We are writing to bring to your attention some deeply concerning comments by a member of the International Narcotics Control Board that were reported in The Bangkok Post on 29 February.
In the article, entitled ‘UN drugs agency won't take stand on swifter executions’, it was reported that, ‘The agency says it neither supports nor opposes the death penalty for drug-related offences’. This was reinforced by a quote from INCB member Mr. Viroj Sumyai, who said, ‘We are an impartial body and respect the rule of law and jurisdiction of countries.’
Harm Reduction International contacted the Secretariat of the INCB seeking clarification on this report, to ascertain whether the story accurately reflected the Board’s position. In its reply, the INCB Secretariat wrote that, ‘[T]he determination of sanctions applicable to drug-related offences remains the exclusive prerogative of each State and therefore lie beyond the mandate and powers which have been conferred upon the Board by the international community’. (emphasis added)
The Secretariat’s response made mention of the Board’s position on proportionality, hinting at a discomfort with extreme sanctions such as capital punishment. However, the INCB’s failure to take a position on the death penalty for drug offences renders its discussion of proportionality nonsensical.
In the first instance, proportionality cannot be applied subjectively by each Member State. There are countries where hundreds and even thousands of people are killed via judicial sentences – as well as by extrajudicial means – and, although some may try to defend these responses as proportionate, UN agencies need to promote the established international standards. The UN human rights system has concluded that executions for drug offences violate international human rights law. Debates about proportionality are irrelevant where the responses are themselves illegal.
States parties have used the drug control treaties in the past to defend their death penalty policies. As the UN’s quasi-judicial mechanism tasked with monitoring the implementation of the drug control treaties, the INCB is a critical partner in ensuring that these treaties are not implemented in a vacuum, and indeed reflect broader obligations of international treaty and customary law.
That the INCB takes no position on the death penalty for drug-related offences stands in stark contradiction to the opinions of many other UN bodies that have criticised capital drug laws as a violation of the right to life. These UN bodies include the UN Office on Drugs and Crime and the UN High Commissioner for Human Rights as well as independent experts such as the UN Special Rapporteurs on health , torture and extrajudicial executions.  It also runs contrary to the UN General Assembly moratorium resolutions, as well as to the expert opinion of the UN Human Rights Committee that the drug offences fail to meet the threshold of ‘most serious crimes’ under article 6(2) of the International Covenant on Civil and Political Rights.
According to research by Harm Reduction International, there are as many as, and possibly more than, 1,000 people executed every year for a drug offence. There are many thousands more people on death row in countries around the world.
The UN General Assembly has stated in numerous resolutions that international drug control must be carried out in conformity with the Charter of the United Nations and ‘in particular…with full respect for human rights’. The UN Office on Drugs and Crime has expressed its opposition to the death penalty for drug offences on numerous occasions. Even the INCB itself in its 2007 Annual Report stated that lack of respect for human rights can undermine the implementation of the drug conventions. In this context, the INCB’s failure to take a position on the death penalty for drugs risks creating a deep fissure in the coherence of the UN system. It also exposes the Board as being a body that is deeply out of step with contemporary human rights norms, therefore placing the credibility of their work as a UN mechanism into disrepute.
This reticence to take positions on domestic policies that clearly contradict UN human rights agreements, contrasts sharply with the INCB’s willingness to take strong positions on domestic programmes that it feels are contradictory to the spirit of the drug conventions, however strongly supported within the country, or clearly compliant with the letter of the treaties. This ‘selective reticence’ in the face of clear breaches of international treaties, and the inability to flexibly deal with the many grey areas of national drug policy, must bring into question the credibility of the Board.
The INCB must therefore clarify its position on human rights generally, and the death penalty for drug offences specifically, as a matter of urgency. If the INCB refuses to take a position on a matter as clear and simple as the need for drug law enforcement responses to be compliant with international human rights law, then it cannot be trusted to carry out its mandate guiding States on the lawful implementation of the drug control treaties.
The INCB must make its position known and we urge your delegation to make this clear to the membership of the International Narcotics Control Board at the 2012 CND and beyond.
Professor Sandra L. Babcock
Clinical Director, Center for International Human Rights, Northwestern University
Professor Peter Hodgkinson OBE
Director, Centre for Capital Punishment Studies, Westminster University
Professor Roger Hood CBE, QC, DCL, FBA
Emeritus Fellow, All Souls College, Oxford
Universityof Oxford, Centre for Criminology
Executive Director, Harm Reduction International
Professor Manfred Nowak
Professor of International Law and Human Rights, University of Vienna, former UN Special Rapporteur on Torture (2004-2010)
Professor Sir Nigel Rodley KBE PhD
Chair, Human Rights Centre, University of Essex
Dr. Clive Stafford Smith OBE
Advocacy Director, Health and Human Rights Division, Human Rights Watch
Executive Director, International Drug Policy Consortium
Annex: Questions and Answers, Harm Reduction International
From: Harm Reduction International
To: INCB Secretariat
Date: 29 February 2012
… I am writing from Harm Reduction International, an NGO based in London. I am writing because of concerns about a story in today’s Bangkok Post, in which it was written that the INCB “neither supports nor opposes the death penalty for drug-related offences”. There were additional comments attributed to a board member that were used to justify the board’s reported position.
