The Canadian government had the opportunity last week to help hundreds of thousands, maybe millions, of AIDS sufferers in poor countries and deliberately chose not to do so. What should we think about such a decision? When are citizens allowed to ask the unthinkable: If a government knowingly allows hundreds of thousands of people to die unnecessarily, what is its responsibility? How much less culpable is indirect guilt, or guilt by omission, than direct guilt or guilt by commission?
These are fraught questions which many outraged Canadians are asking right now. They arise because a private member's bill in Parliament has just been defeated by the Harper government by a mere 7 votes. Bill C-398 would have enabled Canada's generic drug manufacturers to provide inexpensive life-saving medicines to Africans suffering from AIDS and other curable diseases who can't afford brand-name medicines. Many believe the government has betrayed these people. African AIDS activists, with whom many Canadians have close contact, feel betrayed.
Can this really be the end of this story? Do the Africans who will die unnecessarily in these years -- and there will be huge numbers -- merely get forgotten? Too bad, so sad? Another day at the office?
Some Canadians have turned to international law for possible precedents, since criminal responsibility for failing to prevent a predictable atrocity was established in 2007 by the International Court of Justice (the World Court). In a landmark judgment, the Court ruled that Serbia could have foreseen the 1995 slaughter of 8,000 Bosnian Muslim males in Srebrenica but failed to prevent or stop it. Serbia was therefore guilty of "violat[ing] the obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide" passed by the United Nations in 1948.
What then can be said of failing to prevent death -- in this case from disease -- not of 8,000 but possibly 80,000 or 800,000 people? As the Harper government was perfectly aware before the vote, international health experts estimated that Bill C-398 could have saved "hundreds of thousands, maybe millions of lives." Legally, of course, genocide is not at issue here, as it was in the Balkans. But is it not necessary to ask whether knowingly allowing people to die from disease is morally different from knowingly allowing them to be murdered by guns.
Already huge strides have been made in getting medicines to millions of HIV/AIDS-affected Africans, extending their lives and enhancing its quality. Yet half of Africans who need medicines still can't get it. Every African who dies early and painfully does so from the absence of proper treatment. Canadian generic drug manufacturers could have provided that treatment at affordable prices for huge numbers of sufferers -- they told our government as much -- but Mr. Harper chose to refuse them the ability to do so.
Can a government simply refuse to help save millions of lives and walk away scot-free? Responsibility to Protect is one thing. Is there no Responsibility To Save?
This is by no means the first time such tough questions have been raised. More than a decade ago, Canada's most renowned AIDS advocate pointed out in this very paper that cheap Indian-made generic drugs could treat millions of HIV-positive Africans. But the brand-name drug industry with their power and their sky-high prices would not permit it. "And because it's not being done, why doesn't it amount to murder? Mass murder." Stephen Lewis never did get a satisfactory response to his dramatic question. (Mr. Lewis made a similar case when interviewed by The Globe this week.)
What plausibly accounts for the government's decision? Bill C-398 seemed like a win-win for all. It was a surefire way to save countless lives at no cost to ourselves. It had strong support from Canadians in every walk of life. Instead of being bystanders to needless death and suffering, Canadians could have been part of the solution. It was a perfect fit with the government's vaunted maternal health initiative. Canadian generic manufacturers would do well by doing good. In more hard-bitten terms, Big Pharma, a major influence on Conservative decisions, seemed to be on board, while international legal experts found the bill consistent with Canada's treaty obligations.
Some wonder if the government's decision reflected its concern for the many trade and investment deals it's negotiating, which routinely call for ever-greater patent protection for the giant brand name drug companies. The government may be wary of demonstrating the slightest sympathy for their generic rivals. There's suspicion that, behind the scenes, Big Pharma was actually encouraging the government to deep-six the bill.
Mr. Lewis had something sadly familiar to say about this. "So in the great choice in life, [the Harper government] have chosen patent protection over the lives of children. And that's about as perfidious as you can get as a government." If any of this is true, how can it not mean that African lives must take a back seat to the profits of some of the richest corporations in the world?
December 1 was World's AIDS Day. To commemorate the occasion, U.S. Secretary of State Hillary Clinton has unveiled a striking new initiative by the Obama administration: a "Blueprint for an AIDS-free generation."
Then there's Canada.
If I were Thomas Mulcair, I would announce that on my very first day as Prime Minister I would re-introduce Bill C-398.
This article was first published in the Globe and Mail.
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