How to follow-up the UN General Assembly Special Session on Drugs and the 2015 World Day

By Aurélie Plaçais, Director of the World Coalition Against the Death Penalty

The “war on drug trafficking” for the abolitionist movement
Before Harm Reduction International, a non-governmental organisation, began to work on this issue in 2007, there was little debate about the impact of policies against drug trafficking on human rights, contrary to many other debates around the “war on terrorism” for example. The death penalty was therefore an excellent starting point to begin discussing this problem for the movement to reform drug policies. Nearly ten years later, in April 2016, the death penalty was one of the issues relating human rights most widely debated at UNGASS.

The Civil Society Task Force⁷⁷, which acted as the voice of civil society during the negotiations leading up to UNGASS, carried out wide-ranging consultations across the world. They highlighted seven priority questions as the focus for their advocacy work before UNGASS. Abolition of the death penalty for drug-related offences was one of them⁷⁸.
During UNGASS, debates notably covered the issue of funding for the struggle against drug trafficking in countries which execute people, and on the complicity of the abolitionist countries which fund these programmes. On this occasion, the European Union published a joint statement encouraging Member States to hold the international institutions responsible for these programmes in countries which still use the death penalty⁷⁹.
The final Resolution⁸⁰, adopted in April 2016, represents the strongest text ever adopted in terms of safeguards for human rights in the struggle against drug trafficking. In particular, it recommends respect for human rights in the criminal procedure for people charged with drug trafficking and opens the way for an interpretation in support of abolition of the death penalty. The reference to torture and other cruel, inhuman or degrading punishment or treatment in paragraph 4.o) of the Resolution is in line with the conclusions of the UN Special Rapporteur on Torture who considers that the conditions under which capital punishment is actually applied “renders the punishment tantamount to torture. Under many other, less severe conditions, it still amounts to cruel, inhuman or degrading treatment.”⁸¹

Resolution A /RES/S-30/1, paragraph 4.o)

“We, Heads of State and Government, ministers and representatives of Member States […] recommend the following measures […]
Promote and implement effective criminal justice responses to drug-related crimes to bring perpetrators to justice that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings, including practical measures to uphold the prohibition of arbitrary arrest and detention and of torture and other cruel, inhuman or degrading treatment or punishment and to eliminate impunity, in accordance with relevant and applicable international law and taking into account United Nations standards and norms on crime prevention and criminal justice, and ensure timely access to legal aid and the right to a fair trial.” Promote and implement effective criminal justice responses to drug-related crimes to bring perpetrators to justice that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings, including practical measures to uphold the prohibition of arbitrary arrest and detention and of torture and other cruel, inhuman or degrading treatment or punishment and to eliminate impunity, in accordance with relevant and applicable international law and taking into account United Nations standards and norms on crime prevention and criminal justice, and ensure timely access to legal aid and the right to a fair trial.”

Malaysia is, paradoxically, one of the most progressive countries in Asia in terms of reform of drugs policies and access to care for people who take drugs. In parallel however, it is part of the small group of seven countries82 in the world which often applies the death penalty

The paradox of Malaysia

Malaysia is, paradoxically, one of the most progressive countries in Asia in terms of its reform of drug policies and access to care for people who take drugs. In parallel however, it is part of the small group of seven countries⁸² in the world which often applies the death penalty⁸³.

Research on the death penalty carried out by an inter-ministerial commission is supposedly underway and in November 2015 reforms were announced on the death penalty but few details are available as regards the detail of this research and the scope of reforms envisaged (mandatory death penalty for drug trafficking only or wider abolition).

However, previous ministers of laws made similar announcements in 2010 and 2012, announcements which, to date, have always remained without effect. Nonetheless, it would seem that an unofficial moratorium on executions for drug trafficking is in place because the last executions were for murder while many death sentences are for drug trafficking.

It is therefore important to maintain international pressure, particularly within the framework of the Universal Periodic Review (UPR), and regional pressure, for example with the Anti-Death Penalty Asia Network (ADPAN)⁸⁴. Nationally, the wider public must be made aware of the situation through witness accounts and human faces.

The impact of abolitionist work with the UN Office On Drugs and Crime (UNODC)

Officially, as the body of the UN Secretariat, UNODC recommends abolition of the death penalty and invites Member States to follow international standards relating to prohibition of the death penalty for trafficking or possessing drugs.

An UNODC position document on human rights dating from 2012 goes even further because it recommends: “If, in spite of all of the above, a country actively continues to apply the death penalty for drug offences, UNODC places itself in a very vulnerable position vis-à-vis its responsibility to respect human rights if it maintains support to law enforcement units, prosecutors or courts within the criminal justice system. Whether support technically amounts to aid or assistance to the human rights violation will depend upon the nature of technical assistance provided and the exact role of the counterpart in arrest, prosecutions and convictions that result in application of the death penalty⁸⁵. Even training of border guards who are responsible for arrest of drug traffickers ultimately sentenced to death may be considered sufficiently proximate to the violation to engage international responsibility.”

However, this position has never been implemented⁸⁶ and UNODC’s programmes against drug trafficking are essentially funded by the Member States of the European Union, all abolitionist, but without them asking UNODC to respect its own directives on human rights.

Reprieve and other abolitionist NGOs have been leading a campaign for a few years, both with the European authorities to ask them to publish information on the UNODC programmes they finance, and with UNODC on the implementation of its 2012 position document.

The work led by Reprieve and others with UNODC does seem to be bearing fruit. In October 2015, the European Parliament adopted a Resolution⁸⁷ declaring that abolition of the death penalty for drug-related offences should be a prior condition to financial and technical assistance from the EU to third countries. Donors are progressively disengaging themselves from UNODC programmes in countries which still execute people for drug trafficking. According to the UNODC Annual Appeal 2016, 5, 410,000 US dollars⁸⁸ are needed to complete the programme in Iran. UNODC indicated that it had not yet received any funding for this programme at the start of 2016.

Impact in Iran

The international campaigns led by ECPM, Iran Human Rights (both members of the Impact-Iran Network⁸⁹), Harm Reduction International, Reprieve and others have highlighted the issue of the death penalty for drug trafficking in Iran. Abolitionist demands previously centred on political prisoners and juveniles; now it is drug trafficking. Iran uses drug trafficking as a pretext for executing people. Confessions are often obtained after the accused have been subjected to poor treatment and people are judged by Revolutionary Courts behind closed doors. Moreover, these sentences involve a marginalised part of Iranian society which has little or no access to lawyers and which is subjected to poor treatment.

Numerous Iranians in senior positions have recently spoken about the failure of use of the death penalty to combat drug trafficking with an increase in the number of drug-related crimes, drug trafficking and deaths linked to the use of drugs. A new law is under discussion to abolish the death penalty for non-violent crimes related to drug trafficking⁹⁰.
The authorities have started to seize upon the issue and it is no longer a red line not to be crossed for activists in Iran, particularly because the question of drug trafficking is not related to religious arguments.

However, it is difficult to know whether this is just rhetoric for the benefit of the international community or real political desire.