Descriminalización y fin del sida: mantener la promesa, seguir la ciencia y cumplir los derechos humanos
El Grupo de Referencia de ONUSIDA sobre VIH y Derechos Humanos sostiene que la criminalización es perjudicial y mortal, alimenta la pandemia del VIH y fomenta las violaciones de los derechos humanos. Más información, en inglés, está disponible abajo.
Criminalisation is deadly; it fuels the HIV pandemic. The misuse of the criminal law also violates human rights on a mass scale globally. The evidence of these harms is overwhelming and undeniable.
States have unanimously committed to the Sustainable Development Goals of ending AIDS as a public health threat by 2030 and to achieving gender equality and just and inclusive societies. In the United Nations General Assembly’s Political Declaration on HIV of 2021, they recognised that ending inequalities is essential to the goal of ending AIDS and adopted the targets of the Global AIDS Strategy 2021–2026, including the abolition of criminal and other punitive laws, policies and practices targeting key populations affected by HIV.
States must keep these commitments. Without such action, the goal of ending the pandemic will remain out of reach. In this statement, the UNAIDS Reference Group for HIV and Human Rights, established in 2002 to advise the Joint UN Programme on HIV/AIDS (UNAIDS), presents the evidence and a call for action to international, regional and national stakeholders.
The evidence is clear: ending misguided and unjust criminalisation is good for public health and required as a matter of human rights obligation.
Ending AIDS requires that people everywhere have safe, effective access to services for HIV prevention, testing and treatment, as part of governments’ obligation to take steps to realise for all the right to the highest attainable standard of physical and mental health. Achieving this goal requires adequate investment in the right programmes, designed and implemented in collaboration with the populations and communities most affected.
It also requires bold, sustained action to remove the societal and structural barriers that increase people’s risk of HIV infection and impede access to, and the reach and impact of, HIV services. Key among such barriers are unfair, discriminatory and inhumane laws, regulations, policies and practices that criminalise and otherwise punish people because of their real or perceived HIV status, sexual orientation, gender identity, drug use or possession, or sex work. Such criminal laws are both at odds with public health efforts and incompatible with human rights standards.
Across the globe, laws protecting against discrimination and gender-based violence are associated with significantly higher knowledge of HIV status and higher viral suppression among people living with HIV. Meanwhile, in countries where same-sex sexual acts, sex work and/or drug use are criminalised, fewer people living with HIV know their status and fewer people achieve viral suppression. In a world where HIV is completely preventable, the increased risk of infection and of death faced by key populations is linked directly and significantly to various structural barriers — including laws and policies that stigmatise, discriminate and punish.
International human rights bodies, regional and domestic courts and independent experts have found that such criminal laws violate a variety of human rights, including the rights to the highest attainable standard of physical and mental health, non-discrimination, privacy, autonomy, dignity, freedom of expression, freedom from arbitrary detention, and ultimately the right to life, among others. The recently published “8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Sexuality and Reproduction, Drug Use, HIV, Homelessness and Poverty”, drafted by the International Commission of Jurists and endorsed by global legal experts, outline the ways in which such laws breach general principles of criminal law as well as international human rights standards. Even where such laws are not enforced, their presence amounts to a violation of human rights. They undermine public health efforts by increasing risk and creating barriers to accessing life-saving services. They are also weaponised in other ways as means of stigmatisation and social control of populations and communities. The underlying criminalisation often facilitates and is used to “justify” other punitive measures and practices, including by law enforcement and others, that target, harass, extort and otherwise abuse members of key populations. States must take proactive measures to end such practices and must abolish the underlying criminalisation.
In the past few years, the COVID-19 pandemic response has again illustrated that over-extension of criminal and other punitive laws in the name of public health, particularly when such policy is not well-founded in evidence or is discriminatory, fails to satisfy well-established legal standards required for limitations on human rights and is ultimately damaging to public health. This reinforces a key lesson from the HIV pandemic—namely, the importance of removing such punitive laws and policies, and of creating a legal environment that respects, protects and fulfills human rights. Doing so is essential to an effective response to HIV among key populations and to achieving the Sustainable Development Goal of ending AIDS as a public health threat by 2030.