There remains little doubt that India has eclipsed, surpassed, and become a shining example of a decaying democracy. In India, healthcare, in the 21st Century, is next to be absent. While one might hold healthcare as a fundamental right, the Indian healthcare system is significantly collapsed. The government has failed. Upon re-visit, “failed” would convey an attempt and subsequent loss. India’s status quo seeks resemblance to an outright crime against humanity. Advocated highly by Arundhati Roy, she quotes, Fredrick Douglass who said, “The limits of tyrants are prescribed by the endurance of those whom they oppress.” How we in India pride ourselves on our capacity to endure. How beautifully we have trained ourselves to meditate, to turn inward, to exercise our fury as well as justify our inability to be egalitarian. How meekly we embrace our humiliation. This article shall focus on universal access to vaccination and the ensuing state of affairs in India for vaccination and the ongoing crime against humanity.
Universal Access to COVID-19 Vaccines: a State and Corporate Responsibility
India touted itself as a vaccine powerhouse. The reality of it is far from true. The Indian Government remains reliant on two manufacturers, the Serum Institute of India (SII) and Bharat Biotech. Both have decided to roll out two of the most expensive vaccines in the world, to the poorest people in the world. This week they announced that they will sell to private hospitals at a slightly elevated price and state governments at a somewhat lower price. Whereas on the other hand, the UN Human Rights Council Resolution was adopted by consensus on “Ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (COVID-19) pandemic”.
The inadequate and inequitable distribution of vaccines has a variety of causes. The dysfunctional nature of the global health system was exacerbated by internal political clashes and lack of funding, which, as a result, deepened the cleavages of inequality amongst member states. The ensuing inequities caused by the privatization of healthcare services, facilities, and goods in the absence of sufficient regulation are documented.
In front of the international legal organizational fraternity, India has requested the WTO to issue a “waiver” of the application of intellectual property rights for COVID-19 “diagnostics, therapeutics and vaccines”. This request has also been formally supported by several independent experts of the UN Human Rights Council of UN Special Procedures and recently received the emphatic endorsement of the UN Committee on Economic, Social, and Cultural Rights. There is already precedent for such TRIPS waivers, with the WTO having already applied for a waiver until 2033, for example, for least-developed countries (LDCs), which are exempted from applying intellectual property rules on pharmaceutical products and clinical data.
The recently adopted Resolution of the UN Human Rights Council, led by Ecuador and States of the Non-Aligned Movement and adopted on 23 March 2021 provides a ray of hope of the alteration of this existing collision course with disaster. The resolution, which calls for “equitable, affordable, timely, and universal access by all countries”, reaffirms vaccine access as a protected human right and openly acknowledges “unequal allocation and distribution among countries… to remove unjustified obstacles restricting exports of COVID-19 vaccines (and to) facilitate the trade, acquisition, access, and distribution of COVID-19 vaccines” for all.
The resolution also inexplicably fails to address corporate responsibilities, including those of pharmaceutical companies, to respect the right to health in terms of the UN Guiding Principles on Business and Human Rights, and States’ corresponding duty to protect the right to health through adopting adequate regulatory measures. In sum, the world, and India witnesses a general failure of States to fully and adequately center their human rights obligations in the broader context of COVID-19 responses.
A Crime against Humanity or Not
As a point of analysis, Crimes against Humanity (CAH) exist in four treaties. These include Article 6(c) of the Nuremberg Charter, Article 5 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC statute. Since India is not a signatory to the Rome Statute, India cannot be used to investigate the conduct of the Government. However, as per customary international law, crimes such as those against humanity are binding on all states. Additionally, under Article 27 of the Vienna Convention on the Law of Treaties, no state can invoke the provisions of its internal law as justification for its failure to perform a treaty, which is also a customary international law rule. Thus, the question beckons, what is happening in India, is it a crime against humanity under international law?
Article 7(1) of the Rome Statute defines “crime against humanity” as “any acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Furthermore, these acts include persecution against any identifiable group or collective class of racial, national, ethnic, or basis which form grounds that are universally recognized as impermissible.
An important criterion revolves around, “inhumane acts” (Article 7(1)(k)). To qualify, the following requirements must be met. First, the act in question must cause “great suffering, or serious injury to body or to mental or physical health”. The Pre- Trial Chamber of ICC noted, in the case of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, that, “according to articles 7(l)(k) and 22 of the Statute, inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law”.
India has hit the grave milestone of the highest ever single-day spike in COVID-19 cases in the world. One might argue, in light of the Indian government’s failure to adopt measures to mitigate against the pandemic causes “great suffering” and “serious injury” to physical health. It, therefore, becomes categorically clear that the state has single handily“cheered on by a pliant, triumphalist media, prematurely declared victory against the pandemic”.
Lastly, criminal liability requires a mens rea element. The perpetrator must have acted intentionally to inflict great suffering or serious injury as well as have been aware of the factual circumstances that establish the “similar nature” of the conduct in question. That being said, there is no coherent assessment has persisted through the different Tribunals.
In March, when the second wave was already underway, state leaders from the ruling Bharatiya Janata Party (BJP) published full-page ads in national newspapers telling worshippers it was “clean” and “safe” to attend the Kumbh Mela. Finally, we know that the incumbent government started campaigning sans any precautions in West Bengal, Kerala, Tamil Nadu, Puducherry, and Assam. However, negligence can sometimes form a basis for criminal liability but is not strictly a form of mens rea because it refers to an objective standard rather than a state of mind.
The government may still argue that these acts, deplorable and as they are, are not intended to cause the physical and mental suffering and injury they do. Indeed, the government has maintained that the
“ferocity of the second surge was something no public health expert in the world had predicted, and that health infrastructure even in the most advanced countries had crumbled in the first wave last year“
However, it is also true that the Indian Express reported that as far back as April 2020, the empowered group headed by V.K. Paul anticipated oxygen shortages and the need to enhance production, and then this was repeated to the government again in November by a committee set up by the government itself. All the while that the Ministry of AYUSH kept pushing the use of ‘alternative medicines and homeopathy to treat COVID-19 that the World Health Organization clarified was ineffective in fighting COVID-19.
Human rights law poses a compelling alternative to think through these questions. There is a strong case that the Indian government has violated human rights. States are, as the Committee on Economic, Social and Cultural Rights recently stressed, under an obligation to take measures to prevent or at least to mitigate, the adverse impacts on human rights, including the right to health. Concomitantly, it is hard to think of a political and legal strategy that could put truth to the lie of the picture of the progress that the Modi government tries to paint more directly than a finding of crime against humanity. In the end, we find ourselves here, a collectively designed hell where each institution functioning of a democracy is compromised and hollowed out, and a virus that is out of control.
He is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the co-founder and president of the Jindal Society of International Law.