The International Criminal Court (ICC) has been asked for the first time to decide whether deaths linked to the coronavirus pandemic may constitute a crime against humanity after Bolivia asked the court to investigate former President Evo Morales and his supporters.
Led by interim President Jeanine Anez, the Bolivian government last week accused Morales and his Movement for Socialism (MAS) party of causing people’s death by blocking their access to medical supplies and oxygen.
But some experts say the ICC referral is a politicised exercise since it comes amid continuing tensions spurred by Bolivian election delays, which have drawn criticism and raised concerns the interim government is trying to hold onto power.
“Unsurprisingly, the referral has particular targets in mind – in this case, an opposition movement – and this will undoubtedly be seen as a political referral,” said Ottilia Maunganidze, head of special projects at the Institute for Security Studies, a think-tank that works on governance and justice issues in Africa.
In its written submission to the ICC, Bolivia’s interim leadership argued that roadblocks set up by supporters of Morales in August led to “the death of several people and anxiety in the rest of the population”.
The roadblocks – erected amid protests against the decision to delay elections – “intentionally [caused] great suffering” to the civilian population, the filing alleges.
Morales, Bolivia’s longest-serving leader and its first Indigenous president, resigned in November 2019 after weeks of demonstrations sparked by a dispute over election results. The ex-president, who is now living in exile, accused his opponents of conspiring against his government.
The case “gives the court the opportunity to think about whether the systematic denial of healthcare provision is a crime against humanity”, Mark Kersten, a consultant at the Wayamo Foundation, a Berlin-based nonprofit that works on the rule of law, told Al Jazeera.
Bolivia’s Supreme Electoral Tribunal postponed elections from September 6 to October 18 following warnings from medical experts that it would be unsafe to hold the election during the pandemic, which has hit the country hard.
The pandemic struck as political tensions continue to divide people in Bolivia. An Amnesty International report issued last month accused the country’s interim government of harassing and threatening perceived political opponents.
Human Rights Watch also said on Friday that terrorism charges levelled against Morales stemming from the November violence were politically motivated. Morales had been accused of encouraging protests and roadblocks during the nationwide unrest.
Ramiro Orias, programme officer at the Due Process of Law Foundation (DPLF) in La Paz, said the referral should be understood in the context of the current political polarisation in Bolivia.
“Bolivia is currently experiencing a moment of intense political and electoral polarisation,” said Orias, adding that this division extends to how citizens feel about the ICC referral itself.
“Whereas some citizens are supporting the referral since they think that the harm and deaths caused by actions promoted by Morales should not go without punishment, social sectors that support the previous Morales government [do] not think that there should be accountability and they say the process is political,” Orias told Al Jazeera.
He said under those conditions, an international justice mechanism is needed.
Still, referrals to the ICC from Latin America have been rare.
A group of six states – Argentina, Canada, Colombia, Chile, Paraguay and Peru – made one in 2018 over the situation in Venezuela, and Caracas filed its own referral in 2020.
Mark Drumbl, a law professor at Washington and Lee University in the US state of Virginia, said, “Many referrals may be deployed by one side to stigmatise the other side, but international law’s application is always political.”
Drumbl said the ICC in recent years has pushed to expand what constitutes international crimes.
“This referral fits in this band. I anticipate more of these moves in the future, especially in the field of public health,” he said, adding however that it may be difficult to show intent in these cases.