Ricardo Soberón Garrido, Andean Commission of Jurists

Introduction

Historical developments in the implementation of control policies in the countries of Latin America, particularly those of the Andean region where most trafficking in cocaine - and, recently, heroin - takes place, may be summarized as follows:

from 1909 to date, we have been subject to ideological influence, political pressure, economic limitations and constraints and particular legal and health policy models in tackling this complex issue on our respective territories. This situation has prevented us from thinking about and acquiring proper knowledge of our drugs problems, their origins and possible solutions. The same thing has happened in all our countries. We in the Andean Commission of Jurists (ACJ) have devoted particular attention to observing the overall context in which this process takes place and relevant political and legislative developments in our countries.

The situation before 1909

During the nineteenth century, the countries of Latin America, the health authorities and the general public made extensive use of coca and opium derivatives. There is considerable evidence that licences were issued in Peru to private individuals to cultivate coca leaves and process them to make cocaine sulphate and cocaine chlorohydrate, products aimed at the pharmaceuticals market, especially in European and North America. This is an indication of the initially permissive stance which the Peruvian state took on the matter. Even the first laws based on the model of administrative control set out in the 1912 Opium Convention still bear the marks of these state provisions (1).

Going back further in history, the ancestral use of coca leaves in pre-Hispanic Andean culture has been recognized. The leaves were used for medical purposes; as a form of currency, since coins did not exist; for ritual purposes in religious ceremonies; and as an instrument of social intercourse between communities and individuals. Accounts of these traditional uses may be found in the works of various Spanish and half-caste chroniclers of the sixteenth and seventeenth centuries (2).

During the Colonial period, the Spanish Empire itself recognized the economic potential of this resource in indigenous society (3). Glave describes it as 'the chief agricultural commodity traded in the Central Andes'(4). Policies on coca were therefore ambivalent; the first attempt to proscribe it took the form of the stamping out of idolatry by the Church authorities, as part of their attempt to evangelize the 'Indios', but this was outweighed by the potential profits from its economic use in gold and silver mining through the 'mita' system of forced indigenous labour. As late as the Republican period, the new state maintained in practice many of the contradictions of Spanish rule during the Colonial period with respect to the Andean race and cultures.

We find evidence in the nineteenth century of the existence of state monopoly shops selling certain products subject to taxation - alcohol, salt, opium and coca - showing that the tax department aimed to make profits from this business. The state levied taxes on the production and sale of these products and carried out public works with the proceeds. In the early twentieth century, with the growing stringency of laws to protect indigenous people, the state banned the payment of daily wages in the form of coca leaves and alcohol to peasants working on agricultural estates.

As may be seen, until before 1909 the attitude taken by the state authorities -Spanish for three centuries, then Republican after 1821 - to the use of certain substances of natural origin was of an ambivalent nature. In practice, acceptance of their use on a large scale - indeed, the economic exploitation of such substances - predominated. Throughout this long period, problems of drug addiction were non-existent. Nor is there any evidence of problems such as violence, corruption, institutional instability or economic dependence resulting from such activities. Things were about to change substantially - for the worse.

Introduction of state control from 1909

The United States have had a clear influence on the region since the time of the Monroe Doctrine. At the beginning of the twentieth century, the United States gradually took over from earlier imperialist powers on the continent: Spain, France, the Netherlands and Britain. The adoption of the first decisions at global level to combat the opium trade thus had repercussions for the countries of the region, although trafficking in opium was not a problem in itself. The first step in the state programme was to introduce control at an administrative level only, without yet having recourse to control through criminal laws (5). The activities of the League of Nations from 1919 to its demise in 1939 were characterized by a preference for administrative regulations governing customs, pharmacy and trade, rather than criminal regulations, which were still in their infancy.

When the United Nations Organization was set up in 1945, one of its first tasks - together with the adoption of the first human rights instruments - was to replace the approach taken by the League of Nations by a tougher one, adopting international instruments - treaties, conventions and protocols - of an increasingly repressive nature. The duties of the World Health Organization (WHO), the Commission on Narcotic Drugs of the Economic and Social Council and, later, the 'Junta Internacional de Fiscalización de Estupefacientes' ('International Drugs Control Council') were formalized.

