Guest Post: The Death Penalty for Drug Offences: ‘Asian Values’ or Drug Treaty Influence?

[Dr Rick Lines is Executive Director of Harm Reduction International, and a Visiting Fellow at the Human Rights Centre, University of Essex. Damon Barrett is the Director of the International Centre on Human Rights and Drug Policy at the Human Rights Centre, University of Essex and a doctoral candidate in the Department of Law, Stockholm University. Patrick Gallahue is the Communications Director at the ACLU-Connecticut, and former Coordinator of the Death Penalty Project at Harm Reduction International. He is a doctoral candidate in the Human Rights Centre, University of Essex.]

Recent mass executions by the Government of Indonesia have thrown the international spotlight on the death penalty for drug offences, and ignited debates between abolitionist and retentionist States on the legality and efficacy of this sanction. This international attention is to be welcomed.

When we established the death penalty for drugs project in 2007 at the NGO Harm Reduction International, it was the first and only project specifically dedicated to research, analysis and advocacy on what at the time was a little understood issue. Our reports tracked State practice, estimating that up to 1,000 people a year were executed for drug offences worldwide, promoted the case that the death penalty for drugs constitutes a violation of international human rights law and documented direct links between UN Office on Drugs and Crime (UNODC) country assistance programmes and executions for drug offences.

But despite the clear evidence of the illegal nature of the sanction, and the growing chorus of voices calling for its abolition, a small and increasingly isolated group of countries continues to kill people for drug offences. In executing fourteen people in a matter of months, the Government of Indonesia has aligned itself with the extreme fringe of even this isolated group, joining just four other States (China, Iran, Saudi Arabia, Vietnam) that execute people for drug offences with regularity and/or in great numbers.

Political leaders and commentators often try to excuse or explain the death penalty for drug offences in Asian or Middle Eastern countries on the basis that the practice reflects unique values and traditions of the regions, or that the application of international human rights law represents a foreign intervention into domestic matters. However, like so many defenses of this indefensible practice, this one crumbles under scrutiny.

For the majority of States actively executing drug offenders, the practice is about as ‘traditional’ in legal or historical legal terms as the microwave oven is in cooking terms, and in most cases even less so. Most of the dozen States that actively execute drug offenders adopted these laws from the 1980s onwards, suggesting that rather than reflecting traditional ‘values’ of the region these policies are instead a response to the anti-drugs climate of the period, and the drafting and adoption of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the third UN drug treaty that established State obligations in international law to enact harsh penal provisions for drug offences at domestic level.

Consider some of those States actively executing drug offenders, and compare the dates of enacting these laws against their signing or ratification of the 1988 drug treaty.

With the exception of China and Iran, which have had capital punishment for drug offences since the 1940s and 1950s respectively, only Singapore, Malaysia and Thailand have capital drug laws that predate the drafting process of the 1988 drug treaty. Even then, those 1970s laws fall squarely with the era of the modern international drug control treaty regime, in which penal approaches to drug suppression were increasingly prioritised. More specifically, they fall within the period of the global ‘war on drugs’, launched by the U.S. in the early 1970s, which formed the international political backdrop for the drafting of the 1988 treaty.

Indonesia is actually a case that neatly proves the fallacy of this argument. Far from being a longstanding ‘traditional’ part of the domestic criminal justice system, the first person executed for drug offences in Indonesia was in 1995, six years after the State signed the 1988 convention. Indonesia executed five people in total for all offences between 2009 and 2014, all in the year 2013. In the other five years, the Government executed no one at all. Yet now in the first few months of 2015, the Government has executed fourteen people, all for drug offences. How to we explain this pattern? Did Indonesian ‘traditions’ or ‘values’ change between 1995 and 2009, then change again in 2009, and again in 2015? Or did the Government, and Government policy, change in response to domestic political considerations and the perceived political weakness of its leader?

A 2001 UN report recorded a more than 50% increase in the number of countries prescribing the death penalty for drugs into domestic law between 1985 and 2000. Surely this dramatic shift in State practice in a relatively short span of fifteen years did not reflect changes in national traditions or cultures.   Rather, the use of the death penalty for drug offences reflected developments in international drug control law, and the increasingly punitive nature of the regime throughout the 1970s, as codified in the 1988 drug convention. As we have pointed out elsewhere, this dramatic increase in States prescribing the death penalty for drug offences runs exactly opposite to the overall international trend towards the abolition of capital punishment documented during that same period. The irony here is obvious, as many death penalty States are all-too-happy to amend domestic laws based on UN drug control treaties, while at the same time claiming that UN human rights treaties represent an inappropriate infringement on domestic affairs.

Perhaps the most obvious fact exposing these arguments as baseless is that the vast majority of countries in the region do not execute people for drug crimes. There are 49 countries in the huge region of Asia and the Middle East. Of these, only a dozen actively execute people of drug offences, and only four or five execute people with any regularity or in any great number. Rather than capital punishment being a ‘shared’ regional approach to drugs, the countries executing drug offenders are a minority, and those executing with regularity represent a tiny minority of only one in ten.

If we take State practice as a guide, the true regional approach to drug enforcement is the non-use of capital punishment. Placed in this broader context, the tiny group of high-executing States can be seen as the extreme fringe their policies actually represent.