The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948. At that time, the United Nations (UN) recognized the necessity of a permanent international court to deal with the kinds of atrocities perpetrated in the Second World War [1][1]. But the establishment of Nuremberg and Tokyo tribunals buried the idea altogether. The Geneva Conventions of 1949 were enacted after the Second World War to grant protections to soldiers, sailors, prisoners of war, and civilians [2][2]. But it was not enough to address the totality of the violence.

Thus, the idea of creating a permanent criminal court re-emerged in the aftermath of the Cold War in the 1990s[3].  At last, the International Criminal Court (ICC) was established in The Hague, which was enacted in 1998 and came into force in 2002[4][3]. It was established to address the most serious crimes of concern involving the International community; with a global commitment to preserve peace and punish crimes against humanity.

It has the power to investigate, prosecute, arrest and punish crimes within its jurisdiction [5][4]. It only prosecutes individuals, not any groups or States. ICC operates on the principle of complementarity where it complements with the national legal frameworks of the states[6]. When a state is unable to or is not willing to prosecute crimes for which ICC has the jurisdiction, only then it can prosecute. Crimes against humanity, war crimes, genocide, and crime of aggression fall within the jurisdiction of ICC[7].

On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by 160 States[8]. This marks the foundation of the first treaty-based International Court. The Rome statute sets out the crimes that fall within the jurisdiction of ICC. It describes rules of procedure and mechanisms that States need to follow in order to cooperate with the ICC. State parties accept these rules and are part of the assembly of state parties. This assembly meets once a year to discuss and decide the general policies of the Court. It also reviews the activities of the Court and the working groups with other relevant issues.

To this day, over 120 nations are States Parties to the Rome Statute of the International Criminal Court. They come from Asia, Asia Pacific, Europe, and America while representing all the regions. The state parties provide with funding for the Court. Moreover, different states, International organizations, individuals, or other bodies of entities can voluntarily contribute to the ICC.  

The ICC enjoys a permanent autonomy in its functions, whereas the ad hoc tribunals (for the former Yugoslavia and Rwanda) were established within the framework of the United Nations. The ad hoc tribunals deal with specific situations and they only have a limited mandate and jurisdiction. Although there are misconceptions about ICC being operating within the purview of the United Nations, ICC is completely an independent body that does not need a special mandate from the UN[9]. Also, it is different from the International Court of Justice which is a principle the judicial organ of the UN.

The ICC has jurisdiction over the ‘core crimes’ of international law namely, genocide, war crime, crime against humanity, and the crime of aggression. The jurisdiction of the ICC is conditional upon two factors. The first factor is the nationality of the person and the second one is the territory within which the crime is alleged to be taken place. The satisfaction of one of these two criteria is necessary to invoke the jurisdiction of the Court[10].

Jurisdiction can also be invoked if a referral is made by the Security Council against non-party states as provided in article 13(b) of the Rome statute. When the Security Council does not refer any issue as mandated by chapter VII of the UN charter, the question remains whether ICC can exercise its jurisdiction over individuals of non-party states alleged to have committed the crimes enumerated in article 5 of the Rome Statute.

Most recently the Uighur exiles filed a complaint to the International Criminal Court urging it to investigate Beijing for genocide and crimes against humanity [11][5]. It is the very first attempt to use international law to hold China accountable for its draconian crackdown on the Uighur Muslim minority. The complaint was filed for pursuing the repatriation of thousands of Uighurs through deportation from Cambodia and Tajikistan. Although it may take months for the Chief Prosecutor of ICC to issue a formal response to this filing, the case has the potential to bring about significant application of the ICC principles.   

Since its existence, the ICC has delivered a limited number of decisions. But each of these decisions has decided on important principles or questions of Law. In the case of The Prosecutor v. Mathiew Ngudjolo Chui[12][6], pursuant to Article 74 of the Statute the Court acquitted Mathiew due to lack of evidence and meticulous investigations. This judgment reflected Court’s unwillingness to convict the accused where there is reasonable doubt as to his commission of the crimes.

In the case of Prosecutor v. Lubanga (2012[13]) the ICC gave a decision that established the principles and procedures to be applied to reparations.  The Court gave instructions to present a draft implementation plan for the procedure of collective reparations within a particular period of time.

In March 2016, Jean-Pierre Bemba, the former vice-president of the DRC, was convicted[14] [14] to assign guilt for sexual and gender-based crimes which declared rape both as a war crime and crime against humanity. In the history of gender justice, this conviction gave birth to a proud moment. It was the first command responsibility conviction given by the ICC.

Over a short span of time, the ICC has proved that it can extend the arms of law across the whole world. Prior to the Rome Statute, this would have been described as a Utopian thought. Since its inception, this Court has been attempting to break down the vicious cycle of offering impunity for the worst kind of crimes [15][8]. It has rejected the notion that sexual violence is a natural consequence of armed conflict. It has targeted authorities for the actions of their subordinates. It has investigated into parts of the world where rule of law is still a far cry. It has urged its state parties to conform to its principles.

Today, despite the challenges the ICC and the International Criminal justice system is facing, there is a ray of hope that ICC will continue to punish the most inhumane crimes and thrive to establish peace and security throughout the world.

The post The Role and Jurisdiction of the International Criminal Court appeared first on Legal Desire Media and Insights.

