Side event – Bringing human rights into the heart of drug control: Death penalty for drug offences from UNGASS to 2019

Organized by Harm Reduction International.

Dr Rick Lines – HRI and co-chair

Since HRI founded our DP for drug project in 2007 we’ve seen the issue take on more significance in fora like CND and the UNGASS, but also with NGOs working on drug policy and human rights. It has been an important entry point to broader discussions of the human rights impacts of drug control.

This reflects the inherent tension between drug control law and human rights law, as one has the effect of centralising and legitimising State power while the other seeks to push back on State over-reach.

Adriano Martin – European External Action Service and co-chair

As I mentioned in the last panel, the EU has a very clear and principled position regarding the death penalty.  The EU opposes the death penalty in all circumstances, with no exceptions.  For the EU the death penalty is an issue of human rights.  It’s in the Universal Declaration of Human Rights Article 3, so no legal code or legal system should have something that is a violation of human rights.  That is not something that is subject to discussion, to public opinion or anything else.  Also public opinion evolves when they are better informed, when they are not manipulated.

We should understand how inhuman how cruel the death penalty is.  There are a number of arguments apart from the principled position.  One is the irreversibility of the death penalty.  As Freddie Lipix, who was

An innocent man can be released from prison, but he cannot be released from the grave.  We know that many people have been executed for crimes that they didn’t commit.  In the United States, since the 1970s, 160 people have been found not guilt while on death row.

Also there is no deterrent effect from the death penalty.  Canada abolished in 1976, at that time the murder rate was 3 per 100,000 inhabitants.  Since they abolished the murder rate declined and is currently 1.8 per 100,000.

Naomi Burke-Shyne, HRI giving our latest global overview

In the ten years that Harm Reduction International (HRI) has been working on the death penalty for drug offences, prohibitionist and punitive approaches to drugs continue to result in the execution of hundreds of people for non-violent drug offences every year. The majority of those sentenced to death and executed are low level couriers who often experience overlapping and intersecting forms of vulnerability, discrimination and exclusion and who are often subjected to forced confessions and unfair trials. Not only do these executions continue to fail to achieve any reduction in drug use and trafficking, they are also a clear violation of fundamental human rights under international law. Encouragingly, trends in State practice, the development of international norms, and increasing support for a moratorium suggest that abolition could soon become an obligation under customary international law.

Our Global Overview series examines the death penalty for drugs in law and practice, and considers critical developments on the issue. As you all know, today we’re officially launching our 2017 Global Overview and I’m happy to be able to share some of our key findings, and talk a little bit about what they mean and how we might work together on the issue of the death penalty for drugs in the lead up to the 2019 High Level Ministerial Segment.

Sadly, the number of States that retain the death penalty for drug offences in their legislation has not declined since we last reported in 2015. There are still at least 33 countries and territories that prescribe the death penalty for drug offences in law. Of these, at least nine countries still have the death penalty for drug offences as a mandatory sanction, although three (Brunei Darussalam, Laos and Myanmar) are abolitionist in practice.

The same ‘extreme fringe’ of the international community – namely China, Iran, Saudi Arabia, Indonesia and Singapore – continue to aggressively pursue the penalty in drug cases. The exact number of people executed by the State for drug-related crimes continues to be very difficult to track because of a lack of transparency, but the number remains very high. Between January 2015 and December 2017, at least 1,320 people are known to have been executed for drug-related offences. These estimates do not include China, where statistics on death sentences and executions are considered so sensitive that they remain a State secret, making it impossible to know the true figure for the number of executions which take place each year. Taking China out of the equation due to a lack of data, Iran has been the world’s top executioner for drug offences by far, with at least 1,176 executions carried out since January 2015. That amounts to nearly 90% of all reported drug-related executions during that period. Despite these numbers remaining very high, our research also reveals that known executions for drug offences in what we call “High Application States” have been steadily declining since 2015.

It’s worth calling out Singapore at this point. Last Friday 39 year-old Ghanaian Billy Agbozo was executed for drug trafficking, following the failure of his final plea for clemency. Singapore plans a second execution tomorrow, Hishamrudin Bin Mohd – a 59 year-old Singaporean man. His final appeal was rejected by the Supreme Court yesterday. Hishamrudin maintains his innocence. This is inconsistent with Singapore’s international commitments, in violation of international law and inconsistent with Singapore’s standing in the world.

