The Failure of the Norwegian Drug Policy
“After a few decades studying the development of our drug policies, I have become more and more sceptical. Speaking bluntly, I have stated that we someday may see it as the 20th Century’s greatest misapplication of the criminal law. With this, I speak not only for us, but for the entire world.”
—Johs. Andenæs, Professor of Law, 1996—
In Post 1, I explained why, on 11th September 2021, I will bring cannabis to the police. The failure of the Norwegian political process to aptly deal with the demands concerning the protection of human rights was summarised, and we also discussed its national and international implications. As we noted, some 300 million people are being persecuted without valid explanation; this violates human rights, and there is a need for independent, impartial, and competent tribunals to weigh the interests of society against the liberty of the individual.
It is not only the political process but also the legal system that has failed to protect basic rights. Both the Norwegian and the international systems for drug prohibition have escaped meaningful review, and so this blog has been founded to make the state respect the rule of law.
Although controversial, I have already presented the bigger picture. This press release has more to say on the events of 11th September 2021, and here, I shall focus on how the Norwegian state came to be a violator of human rights. I should add that the title is somewhat misleading, as I shall not elaborate too much on the failure of the political process. It would require writing several books to demonstrate this breakdown in its entirety, for the incompetence and arrogance of politicians in this area of policy is such. Thus, we shall continue on a more positive note, i.e. what has been achieved in the area of human rights.
Early Days
Until the 1980s, the malfunctioning of the Norwegian drug policy was evident only to a few. Criminologists and sociologists represented the vanguard in the fight against despotism, discussing scapegoating, totalitarian premises, and other issues, and by the 1990s, more and more lawyers began to question the status quo.
The reason was simple. From the 1960s to 1980s, politicians escalated the persecution of drug offenders. By 1984, to win the war on drugs, the Norwegian state enacted a legislation giving 21 years imprisonment to drug dealers—the longest sentence provided for in the Norwegian Constitution—yet drugs continued to flow. In fact, the only visible result was the increased difficulties for drug users and society, and so more and more professionals began to think differently.
The consequent change was evident by 2002. In the report of the Criminal Law Commission, a majority of commissioners recommended decriminalising drugs as this was not an area for the law. The stigmatising effect of punishment was noted to make matters worse, but the Department of Justice did not listen. Even reducing the maximum prison sentence for drug dealing from 21 years to 10 years was unheard of, so the Norwegian drug policy continued askew. After decades of propaganda on prohibition, some 90 percent of the population was loyal to the drug-free ideal and thinking about human rights was intolerable. Instead, it was up to drug users to fight for their rights, and drug offenders turned to the courts for assistance.
I was amidst this process. I had seen the death and destruction during the 1980s and 1990s; I had read up on drug prohibition and human rights and was ready. Thus, when the police arrested me in 2005 for growing cannabis, I had faith that the Norwegian justice system would provide an effective remedy. To help settle the matter, the police received literature that indicated that the rights of drug offenders had been breached. Together with the Norwegian Director of Public Prosecutions and the Minister of Justice, the police were asked to respect human rights obligations, and on behalf of the persecuted, I looked forward to their implementation of a proper process of rights adjudication.
Even then, all these institutions refused to acknowledge their respective roles in protecting human rights. Instead, the Norwegian Director of Public Prosecutions declared that there were no human rights protection for drug offenders; the Ministry of Justice did not respond, and the legal system failed to ensure a fair trial. At no point did the Norwegian judges care about the relevant constitutional commitments, and in 2010, these commitments got completely sidelined when, on two occasions and without any explanations, the Norwegian Supreme Court rejected the demand for subjecting the drug law to human rights review.
This amounts to a serious violation of conventional obligations. Even so, in this manner the proponents of arbitrary law have successfully kept the principles of human rights at bay. Drug offenders were denied their day in court, and prohibition was allowed to continue without being subjected to due process.
As mentioned in Post 1, when this case reached the European Court of Human Rights, it was finally put to rest by a single judge for reasons of political expediency. Instead of being heard by an independent, impartial, and competent tribunal, which the European Convention on Human Rights requires, the complaint had been brought before a judge who rejected the application for reasons of incompetence. The Court received hundreds of support letters, protesting against this injustice, but neither the Court’s President nor the Council of Europe’s Secretary General intervened.
Hence, the Norwegian authorities could continue to persecute the targeted population even without offering an explanation. The rights of drug users, producers, and distributors were tossed aside, and the representatives of the state did not think twice about it. They had become too accustomed to basing drug policy on totalitarian premises to reconsider their crusade, and assisted by Europe’s greatest police force per capita, prohibitionists continued their persecution.
