Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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“The Review of the United States of America Has Been Cancelled”

US government shutdown causes postponement of Human Rights Committee review of USA

In an email today to the many civil society organizations in the US that had prepared for the review (see state report and list of shadow reports by scrolling down to entry on USA here), the US Mission to the UN in Geneva conveyed this news:

the U.S. Delegation to the 109th Session of the Human Rights Committee regrets to inform civil society partners that due to the ongoing government shutdown, we have had to request today from the Human Rights Committee a postponement of our ICCPR presentation. We are also therefore postponing the NGO consultation scheduled for October 16.

The Human Rights Committee has issued the following statement:

THE REVIEW OF THE UNITED STATES OF AMERICA HAS BEEN CANCELLED

To whom it may concern,

Please be advised that the review of the USA, which was scheduled to be reviewed during the Human Rights Committee’s 109th session, has been postponed until March 2014 (exact dates to be confirmed).

A request for a postponement from the USA was made on 10 October 2013 and accepted by the Committee on the same day. The USA highlights its regret at having to make such a request, which is due to the ongoing government shutdown.

The Committee and the Secretariat regret the inconvenience this will cause, in particular to members of civil society who had made arrangements to attend and participate in the meetings.

FYI instead of the USA review, the Committee will continue its consideration of its draft general comment on article 9, of the ICCPR (liberty and security of person), during the afternoon of Thursday 17th October and the morning of Friday 18th, in the ground floor conference room of Palais Wilson.