Human Rights Watch welcomes the opportunity to submit our comments as part of the Committee’s review of Ireland’s approach to the possession of limited quantities of certain drugs.
Human Rights Watch is a non-profit nongovernmental organization that works to defend the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power to respect rights and secure justice. As an independent, international organization we work as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all.
For over two decades, this organization has documented the impact on human rights of drug policies that heavily emphasize criminalization of drug use, possession, production and distribution, at both global and national levels. Our research has consistently found serious human rights abuses that are often inextricably linked to such policies. And despite the vast sums of money invested to combat drugs through criminalization and enforcement, the global drug trade is thriving and drugs are widely available for recreational use in countries around the world. We have also documented how, due to excessive regulation stemming from policies focused on criminalization, in many countries patients with serious illnesses are unable to get access to essential medications that contain licitly produced controlled substances. These outcomes raise enormous questions about the effectiveness of drug policies in achieving objectives of curtailing recreational drug use and supply while ensuring respect for human rights.
Based on our extensive research and analysis of drug policy and human rights, Human Rights Watch opposes the criminalization of the personal use of drugs and the possession of drugs for personal use. Based on a human rights analysis we submit that not only is criminalization of personal use and possession inconsistent with the right to privacy, it is also an inherently disproportionate response to private behavior that does not harm others. While Human Rights Watch recognizes that governments have a legitimate interest in preventing societal harms related to personal drug use, we believe that to deter, prevent, and remedy the harmful use of drugs, governments can rely on non-penal regulatory and public health approaches that do not violate human rights.
More broadly, our research has shown that criminal regulation of the drug trade is closely connected to human rights abuses in multiple countries around the world. We believe that by decreasing reliance on criminal regulation of the drug trade, and, where appropriate, adopting new legal and regulatory frameworks and adjusting enforcement practices governments can reduce the human rights costs of current drug policies.
Indeed, we would draw the Committee’s attention to the June 2011 report of the Global Commission on Drug Policy, a group made up of former presidents of Colombia, Mexico and Brazil, former UN Secretary General Kofi Annan, former UN High Commissioner for Human Rights Louise Arbour, and public intellectuals, activists and officials such as Paul Volcker and Asma Jahangir, that reached conclusions similar to our own, noting that:
The global war on drugs has failed, with devastating consequences for individuals and societies around the world…. [F]undamental reforms in national and global drug control policies are urgently needed. Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction.
The Global Commission report urges states to end the criminalization of personal drug use, urging them to experiment “with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens.”
We understand that the Committee is conducting this review, having studied the model of decriminalization used in Portugal. Human Rights Watch has not itself conducted extensive in-country research of the model implemented in Portugal, but we understand from available analysis of the impact to date in Portugal, that in conjunction with comprehensive harm-reduction strategies, decriminalization has had positive results; rather than substantially increasing, drug consumption reportedly dropped in some categories—as did recidivism and HIV infection—and fewer people suffered the severe consequences of being caught up in the criminal justice system.
As many countries around the world gear up to debate global drug policy for the 2016 UN General Assembly Special Session on Drugs, Ireland now has an excellent opportunity to set an example for others by adopting a more rational, humane, and rights-respecting approach to drug use and possession, through decriminalization.
Below we outline some of the key human rights arguments for decriminalization of personal drug use and possession, and for reforming drug policy more broadly.
The Human Rights Implications of Criminalizing Personal Drug Use and Possession
Criminalizing personal drug use per se clashes with a person’s right to privacy and basic concepts of autonomy underpinning all rights, and in practice interferes with and undermines the right to health.
The decision to use drugs, as the decision to consume alcohol and nicotine, is a matter of personal choice and an exercise of an aspect of the right to privacy under international law, a cornerstone of respect for personal autonomy. Limitations on autonomy and the right to privacy are justified only if they meet the criteria of legitimate purpose, proportionality, necessity, and non-discrimination. The criteria of proportionality and necessity require governments to consider what means are available to achieve the same purpose that would be least restrictive or pose minimal interference with respect for and exercise of human rights. Human Rights Watch believes that arguments for criminalization of personal drug use or possession of drugs for personal rarely, if ever, meet these criteria.
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 norms however protect an individual’s autonomy and right to privacy, which may include engaging in conduct that the majority may eschew as immoral, but where there is no harm to others. For example, 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). 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, Greece, 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.
For example, in 2010 the UN Special Rapporteur on the Right to Health in his report to the UN General Assembly on the right to health and international drug control, specifically called for decriminalization on grounds of respect for the right to health and recommended that:
… human rights be integrated into the international response to drug control, through use of guidelines and indicators relating to drug use and possession, and that the creation of an alternative drug regulatory framework should be considered. Additionally, Member States should ensure that harm-reduction measures and drug-dependence treatment services are available to people who use drugs, especially focusing on incarcerated populations. They also should reform domestic laws to decriminalize or de-penalize possession and use of drugs, and increase access to controlled essential medicines [emphasis added].
