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Drug Trafficking and the International Criminal CourtBy
 Arpit Batra
 The mandate of the International Criminal Court (ICC) does not include prosecution for thosewho 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. DrugTrafficking does not fall into the subject matter of the ICC. The statute according to Article121(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 beincorporated by some other mechanism like the ICC.In History we have witnessed Conventions like the Hague Opium Conventions which have dealtwith this issue. Also under the League of Nations Covenant, the League was specificallyentrusted with the power to supervise "
the execution of agreements with regard to... the traffic inopium and other dangerous drugs
".The UN Charter does not specifically reference narcotics or the UN's responsibility to combatdrug trafficking but the most influential treaties created with the Assistance of the UN were theSingle Convention on Psychotropic Substances in 1971, and the UN Convention against theIllicit Traffic in Narcotic Drugs and Psychotropic Substances1988.The Preamble of theConvention acknowledges " Drug trafficking as an international Criminal activity" and the UN'scompetence in dealing with it. Later came the International Narcotics Control Board, which isresponsible for monitoring the implementation of UN Conventions on Drug Control. The maininternational device created to address the growing abuse of Psychotropic substances was theConvention on Psychotropic Substances (1971 Psychotropic Convention). It divided substancesinto different schedules depending on the risks and dependence producing potential of eachsubstance. This Convention also limited the use of psychotropic substances for medical andscientific use. Also, in 1997, the UN recognised and established the Office for Drug Control andCrime 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 theestablishment of regional agencies like the Central Asian Regional Information and CoordinationCentre( CARICC) and the Tajhakistan Drug Control Agency.The ICC does not deal with issue of Drug Trafficking. It only includes Genocide, Crimes againstHumanity, War Crimes and more specifically the crime of Aggression especially after theReview Conference in Uganda 2010.One of the reasons for not including it in the Statute of theICC is that the quantity of cases would flood the court and that the court would not have thenecessary resources to conduct lengthy and complex investigations required to prosecute suchCrimes. The crimes could be more effectively investigated and prosecuted by national authoritiesunder 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 seriousand harmful effects and requiring international cooperation. The second version of the DraftStatute 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 RomeStatute of the ICC did not contain any mention of Drug Trafficking because there were problemswith 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 PoliticalDeclaration adopted by the 1998 UN General Assembly Special Session on the World DrugProblem states that
³D
rugs destroy lives and Communities, undermine sustainable human development and generatecrime.
 D
rugs 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 againstHumanity under the ICC statute as it failed to meet the basic definition of a Crime againstHumanity 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" todefine actions that fall within the definition of Crimes against Humanity. Drugtrafficking does not fall within the definition of the phrase under the Statute. Drug Traffickers aretrafficking with the intention of making money and not harming Civilians. So how is it possibleto 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 2000B.C. , Opium was used in Cyprus, Crete and Greece for various ritualistic purposes. InColombia, 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 onmarijuana possession within its coffee shops. Portugal is also another state which has very liberaldrug laws. Portugal decriminalized drug use, possession and acquisition for casual users andaddicts 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 drugsat an international level. The best solution is to create treaties and regulations on Drugtrafficking. Another problem with respect to the inclusion of this crime in the Rome Statute isthat many states may not opt for being a party to the Statute because of disagreements over DrugTrafficking Provisions. This could lead to jeopardization of other crimes currently under theJurisdiction of the ICC.Every country has their laws when dealing with such crimes. It is difficult to come to aconsensus with countries like the Netherlands, Portugal, United States and other countries whichare 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 intoaccount while sentencing such criminals. So, to attain a consensus is a difficult task. Also, somecountries like Trinidad and Tobago provide for capital punishment for such offences will keepaway from the Rome Statute because it does not provide for Capital Punishment. Also, manycountries in their domestic legal systems do not provide for capital punishment for drugtrafficking.
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