A decade of change? The Board and the death penalty for drugs offences

One of the most important nuancing of positions made by the INCB over the past decade is in its stance toward the death penalty for drugs related offences.

In 2012, then-INCB member Viroj Sumyai ( now President of INCB) gave an interview to the Bangkok Post, which reported that: “The International Narcotics Control Board is taking no view on the government’s plans to seek the swift execution of drug traffickers. The agency says it neither supports nor opposes the death penalty for drug-related offences in countries such as Thailand.” The Bangkok Post article went on, quoting Viroj Sumyai: “We are an impartial body and respect the rule of law and jurisdiction of countries.”

This apparently neutral position on the use of the death penalty for drugs offences went against international human rights law and UN coherence, and drew a great deal of critical comment from the human rights and academic communities. The INCB received a letter signed by no less than seven professors and many luminaries from civil society condemning the Board’s statement and its stance on the use of the death penalty.

The Board replied to Harm Reduction International, which had asked, in view of Dr Sumyai’s statement, whether the Board was for or against the death penalty in drugs cases, in a letter dated 29th February 2012:

“The conventions do not provide a mandatory list of sanctions, nor do they preclude the application of any sanctions per se. Rather, the determination of sanctions applicable to drug-related offences remains the exclusive prerogative of each State and therefore lie beyond the mandate and powers which have been conferred upon the Board by the international community.”

While recognising this, the Board continued that it had repeatedly called for States to take into account the principle of proportionality in sentencing. It claimed it had addressed this question in its Annual Report for 2007. However, as HRI responded, this document did not address the death penalty at all. Its demand that INCB give a clear unambiguous reply went unanswered.

However, the situation changed drastically in 2014 when then-President of the INCB Mr. Raymond Yans – not considered one of the Board’s more progressive leaders – announced to the international community that he ‘had some news’. And indeed he did. Speaking at the meeting to introduce the INCB’s Annual Report for 2013, he stated:

“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.”

While the Board has repeatedly claimed that this had always been its position, it had in fact been reluctant to speak unequivocally on the issue before this date. Since the 2014 intervention, the Board has spoken out several times on the death penalty, and on the use of extra-judicial executions in countries such as the Philippines.

In 2016, during the presidency of Mr Werner Sipp, the Board reiterated its call for states to reconsider their use of the death penalty, and repeated the message again the following year.

And Mr Sipp had this message for the Philippines President Duterte, calling on his government to:

“issue an immediate and unequivocal condemnation and denunciation of extrajudicial actions against individuals suspected of involvement in the illicit drug trade or of drug use, to put an immediate stop to such actions, and to ensure that the perpetrators of such acts are brought to justice in full observance of due process and the rule of law.”

The Philippines did not respond to this invitation; however, it was encouraging to find the INCB speaking out against these egregious abuses against human rights, and even naming the country involved – an unusual step in international drug control.

It was clear that the Board had moved some distance from its previous reticence, and strong evidence of a positive change in its position regarding the death penalty and extrajudicial execution.