Compliance, Liability and Sanctioning

A report from the panel, ”Compliance, Liability and Sanctioning” that took place as part of the TEGL conference, 16/17 September 2021

Written by Sjors Polm

The COVID-19 pandemic poses great challenges, and humanity’s track record in addressing these challenges has not been particularly impressive so far. The panel on compliance, liability and sanctioning discussed different sorts of responses to the failures that have led us to where we are.

First, Benjamin van Rooij and Chris Reinders Folmer presented their empirical findings on why people do (not) adhere to COVID containment measures, such as social distancing. Soon after the pandemic began and measures were first widely imposed, a team led by van Rooij started sending out surveys to find out what explains compliance. This is an important inquiry, because containment measure only work if they are kept to, and just what makes people comply with measures is not all that intuitive. Their findings show that -as the compliance literature has shown many times before- deterrence does little to no work. Instead, other factors such as people’s capacity to comply and intrinsic motivations proved to be key. Interestingly, what explains compliance has also changed over time. Importantly, however, the study also showed that many of these factors, such as threat perceptions, have declined since the start of the pandemic, which helps to explain why compliance has declined. By identifying such levers for compliance, the findings of van Rooij and Reinders Folmer have important policy implications, which they have been able to share with Dutch policymakers.

In response to the worst failures of the historical episode that is the pandemic, there are not only questions concerning explanation and prevention, but there is also the question of blame. Criminal liability in relation to the pandemic was the topic of both Marc Tiernan and subsequently Göran Sluiter.

Marc Tiernan asked whether persons spreading disinformation relating to the pandemic may face criminal liability. Disinformation underlies and exacerbates so many of the world’s problems, and the pandemic is no exception. After discussing multiple examples of how disinformation relating to the pandemic has been used to sow hatred and division, Tiernan presented two ways in which the criminal law could respond. First, there is the possibility of directly criminalizing the spreading of disinformation relating to the pandemic, a path that for instance South Africa has already gone down. But direct criminalization may not be desirable, or even necessary. It may not be desirable since it can be disputed whether the spreading of disinformation is a sufficiently serious wrong to justify direct criminalization. More pragmatically, Tiernan argued that it may not be necessary to introduce new laws, because existing rules of secondary criminal liability can be used to prosecute people who spread disinformation that contributes to criminality.

Finally, Göran Sluiter returned to what may have been the beginning of the pandemic: The lab leak hypothesis. This hypothesis holds that the SARS-CoV-2 virus entered the world by escaping from a laboratory in Wuhan. Experts agree that there is no evidence yet decisively supporting or undermining this hypothesis, and it may well be that evidence of neither kind will ever come to the fore. Göran Sluiter invited the audience to consider the hypothetical that the virus did escape from a lab, to ask: Would this be ground for international criminal responsibility? According to Sluiter, the answer may well be ‘yes’. Specifically, the requirements for individual criminal responsibility for Crimes Against Humanity would possibly be met. The biggest obstacle for reaching this conclusion would likely be the mens rea requirement. Other elements would be fulfilled more easily. Jurisdiction to prosecute the Crimes Against Humanity would rest with every state home to persons who fell seriously ill or died as a result of the virus, that is, every state in the world. In case of strong evidence of individual criminal responsibility, the International Criminal Court could also have jurisdiction. There would be symbolic value in having those most responsible for the pandemic be held to account for the havoc the pandemic has wrecked.