By Dr Rick Lines. Rick s the Executive Director of Harm Reduction International, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is Chair of the International Centre on Human Rights and Drug Policy. You can follow him on twitter: @LinesRick
The recent mass executions of drug offenders in Indonesia have rekindled international debate on the death penalty for drug offences. A key flashpoint of this debate is whether drug crimes are of a sufficient severity to be capital crimes.
While not absolutely prohibited in international law, Article 6(2) the International Covenant on Civil and Political Rights limits the lawful application of capital punishment to what the treaty terms ‘most serious crimes’. The Indonesian Government and its defenders argue that the Covenant does not define ‘most serious crimes’, and that it is therefore within the purview of sovereign States to decide this threshold themselves.
This is a common argument from retentionist States, and one that contains a number of flaws, the most elementary being that the relevant international human rights authorities have indeed provided a definition of ‘most serious crimes’, and havespecifically stated on more than one occasion that drug offences of any kind do not meet this threshold. Another is the danger when States alone are allowed to define their own interpretations of ‘most serious crimes’. As described in the 2007 report of the UN Special Rapporteur on Extrajudicial Killings, capital crimes in domestic law include abetting suicide, adultery, apostasy, corruption, economic crimes, the expression of conscience, financial crimes, embezzlement by officials, evasion of military service, homosexual acts, illicit sex, sexual relations between consenting adults and religious practice. Clearly allowing Statesto set their own standards makes a mockery of the notion of a ‘most serious crimes’ threshold, and quickly becomes a slippery slope towards major human rights violations.
Ironically, if retentionist States are truly seeking more explicit guidance on the question of ‘most serious crimes’ in the drug context, they need look no further than the international drug control treaties, which offer a specific legal framework for assessing the severity of drug offences. The key instrument in this regard is the 1988 Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the third and most recent United Nations drug treaty. The earlier UN drug treaties, the 1961 Single Convention on Narcotic Drugs and 1971 Convention on Psychotropic Substances, describe only ‘offences’ and ‘serious offences’ in the relevant articles addressing ‘Penal Provisions’. However, Article 3 of the 1988 drug convention is intended to provide ‘guidance’ to States on the ‘aggravating circumstances’ that might further clarify the gravity of drug offences in these earlier drug treaties, according to the convention’s Official Commentary
Article 3 proscribes a wide range of activities related to the production, cultivation, trafficking, transportation, possession or purchase of illegal drugs, as well as other offences related to laundering of proceeds from the drug trade. It specifies that while all of these offences are ‘grave’ and ‘serious’ in nature, there are additional aggravating elements that may elevate these ‘serious’ offences to the level the treaty defines as ‘particularly serious’. These aggravating factors include participation with domestic or international organised criminal groups, the use of violence or firearms, the involvement of minors and/or the collaboration of public officials. Absent these aggravating factors, none of the ‘serious’ offences in Article 3 satisfy the ‘most serious crimes’ threshold within international human rights law, for the simple reason that they do not even meet the highest threshold of criminality within the drug control regime itself.
Therefore, under the international drug treaties, the number and type of offences that can be characterised as most egregious are extremely limited, meaning that the vast majority of capital drug offences enshrined in domestic legislation are either too narrow in scope, too small in quantity or too informal in criminal organisation to satisfy this higher threshold, even within the drug control framework. As a consequence, most drug offences for which the death penalty is applied in national courts cannot be ‘most serious crimes’ under international human rights law as they are not even ‘particularly serious’ crime under international drug control law. In the Indonesian case, for example, the types of courier offences for which the recent executions took place fall below the ‘particularly serious’ category under Article 3. Executions taking place in such circumstances are violations of international law, a fact made irrefutable by the clear hierarchy of drug offences contained in Article 3.
