5. April 2022

The Greatest Persecution in Modern Times

In “The Right to Self-determination”, philosophy professor Einar Øverenget asks important questions. Referring to the COVID-19 crisis, he asks whether there is a reasonable relationship between the measures we have taken and real risk or whether such a strong narrative has been built up around fear that we forget how society usually handles danger.

The issue touches on a central pillar of our constitutional tradition. It reminds us that there must be a certain relationship between means and ends, and the concepts also apply to drug policy.

As Øverenget says, “If one is to limit freedom to protect human beings’ ability to exercise self-determination, it goes without saying that it becomes crucial to look at the intervention from a perspective of proportionality: Does a given action or situation represent such a great threat to the self-determination of others that it should be banned – or does the open society demand that dangers, including danger to life, must be acceptable”?

In the case of illegal drugs, the question only becomes more relevant. The fact that 300 million people use these products proves that their choice of drugs is important to the users. They have been subjected to the greatest mass persecution in modern times. Nevertheless, despite all the obstacles the state has thrown at them, they kept on increasing in number, and when not even the threat of the death penalty in 33 countries has created a drug-free society, the politics of punishment should be reconsidered.

This is what the more progressive nations have understood. They see that the war on drugs comes at a price that makes us all losers, and we are therefore witnessing a wave of decriminalisation. Large parts of the world are involved, and as this movement spreads, it will become more difficult to ignore the question of self-determination. This is the irrevocable result of a reduced enemy image. The drug policy has been informed by fear, not reason, and so, the drug policy conventions have gone from being interpreted in the light of a drug-free standard and prohibition as a suitable tool to emphasising realities on the ground and the intention of protecting public health.

When it comes to public health, more and more people realise that prohibition has made matters worse. Rather than reducing supply and demand, the investment in punishment has had unfortunate side-effects, and so, human rights concerns have been raised.

Human rights and the rule of law

Human rights are intended to protect the individual from excessive government intervention. They are based on principles such as equality, proportionality, self-determination, and the presumption of liberty, and several constitutional courts have concluded that punishment – at least for use of the cannabis plant – violates the right to health and privacy.

This is an issue that Norway has not yet addressed. The Royal Commission assessed whether punishment for use was within the framework set by human rights and arrived on the contrary. The Royal Commission wrote an entire chapter on this but unfortunately, it did not go on to investigate with what right the state imprisons those involved in the illegal market. It was objectionable even to take a look at the rights of users (so objectionable that public debate has still not accepted the human rights dimension of the Royal Commission’s report) and the idea that dealers could be unfairly persecuted was clearly too much.

While this group also has a right to have matters of persecution clarified, the Royal Commission did not go into this. Most likely, the reason was that the issue was too controversial. If analysis should show that violations have taken place, this would mean that the state for 60 years, with ever greater disregard for reality, has pursued a policy that does not meet its goals. It would mean that we are dealing with a scope of arbitrary prosecution that is unparalleled in modern history –  and that the state has a responsibility not only to provide redress but also to punish those who have opposed the fulfilment of human rights.

Moral panic and human rights crimes

This is the human rights perspective. Moral panic has already been identified by the Royal Commission, and there is an obvious connection between this phenomenon and human rights violations. The question is just how bad it is, and unless the state can give satisfactory reasons for maintaining a moral distinction between the use and sale of drugs, we are dealing with an atrocious law.

What is certain is that a lot is at stake. In Norway, it has been over ten years since the persecuted groups applied for human rights protection; since then, 460,000 new drug cases have been processed by the prosecution; tens of thousands have been thrown in jail, but it remains to be seen whether the state has been in the right. Only a further investigation can decide this question. Only an independent, impartial, and competent tribunal can secure the rule of law, and rather than avoiding rights adjudication, politicians should advocate for a truth and reconciliation commission.

This is the natural conclusion after 60 years of failed policies on totalitarian terms. As a society, we are facing a moral restructuring much like Germany after World War II and South Africa after the apartheid regime. We must realise that the drug policy has been opposed to wholesome morals, and we must contemplate the dehumanising effect of the ideal of a drug-free world.

This can be difficult for a society that has embraced punishment for a long time. Nevertheless, the Royal Commission rejected the “drug shark” as political fiction, void of all credibility. There is more than just the same law of supply and demand involved whether we are talking about alcohol, tobacco, sugar, coffee, or illegal drugs; there are also the same varying patterns of use, and we must realise that the demonisation of drug dealers is meaningless.

Indeed, in all other areas of supply and demand, it is the abusers of a product who are met with scorn. I am not saying that is appropriate. Stigma in any case only makes it more difficult to help, but the absurdity of judging a sales clerk for the individual’s use of alcohol is plain.

We already know that there is an irrational distinction between legal and illegal drugs, and the challenge for the prohibitionists – if they want to ensure the quality of the legislation – is to show why the average drug dealer is any worse than a regular employee in the commercial trade. From the perspective of human rights, this is where we must put the bar. If there is no good answer, we have not only let the unconscious shape drug policy; it is also obvious that the prohibitionists have more to answer for than the drug dealers and that they owe the world a greater apology.

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