Unethical Human Experimentation in Developing Countries and International Criminal Law: Old Wine in New Bottles?

Abstract

Since Nuremberg, the ethics of scientific research involving human beings has been for decades the source of concern and controversy. Profit-driven experimentation sponsored by the pharmaceutical industry has progressively migrated to the South, turning into a widespread phenomenon imbued with ethical challenges and dilemmas. The protection of vulnerable communities from the risks of unethical behaviour and exploitation, often associated with the outsourcing of clinical trials in developing countries, calls for respect of internationally agreed standards. This Article argues that massive experiments conducted in disregard of universal bioethical principles and human rights may amount to crimes against humanity under international criminal law. It also suggests that, in such cases, the International Criminal Court would have jurisdiction over a broad range of liable individuals, including public officials of host and sponsoring States, physicians and researchers acting in their private capacity, as well as officers and directors of pharmaceutical corporations.