The report also identifies several important legal and policy developments that have recently taken place. Thailand, for example, adopted legislative amendments to its Narcotics Law in January 2017 that introduced reductions in penalties for possession, import/export and production for the sale of drugs, and abolished the mandatory death penalty for the offence of selling drugs. In Iran, an amendment to the Anti-Narcotics Law approved in October 2017 raised the minimum quantity of drugs required to incur capital punishment, which could help commute the sentences of the estimated 4,000 people on death row for petty drug-related offences. Meanwhile, Malaysia removed the mandatory death sentence for drug offences in November 2017. We take these and the decline in executions as indications that the tide could be shifting at the national level.

This is certainly the case at the international level, where political support for the abolition of the death penalty for drug offences is intensifying. The 2016 UN General Assembly Special Session (UNGASS) on the World Drug Problem was the centre of debate on the issue, with 73 States strongly voicing their opposition to the practice. While the final outcome document failed to include any language on the death penalty, it made important strides with regard to human rights and proportionate sentencing more generally, and placed the abolition of the death penalty for drug offences firmly on the radar of the global community.

But at the same time, these recent signs of progress are being eclipsed by the dramatic surge in extrajudicial executions for drugs in the Philippines, and the ripple effects this is having in the region and beyond. As most of you will know, since coming to power in June 2016, President Rodrigo Duterte has been carrying out a bloody anti-drug campaign which has resulted in the extrajudicial execution of more than 12,000 people. While the Philippines formally abolished the death penalty in 2006, the State sanctioned street killings occurring under the auspices of the ‘war on drugs’ are creating an environment of impunity, normalising the killing of people who use and sell drugs and emboldening other States to adopt similar, or at least more hard-line, approaches to drugs.

We also note our concern with President Trump’s reckless remarks on the death penalty for drugs last week. There is no evidence that Singapore’s punitive approach has effectively deterred crime and it’s dangerous to promote it as such.

Our research reveals these obvious and uncomfortable tensions between encouraging developments and signs of things improving on the one hand, and very alarming developments and the situation getting much worse on the other.

Finally – what does this mean for us – death penalty abolitionists and the drug policy reform sector – in the lead up to 2019?

The UNGASS outcome document failed to condemn the death penalty, but Paragraph 4(o) called on States to ensure legal guarantees and due process safeguards, including the prohibition of arbitrary detention and torture and other degrading treatment, when responding to drug-related crimes.

Ahead of 2019, Harm Reduction International urges more countries to support abolition of the death penalty for drug offences, and calls on abolitionist States to work with civil society to secure an unequivocal condemnation of the death penalty for drug offences in the outcome document of the High Level Segment.

Zaved Mahmood – Office of the High Commissioner for Human Rights

I’d like to highlight developments in Malaysia and Iran, which are moving from mandatory death sentences to a more discretionary system, which is a positive sign.

In Malaysia there are 1000 people on death row and in Iran it is between 4000 and 5000.  They will need legal assistance and this will be a huge legal exercise.  Civil society who are doing this work need to be supported.

We would like to see no death penalty, but first, abolish the mandatory death sentence for drug offences

Looking at the positive aspect, when HRI started working on this issue and their first report came out in 2007, the death penalty was used for drug offences in 67 countries, but now it is 33 countries – so some important progress but still a long way to go.

Reflecting on extrajudicial killing, I would like to address this issue from the point of view of the UNGASS outcome document.  Paragraph (o) of chapter 4 reads:

Promote and implement effective criminal justice for drug related offences… including taking practical measures for prohibiting arbitrary arrest, torture and eliminate impunity.

The CND needs to look at summary execution.  It is one of the most serious human rights violations and that needs to be addressed through eliminating impunity.

INCB’s annual report has said “Extrajudicial responses to drug related criminality are in clear violation of international”.  We are glad to see INCB acknowledge this and we hope UNODC and CND will act on this issue.

Extrajudicial executions should be independently investigated and that includes UN Special Rapporteurs.  Countries should allow her to have access – one country already discussed today is blocking this.

Yesterday the Philippines withdrew from the Rome Statute and the International Criminal Court.  As the international community we need to think about how we are going to protect those who have been witnesses to the extrajudicial killings in order to hold those who have carried these killings out to account.

Erasmus Napitupulu, Institute for Criminal Justice Reform Indonesia

In Indonesia we have the death penalty for drugs in 13 laws.  We have 165 people on death row, and almost half of these are drug cases (75).