In 1947 the Peruvian and Bolivian Governments made first request to the WHO, which sent a mission to carry out an on-the-spot 'investigation' of the matter. The mission drew up a partial and arbitrary report which banned coca leaves - even when chewed - from the worldwide pharmacopoeia and rendered impossible any further research into the subject. In 1952 the international agencies formally banned the coca leaf, a 'scientific' decision which was later legally validated by the adoption of the 1961 Single Convention on Narcotic Drugs. This scientific basis, accompanied by the legal instrument, facilitated the later adoption of political strategies to eliminate coca: replacement of existing crops using funds from UN agencies and eradication by manual, mechanical and chemical means, carried out by North American control agencies.

The war on drugs

The escalating repression encouraged by our countries' submissive stance in the face of strong pressure from the United States and certain people in the morality business (6), in addition to the large profit margins which the illegal status resulting from the application of the prohibitionist model ensured for the new traffickers' organizations, created economic, social, political and ideological conditions conducive to the establishment, reinforcement and development of international networks for trafficking in illegal drugs, as we know them today. On the world stage, a series of scenarios and eras mirrored this process: marihuana in the 1960s, cocaine in the 1980s and heroin in the 1990s. Each phase had as its setting, be it the countries of South-East Asia, the Middle East, the Andes, or as now Central Asia and Eastern Europe.

In reality, the implementation of the US national anti-drug strategy (in September 1989) and, later, of similar national, bilateral and multilateral programmes, represents the last stage of a 'crusade' which has been doomed to failure since the very outset, in 1909. Neither the establishment of a expanding bureaucracy, both international (agencies affiliated to the UN, OAS and other multilateral organizations) and domestic (thousands of police officers, soldiers, judges and prison staff), much less the deployment of vast quantities of economic resources, has managed to hamper even slightly the efficient operation of the international system for the supply of illegal substances.

Nor have the international condemnation of coca leaves, the enforcement of a homogeneous model of increasing control under criminal law, the usual ideological and epistemological distortions to which the official media succumb, laws or political speeches helped to spare many of the costs of prohibition and the discourse which accompanies it.

The final stage of this war was the planned implementation of a supply-based approach (1989-1992), particularly in the Andean region. This led the then Republican administrations in the US to put pressure on Andean governments (7) to sign agreements and combat drugs with greater determination, by authorizing the direct participation of the armed forces in duties involving the combating of drugs (8).

As far as the prohibition strategy is concerned, the main result of this approach has been that the following variables have been viewed as signs of the effectiveness of control duties: the area of crops destroyed, police numbers, numbers of people arrested in the countryside and suburbs, an increase in the numbers of denunciations leading to criminal convictions, the quantities of drugs seized and the money confiscated, and the numbers of people tried and sentenced for drug-related crimes, etc. All of the above are mere symbols of the repressive measures implemented. In reality, the faith in numbers which underpins state action has hindered observation of the following, in particular:

-the vast scale of the business of production, manufacture, processing, transport, distribution and use of these substances;

-the economic reasons for the cultivation of illegal crops (inequities in North-South international trade in natural resources, the problem of subsidies, and factors relating to domestic and foreign trade in legal goods);

-the social and psychological reasons for which an individual uses and/or abuses certain substances (distinctions should be drawn between recreational, incidental, habitual and addictive use and appropriate policies adopted in each case);

-the political or strategic motives which have fostered the 'uniform model of control' and their impact on the countries concerned.

In the judicial field, for instance, the adoption of a single model for the prosecution of traffickers has been promoted (9), without taking into account the differences between the weakest links in the chain (transport workers, peasants and street sellers, all of whom are impoverished and marginalized), and those who actually control the business economically and politically. We may recall here the pressures exerted and the interventions which took place to extradite Arce Gomez from Bolivia, Alvarez Machain from Mexico (10), Caballero from Honduras and other Latin Americans from their respective countries, whilst the Mayor of Washington was relieved of much of his responsibility for the use of cocaine. Another instance is the authorization given by the US Supreme Court for the arrest of foreign citizens outside US territory (11). These are examples of the extremes to which this 'crusade' has led, to the detriment of the region's democratic governments and the universal principles of respect for civil, pol

itical, economic, social and cultural rights.

Clearly, this escalation and the static nature of the model itself have prevented a comparison of the 'achievements' with the reality of the business. While the amount of drugs actually subject to controls at each stage (production, processing, transport, trade and consumption) has admittedly grown constantly, the total amount of drugs still in illegal circulation has risen much further. Thus the results obtained by prohibition have always represented an infinitesimal part of the whole.

