Drug users and the legal framework: The failure of the war on drugs and its negative impact in the Asia region from a community perspective

By Karyn Kaplan
Policy and Development Director, Thai AIDS Treatment Action Group, Bangkok

This post is excerpted from a plenary speech given at the International Conference on AIDS in Asia/Pacific (ICAAP), Busan, South Korea, August 27, 2011

Here in Asia, home to more than half the world’s opiate users, more than 16 million drug users and at least 6.5 million injectors, where HIV prevalence among injectors is among the highest in the world, where the HIV epidemic is largely driven by unsafe injecting practices, where less than 10% of heroin injectors are on methadone, and where injectors can access an average of just two sterile syringes per month, we lack 90% of the resources necessary to provide the essential harm reduction services necessary for realizing the right to health. But while resources are a significant challenge, I would argue that even when we have the resources, it does not ensure access.

Unless and until we address and remove the legal and policy barriers to accessing services for people who use drugs, investing in harm reduction is tantamount to flushing your money down the toilet. No smart investor in harm reduction would ignore the repressive legal and policy environments in which harm reduction services in Asia take place. A good investor would favor interventions that work against the collusion of criminalization, strict law enforcement practices, and the failure to respect, protect, and fulfill human rights for marginalized groups, which undermines and even undoes the benefits of the harm reduction services we are providing.
Thai policeman. Photo by Rico Gustav
Unfortunately, human rights abuses are characteristic of the dominant approaches used by governments to control drugs in this region. The constant threat of police arrest, violence, and incarceration at harm reduction drop-in centers, methadone clinics, and other places where drug users receive services minimizes the impact of these services. Documentation reveals police harassment and interference at health services accessed by drug users; arrest and forced detention at compulsory drug detention centers; a lack of due legal process, unreasonably long pretrial detention, and other breaches of fair trial standards, including false or forced confessions. Forced labor and torture in the name of healthcare is meted out through beatings, chaining, and electric shock; denial of information, prevention tools, antiretroviral therapy, and food are also reported. In Thailand, more than 2,250 people were extra-judicially executed during a 3-month government drug crackdown in 2003; in Cambodia, people who use drugs are forcibly confined in military-run “treatment” centers where staff have no training in addiction or counseling, and appeal is not an option; in Vietnam, drug treatment centers require detainees to work long hours under extremely harsh conditions with little to no compensation, and severe punishment is meted out for those who fail to meet work quotas. In most countries in the region, police interference with needle and syringe programs and opiate substitution therapy programs prevent many users from getting the health services they require.

Failing to provide comprehensive harm reduction services in prisons, which are largely filled with drug offenders, perpetuates unsafe injection, sex practices, and disease transmission among prisoners and their sex and injecting partners. We would never expect someone having sex to reuse a condom, but every day we force injectors to do the equivalent with dirty needles. We would never require a diabetic to visit a clinic daily in order to obtain their insulin, nor deny them insulin for eating a piece of cake; however, we do the equivalent with people who use drugs when we demand directly observed methadone and deny antiretroviral therapy if they do not quit drugs or even methadone. Government laws and policies in this region are allowing this discriminatory treatment.

In June, world leaders, including former Secretary-General of the United Nations, Kofi Annan; Dr. Michel Kazatchkine, the head of the GFATM; and five former presidents and prime ministers, formed the Global Commission on Drug Policy and released a report after reviewing the global body of evidence. They describe their findings succinctly in the report’s very first sentence: “The Global War on Drugs has failed, with devastating consequences for individuals and societies around the world.”

The Commission concludes that we must stop the war on drugs and replace drug policies and strategies driven by ideology and political convenience with policies and strategies grounded in science, health, and human rights; and we must adopt appropriate criteria for their evaluation. It suggests that governments hold open debates on alternatives to these failed policies and experiment with humane approaches that do not undermine human rights but rather recognize that drug use is a complex health condition with underlying social, psychological, physical, and other causes for which treatment, and not punishment, is required.

Not only are massive human rights violations taking place under the aegis of public security and drug control, but these methods are also failing to achieve their own goals of reducing and deterring drug use. There are more people using different drugs than ever; however we have less capacity to effectively address their harms.

The findings of the Global Commission on Drug Policy are not new. For decades, people from around the world who use drugs have been shouting this message as they watched their friends die untreated of HIV, overdose, and hepatitis; as they were arrested and beaten and had money extorted and drugs planted on them by police; as they were detained and imprisoned without respect for their basic rights, as they were denied information and prevention tools, antiretroviral therapy, and humane drug treatment. People who use drugs bravely and publicly implored their government leaders to heed their call for an end to the drug war and human rights abuses, but their message fell on deaf ears. It is a tragedy that we have already lost so many beautiful people who were ignored and despised and misunderstood by their governments and communities. Who is accountable? Antonio Maria Costa himself, the former executive director of the United Nations Office on Drugs and Crime (UNODC), says that governments have a legal obligation to put human rights at the center of their drug policies, noting, “Too often, law enforcement and criminal justice systems themselves perpetrate human rights abuses and exclude and marginalize from society those who most need treatment and rehabilitation.” This may sound ironic, given the fact that the UNODC is part of a global drug control system that promotes confusion and misunderstanding about the drug conventions, and actively fights against humane approaches to drug control, bullying countries and creating barriers to change.
Thai AIDS Treatment Action Group protestors. Photo by Rico Gustav
Drug law reform activists are often encouraged to take the long view on policy change. In meeting rooms, we are asked to be patient, to forget about legal reform, or to just wait. Society isn’t “ready,” we are told. The government isn’t “ready.” But as my hero, Reverend Martin Luther King, Jr., wrote in a letter from an Alabama jail, this word, “Wait,” which he too heard for years, has almost always meant “Never.” “Justice too long delayed is justice denied,” he wrote. “Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”

King also said that we have a moral responsibility to disobey unjust laws. I propose that if, in our country, the provision of life-saving prevention tools such as clean needles or opiate substitution therapy is found illegal, it is our moral obligation not to comply.

Thankfully, we have strong examples of ways that countries are moving away from punitive, abstinence-based approaches to drugs and experimenting with legal and policy reform. Countries in Latin America, North America, and Europe have promoted:

decriminalization of drug possession for personal use,
proportionality in sentencing,
alternatives to incarceration for drug possession,
the removal of paraphernalia laws,
the establishment of safer injecting facilities and heroin assistance programs as part of a range of low-threshold services for people who use drugs,
adequate financing for harm reduction, and
the abolition of the death penalty.

These progressive countries are finding that their reforms do not result in increased drug use, as their opponents feared, but rather lead to increased uptakes in drug treatment, reduced harms from drug use, and also reduced drug use. Countries such as Australia and Switzerland, where criminalizing laws have been reformed or removed, boast low HIV prevalence, while countries such as Thailand, China, and Vietnam, where governments have failed to remove these outdated and ineffectual laws, have extraordinarily high prevalence rates.

As Dr. King reminds us, there is no time to wait. Let us fearlessly advocate for drug law reform so that we may to achieve universal access in Asia. The time is now.