Human Rights Watch submission to Office of the UN High Commissioner for Human Rights on the Issue of Drugs and Human Rights

May 15, 2015

Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
CH 1211 Geneva 10

Re: Call for Submissions on the Issue of Drugs and Human Rights (the implementation of Resolution A/HRC/28/L.22)

To the Office of the High Commissioner for Human Rights:

Thank you for the opportunity to submit our comments to feed into your study on the promotion and protection of human rights in the context of the world drug problem, in the lead-up to the UN General Assembly Special Session (UNGASS) on Drugs scheduled for April 2016. We believe your contribution to and participation in the UNGASS is of critical importance, as the enforcement of national and international drug policies have had a profound negative impact on human rights in much of the world. Respect for human rights should be a central objective of national and global drug strategies. We urge your office to do everything in its power to ensure that the UNGASS embraces that concept and addresses the serious human rights harms of current global drug policy through meaningful reforms.

Controlled substances touch every country in the world. Nearly every country in the world plays a part—as producer, consumer, or transit point—in the multibillion-dollar illicit drug trade that supplies more than 162 million people every year.[1] Healthcare systems in all countries worldwide require controlled substances for the provision of medical care. For decades, the dominant international approach to drug policy has emphasized criminalization of drug use, possession, production and distribution. Countries have poured billions of dollars into tackling illegally produced drugs. Yet despite these vast expenditures, the global drug trade is thriving and drugs are widely available for recreational use in countries around the world. At the same time, however, in many countries patients with serious illnesses are unable to get access to essential medications that contain licitly produced controlled substances because of excessive regulation. These outcomes raise enormous questions about the effectiveness of the existing approach to drug policies in achieving its stated objectives of curtailing recreational drug use and supply while ensuring availability of controlled substances for medical purposes.

But beyond the ineffectiveness of the policies, Human Rights Watch has for over two decades documented serious human rights abuses that are often inextricably linked to global drug policies that heavily emphasize criminalization of drug use, possession, production and distribution. The 2016 UN General Assembly Special Session offers a unique opportunity to reassess these policies, engage in an open and wide-ranging debate about their costs to human rights, and consider alternatives to the current approach to global drug control that are grounded in human rights.

A. Human Rights Consequences of Current Drug Policies

We believe that any discussion of drug policy should take into account the following human rights concerns, which we have documented in our work:

1. National and international responses to drugs have often involved large-scale abuses and discriminatory practices in the name of enforcing criminal laws or ensuring “treatment” of people who use drugs.

In countries around the world, state enforcement of criminal drug laws has resulted, directly or indirectly, in serious and sometimes widespread and systematic human rights violations. Military and police forces engage in extrajudicial killings, enforced disappearances, torture and ill-treatment, and arbitrary detention. Low-level drug offenders in the United States and other countries serve disproportionately long prison terms or even, in countries such as Iran and Singapore, face the death penalty. Drug control policies, and accompanying law enforcement practices, have targeted vulnerable or disfavored minorities, reflecting and exacerbating systemic discrimination against them.

The following are just a few examples of human rights abuses we have documented over the last decade or so in connection with state enforcement of drug policies:

• Thailand’s 2003 “war on drugs” resulted in some 2,800 extrajudicial killings by state security forces in its first three months.[2]
• In Mexico the drug-related homicide rate exploded after 2007, with tens of thousands of people being killed. The US provided more than $2 billion in funding to Mexico to combat drugs during that time. Yet the Mexican security forces deployed in the country’s “war on drugs” have themselves often been involved in torture, extrajudicial killings, and enforced disappearances.[3]
• In Canada, Kazakhstan, Bangladesh, and Ukraine, police have violently mistreated people who use drugs. In Tanzania, police and quasi-official vigilante groups have brutally beaten people who inject drugs.[4]
• Russia’s policies have resulted in mass incarceration, often in environments that pose high risk of HIV transmission, and detention of drug offenders without trial.[5]
• In Cambodia, Laos, and Vietnam, people who use drugs are held in government-run centers where they are often abused in the name of “treatment.”[6]
• As recently demonstrated, Indonesia, and several other countries—including Singapore, Malaysia, Iran and China—impose the death penalty for drug offenses, in violation of international standards on the death penalty, which limit its use to the “most serious crimes.”[7]
• The United States has the world’s largest reported incarcerated population (2.2 million people in adult prisons and jails), in significant part due to harsh sentences for drug offenses. US drug law enforcement is also marred by deep, discriminatory racial disparities.[8] For example, although whites and African Americans use marijuana at comparable rates in the US, African Americans are arrested for marijuana possession at more than three times the rate of whites. Aside from the obvious harms associated with imprisonment, the consequences of obtaining a criminal record are considerable and can affect access to future employment, education and even social services such as housing.

