Drug use: Personal rights and freedoms

There are many reasons to support government regulation of currently illegal drugs, amongst these are the arguments focusing on the personal rights and freedoms of drug users. Whilst Transform naturally supports the decriminalisation of consenting adult use (our position on these issues detailed in various publications - including 'Tools for the debate' and our 'drug use and civil rights' briefing)  the personal rights arguments are not an area we have historically put significant campaigning resources behind, primarily because other lines of argument - concerning impacts on public health and criminal justice indicators for example - have greater public and political traction.

In the US, by contrast, the personal liberty arguments seem to have far greater traction and are more actively promoted by drug law reformers such as the DPA. See their recent campaigning video for example:



This video provoked considerable US media debate, with support from some unlikely corners including Fox news commentator John Stossel:



Stossel went on to produce an unprecedented 45 minute critique of the drug war for the channel - including a clear call for legalisation/regulation.

The video even provoked Fox News' high profile commentator Bill O'Reilly into one of his characteristic Fox News hit pieces, ultimately landing DPA director Ethan Nadlemann on the O'Reilly Factor (he does pretty well).

Steve Rolles from Transform recently wrote a chapter ('Principles for rational drug policy making') for the forthcoming Routledge publication 'The Politics of Narcotic Drugs' which includes a short section discussing the issues around the personal rights and freedoms of drug users - and edited version of which is copied below:

The rights of the drug user have long been debated, with John Stuart Mill’s principles often cited: that consenting adults should be free to engage in whatever behaviour they wish as long as it does not harm others, and that acting to prevent the individual from harming themselves is not legitimate.

In drug policy debates this is often portrayed as a libertarian position, but viewed more broadly this principle applies to the law with regard to almost all consenting adult risk taking behaviours from freedom over what we eat, what medicines we take, how we consume legal drugs, through to our sexual habits, dangerous sports or other high risk activities, and self harm up to and including suicide - decriminalized in the UK in 1961. So drug laws that criminalize personal use are at odds with the law as it applies to comparable personal choices regarding sovereignty over ones body and freedoms regarding individual risk taking decisions.

There is an important legal distinction to be made between Mala Prohibitum crimes (‘wrong because prohibited’), which only constitute a criminal offence by virtue of statute, and Mala in se crimes where conduct is ‘wrong in itself’. Mala in se crimes include theft, rape and murder around which there is both historical and cross cultural consensus that they violate societies standards – that they are ‘against nature’. Such acts are considered criminal in all states and through-out history and (with few exceptions) there is little debate these are an absolute moral wrong and unacceptable regardless of written law. Mala prohibitum crimes by contrast (including adultery, homosexuality, blasphemy, flag burning, or defying proscriptions on certain foods) lack cross-cultural consensus, vary between states and through legal history, and have been the focus of debate and legal controversy, often witnessing reforms in both directions (even if the trend in the last century has been towards repeal)

Adult consenting drug use clearly comes within the Mala prohibitum sphere, demonstrated by the differences in legal status of drugs (e.g. alcohol and cannabis), the changing legal status of certain drugs (e.g. US alcohol laws), the contrasting drug laws in different states (e.g. cannabis laws in the Netherlands and its neighbours), and the ongoing debate over the criminality of adult consenting use. It is important to note calls to remove the criminality from adult consenting drug use in no way implies support for or justification of Mala in se crimes, such as violence, committed under the influence of drugs, legal or otherwise.

Arguing for a specific legal right to take drugs (see Newcombe 2007 for example), however, seems unnecessary. The argument is better made with reference to existing legal rights and freedoms. Specifically, the criminalization of adult consenting drug use in many cases violates a number of existing human rights. These include the right to privacy (particularly activities undertaken in private or at home), the right to health (specifically control over personal health), the right to freedom of belief and practice (ritual/traditional/religious use of certain drugs such as peyote, ayuhuasca, and cannabis), and the right to freedom of expression (including free access to information). It is important, however, to stress that any such rights and personal freedoms are not unconditional. Liberty (the National Council for Civil Liberties) explored this when it supported a motion:

‘This AGM upholds the right of access of every adult to the lawful supply of psychoactive substances for personal consumption save where expressly constrained by or under the law for the purpose of protecting minors, countering crime, treating addiction, or some other legitimate public purpose and calls on the government to reform the laws accordingly’

(Liberty AGM 25.6.00)

This motion summarizes a number of qualifying principles for which societal intervention is justified, over and above the rights of the drug user, as outlined in a briefing by Roger Warren Evans (1999) (that informed the Liberty AGM motion). Evan’s identifies five key qualifying principles:  

1. The maturation of the young: the freedom itself adheres to the mature adult (subject to agreement on age of consent). There is a widespread consensus that the deployment of state resources is fully justified, both by way of positive education and supply constraints, to inhibit the consumption of psychoactive substances by the young. 
2. Contract enforcement: Where an individual has actually agreed not to make use of a psychoactive substance, or any such substances, state intervention is ordinarily justified to enforce that contractual commitment. In some sectors of employment, such constraints are demonstrably expedient: public vehicle drivers of airplanes, trains, coaches, taxis, and other such safety critical positions all accept such constraints, and it is in the public interest that they should be held to their promises. The litmus test is the competence of individuals to perform required tasks, and contractual constraints should not go beyond that;
3. Criminal law enforcement: The accommodation of psychoactive substances has long been a feature of criminal justice. For example, it is settled law that intoxication cannot be used as a defense, where other breaches of the law are alleged. It must also be evident that the administration of psychoactive substances without consent is and should remain a serious trespass to the person. Finally, difficult judgments have to be made where the consumption of psychoactive substances coincides with the presence of any underlying mental condition. These examples, properly understood, all affirm the principle of individual freedom, and reflect its proper reconciliation with other legitimate societal interests.
4. Constraint upon social interaction: There are examples of circumstances where drug consumption may properly be constrained by law, eg where the consumption is in public or otherwise obtrusive to others, or where (even if in private) the consumption forms part of a wider pattern of collective behavior with adverse consequences. It is for each society, in each age, to define the principles of intervention where others, who may be considered ‘at risk’, are involved. The principle is difficult to apply, and several applications have been contentious Nevertheless, although particular examples may be controversial, the principle of legitimate state intervention is not refuted.
5. Public health: There are clearly circumstances where overriding considerations of public health justify state intervention and the abridgement of individual rights – the concept of public health based regulation under which some activities and/or products may remain prohibited and subject to legal sanction. These are well developed and widely understood in the context of the thousands of legal drugs (and other dangerous products, services and activities). It is right that society should at all times ensure that risks to consumers of substantial harm should be avoided.

 Evans goes on to argue that:

'These five propositions are simply stressing that the right-to-consume adheres to adults only, and may be overridden in the pursuit of other legitimate societal interests, where drug consumption is shown to put others at risk of harm. These constraints leave unabridged the freedom of individual adult consumption, whatever the features of the psychoactive substance, in the absence of any demonstrable harm to others. We should take up a very simple position that the adult voluntary use of any psychoactive substance is a matter of unbridgeable personal freedom. As with all legal principles, there are exceptions. But it is for those who assert the exceptions to demonstrate the case for such action. The burden of proof should lie, not with those who uphold individual freedom, but upon the shoulders of those who contend for its qualification.’ 

