The harmful human rights impact of unjustified criminalization of individuals and communities: ICJ statement

 The International Commission of Jurists (ICJ) has published a set of legal principles  for a human rights-based approach to criminal laws proscribing conduct associated with sex, reproduction, drug use, HIV, homelessness and poverty.

The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty

It opens with a foreword by Edwin Cameron, Retired Justice, Constitutional Court of South Africa, Inspecting Judge, Judicial Inspectorate for Correctional Service.  The first paragraphs are:

"From long years in the law, and as a proudly gay man, I know profoundly how criminal law signals which groups are deemed worthy of protection – and which of condemnation and ostracism. In this way, the criminal law performs an expressive function – and it has dramatic consequences on people’s lives. It sometimes entails a harshly discriminatory impact on groups identified with the disapproved or stigmatised conduct.

"To add to this, criminal proscriptions may reinforce structural inequalities; they may codify discrimination, invest them with the law’s power and may foster stigma. All this may wreak terrible harm.

"Criminal law may thus impel hostility, exclusion, inequality, discrimination and marginalization of individuals and groups, sometimes to the point of violence. As a result, human rights, democratic values and social inclusiveness all suffer." 

...

"The Principles are based on general principles of criminal law and international human rights law and standards. They seek to offer a clear, accessible and workable legal framework – as well as practical legal guidance – on applying the criminal law to conduct associated with:

† sexual and reproductive health and rights, including termination of pregnancy;

† consensual sexual activities, including in contexts such as sex outside marriage, same-sex sexual relations, adolescent sexual activity and sex work;

† gender identity and gender expression;

† HIV non-disclosure, exposure or transmission;

† drug use and the possession of drugs for personal use; and

† homelessness and poverty. 

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And here are the first paragraphs of the Introduction:

"Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals. As such, it ought to be a measure of last resort, where other less restrictive means of achieving legitimate interests are insufficient. However, globally, States have exhibited a growing trend towards overcriminalization.

While retribution, deterrence, incapacitation and rehabilitation are generally considered to be its main purposes, criminal law may also perform an expressive function, through public condemnation of certain conduct seen as deserving reprobation and punishment. The desire to harness this expressive function is a critical factor contributing to the proliferation of criminal law.

The unjustified criminalization of individuals and sometimes entire communities is increasingly impeding progress in advancing human rights in many areas, including: racial and gender equality; reproductive autonomy; disability; economic justice; civil liberties; sexual orientation; gender identity; education; youth development; and public health.

Moreover, in recent years, in some quarters, there has been a backlash against human rights, especially against sexual and reproductive health and rights and the human rights of women, lesbian, gay, bisexual, transgender, non-binary, gender diverse and intersex persons, as well as against sex workers, people who use drugs and people experiencing homelessness and/or living in poverty.

"In particular, there has been continued use and, in some cases, a new proliferation of arbitrary criminal laws proscribing conduct associated with sex, reproduction, drug use and the possession of drugs for personal use, HIV, homelessness and poverty. These laws have led to egregious human rights violations, including by engendering and perpetuating stigma, harmful gender stereotypes and discrimination based on grounds such as sex, sexual orientation, gender identity, gender expression and other protected fundamental characteristics. 

"Unless criminal laws proscribing the above-mentioned conduct are directed at coercion or force or otherwise at the absence of consent, their mere existence – let alone their threatened or actual enforcement – violates human rights."

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See Saturday's post, concerning Canada's "The Protection of Communities and Exploited Persons Act," which is designed to protect sex workers.