Amnesty International’s new drug policy puts it on a slippery slope

Human rights arguments for decriminalizing drug use are often flawed, and in essence assert a right to use drugs that is nowhere to be found in international human rights standards.

By: Saul J. Takahashi
August 29, 2018

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In many jurisdictions, special courts for drug offenders play an important role in ensuring that persons with drug abuse problems access treatment and other services. 

Amnesty International (AI) remains the largest and in many ways the most influential international human rights organization. With seven million members and supporters globally, the policy positions of AI carry considerable weight, making the organization’s recent adoption of a policy position on drug control significant. At a meeting at Warsaw in early July, delegates agreed that the organization should “tackle the devastating human rights consequences of misguided attempts by countries to … punish people for using drugs.” Stating that drug control “require[s] a much more compassionate approach from governments to protect the rights of the people who are most at risk”, the organization called for a “shift away from the current ‘scorched-earth’ approach of heavy-handed criminalization to an approach where protection of people’s health and rights are at the center.”

This is part of a wider trend within the human rights movement over recent years, one that advocates for what is often called a “human rights based approach to drug control”. Proponents of this approach have been vocal in pointing to human rights violations that take place within the context of drug control efforts by states, and argue that such violations bring the entire drug control regime into question. But their logic is flawed and their solution—decriminalization—too simplistic.

AI points to its research on suspected extrajudicial killings in the “war on drugs” in the Philippines and in favelas in Brazil. Human Rights Watch has documented police roundups and arbitrary detention of persons who abuse drugs, prostitutes, and other “undesirables” in some Southeast Asian countries. There are other violations, such as the death penalty for drug offenses in countries such as China, Iran, and Saudi Arabia, and the mass incarceration of racial minorities in the United States on drug-related charges. Several human rights treaty bodies and Special Rapporteurs of the UN Human Rights Council have also advocated for fundamental revision (or even wholesale discarding) of the current international drug control regime, arguing that the goal of a “drug-free world” is unrealistic and “unhelpful”.  

These positions assert that human rights violations take place because persons who abuse drugs are criminalized in law, and (consequently) stigmatized in society at large; without the criminalization of drugs, none of these abuses would take place. The solution is to decriminalize drugs and treat drug abuse as a public health issue, not a criminal justice problem.

There are several holes in this logic, the primary one being that while governments sometimes try to justify human rights violations by citing the need to combat drugs, drug abuse is rarely the core issue. Looking at some of AI’s research, drug offenders are an easy scapegoat for President Duterte, but history has shown that there are always vulnerable groups who can be targeted by authoritarian leaders. Duterte targets drugs because he requires oppression and violence to stay in power—the issue has little to do with drug control per se, and the notion that adopting a “human rights based approach to drugs” would result in a fundamental change is naïve, if not downright disingenuous. The same can be said for Brazil: impunity for police killings in the favelas is a longstanding issue, going back many decades. The illicit drug trade acts as a catalyst, but there are many more issues underlying police violence, none of which would be addressed by decriminalizing drugs. The violations in Brazil and the Philippines are indeed horrendous, but, like with any other area of criminal justice, human rights violations do not necessarily make the law enforcement objective illegitimate. 

The other violations pointed to by proponents of the “human rights based approach” also raise similar questions. Mass incarceration of racial minorities in the United States is an outrage. However, abusive law enforcement targeting racial minorities has been a defining feature of American society since before the country’s independence—it is hardly a new phenomenon, and drug control is merely the latest excuse. The death penalty for nonviolent drug offenders in China and other countries is also a clear violation of international standards. However, these countries execute large numbers of people for other crimes as well, also in violation of international law. There is no reason that persons who abuse drugs should be the only group highlighted as “vulnerable” in these situations.

None of this is to argue that persons who abuse drugs should be thrown in prison. Approaches towards drug abuse (though not drug trafficking) should center on providing access to health care and other services. However, it does not necessarily follow that any involvement of the criminal justice system is counter-productive. In many jurisdictions, special courts for drug offenders play an important role in ensuring that persons with drug abuse problems access treatment and other services. There are problems with the workings of some drug courts, in particular regarding the invasive authority of their orders and the legitimacy of judges making what are essentially health care decisions. However, the fundamental approach is one that has been recognized by many countries as effective.

Criminal justice or not, the main question is one of coercion—to what degree can we accept that the state exerts coercion in ensuring that persons with drug abuse problems undergo treatment? Most proponents of the “human rights based approach” suggest that (outside of extreme cases) coercion is never legitimate. States should provide accessible treatment and encourage persons to avail themselves of these services, perhaps through public information campaigns and other means, but should never mandate that an individual undergo treatment for drug abuse. In essence, this is to argue that people should be free to abuse drugs if they wish—that there is a right to abuse drugs, and that states must not interfere with that right.

Efforts by some scholars notwithstanding, there is no right to abuse drugs in international law, and no grounding in international law for legalization. Human rights standards do not prohibit legalization, but they in no way demand it. To argue that respecting human rights somehow requires allowing drug abuse is false. In this regard, human rights organizations that advocate for the “human rights based approach” find themselves on an extremely slippery slope, and AI is no different. It could very easily find itself promoting policies that have no basis in international human rights standards.

There may be meaningful arguments for drug legalization, but they are not based on human rights. To pretend otherwise is to use human rights as a mere marketing tool for other goals. Wittingly or not, AI runs the very serious risk of falling into this trap.

Saul J. Takahashi is a human rights lawyer and activist based in Tokyo. He has authored numerous publications in English and Japanese, including Human Rights and Drug Control: the False Dichotomy (Hart Publishing, 2016), Human Rights, Human Security, and State Security: the Intersection (Praeger Security, 2015), and a Japanese language book on human rights in Palestine.