2. The heavy emphasis on criminalizing the drug trade has dramatically enhanced the profitability of illicit drug markets, fueling the operations of groups that commit abuses, corrupt authorities, and undermine democracy and the rule of law.

The criminalization of drug production and distribution has dramatically enhanced the profitability of illicit drug markets, which has in turn fueled the growth and operations of criminal organizations and individuals responsible for large scale violence and human rights abuses. A 2011 analysis by the United Nations Office on Drugs and Crime (UNODC) found that illicit drugs constitute the largest income source for transnational crime, accounting for about half of transnational crime proceeds.[9] Organized criminal groups from Mexico and Colombia to Afghanistan, among others, obtain vast wealth from various facets of the illicit drug trade. As we have repeatedly documented, many such groups and individuals commit serious crimes, including massacres, targeted killings, rape, torture, abductions, extortion, and forced displacement.[10] They may engage in these crimes to perpetuate their control over the drug market or to further a political agenda. The funds from the illegal drug trade often also enable them, through corruption, to evade justice and even secure the complicity of state agents in their crimes.

This was the central point raised by the governments of Mexico, Colombia and Guatemala in their October 2012 joint statement to the UN, asking for a review of the current drug control regime: “Despite the efforts of the international community over decades,” drug use “continues to increase globally, generating substantial income for criminal organizations worldwide,” said the governments, pointing out that those resources enabled criminal organizations “to penetrate and corrupt institutions of the States…. As long as the flow of resources from drugs and weapons to criminal organizations [is] not stopped, they will continue to threaten our societies and governments.”^[11]

But the current heavy emphasis on criminalization, rather than stopping that flow of resources, seems to be only making the business more profitable. Certainly, many kingpins have been killed, and extradited, crops have been fumigated, and shipments have been stopped. Yet, as the Global Commission on Drug Policy has noted, “Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers.”[12]

This dynamic is a significant factor contributing to human rights abuses in many countries in which Human Rights Watch works. In Colombia, for example, while both left-wing guerrillas and right-wing paramilitary groups existed before the explosion of the drug trade in the 1980s, both sets of groups were dramatically strengthened by the enormous profits they earned once they became involved in it. The paramilitaries, in particular, over time became Colombia’s biggest drug lords, involved in all stages of the trade—from production through processing to distribution. The profits from the drug trade became not only a tool to fund them, but also an objective—partly fueling the campaign of massacres, killings, and forced displacement of hundreds of thousands of Colombians that started in the 1990s. Despite a massive influx of US assistance since the late 1990s (billions of dollars through Plan Colombia), the profits from the drug trade allowed these groups often to corrupt officials and to reconstitute even when their senior leaders were arrested.[13]

In Mexico, during the government’s aggressive pursuit of the “war on drugs” over the last eight years, personal security has plummeted and the homicide rate has exploded. More than 80,000 people have been killed in drug-related violence since 2007, with yearly drug-related killings rising from more than 2,500 in 2007 (when then-president Calderón initiated his counternarcotics offensive) to a peak of nearly 17,000 in 2011.[14] While the number of drug-related homicides has decreased since then, the level of violence remains significantly higher than that of the beginning of the “war on drugs.” More than 20,000 have gone missing or been disappeared during this period, according to official statistics.[15] While, as described above, security forces themselves have engaged in widespread abuses, drug cartels have also committed serious crimes, including killings, disappearances, and kidnappings. According to the current government, kidnapping increased by 83 percent and extortion by 40 percent during the previous administration, and they remain high today.[16] Despite the vast resources being poured into combatting organized crime in Mexico, the capacity of these groups to engage in violence and corruption remains largely intact.

Another example is Afghanistan. Since the overthrow of the Taliban government in 2001, Afghanistan has experienced more than a decade of international military involvement and received hundreds of billions of dollars in aid, including substantial counternarcotics assistance. But it remains the world’s largest opium producer, generating around 80 percent of the world supply.[17] The illegal opium market and its billions in profits have dramatically distorted Afghanistan’s power structure, bankrolling armed groups including the Taliban, local warlords and others, including government officials and militia forces responsible for numerous atrocities.[18] It also fuels rampant corruption, ultimately undermining the international community’s stated goals in the country.

