RESET - Drug Policy and Human Rights

To: Ms Ghada Waly, Executive Director, United Nations Office on Drugs and Crime

Subject: Open letter on UNODC statement on International Human Rights Day 2021

We urge you to mark International Human Rights Day 2021 by calling on Member States to change drug policies and practices that violate human rights and perpetuate inequality and discrimination.

We are writing to you ahead of International Human Rights Day 2021, which will take place on the 10th December amidst escalating global demands for the reform of laws and practices that entrench racial discrimination and social inequality, including drug policies. Last year, IDPC – together with dozens of other civil society and community organisations – called on you to issue a statement on International Human Rights Day urging Member States to change drug laws and practices that undermine health and human rights. A year later, we ask you to seize this day as an opportunity to show UNODC´s alignment with other UN entities in calling for an end to drug policies and practices that perpetuate inequality and discrimination, and violate human rights.

For decades, punitive drug policies have driven widespread human rights abuses, as has been amply documented by the UN. These include the death penalty for drug offences; extrajudicial killings; arbitrary detention, often masquerading as ‘rehabilitation’; the denial of access to life-saving harm reduction services; widespread barriers to accessing controlled medicines for pain relief; the criminalisation of people who use drugs, subsistence farmers and others groups in situations of vulnerability; corporal punishment; and mass incarceration. In all of these cases, draconian drug policies have disproportionately affected people marginalised on the basis of their gender, race, ethnicity, and economic status, thus entrenching inequality and discrimination.

Along 2021, a broad range of UN entities called on Member States to reform drug policies with discriminatory outcomes. In June 2021, the UN Working Group on Arbitrary Detention released a landmark study on arbitrary detention and drug polices, which found that ´

the war on drugs may be understood to a significant extent as a war on people. Its impact is often greatest on those who are poor, but also frequently overlaps with discrimination in law enforcement directed at vulnerable groups

´. At the same time, the UN High Commissioner for Human Rights published a new ‘Agenda towards transformative change for racial justice and equality´, highlighting that ´

The discriminatory application of criminal law must be tackled at every stage, including by reforming drug-related policies

´. The High Commissioner´s proposal led to Human Rights Council Resolution 47/21, which contains key commitments to uproot systemic racism in the law enforcement and criminal justice systems. The Political Declaration on HIV and AIDS, adopted in June 2021, also showcased the international community´s commitment to ending inequalities as a step towards ending AIDS. Lastly, the new UN system Common Position on Incarceration, led by UNODC in partnership with other UN entities, notes ‘

the overrepresentation of minority and marginalized groups among prisoners, many of whom are charged with petty and nonviolent offences

support reform efforts aimed at ensuring proportionate and individualized sentencing and alternatives to conviction or punishment in appropriate cases, including for minor drug-related offences

These various commitments emerging across the United Nations are aligned with the 2018 Chief Executives Board’s UN System Common Position on drug-related matters, which makes clear that ‘

should be designed and implemented by States in accordance with their human rights obligations

’, and commits all UN agencies, including UNODC, to support drug policies ‘

that put people, health, and human rights at the centre

Similar human rights concerns have been highlighted in the just-released Global Drug Policy Index, which measures and ranks the national drug policies of 30 countries according to how well they align with the UN system Common Position on Drugs and its Task Team report of March 2019.

The theme of the 2021 International Human Rights Day is ‘Equality: Reducing inequalities, advancing human rights’, and is aimed at ´

addressing and finding solutions for deep-rooted forms of discrimination that have affected the most vulnerable people in societies

´. As such, it presents a crucial opportunity for UNODC to align itself with other UN entities in calling for the end of policies that perpetuate inequality and discrimination, while highlighting its commitment to the promotion of human rights, in line with the UN system Common Positions.

It is in this context that we urge you to issue a strong statement on International Human Rights Day, calling on states to change the drug laws, policies and practices that violate health and human rights, and entrench inequality. To be credible, such a statement should explicitly acknowledge the disproportionate impact of drug laws and drug control on people marginalised on the basis of their gender, race, ethnicity, and economic status, and urge Member States to:

Abolish the death penalty in all circumstances. Imposing capital punishment for drug offences has been found to be contrary to international human rights law by the Human Rights Committee, and the Human Rights Council.

Put an immediate end to extrajudicial killings committed in the name of drug control, as has been repeatedly called for by the Human Rights Council and UN human rights experts.

Permanently close compulsory drug detention centres, including those that masquerade as ‘rehabilitation’, and implement voluntary, evidence-informed, and rights-based health and social services, as recently called for by sixteen UN agencies, including UNODC.

Stress the urgent need to provide accessible, affordable, and adequately funded harm reduction services in community and closed settings, to fulfil the right to health and the right to life of people who use drugs, as demanded by several UN human rights bodies and experts. This is also central to UNODC’s core role as lead UNAIDS co-sponsor regarding prisons and HIV amongst people who use drugs.

Take immediate measures to address prison overcrowding, as already recommended by UNODC and the UN High Commissioner for Human Rights in the wake of the COVID-19 pandemic, by promoting alternatives to incarceration, and ensuring proportionate sentencing for all drug offences, including by taking into account mitigating factors – in line with the basic principle that prisons should only be used as a last resort in all circumstances.

Ensure that people who use drugs are not subject to arbitrary detention, torture, or ill-treatment – whether in state custody or public or private drug services. While under detention, people with a drug dependence or health problems associated with their drug use must be offered evidence-based treatment, harm reduction and other drug services on a strictly voluntary basis.

