Side event: Drug-related offences, criminal justice responses and the use of the death penalty

Zaved Mahmood, OHCHR. Welcome to you all. I want to make a few introductory words, before handing over to our speakers. A few times in the past year I have mentioned the fact that we are celebrating the 70th anniversary of the Universal Declaration of Human Rights. If you look around the world, 170 countries abolished the death penalty or do not use it for any offences. Tremendous progress has been made over the world to abolish the death penalty, with countries changing their mind on the use of the death penalty, by moving away from it. We should have this discussion. Innocent people have been executed around the world. 141 people have been executed and it has been established that they were innocent in the USA. How come the people can have confidence in law enforcement efforts? One mistake can harm the confidence in law enforcement and the criminal justice system. More research has been done on this issue, with different parts of the world looking at the right to life, but also more pragmatic ways of looking at the issue – there is no evidence that the death penalty deters more than any other punishment.

Cynthia Veliko, regional representative (South East Asia), OHCHR. My presentation looks a the outcome of an expert seminar held in February 2018 in Bangkok on the death penalty and criminal justice responses to drugs in South East Asia. The OHCHR put out a report in 2013 which was solely focused on the death penalty in general.

In the 2017 report on capital punishment, the UNSG recalled his call for the abolition of capital punishment as contrary to the right to life, prohibition of torture and cruel and degrading treatment and punishment.

We looked at global trends and developments. Most states that retain the death penalty in the region do not apply it. Since 2014, the Human Rights Council has adopted 3 resolutions on the death penalty and will continue to do so in the coming months.

Since the 1980s, at least 30 countries impose the death penalty for drug offences, 8 of which in South East Asia.

Article 6 of the ICCPR protects the right to life. The UN Human Rights Committee has repeatedly stressed that drug offences do not meet the threshold of most serious crimes. The UNSG has called for resentencing of all individuals condemned to the death sentence, taking into account the circumstances of the offender and the offence.

At the Bangkok seminar, findings highlighted the fact that most people on death row were poor, with limited access to legal aid. The use of the death penalty has a disproportionate impact on vulnerable groups, and on low-level offenders like street dealers and low-level traffickers.

Transparency is integral to international human rights law, and it is essential to ensure that the use of the death penalty is compliance with international human rights law. ECOSOC has also set up minimum requirements for transparency on the rights to the accuse but also the rights of the public to information, including on the use of the death penalty.

Various countries have considered reintroducing the death penalty for drug offences. Human rights bodies and UNODC have pronounced themselves against this move.

At the seminar, despite the international drug control regime’s focus on the health of human kind, governments have focused disproportionately on criminal justice responses. Nothing in the conventions justify punishment that infringes on human rights, and nothing in the conventions say that drug use should be criminalised. This has been stated by the UNODC. Both UNODC and WHO have stated that people who use drugs should be treated within the healthcare system, rather than in the criminal justice system. This decreases risks of relapsing into drug use and the incidence of HIV.

On the 2016 UNGASS outcomes: progress towards the abolition of the death penalty has been limited despite evidence of lack of deterrent effect. There are worrying signs of war on drugs spreading, and the use of extrajudicial killings. ASEAN continues to focus on a punitive response to achieve a region free of drugs.

In January 2013, legislative amendments to the mandatory use of the death penalty were used in Malaysia. In November 2016, Thailand abolished the mandatory death penalty for selling drugs. In December 2017, Malaysia amended its drug policy to introduce sentencing discretion in specific circumstances for drug trafficking. In 2017, Myanmar introduced amendments to its drug law to commute the sentences of those condemned to the death penalty.

There is no evidence that the death penalty has a deterrent on crimes. Long periods of moratorium on the death penalty allow the adoption of alternative criminal sentences.

Only a minority of 3 countries in the region continue to use the death penalty. But there are signs that governments are starting to acknowledge the deficiencies of the use of the death penalty. The report highlights 14 recommendations, I will only mention 4:

  • Impose a moratorium on all executions
  • Ratify the ICCPR and its second optional protocol
  • Undertake studies to identify the factors of substantial racial and ethnic disparities in the application of the death penalty
  • Initiate promptly independent, impartial and thorough investigations on human rights violations.