This is not to say that drugs are the only factor behind organized crime and violence in many of these societies— Colombia’s five-decade war also has political and ideological underpinnings, just as in Mexico, the country’s crime syndicates are involved in many illicit businesses, not just drugs. Afghanistan’s corruption problems go much deeper than the drug trade. But illicit drugs have proven to be a resilient, sustained, and significant source of income for organized crime and armed groups.

3. Criminalizing personal drug use per se is itself problematic in terms of human rights, as it tramples on the person’s right to privacy and basic concepts of autonomy underpinning all rights, and undermines the right to health.

The decision to use drugs is a matter of personal choice protected by the right to privacy, a cornerstone of respect for personal autonomy and human dignity. Limitations on autonomy and the right to privacy are justified only if they meet the criteria of legitimate purpose, proportionality, necessity, and non-discrimination. Human Rights Watch believes these criteria can rarely if ever be met for the criminalization of personal drug use or possession of drugs for personal use.

Different purposes have been advanced to justify the criminalization of drug use. One of those purposes is that of morality; drug use is seen by many as morally dubious or reprehensible, regardless of whether someone is harmed by it. Human rights principles, however, support each individual’s autonomy and right to privacy, which encompasses engaging in conduct that the majority may eschew as immoral or indicative of a weak character. Thus, human rights jurisprudence leaves no doubt today that majority public morality, if so inclined, cannot justify criminalization of private homosexual conduct by consenting adults. In essence, promoting public morality in the absence of harm to others is not a “legitimate purpose” for criminalization.

Protecting health is a legitimate purpose, as is protecting harm to others that may occur or be risked because of someone’s drug use. But criminalization of drug use to protect someone from harming his or her own health does not meet criteria of necessity or proportionality. Governments have many non-penal measures to reduce harms to someone who uses drugs, including offering substance abuse treatment and social supports. While the state has an important role in protecting health, it should not do so by punishing the person whose health it seeks to protect. As to proportionality—arrest, incarceration, a criminal record with possibly life-long consequences—these are an inherently disproportionate government response to someone who has done nothing more than partake of recreational drugs. Criminalization can also disrupt the ability of individuals to secure their right to livelihood and housing, and it can separate families and parents from their children. The state can encourage people to make good choices around drugs without punishing them.

Criminal sanctions for drug possession and personal use have counter-productive health consequences. Imprisoning people who use drugs does little to protect their health, and fear of criminal sanctions can deter individuals who use drugs from accessing health services and treatment, subject them to stigma and discrimination, and increase the risk of infection (e.g., by HIV and other blood-borne infections such as hepatitis).[19] Individuals have a right to obtain lifesaving health services without fear of punishment or discrimination.

But Human Rights Watch research in many countries—including the US, Ukraine, Russia, Thailand, Canada, Kazakhstan, and Bangladesh—has shown how criminal laws relating to drug use and possession for personal use, and related law enforcement practices drive people away from lifesaving information and health services. In some countries, many people who inject drugs do not carry sterile syringes or other injecting equipment, even though it is legal to do so, because possession of such equipment can mark an individual as a drug user and expose him or her to punishment on other grounds. Many do not seek treatment or attend harm reduction services, again, for fear of arrest and conviction. Our research in this area is consistent with the findings and recommendations of other leading experts working on the right to health, to freedom from torture and ill-treatment, on drug treatment, and in particular in relation to the prevention, care, and treatment of HIV, who have called for a focus on harm reduction, including access to sterile syringes and effective drug treatment, instead of punishment.

With respect to drug use by children, states have obligations to take appropriate measures—legislative, administrative, social, educational—to protect children from the illicit use of narcotic drugs and psychotropic substances. But, in line with international standards, states should not impose criminal penalties on children for drug use or possession.

Drug use in some situations causes or threatens to cause serious harm to others, and states have a legitimate interest in protecting third parties from harm resulting from drug use. In such circumstances, states may impose proportionate penal sanctions on harmful behavior that takes place in conjunction with drug use. Thus, a state might choose to criminalize driving a car or flying a plane while under the influence of drugs. It might choose to arrest a person who seriously neglects or abuses a child, where drug dependence is a factor in the neglect or abuse. It might make drug use an aggravating factor in an assault. But in such cases the conduct or offense being punished with criminal sanctions is not simply using drugs, but directly causing or risking harm to others while using drugs.

