Drug Trafficking and the International Criminal Court

By Arpit Batra

The mandate of the International Criminal Court (ICC) does not include prosecution for those
who are responsible for drug trafficking and related offences. The ICC has jurisdiction only over
the offences enumerated in the Rome Statute. It is not a court of general jurisdiction. Drug
Trafficking does not fall into the subject matter of the ICC. The statute according to Article
121(1) may be amendment at any time after the expiry of seven years from its entry into force.
There are many multilateral treaties which address the issue of drug trafficking. It is a matter of
debate whether the issue is sufficiently taken care by the current regime or if it should be
incorporated by some other mechanism like the ICC.
In History we have witnessed Conventions like the Hague Opium Conventions which have dealt
with this issue. Also under the League of Nations Covenant, the League was specifically
entrusted with the power to supervise "the execution of agreements with regard to... the traffic in
opium and other dangerous drugs".
The UN Charter does not specifically reference narcotics or the UN's responsibility to combat
drug trafficking but the most influential treaties created with the Assistance of the UN were the
Single Convention on Psychotropic Substances in 1971, and the UN Convention against the
Illicit Traffic in Narcotic Drugs and Psychotropic Substances1988.The Preamble of the
Convention acknowledges " Drug trafficking as an international Criminal activity" and the UN's
competence in dealing with it. Later came the International Narcotics Control Board, which is
responsible for monitoring the implementation of UN Conventions on Drug Control. The main
international device created to address the growing abuse of Psychotropic substances was the
Convention on Psychotropic Substances (1971 Psychotropic Convention). It divided substances
into different schedules depending on the risks and dependence producing potential of each
substance. This Convention also limited the use of psychotropic substances for medical and
scientific use. Also, in 1997, the UN recognised and established the Office for Drug Control and
Crime Prevention to address the issues of Drugs and Crime. Moreover, the UN has worked for
the implementation of programs like the Container Control Pilot Program, and assisted in the
establishment of regional agencies like the Central Asian Regional Information and Coordination
Centre( CARICC) and the Tajhakistan Drug Control Agency.
 
The ICC does not deal with issue of Drug Trafficking. It only includes Genocide, Crimes against
Humanity, War Crimes and more specifically the crime of Aggression especially after the
Review Conference in Uganda 2010.One of the reasons for not including it in the Statute of the
ICC is that the quantity of cases would flood the court and that the court would not have the
necessary resources to conduct lengthy and complex investigations required to prosecute such
Crimes. The crimes could be more effectively investigated and prosecuted by national authorities
under existing cooperation arrangements. On the other hand, some were of the view that
particularly serious drug trafficking offenses which involved an international dimension should
be included. Also, drug trafficking was viewed as international in character, having very serious
and harmful effects and requiring international cooperation. The second version of the Draft
Statute of the ICC included drug trafficking among the offenses within the Court's Jurisdiction.
Despite of the inclusion in the second draft, the final product of the Rome Conference, the Rome
Statute of the ICC did not contain any mention of Drug Trafficking because there were problems
with defining the scope of the offense. Some states advocated that drug trafficking be included as
a Crime against Humanity as it is an attack on the health of all humanity. The Political
Declaration adopted by the 1998 UN General Assembly Special Session on the World Drug
Problem states that 
 
“Drugs destroy lives and Communities, undermine sustainable human development and
generate crime. Drugs affect all sectors of the society in all countries; in particular, drug abuse
affects the freedom and development of young people, the world's most valuable asset.”
 
Drug Trafficking  and other associated offenses could not be include as a Crime against
Humanity under the ICC statute as it failed to meet the basic definition of a Crime against
Humanity due to a number of reasons.
Crimes against Humanity under the ICC Statute are defined as acts of similar character
intentionally causing great suffering, or serious injury to body or to mental or physical health.
Those acts must be a "part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack. 
The Rome Statute specifically uses the phrase" attack directed against any civilian population" to
define actions that fall within the definition of Crimes against Humanity. Drug
trafficking does not fall within the definition of the phrase under the Statute. Drug Traffickers are
trafficking with the intention of making money and not harming Civilians. So how is it possible
to include them in the Rome Statute? This problem also does not violate any kinds of
Fundamental human rights in the way that other crimes against Humanity do. 
Also, another point for a debate may be that there are Cultural Differences regarding Drug use.
Drugs have been and are still being used by various cultures for various purposes. Around 2000
B.C. , Opium was used in Cyprus, Crete and Greece for various ritualistic purposes. In
Colombia, indigenous cultures such as the Muisca have used the coca leaf, the main ingredient in
producing cocaine, for many rituals and as a means of healing various ailments. Also, the
Netherland provides an example of how drugs, especially Marijuana, have become a part of
modern cultures as well. Since 1976, Amsterdam has been notable for its relaxed restrictions on
marijuana possession within its coffee shops. Portugal is also another state which has very liberal
drug laws. Portugal decriminalized drug use, possession and acquisition for casual users and
addicts as on July 1, 2001.Other parts of Europe and certain American states, such as California,
allow for medicinal use of Marijuana. It is not possible to criminalize activities relating to drugs
at an international level. The best solution is to create treaties and regulations on Drug
trafficking. Another problem with respect to the inclusion of this crime in the Rome Statute is
that many states may not opt for being a party to the Statute because of disagreements over Drug
Trafficking Provisions. This could lead to jeopardization of other crimes currently under the
Jurisdiction of the ICC.
Every country has their laws when dealing with such crimes. It is difficult to come to a
consensus with countries like the Netherlands, Portugal, United States and other countries which
are liberal in this regard. Punishment for such crimes in one particular country depends on one or
two factors like the quantity, type, carrier etc. Other countries may not take all these factors into
account while sentencing such criminals. So, to attain a consensus is a difficult task. Also, some
countries like Trinidad and Tobago provide for capital punishment for such offences will keep
away from the Rome Statute because it does not provide for Capital Punishment. Also, many
countries in their domestic legal systems do not provide for capital punishment for drug
trafficking.
Another problem which will come up if Drug Trafficking is included in the Rome Statute is that
it will face the problem which stems from the concept of Complementarity. With regard drug
trafficking, if a country did not prosecute an offender, the ICC could prosecute that offender. The
problem is that in many cases it would lead to inconsistent notions of justice. For example, if the
ICC does not prosecute nationals of non party states while other offenders from states who are
parties to the Statute are prosecuted, then it would lead to an inconsistent notion of justice. In
some cases countries may have to compromise with their sovereignty in a way that they might
have to disclose their methods of investigation to the ICC which may infringe their sovereignty.
 
To conclude, the problem is being currently dealt through the comprehensive treaty regime.
Inspite of a well built regime and b anti trafficking efforts, drug trafficking remains a constant
threat to the world. Under the Rome Statute, the existence of a wide scale problem is not
sufficient to vest in the ICC jurisdiction over the offence. Debates over the Rome Statute itself
and the Draft show that there is no real consensus over whether Drug trafficking offenses
which rise to the same level of severity as the other offenses enshrined in Article 5 of the Statute.