Security, development and human rights: Normative, legal and policy challenges for the international drug control system

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Copied below are the abstract and conclusion from paper published last week in the International Journal of Drug Policy,  by Damon Barrett (Senior Human Right Analyst at IHRA), titled 'Security, development and human rights: Normative, legal and policy challenges for the international drug control system'.  In this important and groundbreaking commentary Barrett outlines a series of theoretical and practical challenges for the international drug control system, reconceptualizing it within a broader human rights law analysis.

A clear call for an Impact Assessment on international drug control policy is also made (in the conclusion see below). The full paper is available at the International Center on Human Rights and Drug Policy website (pdf)

Transform's Danny Kushlick (credited) was involved in developing the thinking behind the paper, and Transform's 'Blueprint for Regulation' is also cited along with our recent Impact Assessment briefing paper.

Abstract

This commentary addresses some of the challenges posed by the broader normative, legal and policy framework of the United Nations for the international drug control system. The ‘purposes and principles’ of the United Nations are presented and set against the threat based rhetoric of the drug control system and the negative consequences of that system. Some of the challenges posed by human rights law and norms to the international drug control system are also described, and the need for an impact assessment of the current system alongside alternative policy options is highlighted as a necessary consequence of these analyses.

Conclusion
International drug control, as currently formulated, may be conceptualised as an ‘international risk environment’ for the related damage to security, development and human rights that has been documented worldwide. The human rights risk is particularly clear. The first step in addressing this is to begin to shift the debate at the international level away from threat based rhetoric and towards meeting the aims of the UN. Based on modern debates concerning human security and human development, this demands consideration of more locally and culturally appropriate responses that place individuals and communities at the centre of drug policies. An impact assessment of the current approach is necessary, set against alternative policy options that may achieve better results in terms of security, development and human rights. That call is supported by international human rights law.

This assessment should have happened at the ten year review of international drug policy at the UN Commission on Narcotic Drugs (March, 2009). Instead, the same policies, with some minor amendments to language, though hard fought by some of the more progressive governments, were prescribed for the next ten years. Indeed, it may be argued that advocating for a move towards policy based on the aims of the UN naively presumes genuine governmental support for those aims, when in fact other political agendas are more likely the drivers of current drug control efforts. This is likely the case for some governments. But this does not stall the discussion. Indeed, it is one more argument for reframing the debate so that the UN system, within which international drug control resides, is not one behind which these agendas may hide (Barrett & Nowak, 2009).

The Barrett and Nowak reference in the conclusion is for a book chapter titled 'The United Nations and Drug Policy: Towards a Human Rights Based Approach'  (Nov 2009) that explores some of the themes in the IJDP paper in more detail. Highly recommended, it is also available in full here on the International Center for Human Rights and Drug Policy website (pdf).  Barrett's co-author Manfred Nowak is the UNs Special Rapporteur on Torture.

Costa's legacy: Human Rights and the UNODC

Before talking about far more important things going on at this years CND, briefly to this morning, when the NGO representatives had a particularly fractious meeting with the UNODC Executive Director, Antonio Maria Costa. Instead of having a constructive dialogue with the NGOs representatives present, the Director prompted an audible gasp as he immediately lashed out, angrily accusing half of us of being 'pro-drug' (again) and not caring if we killed millions in poor countries. Inevitably several present felt bound to take him to task on these offensive, and frankly ridiculous comments, and depressingly familiar scenes ensued. All rather pointless. There may be other accounts of all this but I won't dwell on it now. Costa is stepping down in May and hopefully a more positive relationship will be possible with his successor. We should also remember that the UNODC is far more than just its figurehead.

More on the activities at CND today from IHRA HR2's day three report , and all the nerdy detail on the CNDblog

Despite Costa parting company with many in the NGO community on a rather sour personal note this morning, the UNODC under Costa has, in fact, seen some considerable improvements in some areas of its NGO engagement - even if often rather begrudging, and more often behind the scenes than at the big showpiece events like the CND, as we have seen.

We should give credit where due; this engagement has delivered some meaningful progress, the Beyond 2008 NGO meeting, for example, producing a potentially useful document (even if CND chose to completely ignore it). Perhaps the most significant development on this front has been the dramatically improved incorporation of human rights analysis from the NGO sector into the wider drug control discourse (for which IHRA's HR2 program and others including Human Rights Watch can take considerable plaudits). Costa, to his credit, has made a series of useful statements on human rights issues, notably on the death penalty.  

As he prepares to bow out he may well also look back at today's publication by the UNODC of new a discussion document, 'Drug control, crime prevention and criminal justice: a human rights perspective - Note by the Executive Director' , as one legacy for which he can be justifiably proud. It contains a level of sophistication in its analysis that has long been absent from the high level drug policy UN discourse. It is an authoritative document and one of potentially huge importance in the longer term. UN drug control, and international drug policy more generally has been uniquely divorced from much of the mainstream human rights analysis that flows through the very core of the wider UN family. This new document goes some way to correcting this historical anomaly  - at least on paper - covering a range of issues including:

• The nature of state human rights obligations within drug enforcement, 
• Issues of proportionality in sentencing
• The use of imprisonment and the death penalty for drug offenses, 
• Due process and treatment of drug offenders, 
• The right to health - including access to clean needles and substitute opiate prescribing for injectors (including in prisons)
• Personal rights regarding coerced treatment and testing 
• The right to provision of essential medicines
• Mainstreaming of human rights in international drug control, including - we were pleased to see  - a call for  a human rights impact assessment  to be used as a evaluative and developmental policy tool, as well as incorporating a human rights compliance assessment into the annual World Drugs Report, and provision of human rights training.

You will forgive the lengthy excerpts that follow, but this is material really worth highlighting. I fully recommend you read the complete report (which provides the context and the references for the quotes below, (that btw include my emphasis)). The body of the report is only 15 pages and by UN standards, its pretty accessible and free of heavy legalese/waffle.

from Para 2:

"The normative foundation of the United Nations’ work in the area of the rule of law work is the Charter and the body of international law, including international humanitarian law, international criminal law, international refugee law, and international human rights law. Responses to drugs, crime and terrorism that are based on the rule of law must therefore also incorporate human rights law and principles. Too often, law enforcement and criminal justice systems themselves perpetrate human rights abuses and exclude and marginalize from society those who most need treatment and rehabilitation"

Para 3:

"Placing human rights at the centre of drug control, crime prevention and criminal justice provides an organizing set of principles that dissolves boundaries between the fields and promotes a single coherent response. Effective drug control cannot exist without fair criminal justice and successful crime prevention. Human rights offer guidance on the delicate balance between the protection of fundamental freedoms and the protection of public health, morals and security. It sets out the broad responsibilities of the State to respect, protect and fulfil the health and wellbeing of its peoples and specific due process guarantees, such as for those suspected or accused of a criminal offence."

 Para 4:

"Such an approach represents more than “added value”; it is a legal obligation. In the 2005 World Summit Outcome, Member States resolved that the promotion and protection of human rights should be both integrated into national policies and mainstreamed throughout the United Nations system. That the fight against drugs, crime and terrorism must conform to human rights is clear. The challenge is to understand how these policies may be pursued in a manner that not only respects and protects human rights, but also contributes towards their positive fulfilment."