Our political leaders use the death penalty to increase their popularity with the public.

At ICJR we raise moral and legal objections to the death penalty.  There is also the issue of discrimination against vulnerable populations.  The constitutional court has said that there should be no restriction on the number of case reviews that can be submitted, but our research has shown that the district courts often refuse to hear these reviews.

In terms of clemency applications, in 2014 the President has refused to hear clemency applications for 64 people on death row for drugs-related cases.  In 2015 he heard one application but made clear that it was because it was not a drugs-related case.

In 2016, the police and BNN killed 18 people for drugs related cases.  In 2017, a report from Amnesty and LH Masyarakat said 99 people were killed.  An annual report from the BNN said they killed 134 people in 2017 – so ten times more after the President said in 2016 that they will continue the war on drugs.  In Indonesia they seem to be duplicating happens in the Philippines.

We need the UN bodies to push the Indonesian government to restrict the implementation of the death penalty and the legal safeguard of fair trials as well

We also need to ensure that any assistance given to Indonesia does not support human rights violations including the death penalty

We also need more support for civil society working on human rights

Pavel Bem, Global Commission on Drug Policy

The abolition of the death penalty is one of the key cornerstones of the Global Commission on Drug Policy’s strategy.  I would like to congratulate HRI not only on this event but on all of the work you are doing.  The death penalty for drug offences is wholly incompatible with human rights and violates international law.  The GCDP sees the death penalty as at the heart of the journey to humanise international drug policy.  The war on drugs has failed, proving through an enormous amount of evidence that there is an absolute need for drug policy reform which has to be reflected in the supranational bodies like the UN and here at CND.  At the same time, we see that reform of the international drug control system must take into account other aspects like torture and ill treatment by police, mass incarceration, denial of access to essential medicines, extrajudicial killings.  It’s unbearable to imagine that an hour ago, there was a debate involving a citizen from the Philippines who may not be able to go back to his own country.  The Philippines has a population of 1 million but President Duterte said that he would kill 3 million drug users.  He even said that he would copy Adolf Hitler.  The influence on the neighbours is very worrying.  We do not know how many EJEs have been carried out – up to 20,000 – but Duterte has pledged 30,000 by the end of his Presidency in 2022.

We see more harm caused by drug policies than the harm caused by drugs themselves.  Drug reform has to start with abolition of the death penalty.  It has to start with decriminalisation and the legal regulation of drug markets.  This is the only way that we can put governments in control of these substances.  Sometimes when I say that as a politician and the former mayor of Prague people look at me like I’m mad.  In fact, governments already do this for substances considered risky – alcohol and tobacco.  So what is the difference between legal and illegal substances.

The Global Commission’s recommendation is that all States applying the death penalty should immediately halt executions, starting with the death penalty for drug offences as a first step towards full abolition.

We call on the UNODC Executive Director to openly and fully report at the next CND on the implementation of its human rights tool.

The government of the Philippines must immediately stop the extrajudicial executions.  They are entirely unacceptable in the 21st century

 

Questions and comments

  • Jan Milanowski, Council of Europe:

In the case of extrajudicial executions, accountability is further down the line but first we need to say no to those who are responsible. We heard in the previous panel how the ECHR has managed to provoke change in certain countries because it denied certain aspects of international cooperation, including extradition, because of the risk of death penalty.  The international cooperation goes much further than that.  We have several mechanisms for cooperation that could be brought to bear against countries that still have the death penalty.  Interpol for example is in 197 countries.  How is it possible that international organisations provide a framework for cooperation with countries that may execute people who have been identified and arrested through international co-operation.  We need a very clear message in respect of the limits of international cooperation.

  • Mat Wilson, OSF

The EUs position on the death penalty has been really appreciated.  I am concerned to know that a number of EU states have sold arms to the Philippines in the last year.  Has the EU taken a position on this and could we see some sort of comparable leadership on this?

Adriano: I should check the competencies of the EU in this regard but as a first answer, I would suggest that this doesn’t enter the competencies of the European Union.

  • Rebecca Schleifer UNDP

I have a question about long sentences. I think that the death penalty’s awful but in the US people get whole life sentences.  People pay attention to the death penalty but not to these whole life sentences.

Naomi: in the UNGASS we have provision on the proportionality of sentencing and I think we need to use that.

Jan: the ECHR has said that life without parole is contrary to human rights.

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