently. There are many lessons to be learned as we emerge from the pandemic. Many must be learned within countries, looking at issues such as the provision of scientific advice, preparedness, and procurement, but especially the quality of political leaders and how they can be held to account. But in a globalized world, where some of the greatest threats to health, whether in the form of microorganisms, climate change, or something else, pay no heed to 17th century notions of state sovereignty, the case for a greatly strengthened supranational system of accountability is clear.
Martin McKee, professor of European public health, London School of Hygiene & Tropical Medicine
Competing interests: MMK is a member of Independent SAGE.