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The death toll from tobacco: a crime against humanity?
  1. NEIL FRANCEY
  1. Wentworth Chambers
  2. 180 Philip Street
  3. Sydney 2000, Australia;
  4. neilfrancey{at}onaustralia.com.au

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    Editor,—On 17 July 1998, by the Rome statute of the international criminal court, the United Nations resolved to establish a permanent court having power to exercise jurisdiction over persons for the most serious crimes of international concern.1 As of January 1999, 73 member states (excluding the United States) have become signatories to the statute. Few have yet ratified it. Article 126 requires ratification by 60 member states before the statute comes into effect. Article 5 of the statute confers jurisdiction on the international criminal court with respect to crimes such as genocide, war crimes, and “crimes against humanity”.

    A list of “crimes against humanity” is provided which covers events such as extermination, enforced prostitution and sterilisation, and religious persecution when committed as part of a widespread or systematic attack directly against any civilian population. Significantly, the definition of a crime against humanity includes “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.

    This definition begs the question of whether the death toll from tobacco does not constitute a crime against humanity, susceptible to prosecution in the international criminal court. The World Health Organisation (WHO) estimates that of some 1.1 thousand million smokers in the world, 50% will die prematurely from tobacco-attributable illness, half in middle age. This means that in excess of 500 million people, or about 10% of the existing population, will die from smoking. Based on current trends, WHO estimates that the death toll from smoking will rise to 10 million people per year by the year 2025. No other consumer product in the history of the world has come even close to inflicting this degree of harm on the world community.

    If anything else posed a threat to life of this magnitude, whether human induced or naturally occurring—be it world war, genocide or “ethnic cleansing”, natural disaster, or disease—it would demand immediate international action. The international responses to war crimes (both current and dating back to world war two), germ warfare, nuclear weapons, HIV, or even climate change are but a few examples.

    The jurisdiction of the international criminal court means that the directors and executives of the major transnational tobacco companies are at risk of being charged with a “crime against humanity” were the death toll from tobacco to increase from its present three million to anything like 10 million a year by the year 2025. It is at least arguable that such a consequence is the result of an inhumane act of a character similar to murder, causing great suffering, or serious injury to body or to mental or physical health committed as part of a widespread or systematic attack directed against the civilian population of the world.

    Given what is now known about smoking and disease, the decades-old deceit and duplicity of the tobacco industry, and given that directors of the major transnational companies must now have knowledge of the consequences of their activities, then each of them must face the prospect of such a charge in the international criminal court if those activities continue. The consequences of prosecution include penalties of imprisonment, fines, and forfeiture of assets (article 77). Provision is also made for reparations to victims (article 75).

    The court has jurisdiction only with respect to crimes committed after the entry into force of the statute (article 11). In addition, the statute is not retroactive, in the sense that no person may be criminally responsible under the statute for conduct before the entry into force of the statute (article 24).

    This means that the opportunity exists for these directors to escape liability under the provisions of the statuteproviding there is no increase in mortality from tobacco use. Arguably they should be responsible for a reduction. Because of the inevitability of an increase in mortality from past smoking, every effort would need to be made to reduce consumption to avoid a significant increase in the current death toll. Certainly continuing expansion in less developed countries should not occur.

    Trigger mechanisms for the exercise of the jurisdiction of the international criminal court include a complaint lodged by a state party (articles 13 and 14). Alternatively, the prosecutor may initiate investigations on the basis of information on crimes within the jurisdiction of the court (article 15).

    It may be argued that the definition of “crime against humanity” is directed rather more toward “intentional” crimes in the stronger sense: that is, not only did the perpetrators intend the acts while knowing the harm that would flow from the acts, but also they desired that very harm (either in itself, or as necessary means towards goals sought to be achieved). In this respect it could be said that the directors and executives of cigarette companies do not intend to cause their customers to suffer, nor do they need the suffering, injury, and death of their customers to achieve their goals—these consequences are merely an incidental result of their marketing activities. Even so, such conduct is comparable to manslaughter where death is an unintended consequence of a recklessly negligent act. In some jurisdictions, such conduct is also classified as a lesser degree of homicide or as “murder” as compared with “wilful murder”.2 In any event, in a case where a person is put on notice that a consequence of their conduct is that large numbers of people may die, then it may be that the necessary intentional element is established.

    Accordingly, the scope exists for those working in the field of tobacco control to prepare a brief of relevant material and arrange for it to be formally served on the directors and senior executives of all the major transnational tobacco companies, at the same time as sending it to the office of the prosecutor, requesting an investigation. Representations could also be made to state parties requesting a referral to the prosecutor. Thereafter, if the WHO projections began to be realised, those responsible could be progressively prosecuted, jailed, fined, and made to forfeit assets and pay reparations.

    Just as the perpetrators of the Nazi holocaust are still being pursued as war criminals, there will undoubtedly be demands that current directors and executives of transnational tobacco companies be called to account in the international criminal court during the first decades of the 21st century if the death toll from tobacco predicted by WHO is inflicted on the world community.

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