Unfortunately, the rationale behind the drafters’ choice of the ‘particularly serious’ term, and its relationship if any to the notion of ‘most serious crimes’, is elusive. Despite spending many hours in the archives reviewing the drafting history of the 1988 drug treaty, the manner in which this language was selected is unclear, and was agreed in a side working group of the drafting conference for which I have yet to find written record. However, when Article 3 is considered in the context of Article 6(2) of the Covenant, we can see that even these ‘particularly serious’ drug crimes fall below the ‘most serious crimes’ threshold. For this we look to the Vienna Convention on the Law of Treaties for guidance, which defines the ‘General Rule of Treaty Interpretation’ under Article 31. Article 31 specifies the importance of interpreting treaty provisions ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty’. Using this ‘ordinary meaning’ test as a guide, ‘most serious’ implies a level of severity above and beyond that implied by ‘particularly serious’. Indeed, it is fair to suggest that on a scale of severity, ‘particularly serious’ would comfortably fit somewhere between ‘serious’ and ‘most serious’, rather than be equivalent to or surpassing the ‘most serious’ threshold.
This interpretation receives support from the drafting histories and Official Commentaries of the drug conventions. Penal provisions for drug offences in the UN era were initially codified in the 1961 drug treaty, Article 36 of which describes appropriate penalties and sanctions for the offences proscribed. It states ‘that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty’. Significantly, the drafting conference specifically rejected the use of the term ‘severe’ punishment within the parametres of Article 36, agreeing instead the term ‘adequate’. According to the Official Commentary, the drafters considered ‘that the word “severe” carried overtones of “retribution”, which was one of the purposes of penal law which should not be emphasized’.
The drafting conference further agreed that ‘adequate punishment’ within the terms of the treaty must include those sanctions of a sufficient severity to have the desired effect of deterring crime. However, given that Article 36 allows for imprisonment and deprivation of liberty as a sanction for ‘serious’ offences, it is fair to assume that the ‘severe’ punishments considered inappropriate within the terms of the treaty are those that exceed incarceration, such as corporal punishment and capital punishment.
To counter this argument, retentionist States willpoint to a common article in all three drug conventions allowing States Parties to adopt stricter measures of control than those required by the treaties themselves. Article 24 of the 1988 Convention, for example, states ‘A Party may adopt more strict or severe measures than those provided by this Convention if in its opinion such measures are desirable or necessary for the prevention or suppression of illicit traffic’. Some have used these permissive articles as a basis to support capital punishment for drug offences, again using a State sovereignty argument. In the case of Indonesia, a 2007 judgement of the Constitutional Court cited Article 24 to justify the country’s death penalty laws.
However this reasoning is also flawed. While these articles provide States permission to adopt stricter measures or sanctions than those called for in the conventions, this does not represent a carte blanche to enact measures that violate other international legal commitments. They are specific only to the drug treaties. For example, Article 24 does not give States legal permission to eliminate due process guarantees in drug cases, extrajudicially assassinate alleged drug traffickers or remove obligations to prohibition cruel, inhuman or degrading treatment or punishment for people who use drugs. The limitations of any such stricter measures are governed and defined by international human rights law, which brings us straight back to Article 6(2) of the Covenant, and the fact that the definition of ‘most serious crimes’ excludes even those crimes deemed ‘particularly serious’ within the 1988 drug treaty.
The use of international drug control law as a tool to promote the restriction of the death penalty for drug offences is one that has not yet been utilised by abolitionists. This is perhaps not surprising given that, as I have explored elsewhere, the rise in States prescribing the death penalty for drugs into domestic law can be linked to the drafting and ratification of the 1988 drug convention. However, the vast majority of death sentences meted out for drug offences are for crimes falling below the ‘particularly serious’ threshold of severity in the drug treaties, exposing as baseless any claim that drug crimes are by definition ‘most serious crimes’. Rather than undermining calls for the abolition, as might be assumed, international drug control law actually strengthens the case for severely limiting, and even ending, capital punishment for drugs, and provides an important legal supplement to abolitionist arguments based around Article 6(2) of the Covenant. In either international treaty context, the use of the death penalty for drug offences constitutes an illegal sanction, and must be ended.
Disclaimer: The views expressed herein are the author(s) alone. If you would like to respond to any issues raised in this post, please contact Daragh Murray: dmurra [at] essex.ac.uk