This is deeply worrying for a number of reasons.
We have researched the death penalty for drug offences for several years and have found abundant sources indicating that the death penalty for drugs is a violation of international human rights law. This has been stated by the United Nations Office on Drugs and Crime, the UN Human Rights Committee, the UN High Commissioner for Human Rights as well as independent experts such as the UN Special Rapporteurs on health, torture and extrajudicial executions …
Our questions could be summed up quite simply as: Does the INCB take a position on the death penalty – in favour or opposed?
From: INCB Secretariat
To: Harm Reduction International
Date: 29 February 2012
In response to you query, please note the following:
As the custodian of the international drug control conventions, the International Narcotics Control Board’s mandate is to monitor the implementation of these instruments which have been negotiated and adopted by States. The international drug conventions define drug-related offences and enjoin States to establish them as criminal offences under their domestic law, subject to their constitutional principles and the basic concepts of their respective legal systems. The conventions also require State Parties to subject the commission of these offences to ‘sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty…’. The conventions do not provide a mandatory list of sanctions, nor do they preclude the application of any sanctions per se. Rather, the determination of sanctions applicable to drug-related offences remains the exclusive prerogative of each State and therefore lie beyond the mandate and powers which have been conferred upon the Board by the international community. While recognising this, the Board has repeatedly emphasized the fact that in determining the sanctions applicable to drug-related offences within its national jurisdiction, each State should be guided by the principle of proportionality. In light of the importance ascribed by the Board to this question, Chapter I of the 2007 INCB Annual Report dealt exclusively with the question of the principle of proportionality and drug-related offences. The full text of this Chapter can be accessed on the Board’s website at: http://www.incb.org/pdf/annual-report/2007/en/chapter-01.pdf .
From: Harm Reduction International
To: INCB Secretariat
Date: 29 February 2012
I do thank you for your reply, however, it does not answer my question and if anything appears to confirm the story as reported by The Bangkok Post. The proportionality document you refer to does not address capital punishment at all.
The Post story said the board neither supports nor opposes the death penalty for drug-related offences and attributed this to a board member. Is this an accurate characterization?
 The Bangkok Post (29 February 2012) 'UN drugs agency won't take stand on swifter executions'
 See for example: Edith Yunita Sianturi, Rani Andriani (Melisa Aprilia), Myuran Sukumaran, Andrew Chan, Scott Anthony Rush, 2-3/PUU-V/2007, Judicial review of Law Number 22 Year 1997 regarding Narcotics against the 1945 Constitution of the State of the Republic of Indonesia
 UNODC (2010) Drug control, crime prevention and criminal justice: a human rights perspective. Note by the Executive Director (Commission on Narcotic Drugs, Fifty-third session, Vienna, 8–12 March) E/CN.7/2010/CRP.6*–E/CN.15/2010/CRP.1*.
 UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (6 August 2010) A/65/255, para. 17.
 UN Human Rights Council (14 January 2009) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/10/44, para. 66.
 UN Commission on Human Rights (24 December 1996) Extrajudicial, summary or arbitrary executions: report by the Special Rapporteur, submitted pursuant to Commission on Human Rights Resolution 1996/74, E/CN.4/1997/60; UN Human Rights Council (29 January 2007) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/4/20, paras. 51–52; HRC (18 June 2010) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum : Communications to and from governments, A/HRC/14/24/Add.1, pp. 45–46.
 UN General Assembly (11 November 2010) Sixty-fifth General Assembly, GA/SHC/3996.
 HRC (8 July 2005) Concluding observations: Thailand, CCPR/CO/84/THA, para. 14; HRC (29 August 2007) Concluding observations: Sudan, CCPR/C/SDN/CO/3, para. 19.
 Harm Reduction International, ‘The Death Penalty for Drug Offences: Global Overview 2011’ (2011)
 See for example UN General Assembly ‘International cooperation against the world drug problem’ (13 March 2007) UN Doc No A/RES/61/183 at para 1.; UN General Assembly ‘International cooperation against the world drug problem’ (22 March 2006) UN Doc No A/RES/60/178 at para 1.
 UNODC (2010) Drug control, crime prevention and criminal justice: a human rights perspective. Note by the Executive Director (Commission on Narcotic Drugs, Fifty-third session, Vienna, 8–12 March) E/CN.7/2010/CRP.6*–E/CN.15/2010/CRP.1*; United Nations Office on Drugs and Crime Press Release, 'UNODC supports UN rights declaration', 10 December 2008