Letter to the International Narcotics Control Board on Capital Punishment for Drug Offences

Dear Sir/Madam:

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’,[1]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.[2]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[3]and the UN High Commissioner for Human Rights as well as independent experts such as the UN Special Rapporteurs on health[4], torture[5]and extrajudicial executions.[6] It also runs contrary to the UN General Assembly moratorium resolutions,[7]as well as to the expert opinion of the UN Human Rights Committee[8]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.[9]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’.[10]The UN Office on Drugs and Crime has expressed its opposition to the death penalty for drug offences on numerous occasions.[11]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.

Respectfully yours,

Professor Sandra L. Babcock
Clinical Director, Center for International Human Rights, Northwestern University

ProfessorNeil Boister
CanterburyUniversity

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  

ProfessorCarolyn Hoyle
Universityof Oxford, Centre for Criminology

Rick Lines
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
Director, Reprieve

Rebecca Schleifer
Advocacy Director, Health and Human Rights Division, Human Rights Watch

Ann Fordham
Executive Director, International Drug Policy Consortium