Drug policy and Human Rights: Everything Explained
“A ship in harbour is safe, but that is not what ships are built for.”
—John A. Shedd—
It is in the spirit of human rights that I have decided to start this blog. In a few weeks, on 11th September 2021, I will go to the police station, provide the Norwegian authorities with what they consider to be a significant amount of cannabis, and, on behalf of the persecuted population, demand a fair trial and effective remedy.
The reason is that, while portraying itself as a promoter of human rights, the Norwegian state has refused to recognize the rights of drug users, producers, and distributors for more than 10 years. The political process has not only failed but there is also no rule of law, and the integrity of the nation is suffering. Subsequently, civil disobedience now provides the only effective relief.
Why an Effective Remedy?
To explain more fully, there is a principled foundation underpinning western civilization. Our constitutional heritage goes back to the Enlightenment Era, where principles of equality, proportionality, autonomy, and a presumption of liberty were given the centre stage. The French and American revolutions were fought to protect their yield, and normally these principles are weighed and allowed to shape criminal policy.
However, these human rights principles have been ignored when it comes to the evolution of drug policy. Drug prohibition proceeds on the premise that we are dealing with a horrible enemy which cannot be dealt with in less repressive ways, and the drug-free ideal has made us accept persecution that extends to 10–20 percent of the population.
With time, it has become obvious that this has consequences that must be addressed. Most professionals, for instance, agree that the drug law has failed to deter drug use or stop the supply chain of illicit drugs. Instead, the side effects of drug prohibition have made everything worse, and so more and more states are now moving from a position of zero tolerance to decriminalization and regulation. Not only that, the constitutional courts and governments around the world are beginning to apply human rights principles to the area of drug policy. Western civilization is moving out of an age of moral panic and scapegoating to align with human rights demands—but Norway continues to ignore the call of first principles.
This is explained by the fact that residents of Norway, while far ahead in some areas of human rights (those adhering to collective notions), have long seen drug users as a pariah class. They have been misrepresented as a horde of helpless, incompetent, pathetic, and sinister individuals; they are considered as people who deserve forced medical intervention or punishment, and the state has actively endorsed this myth.
Demeaning drug users as a habit has started producing major consequences. Since the 1980s, drug overdoses have become the prime reason that young people (15-41 years) are dying, and to paint itself as the good guy, the state has twisted the dynamic of supply and demand into one of victim and aggressor. Thus, the drug dealer has become a symbol of evil, and politicians collectively support a regime of 21 years’ incarceration for activities that are becoming increasingly regulated in other Western countries. That drug dealers have human rights protection has been unheard of due to the level of fear. Even so, it is up to the state to show good reasons for continuing such repressive policies, and some NGOs have put forward 5 questions that must be addressed.
If prohibition is to be seen as a decent venture, one compatible with fundamental human rights, this is what the state must do. Human rights principles provide the only firmament for the rule of law, and yet Norwegian authorities continue to duck these questions and the responsibilities that come along with the office.
The Responsibility of the State
This is one of the reasons I will go to the police station. Being the iron fist of the state comes with certain responsibilities, and our system of drug prohibition is deeply contested. For over 40 years, Norwegian criminologists have connected the dots between drug policy and the scapegoat phenomenon. For over 20 years, the Norwegian legal establishment has noted that the use of force is inherently problematic. For over 10 years, drug users, producers, and distributors have demanded an effective remedy against arbitrary persecution—and with the 2019 report of the Royal Commission on Drug Law Reform, it is no longer possible to ignore human rights responsibilities.
The Royal Commission was given a mandate to look at the human rights dimension of drug policy without contemplating a regulation of drugs. It was impossible to accept this proposition without a grave disregard for the rights of the persecuted. Even so, as the commissioners proceeded to look at the human rights dimension of drug use, Norwegians got a report that was damning in its implications. In short, the Royal Commission held that the evolution of the drug policy had been informed by moral panic, that punishment was counterproductive and legally frowned upon, that the principles of human rights had to be brought into the equation, and that the state had a responsibility to justify the status quo or provide an effective remedy.
After this report, politicians had the responsibility to act. As moral panic was established, it was no longer possible to agitate for persecution without becoming entangled in a web of principled inconsistencies and human rights violations. International bodies like the Council of Europe and the UN had begun to focus on such commitments; the legal terrain was clear, and several NGOs pointed out the connection between moral panic, unconsciousness, scapegoating, arbitrary persecution, and human rights violations. All politicians were given notice, even the Director of Public Prosecutions, who received a cease-and-desist letter.