4. Restrictive drug policies impede medical and scientific use of controlled substances in numerous countries, condemning millions to needless suffering from pain and other symptoms.

While the UN drug control conventions are widely perceived as pertaining only to illicit drugs, one of their core objectives is to ensure the adequate availability of controlled substances for medical and scientific purposes. The preamble of the 1961 Single Convention on Narcotic Drugs recognizes that “narcotic drugs continue to be indispensable for the relief of pain and suffering” and sets up a system to regulate the production, distribution and use of these substances for medical and scientific purposes.

Indeed, controlled substances play a critical role in any healthcare system. At present, 12 medicines that are made of or contain controlled substances are on the World Health Organization (WHO) Model List of Essential Medicines, a list of medicines that should be available to all who need them. These medications are used such diverse fields of medicine as analgesia, anesthesia, drug dependence, maternal health, mental health, neurology, and palliative care.

A wealth of research from countries around the world, however, suggests that controlled substance regulations often interfere with the availability and accessibility of this group of medicines, especially strong analgesics. Regulations are frequently far more restrictive than required by the UN drug conventions, complicating and deterring their use. Human Rights Watch has documented the existence of needlessly restrictive regulations in more than a dozen countries, including Armenia, Guatemala, India, Kenya, Mexico, Morocco, Russia, Senegal and Ukraine.[20]

According to the International Narcotics Control Board (INCB)—the body responsible for monitoring the 1961 Convention— “approximately 5.5 billion people, or three quarters of the world’s population, live in countries with… inadequate access to treatment for moderate to severe pain.”[21] Due to limited access to essential medicines, the WHO estimates that tens of millions of people around the world, including around 5.5 million end-stage cancer patients and one million people with AIDS, suffer from moderate to severe pain each year without treatment.[22]

Human Rights Watch has documented the egregious impact on patients of these regulatory restrictions. We have found that people with untreated severe pain often describe their pain in exactly same terms as victims of torture—that is, as so intense that they would do anything to make it stop. These individuals often want to commit suicide to end the pain, pray to be taken away, or tell doctors or relatives that they want to die.[23] The failure to provide access to palliative pain relief in those circumstances interferes with the right to the highest attainable standard of health and in some circumstances can amount to a violation of the prohibition on cruel, inhuman, and degrading treatment.

B. Recommendations on respect for and promotion of human rights in the context of the world drug problem

While the above is not a comprehensive list of all the human rights concerns raised by existing global drug policies, it encompasses many critical issues that we hope your office will highlight in its report.

We recognize that governments have a legitimate interest in preventing societal harms caused by drug use, but current drug control policies have caused or contributed to serious human rights violations. Many of these violations are rooted in the use of the criminal justice system to curtail drug use, possession, production, and distribution, and in the reluctance of governments to decrease their reliance on punitive penal strategies in favor of different forms of regulation and control. Accordingly, we recommend that states:

1.        End the criminalization of the personal use of drugs and the possession of drugs for personal use. To deter, prevent, and remedy the harmful use of drugs, states can rely on non-penal regulatory and public health approaches that do not violate human rights.

2.         Take steps to reduce the human rights costs of current policies on drug production and distribution, including by decreasing reliance on criminal regulation in this area, and, where appropriate, adopting new legal and regulatory frameworks and adjusting enforcement practices.

3.         Ground approaches to treatment and care in human rights, avoiding abusive administrative sanctions and ensuring patients have access to needed medications.

4.         Ensure drug control regulations strike an appropriate balance between ensuring their availability and accessibility for medical and scientific purposes and preventing their non-medical use.

5.         Pursue a process to reform the international drug conventions to ensure that they do not prohibit or discourage states from adopting policies, in line with the above, that would enable them to fulfill their human rights obligations and reduce the human rights costs of current policies.

We recognize that reform of existing strategies for drug control may raise legitimate concerns about unintended social or health costs, such as a significant increase in drug abuse. Governments should implement reforms based upon evidence of effective ways to reduce the harms to others that can accompany drug use and drug control.

States may, consistent with human rights, impose proportionate penal sanctions on behavior that occurs in conjunction with drug use if such behavior—such as driving under the influence of drugs—is appropriately subject to criminalization because it harms or seriously risks significant harm to others.

Once again, thank you for the opportunity to submit comments, and we hope you will incorporate the above observations in your upcoming report.

Sincerely,

Bruno Ugarte

Deputy Executive Director, Advocacy

Human Rights Watch