Escalating Tyranny
In this way, the integrity of the nation declined, and the prognosis did not look good. Drug prohibition had been shown to have such a hold on the Norwegian psyche that public servants would rather ignore the dictates of law than face the reality of oppression. I myself served 6.5 years in prison for cannabis-related crimes and thousands of more drug offenders endured the same—only now we were dealing with a state that should have known better.
To remedy this state of affairs, I wrote letters to the police and the Minister of Justice. I put two tons of cannabis on the table and offered to explain my activities, if only the state would guarantee a human rights’ analysis. I contacted politicians, the media, the Minister of Health, the UN, and other authorities concerned, but to no avail. Drug policy continued unchecked, more and more people were imprisoned without due process, and no one would respond to my letters. Thus, in 2015, the Alliance for Rights-Oriented Drug Policies (AROD) was born.
Drawing upon the first principles (those of equality, proportionality, autonomy, and the presumption of liberty), the AROD’s mission was to enlighten public officials, concerned citizens, and drug users on the faulty premises behind the prohibition regime; the former were made aware of their human rights obligations and the latter of their right to an effective remedy. Books, case studies, and reports were produced to explain the situation and ensure an informed outcome. Every level of the government was put on notice about the problem of arbitrary detention, and we contributed to the UN General Assembly’s Special Session on Drugs in 2016.
Thus, drug reform activism was elevated to a point where NGOs not only discussed human rights concerns but also began holding public officials accountable. In letter upon letter to the Norwegian government and others, our books and reports were presented as evidence that the war on drugs is unconstitutional. The state was given five questions that had to be answered for the prohibition regime to be legitimate, but to no avail. While these questions indicate that a crime against humanity has been committed, they have been ignored to this day.
The AROD archive is testimony to the failure of officials to deal with a legal crisis. At both the national and international level, the invitation to deal with human rights violations was ignored. Our letters were even censored from the UN and US State Department’s website—yet, the tide was turning. By 2018, the constitutional courts in Mexico, South Africa, and Georgia had invalidated the prohibition on cannabis; the Council of Europe and the UN had begun to connect human rights and drug policy; Canada, Uruguay and 10 US states had regulated the production of cannabis, and prohibition was exposed as an ever-more dysfunctional venture. Thus, even the Norwegian people began to think differently.
Norwegian Drug Law Reform
More and more citizens understood that the war on drugs was making life worse for everybody without much to show for. After 60 years of learning, it was difficult to ignore the double standards of prohibition, and Norwegians realised that the stigmatisation of drug users is bad. They still depended on the demonisation of drug dealers to go about their days, but the national psyche had been elevated to a point where the human connection made punishing drug users unacceptable.
Hence, in 2018, the government sought to modernise its prohibition regime into something less hostile. As a result, a proposal was made to give responsibility for drug use to the Department of Health, whereas the Department of Justice was to deal with more severe involvements in drugs. To defend this basis, a moral line was drawn between supply and demand, and politicians had to separate the wheat from the chaff. Who deserved punishment and who deserved help?
Imagine the confusion. The Police Directorate was adamant that the police had to be involved at all levels; their expertise was unique, and they were the only effective help. All drug users needed their assistance, and the police required all their power and budgets to fight the enemy of drugs. Most politicians, however, wanted to separate the addicts and problematic users from the rest of the population involved with drugs, and they preferred the former to be dealt with by the Ministry of Health and the latter to be dealt with by the law. The question about separating one from the other was a matter of debate, and to find out what the approach for this should be, the state invited to hearings.
The reform movement, which had grown by leaps and bounds, was happy to see some progress in a long-neglected area of policy and pressed on for a more humane approach. Most NGOs assumed that decriminalisation was the best that they could hope for, and they became committed to helping politicians get this done. However, the idea of going from criminalisation to an infantilisation/medicalisation of drug users was problematic. Constitutionally speaking, the principles of autonomy, equality, proportionality, and the presumption of liberty had to be included, so the AROD advocated for a human rights approach, one that began with adherence to constitutional principles.
The state, however, wanted none of it. Under no circumstances would the politicians willingly consider the righteousness of their crusade, so they erected a Royal Commission that was to look at drug policy and human rights—without contemplating the regulation of drugs.
The Royal Commission
As noted in Post 1, it was impossible for the Royal Commission to look at the human rights’ dimension of drug policy without considering a regulation. Nevertheless, commissioners toiled for a year to deliver a report that shook the establishment to its core. Although informed by unnecessary acrobatics, abdications of responsibility, and inconsistent reasoning (all to give politicians what they wanted), the report did look at the rights of the drug users, and in in doing so it went much further than anticipated. As the commission dissected the history of prohibition, moral panic was revealed to be the engine of drug policy. Expounding on the human rights’ dimension, punishing drug users was found to be incompatible with the basic tenets of law, and it was clear that politicians had a problem.
