Petition to the ICC calls for counterfeits with widespread deaths to be classified as crimes against humanity

  • ACN Africa submitted a petition to the United Nations International Criminal Court this week
  • Calls for an amendment to the Rome Statute to expand the scope of crimes against humanity
  • The legal director of the association tells WTR The dangers of counterfeiting must be highlighted

The Anti-Counterfeit Network Africa (ACN) officially filed a petition with the International Criminal Court (ICC) this week calling for an amendment to the Rome Statute to expand the scope of crimes against humanity by including counterfeiting, the “widespread and indiscriminate murder” involve the general public “. In conversation with WTR, says an ACN official that it is trying to “demystify the illusion” that fake-related deaths are less direct than those related to other crimes – although some legal representatives have been skeptical of the move.

Last month, WTR reported on ‘an’ plans to petition the ICC to include counterfeiting as a crime against humanity. At the time, the petition was still in the works, but the legal director of the association, Fred Muwema, who is also a founding partner of Muwema & Co, said WTR that it would focus on counterfeiting criminal offenses with a significant risk of harm, including counterfeit life-saving drugs (e.g. for cancer, HIV, malaria, tuberculosis, hepatitis) and auto parts. “The use and consumption of counterfeit products results in indiscriminate and widespread death and injury to millions of people around the world,” he told us. “That fits the description of a crime against humanity. Indeed, the notion that crimes against humanity are only committed in the context of armed conflict is now out of date. These crimes are cheaply committed through trademark infringement by economic terrorists without firing a single shot. “

However, the petition sparked debate among lawyers, with some skeptical that counterfeiting should be classified as a crime against humanity. For example, Belgium-based attorney Kristof Neefs claims the petition is “way off” stating: on twitter: “One argument is that counterfeit products are used to finance criminal operations. Yes, that’s right, but that doesn’t make counterfeiting a crime against humanity. Terrorists are likely to drive too fast even on escapees, which doesn’t make speeding a terrible humanitarian problem. The other is that “counterfeit drugs do harm”. You do, and it’s an important issue. But the harmful act there seems to be knowingly distributing harmful products, not copying the label of the original. This is an accessory. “

Despite the criticism, ACN submitted the petition to the ICC earlier this week and its approach is now ready to be revealed (the full petition can be viewed here). The main proposal it proposes is that “economic crimes such as counterfeiting, which indiscriminately and widespread death and personal injury to large parts of the consumer community should be subject to dual control under existing intellectual property legislation under TRIPS and the Rome Statute”. The reason, the ACN adds, is because counterfeiting is currently being treated by many as “an inconvenient transgression or a gentle crime,” but claims that it is in fact “a slow and patient killing, likely to be responsible for more human deaths.” is and “bodily harm as any other crime in the world”.

The petition defiantly expresses the ACN’s view that counterfeiting causes unspeakable deaths, especially on its home continent. “There are currently 40 armed conflicts in the Middle East, Northwest Asia and Sub-Saharan Africa,” the petition said. “This is the traditional breeding ground for crimes against humanity that the ICC investigates and prosecutes. The irony, however, is that in the past three years, not all of these armed conflicts combined are responsible for half of the civilian deaths caused in one year from counterfeit and substandard drugs. “

A key example of this is the impact of counterfeits on the ongoing recovery from the Covid-19 pandemic. In the second section of the petition, the ACN alleges that counterfeiting is undermining “the fight” against the virus, particularly through cases of counterfeit vaccines that create an “increase in public concern” against the vaccine program and the burgeoning global counterfeit drug business aimed at undoing the ” well-intentioned efforts “of a TRIPS waiver of patent protection for Covid-19 treatments.

The petition also suggests that if counterfeiters are faced with “criminal sanctions from the ICC,” it “could make the counterfeiting more risky for perpetrators than it is now” and therefore “the deterrent we have all been waiting for”.

To this end, the ACN proposes an amendment to Article 7 of the Rome Statute “to extend the scope of crimes against humanity to include the white-collar crime of counterfeiting, which includes the commission of widespread and arbitrary murders”. Alternatively, she proposes to amend Article 7 (1) (k) of the Rome Statute to “explain the meaning of other inhumane acts to include counterfeiting of merchandise and services that cause widespread death, bodily harm and injury”. It also suggests the creation of a “special department” within the ICC to “specifically investigate the crimes against humanity that result from the trade in counterfeiting”.

It is doubtful that some of the bold claims in the petition will allay concerns expressed by legal experts and other online commentators last month. When asked how he responded to concerns that counterfeiting are not on par with most crimes against humanity, ACN lawyer Muwema disagreed. “Death from crimes like genocide or ethnic cleansing is more recognizable because it is concentrated and takes place in a demarcated geographic area with much broader media coverage, and its perpetrators are usually easy to identify as they often explain hostilities publicly,” he says WTR. “On the other hand, the perpetrators of death by dangerous forgeries do not explain hostility. Even when identified, they are deceiving and have no visible blood on their hands. Also, victims of counterfeiting willingly consume the products they are slowly killing, they are not collected or concentrated in a defined geographic area – for this reason you will not find a mass grave for victims of counterfeiting as you do in genocide cases. For this reason, we need to demystify the illusion that death from counterfeiting is a double death. “

This week’s petition marks the most significant step the ACN has made since its inception in February 2016. Based in Uganda, the ACN is a nonprofit that, according to its website, “aims to fill the intervention gaps between the numerous stakeholders involved in counterfeiting and illicit trade are and are affected “. Since its inception, actions have included awareness-raising events, law enforcement training and the establishment of a ‘League of the Real’ – the latter is an ambitious initiative involving brands, law enforcement and policy makers to ‘detect counterfeiters, get involved’. for the dangers of product counterfeiting and the development of guidelines for the protection of genuine products ”.

Time will tell how the ICC will respond to the petition. The debate will undoubtedly continue for the time being.

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