Para 8:

"These bodies of treaty law are interdependent and are intended to support elements of the same pillars of peace and security, development and human rights. Nonetheless, references to human rights within the crime, terrorism and drug-related treaties are sparse. This does not mean that human rights law has no application to drugs, crime and terrorism. Rather, where references to human rights do occur in the drug, crime and terrorism conventions, it is clear that the intention is to highlight that international human rights law must be fully respected in their implementation. This is consistent with the core Charter obligation to promote respect for, and observance of human rights."

Para 9:

"No treaty, however special its subject-matter, applies in a normative vacuum, as both general international law (including customary international law) and particular concurrent international obligations affect its interpretation and application.

The question of whether a particular criminal law is inconsistent with international human rights must be assessed on a right-by-right basis. One reason for this is that while some rights (such as freedom of expression, for example) may be limited on the grounds of public safety, order, health, morals and the rights and freedoms of others, other rights may not be limited under any circumstances."

from Para 15:

"In particular, the balance between State action and individual rights can be different when it comes to vulnerable groups. Indeed, human rights law can be said to have a particular focus on marginal groups, vulnerability, disadvantage and discrimination"

Para 17 (on children drugs and rights):

"With respect to children who use drugs and abuse alcohol, the United Nations Committee on the Rights of the Child considers that the right of the child to protection demands that such children should be treated as victims and not as criminals. Indeed, the United Nations Convention on the Rights of the Child — as the only core United Nations human rights treaty to refer specifically to drug use — has a strong focus on protection rather than punishment."

Para 18 (on harm reduction):

"Similarly, as concerns persons vulnerable to HIV/AIDS, the International Guidelines on HIV and Human Rights emphasize that criminal law should not be an impediment to reducing the risk of HIV transmission among injecting drug users, or to provision of HIV-related care and treatment for injecting drug users. " In particular, Member States should consider the repeal of laws criminalizing the possession, distribution and dispensing of needles and syringes, in favour of the authorization or legalization and promotion of needle and syringe exchange programmes.

 from Para 21 (on proportionality)

"..the principle that the severity of penalties must not be disproportionate to the criminal offence is found in a wide body of human rights related standards. This principle includes the notions that imprisonment should be used as a penalty of last resort, and that the choice between penalties  should take into consideration the likelihood of the offender being rehabilitated"

Para 23 - (making a clear case from decrim of personal possession/use)

"In the context of drug laws and sentencing, the drug-control conventions generally require parties to establish a wide range of drug-related activities as criminal offences under their domestic law. Nonetheless, they permit parties to respond to them proportionally, including through alternatives to conviction or punishment for offences of a minor nature. Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice. Moreover, the criminal justice response should not be considered proportionate if it results in the denial of another individual human right. Where imprisonment for possession/use offences precludes access to appropriate drug-dependence treatment, for example, this may constitute a denial of the right to the highest attainable standard of health or even the right to freedom from cruel, inhuman or degrading treatment, rendering the criminal justice response de facto disproportionate."

Para 25/26 (making it clear the death penalty is illegal for any drug crime including trafficking):

"The International Covenant on Civil and Political Rights specifies that in countries which have not abolished the death penalty, the sentence of death may be imposed only for the “most serious crimes”. The concept of “most serious crimes” is limited to those where it can be shown that there was an intention to kill which resulted in the loss of life. The weight of opinion indicates that drug offences (such as possession and trafficking) and those of a purely economic nature do not meet this threshold. Moreover, States that have abolished the death penalty are prohibited to extradite any person to another country where he or she might face capital punishment."

"Despite such prohibitions, a considerable number of the 47 retentionist States that continue to use capital punishment have carried out executions for drug offences in recent years. In some of these countries, drug offenders constitute a significant proportion of total executions As an entity  of the United Nations system, UNODC advocates the abolition of the death penalty and calls upon Member States to follow international standards concerning prohibition of the death penalty for offences of a drug-related or purely economic nature.

Para 27:

Overall, while human rights law does not usually direct the content of criminal laws or penalties per se, it does demand strict scrutiny to ensure that laws do not deny the rights of individuals. In the case of drug laws in particular, obligations to establish offences under the international drug conventions must be fulfilled while at the same time respecting a range of rights, including the right to health, to the protection of the child, to private and family life, to non-discrimination, to the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, and the right not to be subjected to arbitrary arrest or detention. As noted by the United Nations High Commissioner for Human Rights, drug laws frequently overemphasize criminalization and punishment while underemphasizing treatment and respect for human rights.

Para 41 (clarifying the right to health includes access to needle exchange and opiate substitution)

"Accordingly, the right to health calls for access to measures such as counselling, advice, clean needles and syringes, and drug dependence psychosocial and pharmacological treatment, including, where appropriate, opioid-agonists therapy (or long lasting opioid-agonists). Such requirements are fully compatible with those of the international drug control conventions. The International Narcotics Control Board notes that governments should adopt measures that may decrease the sharing of hypodermic needles among injecting users in order to limit the spread of HIV/AIDS.72 It is also of the view of the Board that the implementation of drug substitution and maintenance treatment does not constitute a breach of treaty provisions, whatever substance is used for such treatment in line with established national sound medical practice."

Para 59: (on human Rights Impact Assessments)

"UNODC will consider using, where appropriate, the Human Rights Impact Assessment (HRIA) as a predictive tool for assessing the potential human rights impact of a policy or programme, with the aim of informing decision makers and affected persons. By helping to identify the nature and extent of the potential impact, the HRIA facilitates the adjustment of the proposed policy, mitigating the negative and maximizing the positive human rights impacts. HRIA is a combined tool for risk assessment, civil society engagement and decision-making, geared towards ensuring, from the outset, that human rights are at the centre of all policy and programmes. This is a relatively new and developing area and not without its difficulties, but one which could be of significant value for UNODC as a mechanism to mainstream human rights and operationalize human rights commitments and responsibilities. To this end, the HRIA includes a wide range of activities intended to identify and  manage human rights risk and to evaluate humanrights impact, positive and negative, throughout the life of each project."

Of course, This should all have been said years ago - and might have helped avert all manner of drugwar excess and horror if it had been. None the less, progress is progress and this is a useful foundational document for moving forward. So, well done Costa, thank you, and farewell.

International Centre on Human Rights and Drug Policy launched

On Human Rights Day 10.12.09, Transform Drug Policy Foundation welcomes the launch of the International Centre on Human Rights and Drug Policy. The launch announcement is copied below.

‘Individuals who use drugs do not forfeit their human rights...Too often, drug users suffer discrimination, are forced to accept treatment, marginalized and often harmed by approaches which over-emphasize criminalization and punishment while under-emphasizingharm reduction and respect for human rights.’

Navanethem Pillay
UN High Commissioner for Human Rights, March 2009

Today, Human Rights Day(10 December 2009), is the occasion for the launch of the International Centre on Human Rights and Drug Policy.



The Centre is dedicated to developing and promoting innovative and high quality legal and human rights scholarship on issues related to drug laws, policy and enforcement.

