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Sunday, February 23, 2020
LONDON, Mar 28 2012 (IPS) - In a world where drug offences are punishable with the death penalty, torture or arbitrary detention, we must ask how far States can go to enforce the global prohibition on drugs.
According to the so-called ‘guardian’ of the international drug control treaties – as far as they want.
On several recent occasions, the International Narcotics Control Board (INCB) has refused to offer an opinion on sanctions that violate international law – even if those sanctions are imposed in order to comply with the drug control treaties.
Earlier this month, INCB’s president, speaking on behalf of the Board, said they would remain silent even when confronted by atrocities, including torture. Why? Because such abuses are not written into the specific terms of the drug conventions.
Sanctions for drug offences that violate international legal norms are common. They include the death penalty for drug offences – a violation of the right to life according to the United Nations Human Rights Committee and multiple other U.N. human rights monitors.
They also include corporal punishments like whipping, flogging or caning, widely accepted as cruel, inhuman or degrading punishment (and therefore absolutely prohibited under international law), or even torture (a criminal offence); and detention of people who use drugs, without trial or any semblance of legal or medical due process, in centres where physical, mental and sexual abuses have been documented.
In a dialogue with civil society leaders in early March, Hamid Ghodse, president of the INCB, was asked, “Legal sanctions in different countries include extrajudicial murder, extrajudicial killings, torture – (is) there no atrocity large enough that you could possibly step outside your mandate and say something?”
To which Ghodse replied, “No, 100 percent not. Because, just basically, we are not there to express our opinion.”
This is a stunning admission from the head of a quasi-judicial monitoring mechanism and, in the view of Harm Reduction International, seriously flawed in its legal reasoning.
Claiming that rules relevant to international drug control do not interact with human rights law is a bit like saying that traffic regulations and criminal law never intersect. In fact the idea that laws exist in their own self-contained bubble undermines the very principle of the Rule of Law as a cross-sector social foundation.
In any event, there are numerous international sources clarifying that treaties must be interpreted alongside ‘any relevant rules of international law applicable in the relations between the parties.’
Those include the Vienna Convention on the Law of Treaties and the International Law Commission, a “principal organ” of the U.N. charged with codifying international law, both of which are clear that, “No rule, treaty, or custom … applies in a vacuum.”
This apparent error in reasoning was shared with Ghodse, who replied, “Thank you for that advice. We are not going to do anything more on that. You can continue with your (different) views.”
The Board can and does make recommendations on a range of issues outside of the strict terms of the drug conventions, even when international law has nothing to say. Still, what makes the INCB’s position so alarming is that these human rights abuses are not hypothetical concerns.
Harm Reduction International estimates there are approximately 1,000 people executed every year for drug offences. Thousands are flogged, caned or whipped for using drugs every year. And in Vietnam alone, between the year 2000 and 2010, over 309,000 people passed through drug detention centres where abuse and forced labour are common, according to Human Rights Watch.
Yet in its very recent 2011 annual report the INCB welcomed “the steps taken in Vietnam to improve the treatment and rehabilitation of drug abusers” and “encouraged the Government to reinforce and support existing facilities as well as to undertake capacity-building in the field of treatment for drug abusers.”
This encouragement came after the U.N. Special Rapporteur on the right to health, Anand Grover, called on compulsory drug detention facilities in Vietnam be closed, calling them “ineffective and counterproductive”.
At the time Grover wrote, “Detainees are denied the right to be free from non-consensual treatment as well as the right to informed consent in all medically related decisions.”
A couple of weeks after the INCB applauded Vietnam, twelve U.N. agencies, including the U.N. High Commissioner for Human Rights, the United Nations Children’s Fund (UNICEF), the World Health Organization (WHO), UNAIDS, and others, called on compulsory drug detention centres around the world to be closed.
It should be noted that in 2003, the INCB did include a paragraph in one report citing various U.N. organs’ views on the death penalty. And in 2007, the Board also wrote a chapter on proportionality, in which it stated that lack of respect for human rights could undermine the implementation of the drug conventions.
But these earlier statements only serve to undermine Ghodse’ comments last week, and reinforce the necessity for strong human rights components in the INCB’s work.
Asked for its view on the death penalty for drug offences several weeks ago, the INCB said that such sanctions were the “exclusive prerogative” of States. We had thought that, when presented with the logical conclusion of that statement, the INCB would realise its error and recognise that the drug conventions have to be implemented in line with human rights law.
Instead, the INCB has adopted skewed logic and inconsistent reasoning to defend this line of argument, and accept the nonsensical conclusion that no matter the atrocity committed in the context of drug enforcement, this quasi-judicial mechanism will not condemn it.
This makes it a poor custodian of any treaty, much less one that is so fraught with human rights implications as the drug control conventions.
*Patrick Gallahue is a human rights analyst with Harm Reduction International, an international NGO in Special Consultative Status with the Economic and Social Council (ECOSOC) of the United Nations.
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