Dark clouds over international drug policy (pierced by some rays of light)

By Jan Malinowski

The war on drugs has delivered many broken promises – like the one of a “drug-free world” – alongside considerable collateral damage. Despite the good intentions expressed during the latest United Nations General Assembly Special Session (UNGASS) on the world drug problem (19 to 21 April 2016) and the valuable proposals in the outcome document paradoxically adopted at the outset of the meeting, fallout continues.

Indonesia and Iran recently added more names to the long list of people executed for drug-related offences, while Reuters quoted a senior Iranian judicial official saying that executions in Iran have had no deterrent effect. These are the latest, but far from the only victims despite the compelling evidence that capital punishment does not deter crime. There have been conflicting media reports about the Philippine President’s endorsement of the execution of a young Filipino mother in Indonesia for drug offences.

Capital punishment is irreversible, contrary to human dignity, and unnecessary. That is why the Council of Europe has abolished death as punishment within it forty-seven states membership and stands firmly by it.

The death penalty is not the only dark cloud.

There is a drug policy-related human rights crisis ravaging the Philippines. According to media reports, it involves extrajudicial and vigilante killings of drug users and drug peddlers, following a public call by the Philippine President Rodrigo Duterte to do so. It also involves nigh compulsory treatment in facilities that resemble boot camps. Paradoxically, the President created a state of lawlessness before declaring it formally to justify further clampdown.

The presidential call to seek out and kill “drug users and pushers” resulted, in just a few weeks, in over 3,000 reported killings and the figure of people who surrendered to the authorities owning up as drug users or peddlers is around 700,000 (i.e. just short of 1% of the country’s population). People are arrested and many are being subjected to inhuman or degrading treatment or punishment in detention facilities and in de facto compulsory drug severance facilities. The whereabouts of many other people is unknown.

As the Council of Europe Director of Human Rights said in a statement in July, the war on drugs has been a calamitous failure and, through this senseless escalation, President Duterte is taking it to a new inexcusable height.

President Duterte’s war on drugs concerns the Council of Europe because most of our member states collectively (as members of the Pompidou Group and members of the European Union) stated clearly at the April 2016 United Nations General Assembly Special Session (UNGASS) that, in drug policy, human rights must be fully respected. They underlined that the health care and public health dimension must come first, and rejected categorically the death penalty, torture and harsh punishment for drug use and for drug-related offences.

The developments in the Philippines concern the international community as a whole. The universality and the indivisibility of human rights have been proclaimed oftentimes, alongside the non-derogable ius cogens norms. At face value, the events unfolding in the Philippines might arguably fall under Article 7 (crimes against humanity), paragraph 1, of the 1998 Rome Statute of the International Criminal Court, namely:

“any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder; […]

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture; […]

(h) Persecution against any identifiable group or collectivity on […] grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; […]

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The definitions in Article 7, paragraph 2, add weight to this understanding.

(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(e) ‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(i) ‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

These contentions would, of course, require further analysis and scrutiny.

The situation in the Philippines also concerns Council of Europe member states, and various international organisations and agencies, to the extent that they may be providing cooperation in the drugs law enforcement field – e.g. facilitating intelligence or tools that may help identify drug users or traffickers, or selling weapons – that could lead to human rights abuses, infringements of the rule of law or violations of the Rome Statute.

State authorities and relevant agencies should be attentive to developments in other countries as well. If they anticipate impunity, some may be tempted to copycat the Philippine President. The international community has already been alerted, and cannot ignore, the remarks by Indonesia’s anti-narcotics chief saying that drug dealers’ lives are “meaningless”, praising President Duterte and calling his country to imitate the brutal war on drugs launched in the Philippines.

Many voices are rising against these abuses, including world leaders and international organisations. More recently, the European Parliament condemned the current wave of extrajudicial executions and killings in the Philippines, urged the government to put an end to them and comply with its international human rights obligations. There is still hope that they are stopped sooner, rather than later.

The dark clouds hanging over drug policy were also pierced by a ray of light shone by the Strasbourg-based European Court of Human Rights on 1 September when it delivered its judgement in Wenner v. Germany.

The case concerned the complaint by a long-term heroin addict that he had been denied opioid substitution treatment (OST) in prison. The European Court of Human Rights acknowledged strong indications that substitution treatment could be regarded as appropriate for the applicant given his manifest and long term addiction to opioids and its enduring health consequences.

The Court also found that the physical and mental strain that Mr Wenner suffered as a result of his untreated or inadequately treated health condition could, in principle, amount to inhuman or degrading treatment. The Court concluded that the failure to adequately assess Mr Wenner’s treatment needs involved a violation of the prohibition of inhuman or degrading treatment.

This ruling should inspire policy makers designing drug policies or when assessing drug policies from a human rights angle.


 

The author notes that the views expressed here are only those of the author and do not represent the official position of the Council of Europe

Pictures thanks to Wikimedia Commons and Google search. The last one has been taken by the author.

Disclaimer: The views expressed herein are the author(s) alone.

 

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