It pursues this mandate by publishing original, peer reviewed research on drug issues as they relate to international human rights law, international humanitarian law, international criminal law and public international law, and fostering research on drug policy issues among postgraduate law and human rights students at universities and colleges around the world.

The Centre’s work is supported by a prestigious International Advisory Committee as well as two Institutional Partners.

At present, the Centre has established two ongoing projects:

• The International Yearbook on Human Rights and Drug Policy is the first and only international peer reviewed law journal focusing exclusively on human rights and drug policy. We are now accepting submissions to the first edition of the Yearbook to be published in late 2010.
  
  
• The Human Rights and Drug Policy Project is a joint initiative with the Irish Centre for Human Rights, Faculty of Law, National University of Ireland, Galway. This Project will establish a Doctoral Studentship in Human Rights and Drug Policy, as well as a programme of activities designed to promote research on drug policy issues among other university human rights programmes. Applications for the Doctoral Studentship are being accepted until 18 December.

For more information, please visit www.humanrightsanddrugs.org or email info@humanrightsanddrugs.org

Project Directors: Rick Lines & Damon Barrett

International Advisory Committee: Dr Massimo Barra (founder, Villa Maraini Foundation, IT); Dr David Bewley-Taylor (Swansea University, UK); Prof Neil Boister (University of Canter(University of Essex, UK); Dr Ursula Kilkelly (University College Cork, IRE), Prof Manfred Nowak (UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment); Rebecca Schleifer (Human Rights Watch); Prof William A Schabas (Irish Centre for Human Rights); Baroness Vivien Stern (International Centre for Prison Studies, UK); Prof Gerry Stimson (International Harm Reduction Association)

Institutional Partners: International Harm Reduction Association; Irish Centre for Human Rights

End the Death Penalty for Drug-Related Offenses

Joint Statement by The Anti Death Penalty Asia Network (ADPAN), of which Amnesty International is a member, Human Rights Watch and the International Harm Reduction Association

As the International Day Against Drug Abuse and Illicit Trafficking approaches on 26 June, the Anti Death Penalty Asia Network (ADPAN), of which Amnesty International is a member, Human Rights Watch (HRW) and the International Harm Reduction Association (IHRA) call upon governments in Asia to cease applying the death penalty for drug-related offences.

There is a clear, longstanding and worldwide move toward restriction or abolition of the death penalty. Only a small minority of countries continue to implement the death penalty: in 2008, 25 countries carried out executions. ADPAN, Human Rights Watch and the International Harm Reduction Association oppose the death penalty in all cases as a violation of fundamental rights- the right to life and the right not to be subjected to cruel, inhuman and degrading punishment.

Sixteen countries in Asia apply the death penalty for drug-related offences. As many countries in the region do not make information on the death penalty available, it is impossible to calculate exactly how many drug-related death sentences are imposed. However, in Indonesia, Malaysia, Singapore and Thailand, reports indicate that a high proportion of death sentences are imposed upon those convicted of drug offences. ADPAN, HRW, and IHRA express particular concern that China, Indonesia, and Vietnam continue to execute individuals for drug offences – and that some countries, such as China since the early 1990s, and Indonesia in 2008, have marked the occasion of June 26 with such executions.

Despite the executions in Asia there is no clear evidence of a decline in drug-trafficking that could be attributed to the threat or use of the death penalty. There is no credible evidence that the death penalty deters serious crime in general more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations (UN) in 1988 and updated in 1996 and 2002, concluded: "...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole gives no positive support to the deterrent hypothesis."

UN human rights mechanisms – including the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, and the UN Human Rights Committee -- have concluded that the death penalty for drug offences fails to meet the condition of “most serious crime”, under which the death penalty is allowed only as an “exceptional measure” where “there was an intention to kill which resulted in the loss of life” (UN Doc, A/HRC/4/20, 29 January 2007, para 53). The UN High Commissioner for Human Rights and the director of the UN Office on Drugs and Crime have likewise expressed grave concerns about the application of the death penalty for drug offences.

Death sentences are often handed down after unfair legal processes, a problem made worse by laws, policies or practices regulating drug offences in some Asian countries. Mandatory death sentences are applied for certain drug offences in Brunei, India, Laos, Singapore and Malaysia, leaving a judge with no discretion over the sentence for defendants found guilty. Mandatory death sentences violate international standards on fair trials. Individualised sentencing is required to prevent cruel, inhuman or degrading punishment and the arbitrary deprivation of life. Singapore, which has one of the highest per capita execution rates in the world, as well as Malaysia, continue to hand down death sentences to individuals alleged to be drug traffickers after trials that presume guilt, and in which death sentences are mandatory.

Confessions that have been coerced sometimes form the basis of guilty verdicts, death sentences and executions. Competent legal assistance is unavailable to many defendants, including defendants facing drugs-related charges, leaving many with little capacity to mount a defence at any stage of the proceedings.

Draconian penalties for drug offences, including the death penalty, hinder public health programmes that reduce the harm drugs may cause to individual drug users, their loved ones, communities and states. China, Malaysia and Viet Nam have recently stepped up their harm reduction programmes to reduce HIV, hepatitis C and other drug-related health and social harms. However, excessive punishments and overly repressive drug law enforcement have been shown time and again to drive target groups away from such services. The death penalty therefore not only violates the right to life of those condemned, but is actually counterproductive to efforts to reduce the harm caused by drugs.

On the occasion of UN Anti-Drugs Day 2009 ADPAN, Amnesty International, Human Rights Watch and the International Harm Reduction Association appeal to Asian governments to:

• Introduce an immediate moratorium on executions with a view to the abolition of the death penalty in line with UN General Assembly resolution 62/149 and 63/168 on “moratorium on the use of the death penalty”;
• Commute all death sentences including for drug offences;
• Remove provisions within their domestic legislation that allow for the death penalty for drugs offences;
• Abolish the use of mandatory sentencing in capital cases;
• Publicize statistics on the death penalty and facts around the administration of justice in death penalty cases;
• Use the occasion of Anti-Drugs Day 2009 to highlight public health policies that have proven effective in reducing drug-related harms.

see also:

The death penalty for drug offences (IHRA 2008)

Keeping the Promise: Human Rights and AIDS

Below are two comments from high ranking UN figures, made on UN world AIDS day. The general tenet of the comments is positive and welcome, particularly the evident change in tone from the UNODC compared to some previous comments. That said, it is hoped that this discourse will develop in the coming years to acknowledge and discuss the role of the punitive prohibitions (enshrined in the UN drug conventions) in undermining human rights, and in creating or exacerbating many drug related harms, not least the context for the spread of HIV/AIDS though illicit drug injecting.

Statement by the UN High Commissioner for Human Rights, Navi Pillay
on the occasion of World AIDS Day

1 December 2008.

This year, we mark both the 20th World AIDS Day and the 60th Anniversary of the Universal Declaration of Human Rights. It is fitting that during these landmark anniversaries we consider how far we have come in the global effort to combat AIDS.

In 2006, UN Member States made a commitment to achieve universal access to HIV prevention, treatment, care and support by 2010. Today, fewer people are becoming infected with HIV, and fewer are dying of AIDS-related illnesses. At the end of 2007, three million people in low- and middle- income countries were taking anti-retroviral treatment. But much remains to be done.

