analysis
Nicholas Taitz and John Kuhn
The South African government’s policy against providing free anti-retroviral drugs to people living with HIV/Aids may amount to a crime against humanity.
The legal concept of “crimes against humanity” was introduced after World War II to hold Nazi leaders accountable for their crimes in the Holocaust. At the Nuremberg trials it was defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population”.
At the time it was revolutionary, since it held parties criminally liable for their actions, even though their actions were not prohibited by any law in their country when committed.
There is no analogy between the South African government’s policy and the Holocaust. The point, rather, is this: the South African government’s policy may well result in the deaths of millions of South Africans from Aids, and it thus seems plausible to call this policy a crime against humanity.
In Western legal systems, to be found guilty of murder it has to be proved that the perpetrator intended murder. This intention may be of two main types. The first is dolus directus, where it is the aim of the perpetrator to kill the victim.
This sort of intention was present in the Holocaust, but is clearly not present here. However, there is a second type of criminal intention, namely dolus eventualis. This simply requires that the perpetrator foresees that his actions may kill someone. If found to have foreseen this possibility, the perpetrator is guilty of murder.
Is there dolus eventualis by the South African government with respect to the deaths of millions of South Africans from Aids?
According to the Treatment Action Campaign (TAC), there are about 70 000 mother-to-child transmissions of HIV every year, and about 40% of these occur at birth. The anti-retroviral drug nevirapine has been shown almost to halve the HIV transmission rates at birth from mother to child. Given this, if the government refuses as it is doing to provide HIV-positive pregnant mothers with nevirapine, knowing the drug saves lives, then it seems plausible to suggest that dolus eventualis is present.
Furthermore, anti-retroviral cocktails have been shown to prolong the lives of people living with HIV/Aids. If the government refuses as it is doing to provide people living with HIV/Aids with anti-retroviral drugs it is thus knowingly shortening the lives of millions. Shortening a person’s life, even if that person is terminally ill, is considered murder in South Africa.
What if one entertains the government’s implausible argument that there is some doubt as to whether HIV causes Aids? Still, as long as there is a real possibility that it does cause Aids and this possibility is foreseen, then dolus eventualis may well be present on the part of the government if its policy flouts this risk and millions of South Africans die sooner than otherwise.
Although all previous cases of crimes against humanity have consisted largely of positive acts of commission, there seems no reason in principle why an act of omission could not have the same status. Apartheid was declared a crime against humanity by the United Nations, and it could be argued that large parts of the apartheid system consisted of crimes by omission, such as omitting to give black South Africans the vote or a decent education. In any case, South African law allows for an omission to be considered unlawful if it consists of a breach of a duty to act.
The South African Bill of Rights, echoing the Universal Declaration of Human Rights, says every South African has the right to healthcare from the state provided the state can afford it. So, in both local and international law, the state has a duty to provide healthcare if it can afford to do so.
Can South Africa afford to provide anti retroviral drugs to all people living with HIV/Aids?
According to the TAC, the provision of nevirapine to reduce mother-to-child transmissions would cost the state less than R250-million a year. The cost of anti-retroviral drugs for all South Africans living with HIV/Aids is less clear. Anti-retroviral triple therapy costs an individual about R800 a month. With between four and five-million South Africans living with HIV/Aids, the monthly cost for across-the-board provision of anti-retroviral drugs would be about R3,2-billion.
However, the cost of the anti-retroviral triple therapy is decreasing rapidly. This cost would fall still further and faster if the government imported cheap anti-retroviral generics for which the legal framework now exists. This could reduce the cost to below R1-billion a month.
And there’s a good chance that providing anti-retroviral drugs will cost the state less than not doing so. The TAC argues that the provision of anti-retroviral drugs could pay for themselves through reduced hospitalisation, prevention of opportunistic infections (like tuberculosis), and improved quality of life and productivity of persons living with HIV/Aids.
South Africa is spending R66-billion on an arms deal, which, if rather spent on anti-retroviral drugs could pay for between five and six years worth of anti-retroviral treatment. So the state can provide anti-retrovirals to South Africans living with HIV/Aids.
The government’s policy on this matter may well amount to a crime against humanity if it persists with this policy and so causes millions of South Africans to die sooner than otherwise. This suggestion is certainly rather revolutionary. But the extension of the concept to the present case is consistent with the spirit that marked the concept’s original formulation: to punish injustice caused by state policy. And the South African government’s policy appears fundamentally unjust. This should be a sobering thought for the leaders concerned. History may well view their policies not merely as mistaken, ineffectual or short-sighted, but as crimes against humanity.
Nicholas Taitz and John Kuhn are fourth year students at the University of the Witwatersrand