Leading jurists address misuse and abuse of the criminal law and its detrimental impact on health, equality and human rights

On 3 and 4 May 2018,  the ICJ supported by UNAIDS and OHCHR convened an expert meeting on global principles addressing criminalization’s detrimental impact in the areas of sexuality, reproduction, drug use and HIV.

The expert meeting of leading jurists from around the globe aimed at laying the foundations for a set of principles to address the misuse and abuse of the criminal law and its detrimental impact on health, equality and human rights.

The expert group focused on the criminalization of conduct relating to four principal areas: sexuality, reproduction, personal drug use, and the overly broad criminalization of HIV exposure, transmission and non-disclosure.

In these areas, international human rights authorities, as well as domestic courts, have regularly found criminal law provisions to be contrary to international law and standards, and to have a deleterious effect on public health.

“We need to understand why the blunt instrument of the criminal law is used against and affects real people, and why the criminal law ought not to apply in our four areas of concern. Where the criminal law is misused, that is a betrayal of the rule of law. The rule of law must be our guiding compass,” said Justice Cameron, Constitutional Court of South Africa.

“The principles we hope to develop must facilitate the availability of tools which can impact key populations where they are in conflict with the law. They are often at risk of blackmail, stigma and discrimination. It falls on courts to make the difficult decisions. Judges can then consider legality, legitimate purpose and questions of necessity and proportionality in light of a broader understanding of the human rights principles at stake and the relevant scientific evidence,” said Judge Mbaru, Industrial Court of Kenya.

“The law is required to guarantee rights but at same time it can impose arbitrary restrictions. Often those restrictions in the form of the criminal law purport to be necessary in order to ‘protect’ people. That purported purpose ought to be closely scrutinised,” said Justice Ortiz, Constitutional Court of Columbia.

Sam Zarifi, Secretary General of the ICJ, stated: “The misuse of the criminal law affects the most marginalized groups of people and, in particular, the dispossessed and disenfranchised.”

“The centrality of the rule of law at a time when it is under threat globally, and our crucial obligation to stand against laws that are arbitrary, unequal and discriminatory,” he added.

Tim Martineau, Acting Deputy Executive Director of UNAIDS said: “The application of human rights principles to criminal law is key in order to address the detrimental impact of such laws in the areas of sexuality, reproduction, drug use and HIV.”

“While there was significant progress in HIV prevention, treatment and care, there was a big discrepancy in HIV prevention in relation to key populations who are more vulnerable to HIV infection in many respects because of a lack of legal protection, and the unjust criminalization of their behaviour,” he added.

Kate Gilmore, Deputy High Commissioner for Human Rights, stated that the criminal law can readily become a tool of repression or oppression. She said: “Wrongful deployment of criminal law betrays universal human rights standards.  By eroding rather than protecting physical and mental integrity specifically in the contexts of sexuality, reproduction and gender identity, misuse of criminal law seeks a wrongful “regulation” of the body of women in particular, with devastating consequences for women’s and girls’ autonomy, health and well being.”

She emphasized that “the criminal law plays an essential role in the recognition, protection and enforcement of rights including by tackling impunity for violations for those rights.”

ICJ, UNAIDS and OHCHR consider that the envisaged principles will help legislators, judges and advocates in the development and review of criminal laws that have adverse consequences on health, equality and human rights particularly where they relate to key populations.

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