Twenty-seven years after AIDS was first identified, stigma against people living with HIV is as strong as it ever was. One third of countries still do not have laws to protect people living with HIV. In most countries, discrimination remains against women, men who have sex with men, sex workers, drug users, and ethnic minorities.

The continued existence of punitive laws on disclosure of HIV status, the criminalization of the transmission of HIV and travel bans for people living with HIV, inadequate protection of women and girls from sexual violence, the marginalization of and hostility against sexual minorities, sex workers, injecting drug users, prisoners and other vulnerable groups all combine to drive them underground and away from HIV services. Like all people, these groups are entitled to the right to health and the full enjoyment of their human rights even though they may engage in activities that are criminalized in some countries.

AIDS thrives on injustice and inequality. A human rights-based response is critical to preventing new HIV infections and mitigating the epidemic's impact – whoever people are, and wherever they live.

In this 60th anniversary year of the Universal Declaration on Human Rights, it is unacceptable that accident of birthplace or residence should determine our HIV survival prospects.

On World AIDS Day 2008, let the promise of human dignity enshrined in the Universal Declaration of Human Rights provide the vision and impetus for reinvigorated efforts to achieve universal access to HIV prevention, treatment, care and support.

Statement from UNODC Executive Director Antonio Maria Costa
on World AIDS Day

"Let us invest in our young people"

Today, we mark the 20th anniversary of the World AIDS Day. Long ago, we pledged to "keep the promise" but we have not. AIDS is still with us. Among the estimated 16 million people injecting drugs worldwide, one in five will likely contract HIV.

Is "AIDS fatigue" setting in as other global problems compete for attention? United Nations Secretary-General Ban Ki-Moon has declared that the challenge is to sustain leadership in this fight. Without strong and committed leadership, we will fail.

It is scandalous that less than 10% of injecting drug users have access to evidence-based HIV prevention and care services. It is time to bring health back to the mainstream of drug policy. The goals are within reach. New analyses could better guide national HIV prevention programmes and treatment programmes are expanding.

As we prepare to mark the 60th anniversary year of Universal Declaration of Human Rights, we should remember that the human rights of vulnerable groups, including drug users and prisoners, are violated everyday. Instead of showing compassion we stigmatize drug users and cast them out as pariahs. No wonder many shun life-saving HIV prevention, treatment and care.

Drug-related HIV particularly afflicts young people, cutting down tomorrow's leaders in their prime. Young people aged between 15 and 24 account for an estimated 45 per cent of new HIV infections. .

Sharing contaminated needles is almost a sure-fire route way to HIV infection. Yet many young people still lack accurate information about how to avoid exposure to the virus.

Let us empower the youth with information. We must start showing leadership now.

Stopping the spread of AIDS is not only a Millennium Development Goal; it is an investment in the next generation.

That is why UNODC's campaign tells young people "Think before you start. Before you shoot. Before you share".

See also:

• UN special rapporteur documents systematic torture of drug suspects in Indonesia
  
  
• UN Secretary General calls for decriminalisation of injecting drug users
  
  
• UNAIDS and NGO statements shake CND out of its stupor
  
  
• The IHRA HR2 blog

Thailand's latest crackdown raises concerns over human rights violations

The Thai government announced last week that they are launching a new crackdown on drugs . According to the Bangkok Post;

‘Prime Minister Somchai Wongsawat has ordered a new crackdown on drug peddlers…. This has raised concerns, particularly on the civil rights front.’

Wongsawat: Thailand's new drug warrior

In fact the Thai authorities appear to issue statements about ‘new’ crackdowns with some regularity – the last one, due to last 6 months, started in February. Announcing such crackdowns is in many respects the sort of populist posturing seen the world over (not least in the UK); if the policy outcomes from your drug policy are all terrible, just announce some tough sounding new stuff to show you are doing something (evidence of effectiveness not required). Thai newspaper The Nation notes;

‘Normally, a move like this is perfect for frustrated Thai politicians looking to win quick political points in times of desperation.’

In 2003 then Prime Minister Thaksin Sinawatra instituted his now notorious ‘war on drugs’ that resulted in over 2500 extra-judicial killings - the reason that Thai drug crackdown announcements send a chill through human rights observers. The new Prime Minister (and brother-in-law of Thaksin), Somchai Wongsawat, has defended the ex-premier’s part in it saying,

'It was not extra-judicial killing by police. They were killed by drugs dealers.'

This follows Thaksin’s line whilst in power that the deaths were simply,

‘…the result of bad guys killing bad guys.’

An official investigation in 2007 found that over half of those killed had no connection whatsoever so drugs - that's over 1000 individuals murdered. A devastating report on the atrocities was published in 2004: 'Not Enough Graves: Thailand’s War on Drugs, HIV/AIDS, and Violations of Human Rights'. As recently as February 2008 Human Rights Watch reported that a Thai police captain and seven other members of the Border Patrol Police (BPP) had been arrested on suspicion of human rights abuses and corruption after 61 people filed complaints ranging from abduction to torture by the BPP.

In 2005 the UN Human Rights Committee raised concerns over the number of executions and since then UN Secretary-General Ban Ki-Moon has called for increased protection for the health and human rights of people living with HIV, sex workers, men who have sex with men, and young people who inject drugs. Even the director of the UNODC has said that,

“It stands to reason, then, that drug control, and the implementation of the drug Conventions, must proceed with due regard to health and human rights.”

PM Somchai has tried to placate concerned observers by claiming that,

‘Implementing extra-judicial killings to solve the drugs problem is absolutely banned.'

However despite this statement and the reaffirmation of Thailand’s commitment to the UN Human Rights declaration on the 60th anniversary of its signing, there is concern that the crackdown will again lead to more human rights abuses.

In related news, the British government has revoked the visa of Thaksin Shinawatra who has been sentenced (in absentia) by a Thai court to three years in prison for corruption. The fact that he instigated and approved a program of 2500 largely indiscriminate and entirely illegal extra-judical civilian murders seemed not the bother UK immigration officials (or for that matter Man City Football club) but corruption is obviously a bigger issue for Britain’s government and its much lauded ‘ethical foreign policy’.

While Thaksin and his wife search for somewhere to take him in - a number of Asian countries including the Phillippines have refused him entry – Thai authorities have vowed to extradite him in order to serve his punishment. It is unlikely he will ever face justice for his murderous drug war.

Government challenged on drugs law

Last week, Edwin Stratton, appeared in magistrates court to defend himself on a charge of cannabis cultivation. He had refused a caution on arrest.
His legal defence was put together by Casey Hardison and he was represented by Darryl Bickler in court.
He is running a brilliant and innovative defence claiming that the Government is abusing its power by unlawfully discriminating against those who are in possession of drugs that have been criminalised.

Transform do not claim to be legal experts and, rather than attempt to translate it for you, I have pasted the skeleton defence and Ed's press release below.

We want to stress that some legal experts have expressed doubts about this defence, and that it is crucial that anyone seeking to make use of it, gets the best professional legal advice they can.

Transform is delighted to see some headway being made here, (particularly with this defence) and we are keen to hear from legal experts who may be able to provide support for Ed's defence.

See also drugdiscrimination.org

and Drug Equality Alliance

The case has been adjouned until 6 November so that Ed can secure legal representation and make an application to the Divisional Court for a stay.