Trends in the region

Clearly, not even politicians in the region have succeeded in representing the lean results of this 'crusade' as a triumph. In one way or another they have had to acknowledge the need for substantial changes, which has even been recognized by the present US Administration, in the persons of President Clinton and the new 'Drugs Czar', Lee Brown. The successive wars declared by the Colombian state on the drug cartels of which Pablo Escobar was the best-known front-man, the worst of which began in 1989, have brought heavy human costs and very few actual benefits. The failure of repressive measures induced President Gaviria to put forward a proposal for the charging and trial of the ringleaders, which was then copied in Bolivia.

In this last country, the impracticability of replacing, uprooting, burning or otherwise eliminating coca crops led Paz Zamora's administration to draft and implement its 'Coca Leaf Diplomatic Initiative', which took him to the very gates of Expo 1992 in Seville (12). Even the new Bolivian President, Gonzalo Sanchez de Lozada, as a man of liberal principles, pronounced himself in favour of the legalization of all drugs last July.

Recent Peruvian governments have had to face many setbacks and obstacles posed by the United States Embassy, the State Department, Congress, the Southern Command and the US Drug Enforcement Agency, as a result of the various interests at stake(13). The priority for Peru has been the struggle against the Maoist guerrilla forces of Sendero Luminoso ('Shining Path'), whilst the United States opted to fight against drugs in the drug-producing areas of the Selva Alta (the upper Huallaga Valley). This led to serious problems between the police (who were financed by the United States and gave priority to the fight against drugs) and the army, whose task it was to combat subversion. The worst moment came when both forces had to take action in the areas producing the primary commodities, in the Huallaga Valley. As was to be expected, there were conflicts with the peasants and a situation of social upheaval was created which was thoroughly exploited by Sendero Luminoso.

Proposals

The work carried out in this field by the Andean Commission of Jurists since 1988 has made us aware of the many facets of the problem. We brought together professionals of different disciplines at our first international seminar: anthropologists, economists, doctors and jurists. We also brought together people from different backgrounds: journalists, politicians, representatives of peasant producers, diplomats, etc. The outcome of this event was such as to convince us that a single disciplinary approach would not suffice; what was needed was a joint approach in the form of a number of different studies and the participation of different bodies. This approach has been constantly omitted from international and national policies.

Alternative development?

It emerged clearly from discussions held in this forum that it was not effective to take a single approach, and thus to apply a single strategy, to each of the problems relating to the supply of illegal substances.

We identified the serious problems arising from the present organization of international trade in natural resources, which prevent Third World peasant producers (be their crop coca leaves, poppies or marihuana - and it will soon be khat, guaraná or some other consciousness-altering substance of natural origin) from the efficient cultivation of other, legal products: international protectionism, the lack of technology and the influence of local middlemen are obstacles too great to be circumvented by such weak economic agents.

Human Rights

Whilst we were initially concerned about the many problems relating to human rights violations caused by the operation of traffickers' organizations in the region, we gradually came to realize that the implementation of the strategy of prohibition by police and military also posed a serious problem of violation of many rights, such as:

-cultural rights: worldwide condemnation of coca leaves and the consequent state monopoly on their legal production and sale infringes the cultural rights of the Andean peoples (ILO agreement No. 169, International Covenant on Economic, Social and Cultural Rights);

-economic rights: the very situation of the more than 300 000 peasants currently employed in the cultivation of coca in the countries of the region constitutes a violation of their right to wellbeing and development. First of all they were obliged to migrate from the high Andean regions where they were unable to farm efficiently, then the states concerned failed to fulfil their promises of colonization of the Selva Alta, and finally the application of economic structural adjustment programmes (IMF, World Bank) had a disastrous impact, leading producers to process basic cocaine paste and new landless migrants to cultivate coca leaves;

-the administration of justice: the scale of this has been disproportionate at pre-trial, judicial and custodial level. The police has been overwhelmed and inundated with cases of corruption; judges have been intimidated, threatened and corrupted; special agencies, laws and procedures have been created which violate the basic principles of administration of justice recognized by international instruments. Jails have been over-filled with insignificant drugs dealers, users and peasant producers.

The system of control governed by criminal law is incapable of touching the ultimate sources of power in drug-trafficking, those which continue to operate, accumulating illicit capital and investing it in the legal financial system, with the consent of governments which regard foreign currency of dubious origin as an essential factor in achieving macroeconomic balance.