Celine Ruiz, European Commission. Thank you for giving us the opportunity to speak today on this important matter. It is good to have CSOs at this intersessional and have this side event at the margins of CND intersessionals. In December 2017, we launched a year long campaign on the anniversary of the Universal Declaration of Human Rights. The abolition of the death penalty remains at the heart of the EU’s position. The EU and Council of Europe reiterated our strong opposition to the death penalty for all circumstances. It is cruel, inhumane and degrading treatment and is contrary to the right to life. It is against the EU Charter of Fundamental Rights, international law. It has absolutely no deterrent effect, and is irreversible. Potential errors are possible in any legal systems. For those still using the death penalty, we call for the introduction of a moratorium. We see positive trends over the past few years, towards worldwide abolition of the death penalty. Almost ¾ of the world has abolished the use of the death penalty. I pay tribute to the Iranian authorities for its reform, it has been a huge step on this issue and should be mentioned.

The death penalty is not mentioned in the 2009 Political Declaration, and the EU regrets that the UNGASS outcome document does not mention it either. We are reminded that the 2014 UN resolution on a moratorium of the death penalty, and we welcome also the INCB call for countries to consider abolishing the death penalty for drug offences. There was also a statement of UNODC on this.

In some of the 33 countries that still prescribe the death penalty, offences can include heroin trafficking or carrying a small amount of marijuana. As widely reported, including in the report published by IDPC yesterday, most people are low-level offenders, including ethnic minorities, after forced confessions. There is no evidence that the death penalty reduces involvement in drug offences.

We need to compare data and situations between those countries that apply the death penalty and those that don’t. It would be interesting to compare this data. I hope, as we are working now towards March 2019, to see progress, and have some language on proportionality of sentences. It is crucial. If we can continue some positive trend and have language on the importance of proportionality it would be very good. The issue of capital punishment is constantly raised by the EU in bilateral and multilateral dialogues. We have issued a number of public statements on this issue. We do a lot of events on the issue, we have an EU special representative on human rights who is very active on this issue. We have put a considerable emphasis on condemning the violations of minimum standards and on the use of the death penalty. We can’t expert anything else from the EU. We have a dedicated financial instrument (EIDHR) through which we fund CSO actions that focus on protecting and promoting human rights and the abolition of the death penalty. This covers trainings, public awareness raising, advocacy, stimulating a wider dialogue. The figures and trends at global level show that change is possible. This requires that those going through positive trends gather forces. In September 2017, the EU, Mongolia and Argentina worked together to restrict trade in goods used for capital punishment. There are numerous initiatives the EU is part of.

I want to conclude by mentioning the next resolution at the UN General Assembly, and take the opportunity to highlight the fact that the EU and Belgium have agreed to co-host the Congress on the Death Penalty in Brussels. You are all invited to come from 27 February to 3 March 2019.

Zaved. You have been working on drugs issues since 2008, and have come to CND since 2009. How did the CND and other UN entities evolve on the issue and why do you think it is still important to continue the debate?

Ann Fordham, International Drug Policy Consortium (IDPC). Thank you. I welcome the visibility and engagement of OHCHR in Vienna. It has not always been the case to have colleagues from other UN entities to come to CND. This should be welcome, the CND has encouraged this through various resolutions. It is incredibly important to show how drug policy affects these organisations’ mandate. There are also increasing discussions at the World Health Assembly and at the Human Rights Council.

The issue of the death penalty has been a long standing issue in Vienna. Over the years, it has come up as the sharp edge of discussions with no consensus to be found. The positions of the INCB against the death penalty is very new. This is only since the launch of their report in 2014. Since then, the INCB has continued to make this case and to support a strong focus on human rights in drug policy debates at UN level. Punitive policies of all kinds do fall on society’s most vulnerable, and the death penalty is no exception. In Asia, those on death row are vulnerable women, coerced into the drug trade for very little return. This is something to consider – poverty and the gender dimension.

