Four years into the Flint Water Crisis, the legal system continues to grapple with how best to provide residents with a measure of accountability, much less justice.
The Michigan Civil Rights Commission has investigated the crisis as a denial of civil rights, calling for a South African-style “truth and reconciliation commission.” The ACLU is suing the state for violating Flint students’ right to education. And just last month, Michigan’s right-wing Attorney General Bill Schuette – eager to boost his run for governor – charged five state and city employees with involuntary manslaughter.
But these offenses fail to capture the vast scope and depth of Flint’s suffering. The most fitting charges, it turns out, are also the most serious. And they come not from within the narrow confines of domestic law, but international human rights law.
As more evidence emerges of an official cover-up, there is growing recognition that the Flint crisis is not a just a civil rights case, but a human rights abuse. Filmmaker Michael Moore, noting Flint’s majority-Black population, has denounced the mass poisoning as a “version of genocide.” Last year, water rights activists held a people’s tribunal charging Michigan Gov. Rick Snyder and his henchmen with crimes against humanity. The Reverend Jesse Jackson, for his part, has echoed that charge.
These remarks should not be dismissed out of hand. In fact, there is a strong case to be made that the poisoning of Flint’s water supply does indeed violate international prohibitions on genocide and crimes against humanity.
Contrary to popular belief, the crime of genocide does not only refer to mass killing on racial or ethnic grounds. Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines it more broadly (emphasis mine):
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The Flint Water Crisis and the anemic state response clearly meets these broader criteria for genocide. Lead poisoning has caused untold serious bodily and mental harm to Flint residents, including irreversible brain and nerve damage in children. It also harms reproductive health and heightens the risk of pregnancy complications – preventing births within the group. The “physical destruction” visited upon the bodies of Flint residents and their descendants is incalculable. As local pediatrician and whistleblower Dr. Mona Hanna-Attisha told The New York Times: “If you were going to put something in a population to keep them down for generations to come, it would be lead.”
The biggest hurdle to a Flint genocide prosecution is the “intent to destroy” clause. As a new book by human rights scholar Richard Ashby Wilson shows, proving intent and punishing incitement under international law is notoriously difficult. Without full access to the Snyder administration’s emails, the real motives behind the switch to the toxic Flint River will remain uncertain. But if years of public denials, secret deliberations, and falsified lead test results do not signal an “intent to destroy” the population, it is hard to imagine what such intent would look like.
This is only the start of Gov. Snyder’s legal troubles, however. The Rome Statute of the International Criminal Court, adopted in 1998, makes clear that it is not just the poisoning of Flint residents that is punishable as a crime against humanity, but the suspension of local democracy that made it possible. From Article 7, Paragraph 1 (emphasis mine):
For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Gov. Snyder’s use of the emergency manager law to suspend democracy in Flint and other Black-majority cities – imposing unelected financial managers and effectively disenfranchising half of Michigan’s Black population – set the stage for the poisoning of Flint’s water supply. Within this context of racially persecutory governance, these violations of Flint’s right to clean water and political self-determination could very well qualify as crimes against humanity under 1(h), (j), and (k).
But don’t expect to see Gov. Snyder in the dock anytime soon. Unfortunately for Flint residents, the United States never ratified the Rome Statute – partially over fears that U.S. military personnel could face war crimes charges – and thus its provisions have been largely unenforceable against U.S. citizens.
However, this has not stopped foreign courts that recognize universal jurisdiction from bringing charges against human rights abusers under their own laws. And the Alien Tort Statute, which allows foreign nationals to sue U.S. officials for violations of international law, means that Flint’s undocumented community, which has been especially hard-hit by the crisis, could still have its day in court.
Gov. Snyder should keep his lawyers on speed dial.
Matthew Kovac is a Michigan-based writer and researcher. He has investigated wrongful convictions with the Chicago Innocence Center and covered social justice issues for The Chicago Reporter magazine. His work has been featured by AlterNet, Common Dreams and Truthout.