What is more, the findings of the Royal Commission conformed to the analysis in my book, Human Rising, which has been presented at the UN, Council of Europe, US Department of State, Norwegian Supreme Court, European Court of Human Rights, and elsewhere as a defence against wanton persecution and arbitrary detention. This acclaimed book documents how power politics and unconsciousness maintain a regime of drug prohibition. It explores the link between drug barons and governments and shows why the drug laws violate basic human rights protections. It also connects the dots between drug prohibition and other ill-conceived social experiments—and together with an orderly-but-illegal quantity of cannabis, I will bring my book to the police station to support my case against the state.
The Police and Constitutional Duties
I believe the response of the police to be one of surprise, perhaps even hostility, followed by unease. The police do not like to think outside the box. What is more, after being on the frontline of the drug eradication effort for more than 50 years, a dysfunctional culture has evolved. This culture is more likely to support the status quo than to question its premises, and probing into the legality of drug prohibition is like asking the police to face Nietzsche’s Abyss head on.
The identity of being good, after all, depends upon doing good—and we all need to be justified in our pursuits. Thus, it would take courage for the police to support a human rights analysis, as it may shift the moral ground from beneath their feet.
Even so, no one is served by disserving laws. The police itself is divided on this issue, and if drug prohibition is incompatible with human rights demands, it is better to face this issue head on. Failure to do so would imply a willingness to ignore human rights violations, and the report of the Royal Commission has made it clear that the moral fibre of society depends on their willingness to deal with the past.
The police need only look at chapter 3.2. and 3.3. of the report. Words such as “public panic”, “unbalanced views”, “misleading perceptions”, “misapplication of punishment”, and “reality-resistant iniquity” summarize the development of drug policy. We are dealing with a debate characterized by “stereotypical representations”, “moral indignation and revenge urges”, one in which “scientific understanding of the drug problem has played a minor role”. “Panic” is used several times, and there should be no doubt that the drug war has done a great disservice to the law-and-order community.
After all, this is the only reason why the police are divided on this issue. In a culture of oppression, it takes courage to speak out, and yet more and more are doing so. In Norway, for instance, a law enforcement organization that works for better drug policies is LEAP Scandinavia. Its leader, Bård Dyrdal, has not only been vocal in expressing his concern for the persecuted, but also exposing the diseased culture among the police. He has even asked politicians to intervene to save the police from the destructive dynamics of drug prohibition, and I will present evidence to suggest that 90 percent of all drug-related deaths are in fact prohibition related. This indicates that the harder the war on drugs is fought, the harder we all lose. We are dealing with a condition of mass psychosis and the way out of it is simple: It takes the integrity of the individual, and the police is obligated to assist in restoring the rule of law.
“Restoring the rule of law” may appear like an overstatement, but this is only because we are living in times of moral panic. Our society is under the influence of an exaggerated enemy image, and so we have become accustomed to a reign of arbitrary law. This is the only way to uphold drug policies on tyrannical premises; this is the only way to stop the advancement of human rights, and there have been times before when drug users have challenged the law. In fact, in the United States alone, more than a hundred constitutional challenges to the drug law have been made, but every time the defendants have been denied a fair hearing.
The same legal atrocity has happened in Norway 10 years ago. Twice, the Norwegian Supreme Court, without explanation, rejected to have the drug law subjected to human rights review. This in itself is a violation of conventional obligations but, in this manner, proponents of the arbitrary law have kept principles of human rights at bay.
Even so, our understanding has advanced collectively. 12 years ago, the Norwegian Director of Public Prosecutions declared that there were no human rights protections in this area of the law. In other countries, constitutional courts have since invalidated this position, and after the report of the Royal Commission, we know too much to look the other way. As the preamble of the UN Covenant on Civil and Political Rights maintains: “the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.”
This responsibility is even more pronounced in the directives of the police, and so I expect that the officers of the law care about justice, recognize basic human rights protections, and assist in the quest of submitting drug prohibition to the test of reason.
Why the Police Station?
But why should I go there? Why should I bring an argument against prohibition to the courts? Why not talk to politicians or engage society in a debate on different terms? Why not take an argument for reform, if it is soundly based on human rights, to the media or the UN?
I have tried all of the above—and more.
I am the founder of the Alliance for Rights-Oriented Drug Policies (AROD), an organization that has been applying human rights to the drug policy since 2015. In this period, we have written to various politicians, including dozens of ministers, more than 500 times. We have informed every level of government about their human rights obligations and held all political parties accountable for ignoring basic human rights. We have worked at the national level as well as the international level, and we have also used the media to increase our reach. Last year alone, AROD published 30 articles in Norwegian newspapers, which elaborated on every aspect of this issue. Every single article expanded on the duties of the state in times of moral panic, and to put it short, in the past 20 years, I have been on an all-out mission to have the Norwegian state recognize human rights obligations.