-other rights: there have been many murders, assassinations, massacres and violations of personal freedom and integrity, as a result of the war waged between criminal organizations and the security forces, a war without mercy in which there have been no winners or losers. It may be said that the losers include plans for the establishment of democratic governments in the region, the situation of the civil population concerned and economic stability in the region.

Later, between 1990 and 1992, we carried out a number of public activities, the aim being to monitor objectively the extent to which the political agreements being reached by regional political leaders and adopted under the auspices of various bodies were being fulfilled. Regrettably, we became increasingly convinced of the impracticability of certain proposals and the lack of political will to monitor the problem in an objective fashion. Subjectivity and problems of understanding were rife. The media contributed to this lack of understanding between politicians and the public.

Moreover, many of the agreements reached (on the need for rural development, the joint responsibility of producer and consumer countries, the pre-eminence of human rights in this struggle and the need for adequate financial resources) were not backed up by enough political will to ensure their implementation.

The new objectives and options chosen by the Clinton Administration in 1993 have enabled us to point our politicians towards a broader field of action, so that we can raise the drug problem again. The decision to opt for prevention, rehabilitation and treatment is a sensible start, and the problem of the US budget and its priority for reducing the fiscal deficit are incontrovertible facts. What is left to the Andean countries?

More space and freedom of manoeuvre to reflect anew, in a harmonious and coordinated fashion, on the real problems of consumption and abuse of substances which face us. We must consider other issues relating to the production of the primary commodities; reduce the present size of the control agencies; and ensure that they are more selective and efficient and that they seek to solve problems, not to aggravate them. Society and governments alike must enter into this undertaking.

(1) The supreme resolution of 16 March 1933 ordered that the opium stored under the auspices of the Bank of Deposits and Consignments of the Tax Department be auctioned off.

(2) J. Acosta, Historia Natural y Moral de las Indias, Fondo de Cultura Económica, Mexico, 1940 (1588),

-J. de Betanzos, Suma y Narración de los Incas, Atlas, Biblioteca de Autores Españoles, vol. CCIX 1968 (1551);

-P. Cieza de León, La Crónica del Perú, El Señorio de los Incas, Biblioteca de Autores Españoles, Historiadores Primitivos de Indias, vol. II, Madrid, 1853 (1550);

-B. Cobo, Historia del Nuevo Mundo, Madrid, Atlas, 2 volumes, Biblioteca de Autores Españoles, XCI XCII, 1956 (1653);

-I. Garcilaso de la Vega, Comentarios Reales de los Incas, Emece Editores, Buenos Aires 1943 (1609).

(3) M. Rostworowski de Diez Canseco, Plantaciones prehispánicas de coca en las vertientes del Pacífico, Revista del Museo Nacional, Lima, 39, 1973.

(4) L. M. Glave and M. I. Remy, Estructura Agraria y Vida Rural en una Region Andina: Ollantaytambo entre los siglos XVI y XVIII, Centro de Estudios Rurales Andinos Bartolomé de las Casas, Cusco, 1983.

(5) The supreme resolution of 1 December 1939 established that while the Ministry of Health was drawing up the regulation on the manufacture of unrefined cocaine, the issue of licences for opening and operating new cocaine plants would be suspended - not prohibited.

(6) R. del Olmo, Drogas: Percepciones o Realidad?, in Revista Nuevo Foro Penal, first four months of 1990, Editorial Temis, Bogotá, Colombia.

(7) The first Anti-Drugs Summit, held in Cartagena, Colombia, in February 1990, and the second Anti-Drugs Summit, held in San Antonio, United States, in February 1992.

(8) This aspect was included in the annexes to the bilateral agreement between Bolivia and the United States (May 1990), although they were of a reserved nature, in view of Bolivian public opinion.

(9) Special laws, procedures and agencies; drawing up of extremely broad and diffuse legal definitions of crimes; excessive and disproportionate sentences; proscription of profits of all persons involved in drug-trafficking, etc.

(10) Imprisoned in 1990 in connection with the Camarena case and finally released in December 1993 by the judgment of a US court.

(11) Decision of 15 June 1992; see Boletín Narcotráfico of 27 July 1992, published by the Andean Commission of Jurists.

(12) See Boletín Narcotráfico, 31 December 1992, published by the Andean Commission of Jurists.

(13) A delay in the signing of an anti-drug agreement which had been under negotiation since 1989 and was not signed until April 1991; problems of human rights violations committed by the military forces charged with combating terrorism; and frequent economic constraints and incidents involving the police or military, such as that which occurred on the interception of a US military aeroplane in April 1992.