Skeleton Argument for Edwin Stratton


1. The defendant client objects to this indictment under s7 of the Indictment Act 1915 due to an executive abuse of power that threatens his basic human rights -and the rule of law. Cf. Archbold §1-191 (j) and 4-47 et seq.

2. Accordingly the defendant seeks either 1) to stay the indictment; 2) an adjournment of these proceedings so he can pursue the matter in the Divisional Court; or 3) For this court to decline jurisdiction and require the matter to be pursued in the Divisional Court. Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50.

3. The abuse:

a. The defendant believes that the Misuse of Drugs Act 1971 c.38 (“the Act”) is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights. This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.

b. The Government’s Position:

"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".

c. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 respect for private life, inter alia. More, the Government’s position includes errors of law and fact.

d. Unjustifiable discrimination: The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act, and (b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act. The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq; Pretty v UK [2002] 35 EHRR 1 at para 77: “Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.”

e. Failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import. The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade: (a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and (b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do. The Act therefore fails to justifiably discriminate between those in different situations. Cf. Thlimmenos v Greece [2000] 31 EHRR 411 para 44: “The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

4. As a result of this abuse by the executive a fair trial is not possible. The Defendant’s remedy lies with the Divisional Court.

CPS Guidance – Abuse of Process - Misuse of Process - f. Unconscionable behaviour by the executive
This category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).

Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates Court, per Lord Griffiths at 152 H-J). Where the defence wishes to make such an application at the beginning or as a preliminary to trial, the proper procedure is for the instant proceedings to be adjourned and for the defence to commence proceedings in the High Court for a declaration that continuing the prosecution would amount to an abuse of the process.

In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:

“There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”


9th October 2008 PRESS RELEASE

Government challenged on drugs law

Edwin Stratton, 43, of Leyton, London, is charged with production of cannabis under the Misuse of Drugs Act 1971 (“The Act”). He has today given notice of his intention to challenge the legitimacy of this prosecution in the High Court as an abuse of process. This assertion is evidenced by the bias and discrimination inherent in the policy that equally harmful drugs and those exercising property rights in such drugs should be treated differently in law. The defence claims a majoritarian abuse of power by the executive in the administration of drugs legislation. The rights afforded under the Human Rights Act 1998 guarantee freedom from arbitrary discrimination: this claim is grounded in the unequal protection afforded to drug property rights between ‘licit’ and ‘illicit’ drugs. This challenge seeks to hold the government and the Advisory Council on the Misuse of Drugs (“ACMD”) to account for an alleged irrational administration of the law which has led to countless thousands of lives lost and destroyed in the so-called ‘War on Drugs’.


1. Edwin is being prosecuted for his medical use of cannabis which he attempted to grow in the privacy of his home. He suffers from a hyper-sensitive form of coeliac disease which leaves him with constant pain and nausea for which cannabis is uniquely effective in his experience, and without the dreadful side-effects he experiences with prescription drugs.

2. Due to the nature of this legal challenge, which squarely puts the government’s application of the law in the spotlight - this case must, according to law, be heard in the High Court.

3. Edwin says: “Drugs legislation intends to protect us from harmful drugs. I absolutely agree with that aim, but the present policy is a disaster from a harm-reduction perspective. The legal classification of drugs is entirely inconsistent with the objective of creating a criminal tariff of punishments for drugs offences according to their relative harmfulness or potential for harm”.
Support for this position has come from organisations such as Transform Drug Policy Foundation, Release, the Beckley Foundation, The Parliamentary Select Committee on Science and Technology and the ACMD’s own prevention working group in their 2006 report ‘Pathways to Problems’. The incoming chair of the ACMD co-authored a March 2007 report in the Lancet, which presented a hierarchy of drug harm as determined by experts, elucidating the arbitrariness of the current classification of drugs under the Act.

4. The discriminatory application of law is starkly obvious when we factor in the harms caused by alcohol and tobacco, which together kill 150,000 people in the UK every year. Despite over 800,000 hospital admissions last year due to alcohol abuse, cannabis users cause far less harm to themselves and others and yet are compelled not only to risk arrest, prosecution and imprisonment, but also must endure the risk of dealing with criminal elements, risk their health due to contaminants, and risk exposure to products of unknown strength – all of which Edwin sought to avoid by growing it himself. Despite awareness campaigns, the legal status of alcohol and tobacco falsely signifies that these drugs are safer than many controlled drugs; this results in a lack of proper legal protection for alcohol and tobacco users in comparison to the stringent controls over equally harmful controlled drugs. Edwin says that “my advisers consider that the government does not have the discretion in law to exclude dangerous drugs from the remit of the enforcement legislation on the arbitrary basis of ‘cultural and historical precedents’. Government insists that the responsible use of alcohol and tobacco can be maintained without subjecting either to controls under the Act, whereas this possibility is denied to users of other equally harmful drugs, these double standards perpetuate detrimental consequences to users of all kinds of drugs”.

see HM Government official response to the Cabinet Office Better Regulation Executive (September 27th 2007).

5. Edwin is a part of a campaigning network known as the nascent DEA (Drug Equality Alliance). Individuals can register their support by visiting www.drugequality.org - the group is seeking to achieve one million site hits this year to illuminate support for a much needed transformation of the impasse causing so much harm to people who use drugs of all kinds.

Contact: edwinstratton1@googlemail.com

UN special rapporteur documents systematic torture of drug suspects in Indonesia

I recently came across a UN report, published in March, by Manfred Nowak, the UN's Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in which he chronicles the shocking mistreatment routinely meted out by police upon drug suspects in Indonesia. The report makes for grim reading and whilst not specifically focused on drugs policy it comes as little surprise that drug suspects form a substantial proportion of the abuse victims he details. Nowak notes that:

"Indonesia has not outlawed torture under its criminal legislation. Indonesian law does not contain an explicit prohibition of torture. This, combined with the absence of procedural safeguards against torture, the lack of independent monitoring mechanisms and of effective complaints mechanisms results in a system of quasi-total impunity."

It is hoped that this report, and its public dissemination, will lead to a change in enforcement culture in Indonesia, and highlight that everyone has inalienable human rights, including not being tortured whilst in custody, regardless of the offense. The UN declaration of Human Rights preamble states that:

'Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'

'Everyone' includes drug users, drug suspects, and drug criminals.

The following are directly quoted from Nowak's report:

"22. The overwhelming majority of the detainees interviewed indicated that the ill-treatment was used primarily to extract confessions or, in the cases of drug-related crimes, to receive information on drug suppliers. In a number of cases detainees were offered to be spared in return for the payment of a substantial amount of money. Those interlocutors who had been already tried reported in unison that their coerced confessions had been used during the court proceedings and that objections they had raised were not considered by the judge, prosecutor or even their own legal aid clerk. Furthermore, they were not aware of any complaints mechanism to which they could address their grievances expecting any kind of outcome."

"64. Whereas in some police stations he did not receive any allegations of ill-treatment, in other facilities, in particular in urban areas, torture and ill-treatment is used routinely to extract confessions or in the context of drug charges to reveal dealers/suppliers. In three police stations, the Special Rapporteur arrived while beatings were taking place, and in several places he found persistent medical evidence of several types of ill-treatment, which are in line with reports by prisoners and various other credible sources received prior and during his visit."