Even so, there has not been much success. The AROD archive is a testimony of the extent to which the prohibition regime has undermined a healthy government. I have also become a black sheep in the Norwegian drug law reform community for speaking out against gatekeepers in the debate on human rights, and the promised “reform” just crashed spectacularly.
This will be the topic of my next posts as the details are remarkable and a lesson to all. To summarize, however, the moral panic that was discovered by the Royal Commission finally proved too much for politicians. The advice of the Royal Commission was ignored, unconscious forces were allowed to define policy, and rather than evidence-based and wholesome drug policies, the continuation of arbitrary persecution on a mass-scale was ensured.
This is the situation today. Some 300,000 Norwegian citizens are without the protection of the law. And as the national psyche just proved to be incapable of dealing with obvious human rights violations, I have decided to write this blog. I have decided to go to the police station, and share my experiences with you.
I will do this for the following reasons: (1) to make the Norwegian state comply with human rights demands; (2) to inspire public officials and friends of liberty to read up on drug policy and the tradition of human rights; (3) to document the process, so that the Norwegian state does not easily get away with its shenanigans; (4) to provide a platform for debate; and (5) to begin a movement of concerned citizens and human rights activists to ensure an effective remedy to more than 300 million unjustly persecuted around the world.
The Bigger Picture
As we shall see, the case of Norway connects to the international arena. After the Norwegian Supreme Court denied a fair hearing to the relationship between drug law and human rights in 2010, the European Court of Human Rights accepted the plea. Rather than a proper hearing, however, the case was given to a single judge who did not look at its merits for reasons of incompetence. As the European Convention is to ensure a competent tribunal, this is a big problem for the Court—one that is getting worse every day. Since this time, the European Court has tried to look the other way, but the truth is that some 40 million European drug users, producers, and distributors were denied basic human rights protection.
Indeed, if the European Court had dared to do what the constitutional courts in Mexico, Alaska, Georgia, or South Africa have done, Europe could have advanced to become a leader in human rights. Drug users, producers, and distributors would have had a solid policy that could have been brought to bear on individual countries, and states would have had to defend their policies. Overall, truth and reconciliation commissions could have dealt with the fallout.
This is why the fate of millions is connected to this quest. Despite a failure of institutions to comply with human rights demands, drug users, and distributors have a right to a fair trial and an effective remedy. As human rights concerns become more pronounced, the Pompidou Group and the Council of Europe’s (COE) Parliamentary Assembly are doing what they can to resolve the tension between policy and conventional obligations. And while the latter has begun to “promote the protection of and respect for human rights and the dignity of all individuals in the context of drug programmes, strategies, and policies,” the Pompidou Group recognizes that “It is not possible at present to give an authoritative and comprehensive view on the human rights dimension of drug policy in the absence of concrete guidance from the bodies entitled to interpret and construe international human rights law, including the European Court of Human Rights.”
For this reason, it encourages the “member states to conduct a comprehensive human rights-based review in their country”, reminding them that they, “within their respective roles, duties and responsibilities, all stakeholders—government, non-governmental organizations, scientific, professional and academic communities, international or regional organizations or agencies, as well as organizations representing service users—should contribute to the drug policy governance process. They should raise their voices to signal and prompt rectification of policies that are ostensibly contrary to human rights exigencies.”
As we can see, the COE lament the lack of involvement from the European Court and its failure to look at the rights of the persecuted. Since then, UN organizations have also articulated guidelines on human rights and drug policy. As is said on accountability and the right to an effective remedy:
Every State has the obligation to respect and protect the human rights of all persons within its territory and subject to its jurisdiction. […] In accordance with these rights, States should: (1) Establish appropriate, accessible, and effective legal, administrative, and other procedures to ensure the human rights compliant implementation of any law, policy, or practice related to drugs; (2) Ensure that independent and transparent legal mechanisms and procedures are available, accessible, and affordable for individuals and groups to make formal complaints about alleged human rights violations in the context of drug control laws, policies, and practices; (3) Ensure independent, impartial, prompt, and thorough investigations of allegations of human rights violations in the context of drug control laws, policies, and practices, (4) Ensure that those responsible are held accountable for such violations in accordance with criminal, civil, administrative, or other law, as appropriate (5) Ensure that adequate, appropriate, and effective remedies and means of redressal are available, accessible, and affordable for all individuals and groups whose rights have been found to be violated as a result of drug control laws, policies, and practices. This should include accessible information on mechanisms and processes for seeking remedies and redress, and appropriate means of ensuring the timely enforcement of remedies. (6) Take effective measures to prevent the recurrence of human rights violations in the context of drug control laws, policies, and practices.