International support for the abolition of the death penalty is increasing. This was central in the UNGASS debate, 73 member states voiced their opposition to the use of the death penalty. The UNGAS outcome document did not mention it, but it helped strengthen the debate, and language in the document is included on human rights and the rule of law.

We have also mentioned already the issue of extrajudicial killings as a growing concern, especially in light of UNGASS commitments.

Consensus has not been achieved, but dialogue is important. There are new experiences and perspectives being brought from the ground which need to be taken into account and we need to learn from these experiences. I want to draw parallels here with the same debates on the issue of harm reduction. This was always very challenging, and progress in the UNGASS outcome document was made with explicit mention of NSPs, OST and naloxone, thanks to continued dialogue and debate, with experiences on the ground and vocal support from CSOs, including the CSTF. This was agreed as far back as 2008 by civil society. So progress can be made, dialogue is important. Member states should not censor or self-censor just because consensus is so elusive.

Judy Chang, International Network of People Who Use Drugs (INPUD). We know that the majority of people executed or sentenced to death are the most marginalised, at the lower end of the supply chain, people who use drugs who are forced to carry or deal with drugs to survive. Ann mentioned women who use drugs, women who are coerced to provide for themselves and their families.

In South East Asia, the death penalty for drug offences creates fear and terror. We want PWUD to be engaged in social and health services and contribute to society. We should be allowed to do this rather than be shot and killed. INPUD opposes the death penalty and any abuse or punishment.

The death penalty is a violation of the right to life, it has no deterrent effect and restricts the development of more effective responses, such as engagement in drug treatment and harm reduction programmes. We welcome the report and the adoption of a moratorium of the death penalty.

Drug offences are not classifiable as most serious crimes. The prohibition of drugs has related to an unregulated drug market, which operates according to the laws of demand and supply. There is no intent to murder. As INPUD, we are aware that drugs can cause harm, but prohibition creates its own harms. This is what we see right now with overdose deaths, with people not aware of the dose they are using. It is dishonest to suggest that drug supply has deadly results. The majority of states in the UN consider capital punishment as a human rights violation.

The death penalty is used disproportionately against the poor, powerless and marginalised. While we appreciate the recommendation to limit harms, CSOs should unequivocally advocate for an end to the death penalty. Human lives are not ours to take. We recommend that CSOs use the report to lobby state governments to abolish the death penalty through constitutional and legal reforms, and continued adoption of moratoriums on the death penalty. CSOs should also continue to organise to stop the executions of those on death row, and document violations of fair trial rights. CSOs should continue to advocate for the application of international standards, and of the UNGASS commitments. At the Ministerial Segment, we call on member states to condemn the death penalty and call for its abolition.

Norway. We have experienced how challenging it is to reflect text on the death penalty in documents on drugs. We understand it may be difficult to achieve consensus next year, but we need to share experiences to get a better understanding of the situation. Several countries have undertaken steps to move away from the death penalty. Could we collate and analyse the data to reflect on lessons learned and arguments leading to the abolition of the death penalty?

Celine Ruiz. We couldn’t agree more. Consensus may be difficult next March. Through dialogue we can really make progress and you can count on the EU to insist a lot on inclusion of mention of the death penalty in March next year, it is a priority of the EU.

Ann Fordham. Two points: Harm Reduction International collect data on the death penalty for drug offences, it would be good to look at their 2018 report on this issue. The CND could also ask UNODC to work together with other relevant UN entities to undertake such a piece of research on issues that keep coming up at the CND.

Martin Jelsma, Transnational Institute. Thank you for this useful panel. I have one question: you refer to the conventions and the fact that there is nothing in there that support the death penalty. But there is a bias in support of a criminalising approach in the 1988 Convention. The big difficulty is that the treaties do state that governments can adopt more severe sanctions if they deem it necessary to tackle drug trafficking. There is only one reference to the treaties on human rights. There is not even a reference in the treaties that the ceiling should be human rights obligations. So I agree with the panellists that progress has been made. But my question is – on human rights violations in general – what possibilities do people have to appeal to the existing human rights laws and instruments to force countries to change their drug laws and make them human rights compliant.