"23. Achmad Alfian, aged 20, was arrested by officers of Polsek Tanabang in July 2006 while buying drugs. Although he did not resist, he was handcuffed and beaten with the but of a gun on his head. He was then transferred to the Polsek. During the ensuing interrogation he was beaten with a rubber stick all over his body, but particularly on his head and back in order to force him to confess to being a drug seller. Mr. Alfian refused and was charged. Furthermore, he had to pay 500 000 IDR (about 53 $US) for being put in a cell which was supposed to be of better quality than the others. In September 2006, Mr. Alfian was transferred to Pondok Bambu pre-trial detention facility. He constantly feels dizzy and has headaches."

"73. Detainee, aged 40, accused of a drug crime, was arrested on 27 August 2007 by seven drug police officers under the command of Iptu Alawah in his room in Jayapura. Upon his arrest he was handcuffed, forced to sit and beaten and kicked by them. They reportedly also stepped on his body and legs. He further complained about the lack of food."

"80. R., aged 25, from Makassar, was arrested on 25 May 2006 by the drug police. He was kicked in the stomach and hit on the face in the street for one hour, when he refused to tell where his drugs came from. He was then transferred to POLSEC Mamadjanj, where the beatings continued and he was hit with wooden sticks and hands all night until he told the names of the drug sellers."

"109. Mr. Zulfiqaraw, aged 40, from Lahore, Pakistan, was arrested at Jakarta Airport in November 2004 on allegations of drug related offences. While he was abroad the police raided his apartment in Jakarta which he shared with a friend who possessed drugs. Despite the friend’s confession and assurances that Mr. Zulfiqaraw was not involved in any drug related matter, the police took Mr. Zulfiqaraw from the airport to a private house, where he was tortured for three days. He was frequently punched, kicked and threatened with being shot unless he would confess. Nobody knew his whereabouts. After three days his health deteriorated so much that he had to be taken to the police hospital, where he was treated for 17 days. Subsequently, he was transferred to Polda Jakarta where he spent two and a half months in official police custody. The prosecutor in charge, Mr. Hutagaol, offered to drop any charges for a payment of 400 million IDR (about 42,700 $US). Mr. Zulfiqaraw perceived his ensuing trial as strikingly unfair and biased against him since he is a foreigner. No convincing evidence was presented; during the trial session his judge fell asleep. He did not receive any legal aid although he was not able to finance a lawyer; his embassy was wrongly informed and failed to support him. He was sentenced to death."

"121. Eko, aged 28, law student from Blora, Central Java, was arrested by six police officers at his home on 23 December 2006 based on the order of the head of the drug unit of Polres Sleman. He was kicked and punched by the officers and then taken to the Polres where he was interrogated in the office of Mr. Kurniawan. During interrogation he was electrocuted, got hammer blows on his fingers and was beaten by four police officers for one hour. The police officers also banged a chair on his body and put it on his toes. Following this treatment, he confessed, and Mr. Kurniawan offered him to drop some charges in exchange for money. He did not receive any medial treatment for his wounds and scars but the other detainees gave him some medicine. He was kept in Polres police custody for two months and then transferred to the prison LP Cebongan where he spent six months. At the Polres visitors had to pay 10 000 IDR (1 $US) to see him. The Prosecutor at the District Court offered mitigation in exchange of money. The Prosecutor was informed about the ill-treatment and the confession under torture, but this did not affect the outcome of the trial."

"127. On his way to the debriefing meeting with the authorities, the Special Rapporteur found Mr. Zulfikar, aged 20, accused of a drug related crime, who had just been tortured in office No. 50. He had been beaten with a stick and a white plastic pipe by four police officers named Briptu Arika (Reskrim); Briptu Safari S.Y. (SAT NARKOBA); Briptu Agmeg Jatmiko (SAT NARKOBA); and Briptu Opar S. (SAT NARKOBA), which left very clear and distinguishable marks on his arm. The Head of the Narcotics Unit (Andri Triasfoetra, SIK) tried to deny the Special Rapporteur access, arguing that his mandate does not cover persons outside detention places (i.e. under interrogation).

128. The findings of the forensic expert (who recorded the evidence) as well as Mr. Zulfikar’s girlfriend, whom the Special Rapporteur interviewed, confirmed that Mr. Zulfikar had been tortured. She had been arrested together with him and put in the room next to the office where Mr. Zulfikar was ill-treated. She reported that she had heard his screams. She was extremely afraid of the police officers and cried repeatedly when interviewed by the Special Rapporteur. Although Mr. Zulfikar and his girlfriend were both extremely afraid of reprisals for speaking with the Special Rapporteur and begged for protection, the request of the Special Rapporteur to release them was not complied with. "

"139. Suhenry, aged 34, from Aceh, was arrested by five officers of Polres South Jakarta District in November 2006 in connection with a drug related crime. In the course of the first three days he was repeatedly interrogated by two officers in an ordinary office room on the second floor with the aim of identifying his supplier. When Mr. Suhenry refused to indicate his name they pressed his hand on the desk and beat his palm and fingers with a hammer. Furthermore, they used electroshock devices to electrocute him and punched him all over the body. At one point, the officers offered to let him escape, however, Mr. Suhenry stayed since he believed that this was a trick in order to shoot him during what would be later presented as an attempt to flee. The officers also put a plastic bag over his head, but Mr. Suhenry managed to bite a hole in it enabling him to breath. Eventually, Mr. Suhenry confessed in order to end the torture."

"141. After having inspected the cells, the Special Rapporteur ran into Mohammed Tasroni, aged 17, from Jakarta, who was handcuffed to a chair in an office belonging to the drug unit on the fourth floor. Mr. Tasroni was in the process of being interrogated by Mr. Sudartianta (No. 65080313) and had very strong swellings on this face as well as other traces of recent beatings all over his body.

"142. Mr. Tasroni reported that he had been arrested a few hours earlier near the Jatinegara Train Station, East Jakarta. There, he had met an old acquaintance whom he had not seen for a very long time and who asked to provide him with a dose of marijuana. After Mr. Tasroni had arranged for the drugs and handed them over to the former, it turned out that he was actually an undercover police officer working for the pursuit and attack team (“Buser”) of the Criminal Investigation Department. Mr. Tasroni was arrested by several plain-clothes police officers and taken to a private house, which appeared to be an empty office building, in a civilian Kijang car. Once in the house, the officers started to punch and kick Mr. Tasroni all over his body and on his face. He was also heavily beaten on his back. Mr. Tasroni was told the beating would not stop unless he would reveal the identity of his drug dealer. The beating was inflicted in the presence and with the participation of Mr. Bambang (AKP), the chief of Unit III/Baya of the Narcotics
"

For more detailed and up to date coverage of drugs and human rights issues visit the IHRA HR2 blog. The HR2 team will be holding a joint event with HUman Rights Watch at the UN Human Rights Council in Geneva later this month. Details here.

UN CND: final human rights resolution emerges in diluted form

At March's UN Commission on Narcotic Drugs in Vienna I had witnessed at first hand the painful process of some of the more progressive countries trying to have a resolution on human rights compliance in international drug policy adopted, against the express wishes of small group of opposing countries, perhaps unsurprisingly made up largely of some of the world's most notorious human rights abusers.





