In May 2010 the International Harm Reduction Association (IHRA) published a survey of countries retaining the death penalty for drug offences. The report identified thirty-two jurisdictions with legislation prescribing capital punishment for certain categories of drug-related crime.
The application of capital punishment is typically for drug trafficking, cultivation, manufacturing and/or importing/exporting, but the definition of capital narcotics crimes is not limited to these offences. Indeed, a comparison of domestic drug legislation among retentionist countries reveals a huge disparity in the definition of a capital drug offence. The types of offence carrying a sentence of death are broad and diverse and, in some countries, include possession of illicit drugs.
Although capital punishment is not prohibited under international law, its application is limited in significant ways. Article 6(2) of the International Covenant on Civil and Political Rights states that the penalty of death may only be applied to the ‘most serious crimes’. Over the past twenty-five years United Nations (UN) human rights bodies have interpreted Article 6(2) in a manner that limits the number and types of offence for which execution is allowable under international human rights law.
While many retentionist governments argue that drug offences fall under the umbrella of ‘most serious crimes’, the UN Human Rights Committee and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions have both stated that drug offences do not constitute ‘most serious crimes’ and that executions for such offences are in violation of international human rights law. This perspective is endorsed by the vast majority of states. Although the responsibility for death sentences and executions for drug offences lies primarily with retentionist governments themselves, there are ways in which abolitionist governments and international organisations play a role in contributing to this practice.
For example, the United Nations Office on Drugs and Crime (UNODC), the European Commission and individual European governments are all actively involved in funding and/or delivering technical assistance, legislative support and financial aid intended to strengthen domestic drug enforcement in retentionist states. These activities are either specifically designed to assist in increased drug seizures and arrests through the provision of funds and equipment or relate to law enforcement training and prosecutorial capacity building. In countries that have legislation allowing for the death penalty for drug offences, such funding, training and capacity-building activities – if successful – result in increased convictions of persons on drug charges and therefore potentially increase death sentences and executions. This situation raises the serious concern that through these activities, UNODC, the European Commission and individual European governments risk complicity in acts that violate international human rights law, including the protections of the International Covenant on Civil and Political Rights. Such activities also undermine the Council of Europe’s commitment to abolition of the death penalty, the Charter of the United Nations and UNODC’s stated opposition to the death penalty for drug offences.
The UN General Assembly has repeatedly stated that international co-operation against illicit trafficking should be ‘carried out in full conformity with the purposes and principles of the Charter of the United Nations and other principles of international law, and in particular with full respect for … all human rights and fundamental freedoms’.3 Therefore, the human rights impact of the activities and programmes of UN member states and UN agencies must be a central consideration in the design and evaluation of their work. Projects and activities that may contribute to violations of international human rights law should be avoided.
The 2007 and 2008 UN General Assembly resolutions calling for a worldwide moratorium on all executions further underline the responsibility of member states and UN agencies to work to oppose the death penalty. Although these standards apply to all member states, this issue has particular resonance for European countries. Protocol 6 to the European Convention on Human Rights commits all Council of Europe member states to abolishing the death penalty. The European Union (EU) has also specifically recognised the opportunities and dangers associated with external financial assistance vis-à-vis human rights. A 2008 resolution adopted by the European Parliament:
- Calls on the Council and the Commission to ensure, with a view to the planned 2009 ministerial meeting of the United Nations Office on Drugs and Crime, that the funding supplied to international agencies such as those of the United Nations to combat illegal drugs is never used either directly or indirectly to support security bodies in countries which commit serious and systematic violations of human rights or apply the death penalty in drugs-related cases.
UNODC has also explicitly asserted its opposition to capital punishment for drug offences, stating in a 2010 report that ‘As an entity of the United Nations system, UNODC advocates the abolition of the death penalty and calls upon Member States to follow international standards concerning prohibition of the death penalty for offences of a drug-related or purely economic nature.’ These commitments make scrutiny of international assistance to drug enforcement activities in death penalty states even more critical.
Many European governments and the European Commission provide earmarked grants to UNODC for the purpose of supporting specific drug enforcement projects or activities.9 These targeted grants enable individual donors to utilise UNODC’s international network of offices to implement activities for which the countries themselves lack the necessary local infrastructure or expertise.
European governments and the European Commission collectively provided the vast majority of these funds to UNODC in 2009.10 However, at least some of these projects have thus far been implemented without the level of human rights assessment necessary to ensure that the activities themselves do not inadvertently result in executions for drug offences. While in some cases, the risk of human rights violations may be only theoretical, in others, such programmes have resulted in the execution of identifiable individuals for drug offences.
The drug enforcement activities supported by European donors and UNODC in retentionist states are not intended to increase the application of the death penalty. Rather, their objective is to increase the capacity of domestic law enforcement agencies to fight trafficking and enforce drug laws by, among other things, increasing the number of arrests and convictions for drug offences.
However, the fact that the application of the death penalty is not the intended outcome of such activities does not exclude the donors or UNODC from responsibility for the human rights impact of their activities. By providing practical assistance to law enforcement in retentionist countries, in a context where those arrested could face the death penalty, and taking no safeguards against such an outcome, the donors and UNODC risk being complicit in resulting human rights violations.
Retentionist governments will argue that the principle of state sovereignty allows them the scope to establish their own national laws and penalties. And those that have not ratified the International Covenant on Civil and Political Rights may likewise make the point that they are not bound by the terms of the treaty. However, neither of these arguments negates the responsibilities of donor states and of UNODC to take effective measures to ensure that they are not engaged in activities that contravene international human rights law and EU and UN policy against capital punishment in all circumstances.
Although the drug enforcement activities of donors in death penalty states raise human rights concerns, they also create an opportunity for these actors to promote adherence and respect for international human rights law and to limit the application of the death penalty worldwide. Donors to and/or implementers of drug enforcement programmes in retentionist states can take proactive measures to oppose the death penalty for drug offences through these activities. Actors such as the European Commission, UNODC and individual European states – all of which are committed in law and/or policy to the abolition of the death penalty – should use the influence of multilateral and bilateral drug enforcement aid as a tool to promote human rights generally, and the abolition of the death penalty for drug offences specifically. For example, European donors and UNODC can influence retentionist governments by refusing to provide, or to act as a conduit for, funds for drug enforcement activities unless the death penalty will not be an outcome of that assistance.
There are also a number of concrete actions that donors and international organisations can take in order to ensure that, through their support for drug enforcement activities in retentionist states, they are not inadvertently complicit with executions:
- In keeping with Resolution 2007/2274(INI) of the European Parliament, the European Commission should develop guidelines governing international funding for country- level and regional drug enforcement activities to ensure such programmes do not result in human rights violations, including the application of the death penalty.
- The abolition of the death penalty for drug-related offences, or at the very least evidence of an ongoing and committed moratorium on executions, should be made a pre-condition of financial assistance, technical assistance, capacity-building and other support for drug enforcement.
- European donor states should develop and apply similar human rights guidelines to bilateral funding agreements for drug enforcement activities and programmes.
- A formal and transparent process for conducting human rights impact assessments as an element of project design, implementation and evaluation should be developed and introduced as part of all drug enforcement activities.
- UNODC should – in conjunction with the Office of the High Commission for Human Rights, non-governmental organisations, government representatives, international experts and affected communities – develop guidelines on human rights and drug control for use by international and bilateral donors, implementing agencies and national governments.
- Donors should provide specific funding for the development of human rights capacity within UNODC and for the development of international guidelines on human rights and drug control.