The only difference between then and now, therefore, is that the failure of institutions to protect the rule of law has become more pronounced and that the world is waking up. The Norwegian state has a long way to go to comply with these obligations and so do most other states.
Hence, this blog. Collectively, we have not yet advanced to that point where we can accept the tragedy of this social experiment and we refuse to see the connection to former mass movements gone wrong. Instead, we are at that place where society drifts unconsciously in the right direction, but where the more repressive elements are holding us back. The case of Norway illustrates this. The rest of the world, however, is also struggling and there is a need to see past the smoke and mirrors of prohibition ideology and to take a principled stand against the tyrannical tendencies inherent in the state.
You Can Help
I use the word inherent above because, in the fight for human rights, the state has always opposed change. History is clear that it takes a certain push to get through such mechanisms, but change is pressing. Last year, as Norwegian politicians refused to honour the call for a human rights analysis, there was an 18 percent increase in drug-related death. Add that Norway, since the 1980s, has been found at the top of European drug death statistics; that criminologists, doctors, and professors of law, for an equal amount of time, have connected the dots between these deaths and drug prohibition, and the urgency of our situation is plain:
As it stands, the Norwegian rule of law is undermined by moral panic. Drug prohibition is killing our young, and yet society remains too blindsided by the defence mechanisms of projection and denial to redeem conventional obligations. This must end, and by following this blog you can help Norwegian society recover.
You can also help other societies and nations. After the European Court failed to comply with conventional obligations, the case went to the UN, where it fared no better, and readers are invited to discover how the UN human rights apparatus failed to provide an effective remedy. You are also invited to see how other so-called “beacons of freedom” have shied away. Even the government of the United States has been put on notice as to the problem of arbitrary persecution, but the prohibitionist psychosis persists.
As a society, we still depend on scapegoating to make drug policy look good. Governments around the world are without the courage to deal with principled reasoning, but the costs are getting more difficult to ignore. It is for this reason that there is a global awakening. More and more see the need for a basic recalibration of drug policy, and this blog will provide a platform for questions that must be addressed.
After all, I believe you must have some questions. What I am doing is controversial, and there are important nuances to discuss. Can a citizen, in their full right, ignore the dictates of the law? Is it my intention to undermine democracy? How can I say that drug prohibition equals a crime against humanity? How can I speak of arbitrary persecution and human rights violations? Am I in my right mind?
We will see. In this blog, I will try to answer those questions that readers may have about this and other subjects. You will have a front-row seat to events that are happening, and we have much to discuss. As shall be seen, I also have a few surprises in store, and this blog welcomes everybody.
Whether we are prohibitionists or reform activists, we all have an interest in looking at this from a perspective of first principles, and there surely is a legitimate debate. In matters of human rights, moral absolutes are involved, and if drug prohibition is incompatible with principles of human rights, we are dealing with undue repressive policies. This alone should inspire change, and there should be no shame in openly opposing the status quo.
In fact, from the perspective of a constitutional scholar, there are only three options when moral panic is detected: We must be cowards, traitors, or heroes, and as the American founders knew, we will get the freedom we deserve. In the area of drug policy, therefore, the time is ripe to repair constitutional obligations—and by following this blog, you do your part.
I do not know where this will go, but this much is certain: As the followers of this blog increase, the representatives of the state will find it increasingly difficult to ignore our constitutional demands. Consequently, we can overcome the collective psychosis and be effective in our mission to provide a positive remedy to more than 300 million people.
That being said, this quest is not about dictating drug policy. It is to provide a basis for human rights in this area of the law and to ensure that independent, impartial, and competent tribunals weigh the interests of society against the liberty of the individual. That is all.
Even so, based on available evidence, it is unlikely that prohibitionists can respond successfully. And as truth and reconciliation commissions are the prescribed mechanism for coping with the problem of arbitrary persecution on such a scale, we should already begin to prepare. Indeed, constitutionally speaking, we are facing much the same process that was seen in South Africa after the end of the apartheid regime and Germany after the Second World War. To elevate a more wholesome morality, there must be a collective catharsis, and truth and reconciliation commissions are perfectly suited for it.
Hence, there is a storm coming. From the perspective of first principles, drug prohibition is inherently problematic, and the more we know about this area of policy, the more obvious is its link to former mass movements gone wrong. Healing has begun, but we have yet to face the human rights’ paradigm head-on. If we are to develop effective drug policies, however, there must be a reckoning. There must be a human rights analysis, and so Fiat justitia ruat caelum—let justice be done though the heavens should fall.