With respect to drug use by children, as a party to the Convention on the Rights of the Child, Ireland has 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, criminal penalties should not be imposed 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.
Other Human Rights Impacts of Drug Policy Dependent on Criminalization
In addition to the concerns outlined above regarding criminalization of personal drug use and possession, it may be useful for the Committee to consider some of the findings of our research over the past two decades on global drug policy more generally:
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, we have documented how state enforcement of criminal drug laws has resulted, directly or indirectly, in serious and sometimes widespread and systematic human rights violations. Drug control policies, and accompanying law enforcement practices, have targeted vulnerable or disfavored minorities, reflecting and exacerbating systemic discrimination against them. 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. A step further, military and police forces engage in extrajudicial killings, enforced disappearances, torture and ill-treatment, and arbitrary detention. To cite only a few examples:
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, disproportionately affecting African Americans. 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.
In Greece, police in Athens subject people who use drugs (many of whom are also homeless and/or people who sell sex to support their use or for basic necessities) to arbitrary and abusive stops and searches, and arbitrary detention. These practices interfere with the ability of drug users and those dependent on drugs to access health information, medical care, and other services, as well as obstruct the work of service providers. People who use drugs are excluded from government and municipality-run homeless shelters, and no alternative housing is provided.
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.
- 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.
- Indonesia, and several other countries—including Singapore, Malaysia, Iran and China—impose the death penalty for drug offenses, in violation of international standards that limit the death penalty’s use to the “most serious crimes.”
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.
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. Organized criminal groups from Mexico and Colombia to Afghanistan, among others, obtain vast wealth from various facets of the illicit drug trade. We have repeatedly documented how many such groups and individuals commit serious crimes, including massacres, targeted killings, rape, torture, abductions, extortion, and forced displacement. 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 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.” But the current heavy emphasis on criminalization, rather than stopping that flow of resources, seems to be only making the business more profitable.
Restrictive drug policies impede medical and scientific use of controlled substances in numerous countries, condemning millions to needless suffering from pain and other symptoms.
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.
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.” 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. 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. 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.
Recommendations to the Committee
Human Rights Watch recognizes 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. However, rather than be driven by fear and speculation, we urge the Irish government to implement reforms based upon evidence of effective ways to reduce the harms to others that can accompany drug use and drug control. In considering how Ireland can reform current drug policies in ways that also enhance respect for human rights standards, we recommend that Ireland:
Decriminalize personal use and possession of drugs for personal use.
Criminalization is not necessary to protect people who use drugs: governments have many non-penal measures to encourage people to make good choices around drugs, including offering substance abuse treatment and social support. Governments can also criminalize negligent or dangerous behavior (such as driving under the influence) to regulate harmful conduct by individuals who use drugs, without criminalizing drug use itself.
As noted, in Portugal, as the Committee is aware, decriminalization—in conjunction with comprehensive harm-reduction strategies—has had positive results; rather than substantially increasing, drug consumption reportedly dropped in some categories—as did recidivism and HIV infection—and fewer people suffered the severe consequences of being caught up in the criminal justice system.
Consider broader reforms to reduce criminal regulation of drug production and distribution and encourage other countries to do the same.
Criminalization of the drug trade carries enormous human rights costs on a global scale, dramatically enhancing the profitability of illicit drug markets and fueling the growth and operations of groups responsible for large-scale violence and corruption. Finding alternative ways to regulate production and distribution and cutting into illicit drug profits would allow governments to weaken the influence of such groups and reduce the various abuses—killings, disproportionate sentencing, torture, and barriers to access to health care—that governments often commit in the name of fighting drugs.
Ground approaches to treatment and care in human rights, avoiding abusive administrative sanctions and ensuring patients have access to needed medications.
In moving towards decriminalization, Ireland should avoid creating new human rights problems (for example, it should avoid creating systems of mandatory treatment that would compound abuses), and should support access to voluntary, community-based drug treatment with the involvement of competent nongovernmental organizations. They should also ensure that anyone with a legitimate medical need for controlled medications like morphine or methadone has adequate access to them.
Support reform of global drug policies along these lines during the upcoming 2016 UNGASS on Drugs
Should Ireland move forward with reform, it will set an important example at the upcoming 2016 UNGASS on Drugs. We would strongly encourage the country to be an active participant at that session in pressing for reform of global drug policies.
Once again, thank you for the opportunity to submit these comments, and we are available to provide further information or copies of reports, or discuss in further detail any of our research and recommendations on drug policy and human rights with the committee or representatives of the Irish government. We look forward to continuing discussion of these and other matters.