Promote the end of all punishment for drug use, and drug possession and cultivation for personal use, as permitted within the three drug control conventions. Such policy shifts will help to end the stigma, criminalisation, and exclusion faced by people who use drugs, and to facilitate access to health and social services, as called for by the UN system Common Position, UNAIDS, and UN human rights bodies.

Make sure that drug policies incorporate a gender-sensitive perspective. This should be done by tailoring drug services to the specific needs of women, and by ensuring that criminal laws take into account the circumstances of women involved in drug offences, as most of them come from backgrounds of poverty, marginalisation, and oppression.

Clearly outline the ways in which UNODC will work to achieve these changes, and the measures being taken to ensure that human rights are effectively embedded as a core strand for all of the Office’s work.

As the lead UN agency in drug-related matters, UNODC has the responsibility to promote drug policies that respect, protect, and fulfil human rights, in a way that is consistent with the standards developed by the UN system, and in line with the commitments set in the UN system Common Positions on drugs and on incarceration. A strong statement in the forthcoming International Human Rights Day would be an important and welcome step to signal UNODC’s unequivocal commitment.

We look forward to discussing these concerns and recommendations with you.

NGOs urge UNODC's Executive Director to mark Human Rights Day with a call to reform drug policies that entrench inequality

Latin America continues to face a profound crisis in its prison systems, exacerbated by the COVID-19 pandemic. In this context, trans women 

have faced a disproportionate impact on their human rights as compared to other groups in situations of vulnerability, due to their distinct lived experiences

. Hence, the signatory organizations urge countries to 

decriminalize and provide alternatives to incarceration, particularly for trans women, and incorporate intersectional perspectives and a differentiated focus that protects the rights of LGBTI+ persons.

The conditions of vulnerability and abuse that trans women deprived of liberty experienced prior to the COVID-19 crisis were elaborated in the collective report, 

Trans Women Deprived of Liberty: Invisible Stories Behind Bars

. The report, by the regional network, 

, highlights some of the harmful impacts that incarcerated LGBTI+ persons in the region face due to the present crisis, and proposes recommendations to protect the rights of this group.

Despite these recommendations and demands by various international organizations, member-states in the region have failed to implement an intersectional and gender-sensitive approach for those groups of people deprived of liberty in situations of vulnerability, such as LGBTI+ persons. For example, the measures announced by various states to mitigate, prevent, and tend to the spread of COVID-19 within detention centers do not take into account pre-existing conditions or the specific needs of trans people.

Therefore, many of our organizations joined others in Latin America in presenting a coordinated response to the Request for an Advisory Opinion by the Inter-American Court of Human Rights to express our views on the implementation of differentiated approaches towards key populations in vulnerable conditions in the context of detention. The response advocates for the application of the Inter-American standards on the deprivation of liberty, with a gender and differentiated approach for trans women. Similarly, 

we recommended that the Inter-American Court urge member-states to protect and defend the rights of these people, respecting their identities and ensuring that the use of protective measures do not actively restrict their rights.

 Member-states must also prevent, attend to, and sanction physical and psychological abuses, such as discriminatory measures that include restricting visits, forced use of certain garments, or the refusal to provide access to appropriate medical treatments given the conditions and necessities of trans persons.

As civil society organizations that are led by or work with trans persons deprived of liberty, we note with much concern that 

states continue to violate their international and national obligations to protect high-risk groups

, such as trans women deprived of liberty.

For these reasons, member-states must be reminded of their obligations to:

Promote the implementation of alternatives to incarceration and/ or release from prison of trans women in accordance with the maximum standards of human rights and taking into account a case-by-case basis analysis.

Prioritize, given the current crisis due to COVID-19, releasing trans women deprived of liberty, particularly those at higher risk due to health conditions, old age, chronic illness, and those living with HIV or other immunodeficiency conditions.

Promote the participation of formerly incarcerated trans women in the planning and implementation of public policies aimed at promoting the human rights of trans people, and with regards to prison policies and the justice system, among others.

Collect information and establish a database with a gender and sexual diversity focus to identify how many LGBTI+ persons are currently incarcerated and what specific impacts are felt by those in situations of vulnerability.

Establish an integrated protection system to prevent, sanction and eradicate instances of violence against trans women, in its diverse forms, on the part of prison personnel and others who are in prison, with guaranteed access to protective measures and accompaniment of victims.

Guarantee that trans women have adequate access to basic health and counseling services that address their specific needs, particularly in the case of possible COVID-19 transmission.

Foster spaces and actions within detention centers that guarantee the right of people deprived of liberty to maintain communication with their family, friends, and organizations that provide accompaniment and assistance.

Promote permanent awareness and training to all personnel within the justice and prison systems, as well as for the entire incarcerated population, on sexual orientation, identity, and gender expression.

Support trans women’s reintegration into society once out of prison to guarantee, at a minimum, access to appropriate medical services, a half-way home with secure forms of transportation, financial support, and assistance in securing food and employment, as well as immediate access to official identification documents.

Asociación de Derechos Humanos Cozumel Trans (Honduras)

Casa de las Muñecas Tiresias A.C (Mexico)

International Drug Policy Consortium (IDPC)

Reset – Políticas de Drogas y Derechos Humanos (Argentina)

Washington Office on Latin America (WOLA)

RESET - Drug Policy and Human Rights

Translations

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Promoting the rights of trans women deprived of liberty in Latin America