As the Royal Commission explained, there had been a shift from interpreting conventions regarding drug control in light of a drug-free ideal, and prohibition as a proper tool, to emphasising realities and the intention to promote health and welfare. As such, there was an increasing demand from international bodies to ensure the legislation’s compatibility with human rights so that the drug control policy did not aggravate problems. The Royal Commission elaborated on this bit in its review of human rights obligations. Not only did it show that criminalisation is now seen as an evil and that decriminalisation is in keeping with international obligations, but it also noted the responsibility of the state to investigate alleged human rights abuses and to provide an effective remedy. Thus, everything was set for the next stage of human rights activism.
Unresolved Tension
Building on this report, a handful of NGOs informed politicians of the connections between unconsciousness, scapegoating, moral panic, arbitrary persecutions, and human rights violations; they stood their ground against a drug policy built on totalitarian premises and defended the rights of the persecuted. Yet, the moral panic that was noted by the Royal Commission ensured that the Norwegian drug policy remained without a proper legal basis. Politicians were caught in a collective psychosis, lacking the integrity to resist its lure, and they continued to agitate for persecution on disproven premises.
To counter such tactics, the AROD filed a complaint to the police against the members of Parliament for dishonouring constitutional obligations. We contacted the Ministry of Health, Ministry of Justice, and the Directorate of Public Prosecutions; further, we held these institutions responsible for upholding the constitution and asked that they honour the basic human rights commitments.
As usual, we were stonewalled by the Directorate of Public Prosecutions. However, with the Ministry of Health, we have had some success. After pushing on for seven years, we finally got a response that the Department of Health acknowledges human rights commitments in this area of policy and that one day there would be a human rights analysis. The department noted authorities on the issue, such as the Council of Europe, UNDP, and Damon Barrett, but it proceeded to say that constitutional commitments were unclear.
This was in the summer of 2020. The AROD responded that the constitutional commitments were not vague. We referred to the very same authorities, and we quoted what the UNDP and others had 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 redress 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 AROD declared that Norway had a problem corresponding to Points 3, 4, 5, and 6, as the persecuted groups had been denied all of the above since 2008. Due to the failure of the legal process, we emphasised the increased responsibility on public officials and referred to the COE’s position on drug prohibition and arbitrary persecution:
The Assembly […] calls upon member States to […] ensure that criminal justice responses to drug-related crimes respect human rights, legal guarantees, and due process safeguards pertaining to criminal justice proceedings, in particular, by ensuring that arbitrary arrest and detention, as well as the use of excessive force and disproportionate sentencing against people who use drugs are effectively prohibited, and allegations of such abuse promptly investigated and acted upon, in accordance with international standards.
Rights Adjudication
AROD quoted the COE because, in Norway, “allegations of such abuse” have not been “promptly investigated and acted upon in accordance with international standards”, and drug reform without looking at this bit is a charade. Moreover, we noted what Damon Barrett, a commonly recognised authority on drug policy and human rights, had stated about the process of rights adjudication:
The (European) Court has developed the test of proportionality for assessing whether restrictions have been ‘necessary in a democratic society’. There are varying iterations of the test, in particular, depending on the nature of the right in question and the aim pursued (e.g., a stricter test would be applied to freedom of expression than to the right to property). Crucially, the burden is on the State to demonstrate the proportionality of the restriction. Thus, it should become central to policy development, monitoring, and evaluation. States need not criminalise such behaviour if to do so would be contrary to constitutional principles or the basic concepts of their legal system. It is therefore not an international obligation to do so, even if there was a clear push towards such measures.
The proportionality test is an important consideration in this regard. Whether or not States adopt such laws should be balanced against human rights considerations, which are often protected constitutionally or are central to the legal system in question. It is another obvious case of tension between the two systems of law. […] Again, a first step in this regard is mapping the potential human rights engaged. This certainly includes the right to privacy, which is inherently restricted by any broad behavioural ban. But it may also include the manifestation of religion or cultural or indigenous rights. Freedom of expression and freedom of thought may also be engaged. The question, then, is whether the criminalisation of possession for personal use is proportionate to the legitimate aim of protecting health, children, public order or other justifications. This of course will depend on the stated aim, but there must be a rational connection between these aims and indicators of success.
The burden is on the State to demonstrate the proportionality of the measure. It should not be merely assumed that a ‘pressing social need’ is there. This should be carefully considered based on the actual dynamics in the country. The current debates around whether to control ketamine are a serious example of why this is important. Similarly, the banning of khat in some European countries raises this question. Crucially, given that criminalising a behaviour bans it entirely, were any less restrictive means considered for the achievement of the same aim or aims? This requires the consideration of policy alternatives. Without this assessment, the burden of demonstrating that no less restrictive means were available cannot have been met. The issue of outcomes is again crucial. It may, for example, be decided by a given State that the criminalisation of non-medical uses of controlled substances is proportionate, given a pressing social need due to the harms of drug dependence. But it may later begin to fail the test once its effects become apparent. It may, on the other hand, pass the test if it has proven successful. Has the measure, over the years, made progress in achieving its aims? The key issue is that the proportionality test is not a one-off when it comes to policy development but an on-going process of reflection.