It was a welcome experience to be genuinely supportive of the UK's official high level efforts in the international arena, and impressed by their principled commitment to human rights despite potential political or diplomatic costs. The UK delegation was notably supported by various NGO partners, most prominently the IHRA HR2 team who deserve particular praise for their expert input on points of human rights law.

The Committee of the Whole at the UN CND (March 2008)

The human rights resolution has now been published in its final form - which is notably different from that in which it was originally submitted to the CND's Committee of the Whole for discussion (the COW is the sub-committee that discusses resolutions that are then agreed in the main plenary session). The COW's deliberations were often tortuous with hours spent wrangling over seemingly irrelevant tweaks in precise wording of specific sentences or the positioning of a punctuation points. Petty disagreements between countries, often evidently reflecting wider geo-political tensions that had little to do with the matters being discussed, were frequently played out in tense and protracted head to heads over minute often pointless details. Some countries (most prominently and perhaps least surprisingly; China), tried to have the resolution scrapped altogether, whilst others insisted that key sections be dramatically revised or removed completely. Notable casualties of this lengthy editing purge were any references to the rights of indigenous peoples (from countries with particular indigenous peoples issues), and any references to the death penalty (from retentionist states) although the issue of the use of the death penalty in drug enforcement practice loomed large elsewhere in the CND.

The other most notable change from the original text is the drastic excision of any real operational elements within the resolution relating to effective monitoring and reporting on human rights compliance in drug enforcement or any deadlines or commitments for the UNODC itself. Instead what remains is a worthy but essentially toothless re-commitment to the broad human rights principles of the UN.

None the less this still represents a substantial achievement for the nominating countries, as the first time that a human rights resolution has been passed by the CND in 51 sessions, as a useful starting point in developing future resolutions and policy discussions on human rights at UN level (it prompted several hours of unprecedented debate on the issue in the plenary), and as a real achievement for NGOs and civil society engagement with the CND. Despite other frustrations with the leaden bureaucracy's of the CND more generally, the NGO involvement in the process can be seen as positive step forward at this important juncture in UN drug policy with the 10 year strategy review approaching.

For more discussion see various accounts on the March CND on the IHRA HR2 blog:

A detailed account of the final resolution text, and how it was adapted from the original:

• The Life of a Human Rights Resolution at the UN Commission on Narcotic Drugs

How China and others attempted to derail and water down the resolution

• Discussion of political issues such as human rights are inappropriate at CND” – China leads charge against human rights resolution

An account of the process made at the event

• CND passes a ground-breaking - yet watered down - human rights resolution

For related discussion of current UN drug policy issues see also the new Transnational Institute UNGASS 10 year review page.

Transform will be attending the UN's NGO forum 'Beyond 2008' in Vienna in June (where the reports from the 8 regional consultations will be discussed and synthesised into one final report to be submitted to the 2009 CND as it deliberates over the next ten year strategy), as invited delegates and in our capacity holding special consultative UN ECOSOC status.

UNODC Director declares international drug control system is not ‘fit for purpose’

Below is a copy of our latest press release, drawing attention to one of the more encouraging discussion papers to emerge from this month's UN Commission on Narcotic Drugs in Vienna - now available on the UNODC website. More coverage of the CND here here here and here. See also TNI and IHRA HR2 blogs. More discussion to follow.

UN building in Vienna, host to this years CND

Executive Director of UN Office on Drugs and Crime declares international drug control system is not ‘fit for purpose’

In an extraordinarily candid report, the head of the UN agency responsible for overseeing the international conventions on drugs, describes the multi-lateral drug control system as not ‘fit for purpose’. He also explains how the international regime has created significant unintended consequences.

The report, "Making drug control 'fit for purpose': Building on the UNGASS decade" was made available, but not widely disseminated, at the Commission on Narcotic Drugs in Vienna earlier this month.

It states:

“There is indeed a spirit of reform in the air, to make the conventions fit for purpose and adapt them to a reality on the ground that is considerably different from the time they were drafted. With the multilateral machinery to adapt the conventions already available, all we need is: first, a renewed commitment to the principles of multilateralism and shared responsibility; secondly, a commitment to base our reform on empirical evidence and not ideology; and thirdly, to put in place concrete actions that support the above, going beyond mere rhetoric and pronouncement." (p.13)

“Looking back over the last century, we can see that the control system and its application have had several unintended consequences - they may or may not have been unexpected but they were certainly unintended.” (p.10)

“The first unintended consequence is a huge criminal black market that thrives in order to get prohibited substances from producers to consumers, whether driven by a 'supply push’ or a 'demand pull', the financial incentives to enter this market are enormous. There is no shortage of criminals competing to claw out a share of a market in which hundred fold increases in price from production to retail are not uncommon”. (p.10)

“The second unintended consequence is what one night call policy displacement. Public health, which is clearly the first principle of drug control…was displaced into the background”. (p.10)

“The third unintended consequence is geographical displacement. lt is often called the balloon effect because squeezing (by tighter controls) one place produces a swelling (namely an increase)in another place…” (p.10)

“A system appears to have been created in which those who fall into the web of addiction find themselves excluded and marginalized from the social mainstream, tainted with a moral stigma, and often unable to find treatment even when they may be motivated to want it.” (p.11)

“The concept of harm reduction is often made into an unnecessarily controversial issue as if there were a contradiction between (i) prevention and treatment on one hand and (ii) reducing the adverse health and social consequences of drug use on the other hand. This is a false dichotomy. These policies are complementary. (p.18)

“It stands to reason, then, that drug control, and the implementation of the drug Conventions, must proceed with due regard to health and human rights.” (p.19)

Danny Kushlick, Transform Drug Policy Foundation Director said:

“This report is a welcome contrast to the politically motivated rhetoric that has dominated much of the Commission on Narcotic Drug’s deliberations in the past. Mr Costa is to be congratulated for clearly stating what many in the drug policy reform movement have been saying for decades. That, for all its good intentions, the international drug control system has created unsustainable negative consequences and that its fitness for purpose in the modern world, and possible reforms, must be fundamentally explored.

“It is to be hoped that the issues that the Director has raised are seriously debated by and amongst member states in the coming year of review for the UN drug strategy. Despite the positive words from the UNODC director this substantive debate has clearly not begun yet.”

ENDS

Contact:

Danny Kushlick, Director +44 (0) 7970 174747
Steve Rolles, Information Officer +44 (0) 7980 213943

Notes for Editors:

"Making drug control 'fit for purpose': Building on the UNGASS decade" (pdf)

(update April 02: the above link is now to the UNODC site instead of the scanned copy previously on the Transform website)

• In its review of UK drug policy of 2002 the UK Parliamentary Home Affairs Select Committee made 24 recommendations including:

"That the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways - including the possibility of legalisation and regulation - to tackle the global drugs dilemma." (recommendation 24)

• In 2003 the UK Government published the Prime Minister’s Strategy Unit report on drug policy, demonstrating that global supply side enforcement was responsible for many of the harms associated with the trade and use of heroin and cocaine. Full report available here Transform briefing on the report here )

Image copyright Transform 2008