INCB speaks out against death penalty

By Martin Jelsma

The Board does not decide whether cannabis should be downgraded in the schedules.

UN’s International Narcotics Control Board(INCB) unprecedented condemnation of the use of death penalty for drug-related offences is welcome if long overdue. The bigger question is whether INCB’s consideration of human rights can be extended into a proper human rights and evidence-based examination of UN’s entire drug control regime.

Asked about the death penalty for drugs offences at the launch of the International Narcotics Control Board (INCB) annual report, President Raymond Yans of the INCB said, “well I may have news for you…”. And news he had:

“The INCB, taking into account the relevant international conventions on human rights, the various protocols, the various resolutions of the General Assembly, of the ECOSOC, and of UN human rights bodies concerning the death penalty, we encourage state parties, part of the conventions, that still provide for the death penalty for drug-related offences in their national legislation and practice it, to consider the abolishing of the death penalty for drug-related offences.”

So far the INCB had categorically refused to take a position, not just on the death penalty, but in fact on any human rights violation, arguing – as Damon Barrett remarked – that criminal sanctions are the “exclusive prerogative” of states. Two years ago, the previous INCB president pressed on the question of the death penalty said that such matters are not within the mandate of the INCB as the drug treaties do not specify which sanctions are acceptable and which ones are not. Indeed, as Steve Rolles of Transform tweeted in response to this breaking news: “Before today the only supervised injecting room the INCB were unwilling to condemn was an execution suite.”

Yans also made clear that this stance against capital punishment for drug offences was not just his own opinion, but a new position of the entire INCB agreed at its most recent February session. The change in the Board’s position comes at a particularly delicate moment, as political negotiations in Vienna this week are still in a stalemate over several paragraphs in the Ministerial Statement which should be be adopted at the High Level Segment of the UN Commission on Narcotics Drugs (CND) on 13 to 14 of March. One of those contested paragraphs deals exactly with the issue of abolishing the death penalty for drug-related offences.

Yans also noted that the only place in the international human rights conventions where drugs are actually mentioned, is article 33 of the Convention on the Rights of the Child, which seeks to protect children from the illicit use of drugs. Yans cited this article to support INCB’s condemnation in their report of the establishment of regulatory regimes for cannabis in US states and in Uruguay, not only because they “contravene the text, objective and spirit of the treaties (namely, to preserve the health and well-being of mankind)” but also because they “would have a serious impact on the health of their populations, particularly young people” (for example paragraph 340).

In the case of Uruguay’s historic moves towards cannabis regulation, Yans said, the dialogue about this had been “difficult” and he hoped to embark soon on a mission to Montevideo to “better explain the conventions” to the Uruguayan authorities. In his foreword to the report, Yans calls these policies “misguided”, somewhat more diplomatic then accusing Uruguay of a “pirate attitude” and telling Washington and Colorado to “stop this nonsense” as he did on other occasions. Still, it is one thing to point at legal tension with the treaties, for which the INCB has a mandate, and another to speculate without any evidence base about the health and social consequences and to accuse the government of neglect of concern for the welfare of its people. For Yans to claim that moral high ground in name of the Board is completely out of place and unacceptable.

What he could do to stop the trend towards cannabis regulation? The INCB, he said, is not a decision making body but a monitoring one, “we don’t have sanctions, but member states do”. The Board will submit a report about developments in those countries to ECOSOC, and if the conclusion is that there is a serious threat to the functioning of the international control system, ECOSOC could decide to impose sanctions concerning trade in scheduled substances. For a country like Uruguay sanctions could mean that access to essential painkillers could become more difficult, though such sanctions have never been applied and would be highly controversial.

When asked whether it’s time to revise the treaty regime and whether the 1961 Convention was now outdated, Yans responded: “Possible, but that is the responsibility of states, not of the INCB. We are mandated to monitor compliance to the treaties as they are now.” He also highlighted that the INCB does not decide whether cannabis should be downgraded in the schedules, the CND does, based on a WHO recommendation. He also said, “if countries think the treaty provisions are too tight they have the freedom to change them, but the overwhelming majority of countries is not willing to reform the conventions.” And he pointed to the upcoming moments of the CND high-level review next week and the 2016 UNGASS: that’s where that debate can take place.

Well, let’s have the debate there then. It is long overdue.

INCB takes a new step towards the protection of human rights by encouraging member states to consider the abolition of death penalty for drug-related offences.

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