This is the test that the drug law has outwitted. To this day, the implementation of law continues without proper quality control, and AROD has explained to the Ministry of Health that, to pass this test, the state must answer five questions. Vague assurances about future commitments were not enough, so we pushed on and were sent to the Ministry of Justice. The Ministry of Health assured us that this was the right department.
Hence, we waited for another six months before the Ministry of Justice responded. All it did, however, was to ignore our questions and refer to the Ministry of Health as the right department; apparently, this unit, which ensures the imprisonment of thousands of drug offenders, wanted no responsibility for the prohibition law, so we contacted the Minister of Health, Bent Høie.
The minister has been a poster boy for change. Internationally, he just served four years as the president of the Pompidou Group, where he promised to put human rights first. The Pompidou Group upholds the core values of the Council of Europe—human rights, democracy, and rule of law—and promotes a balanced approach to drug policy. Since 2016, it has been focusing on the connection between drug policy and human rights, and some good literature has come out of it. The only problem in this case is that there remains a distance between theory and practice. Bridging this gap is extremely important to our civilization and the COE, but while our Minister of Health has publicly emphasised the importance of working with civil society, as well as committing to human rights, reality has proved differently.
To this day, the Norwegian Minister of Health continues to ignore his obligation to investigate alleged human rights abuses. To date, he acts as a gatekeeper in the debate on human rights—and as the political process has failed, I will bring cannabis to the police on 11th September 2021. Once again, I will challenge the law, and I invite you to take part.
As seen in this post, there is a movement towards implementing human rights in the drug policy. Those with a vested interest in drug prohibition have successfully kept meaningful analysis at bay, but as the system continues, there is increased tension between those who support the status quo and those who seek better drug policies. The only way to deal with this friction is to look at the drug policy from a principled perspective. The longer we wait, the worse are the constitutional implications, and I hope that civil disobedience can bring to light a long-ignored chapter of human rights abuses.
I also expect the police to assist. In the debate on the drug policy, the police have had a difficult year, and the failure to deal with moral panic has made people question the ethics of law enforcement. In 2021, a scandal broke out, as it was discovered that illegal drug searches had become a pattern with the police. Professors of law, politicians, and others wanted this scandal to be investigated, but nothing came of it. This is bad enough for the reputation of law enforcement, but could get worse. If the Labour Party (AP) gets their way, the police could be forced to do a job that few legal scholars will endorse. In fact, the only lawyer to approve and support the idea of the Labour Party to punish recreational drug users and to ignore problem users, was Thor Aksel Busch, the former Director of Public Prosecutions. This is from the same lawyer who, 12 years ago, denied basic human rights protection in the area of drug policy, and he is increasingly isolated.
Hence, with a new Director of Public Prosecutions, there is a window of opportunity. While the former director was dedicated to a totalitarian drug policy on , the new incumbent has denounced such practices, at least in principle. Due to human rights concerns, he has been supportive of reform, and as the world moves forward, the police should support a reckoning with the tradition of arbitrary law.
In the long run, nothing is more detrimental. This legal tradition has legitimized slavery, racism, genocide, and every other form of wanton persecution. It survives to this day because of lawyers who care more for power than the integrity of their profession, and as the tension between human rights and drug policy gets worse, we should look for common ground in sound principles.
This is my ambition. It is also the ambition of international law, and you can be a part of this quest for justice. As previously noted, the more who follow this blog, the more difficult will it be for the Norwegian political and legal system to ignore the call for a human rights analysis, and I believe we will find a way, at the national or international level.
We surely have the ammo to take down a beast of biblical proportions. In addition to Human Rising, which exposes the prohibitionist psychosis, the police will receive To Right a Wrong, which provides the deathblow to proponents of arbitrary law. Constitutionally speaking, the state is obliged to act on this evidence which shows that they have been on the wrong side of the constitution for more than 50 years. The minister of health, the police, and the Director of Public Prosecutions have all been informed of my actions and the opportunity to be part of a solution, and if the politicians or the courts refuse to act, there are other options (all non-violent), of which we shall say more as we continue.
In any case, I hope that you enjoy reading. We now have an idea of the evolution of the drug policy and human rights, and my next posts will include some articles that the Alliance for Rights-Oriented Drug Policies had in the media on Norwegian drug law reform.
Till next time, Godspeed.