–        Dr. Chan, WHO Director-General.

Intending to set up a proprietary market advantage and protecting innovation in new medical technologies, the already advanced and well-equipped developed countries underpin the significance of implementing Intellectual property rights. In contrast, the poor and developing countries lack access to medicine even without intellectual property laws. What further reduces their access to medicines is imposing or strengthening IP protection laws as a result of trade agreements [2][2]. World Health Organization (WHO) estimates that one in three persons worldwide doesn’t have guaranteed access to their required medicines[3]. Sustainable development Goal (SDG) 3 recognized improving access to medicine “through ensuring healthy lives and promoting wellbeing for all at all ages” as one of its goals [4][3].

But due to excessive and unmerited patenting of medicines by big corporate pharmaceuticals, the promotion of health rights across the world has gotten much worse than it ever should have been; specifically after the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) on access to medicines[5][4]. Whereas advancements, aiming at prolonged human survival, made in the medical field create epoch-making results, prevailing complexities in IP regime concerning pharmaceuticals bars individuals’ access to medicines; thus denying the right to health of that person.

The TRIPS agreement: Past and Present

Before the existence of TRIPS, the nations had complete autonomy in designing and implementing IP policies for different national sectors. In 1995, the Agreement Establishing the World Trade Organization (WTO) included the TRIPS agreement which reshaped the whole debate on national IP policies. It is the most comprehensive international agreement on the protection of intellectual property rights [6][5]. It requires all countries to grant pharmaceutical patents; creating a major and unprecedented shift in access to medicine.

Articles 27 to 34 of this agreement protect patents. These provisions give the patent owner legal protection which means the owner can prevent others from making, using or selling the new invention for a limited period. But there are some exceptions. Patent protection must last at least 20 years from the date of filing patent application [7][6].

In the course of the last two decades, there has been widespread spark and pushback from the developed world against the current IP system. This is because advanced nations have tried to force a one-size-fits-all model on the world [8][7], by influencing the rulemaking process at the World Trade Organization (WTO) and constraining their will through economic accords.

Article 30 of TRIPS allows researchers to use a patented invention for research to understand it fully or to obtain marketing approval from public health authorities. Developing a medicine requires a high research and development cost. These costs occur after granting of a patent, in an early stage. Sadly “Research is often directed at extending, broadening and leveraging the monopoly power granted through the patent and not at producing new products.[9]”

In reality, the IP regime, progressed nations favor normally are planned not to maximize innovation and scientific advancement, however, to amplify the benefits of huge pharmaceutical companies and others ready to influence trade arrangements. Humans, being ingenious creatures, invent new and innovative ideas every day requiring thousands of patents. These phenomena have given birth to an increasingly densely and alarming patent thicket. Therefore a reverse scenario has emerged where innovation is stifled and in some cases, more is spent on lawyers than on researchers.

Understanding the reverse relation between the TRIPS Agreement and access to medicine

The TRIPS requires minimal standards of protection for innovations, creation or invention of artistic works and goods. Generally, this protection extends to those which require, as on account of medicines, high sunk expense invested in research and development (R&D). What IP provisions do is they provide exclusive rights to the investors and the new and improved medicines get protected by the patent. As part of the creation of an IP protected monopoly market, the investors charge a very high price for these medicines. This price hike ends up reducing access of the general public.

One of the burning examples of Pharmaceutical price gouging is the absurdly high pricing of Insulin. Insulin stands out as a medicine to treat diabetes, a non-communicable disease. Its access remains problematic to this day^[10][8] even though it was invented in 1921^[11][9]. When the patent for insulin was first drafted in 1923, its inventors declined to be named on it. Both believed that insulin belonged to the public. Now, nearly 100 years later, insulin is inaccessible to thousands of people. The dominance of three multinational companies is responsible for creating such a barrier to access^[12]. This particular problem often compels people to buy and use substandard or falsified drugs at a cheaper price and suffer deadly consequences.

Most relevantly, patenting of medicines, vaccines, testing kits, and other innovations for treating Covid-19 could have serious consequences on availability, access, and affordability to Covid-19 treatments. The poor and developing countries are the worst sufferer of this inequitable and inefficient IP regime[13].  

The fundamental human right to health cannot be achieved without first securing access to essential medicines for proper treatment of diseases. Article 25 of the United Nations Declaration of Human Rights (UDHR)[14][10] recognizes every person’s “right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing, and medical care and necessary social services.” It is now well established that women have distinct and to some extent complex physical health. Women’s right to health is hampered due to the non-accessibility of essential medicines. Article 12(1) of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) entrenches provisions for the consideration and protection of women’s right to health [15][11].

Patenting essential medicines by corporate pharmaceutical giants only violates the health rights of the general public. These violations will take a monstrous shape in a post-Covid world unless a global movement takes place against it. On a national level, it should be open to developing countries to make more sophisticated use of the available flexibilities under TRIPS. TRIPS leaves place for national discretion to a minimal extent while designing and implementing the IPR regime. Pharmaceutical price gouging should stop at once to ensure widespread access to medicines. Research and development should be aimed at solving problems and not at adding to new ones.

The post The Effects of Intellectual Property Rights on Access to Medicines appeared first on Legal Desire Media and Insights.