Ohio state Rep. Tavia Galonski (D) continues to garner extensive national coverage over her pledge to file a referral with the Hague for charges of crimes against humanity by President Donald Trump over his handling of the pandemic. Yesterday, she reaffirmed with NBC News that she would be making a referral “tomorrow.” Galonski is specifically citing Trump’s promotion of the antimalarial drug hydroxychloroquine as a treatment despite the absence of conclusive studies on its benefits. While Galonski originally said that she had “no idea” how to file such a referral, she has asked “how hard can it be?” The answer is extremely hard if you have, as here, an entirely frivolous basis for a referral.
Galonski caused a stir on Sunday by tweeting “I can’t take it anymore. I’ve been to The Hague. I’m making a referral for crimes against humanity tomorrow. Today’s press conference was the last straw. I know the need for a prosecution referral when I see one.”
Galonski is a lawyer with a J.D. the University of Akron School of Law and a B.A. from Emory University. She is also a former magistrate in the Summit Count Common Pleas Court.
The problem with the referral is that it does not involve any cognizable crime against humanity. Trump has admitted that the drug is not fully tested and vetted. He also has said that he is not a doctor and any decision to prescribe the drug would rest with doctors. However, Galonski is certainly correct that Trump has been almost obsessional in his raising of the drug and the need to get it to patients. Many disagree with the promotion based on the lack of clinical testing but it is not a crime of any kind let alone a crime against humanity. If it were, every politician in every country could be dragged into the Hague.
The International Criminal Court prosecutes individuals for such crimes as genocide, war crimes as well as crimes against humanity. The latter category at Nuremburg was defined as:
“Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.“
The past charges of crimes against humanity refer to a much different type of act in both magnitude and motive. It is not advocating for a medical treatment that a president believes might save thousands of people.
The ICC itself states that
“can prosecute crimes against humanity, which are serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation.”
Anyone can referral a complaint to the Office of the Prosecutor or that office can start an investigation on its own authority. However, the office must “determine whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims.” Absent such a finding, a case cannot proceed.
The ICC remains a matter of great controversy. Many opposed it in the United States as usurping the authority of domestic courts and constitutional standards. Specifically, some suggested that the ICC could be used to criminalize policy disagreements — precisely what Galonski would be doing with this referral.
Despite the extensive coverage, the changes of Trump being charged with Crimes Against Humanity in the Hague are about as likely as his being awarded the Nobel Prize for Medicine in Stockholm.