Zaved Mahmood, OHCHR. On the conventions, there is no mention of the death penalty within the conventions. The second issue is that the INCB has discussed this issue in their deliberations at the 2014 meeting and have looked at drug obligations and human rights obligations. They have then outlined the reason why they considered that the death penalty should be abolished. On human rights obligations within the conventions, human rights are mentioned in the preamble, but we must look at the application of the conventions from a broader perspective. On how UN entities can contribute to the discussions: there are mechanisms. For example, the Human Rights Committee monitors the International Covenant on Civil and Political Rights and has reviewed drug control policies and requested that governments review their laws. The Universal Periodic Review is also key to address these issues. I also invite you to read through the OHCHR report on UNGASS implementation and human rights. CSOs and member states (who also play a key role in the UPR process) are important to make recommendations to ensure that drug policies are more compliant with human rights violations (including death penalty, prison overcrowding, etc.).

Cynthia. If you also look at the Special Procedures, this is a way for people to bring their concerns forward. Of course many of these violations are taking place relate to health, extrajudicial killings, etc.

Austria. Thank you for convening this very interesting panel. I was not present the whole time but this is an important side event. We look forward to seeing you here again at the next CND intersessionals, and to continue the cooperation between OHCHR and UNODC, including on sensitive issues. We have conventions that date back to several decades ago. No one can say what the future will be, but we hope that the global drug control system will take those issues more into consideration. And we hope that we will achieve a world free of the death penalty. I wanted to ask you a question about your cooperation with UNODC and INTERPOL. Do you see the opportunity of taking up the issue of the death penalty with law enforcement agencies and authorities? We have recently been elected as members of the Human Rights Council and will promote the resolution on the death penalty.

Zaved. We did work together with UNODC on the death penalty, on a human rights policy, in 2012. In that position, they mention that the cooperation will depend on how to address this issue. Even the development group produced a paper for all UN entities. This has been reflected in the UNSG’s report. I have taken over this issue since 2009, I was responsible for writing the reports on the death penalty for the UNSG and all these reports reaffirm the UNSG’s position against the death penalty. But our focus should really be on the country level. We are at the beginning of the process and we want to continue in this process.

Celine. Let’s continue to work together. Some questions must be asked about the deterrent effect. Why continue to apply irreversible sentences which have no deterrent effect? This requires some courage. I’m French, and I remember in 1981 when Miterrand took the decision at the time, and I don’t think the French were in agreement with the decision. And yet now nobody would think to reconsider this decision. We will continue to advocate for this language in March 2019. It will be difficult because the consensus is not there. But I hope we won’t have these discussions forever and that we will see progress. We know what we have to do and what doesn’t work. Let’s work on what does work.

Zaved. I hope that in my lifetime I will see the abolition of the death penalty all over the world.

Ann. I want to echo Celine’s comments. There were interesting conversations yesterday on supply reduction issues. I hope member states will reflect on the effectiveness of approaches undertaken, especially when practices and policies are taking human lives. We launched a new report yesterday ‘Taking stock: A decade of drug policy’, with which we hoped to put the evidence before you of what is happening out there in terms of the impacts of drug policies, and this is a huge part of the discussion. There are some shared and common goals of protecting human life and welfare, and we need to go back to that – the effectiveness of drug policy.

Judy. We know the death penalty is an extreme form of abuse, and has no place in the modern world. It is encouraging to see progress made, and encourage states that retain the death penalty to move away from it.

Cynthia. I wanted to say that for member states in Asia, we look forward to working with you to support your efforts to abolish the death penalty and look at measures that reduce crime and protect human rights, as you carry on operations focusing on security.

Zaved. Thank you very much to the panellists and to those present today. We would like to continue having this discussion on the death penalty and other critical issues. On 6th December we will organise a high level expert panel with experts coming from different human rights bodies. We hope to discuss human rights and drug policy and the latest OHCHR report on the issue. I want to thank Belgium, as well as UNOV for their support.

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