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Report of the International Commission of Jurists: decriminalization of abortion, normalization of prostitution and drug abuse

Published: 23.06.2023

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The International Commission of Jurists recently published a report containing principles which, in its opinion, states should follow in the field of legislation concerning, among others, abortion, drug addiction, prostitution or sexual activities involving minors. The Commission recommends the complete decriminalization of abortion as well as behaviors that may harm the health and life of unborn children. The authors of the report also emphasize that criminal law should not prohibit the organization of prostitution and profit from this practice. It encourages to take into account the ability of minors to consent to engage in sexual activities.

The document is titled "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”. These principles were developed over a five-year consultation process, following an initial meeting of legal experts convened in 2018 by the IPC - together with the United Nations Joint Program on HIV/AIDS (UNAIDS) and the Office of the High Commissioner for Human Rights (OHCHR).

According to the authors of the publication, international human law requires to take into account, inter alia, the evolving ability of adolescents to consent in certain contexts, even when some behaviors are prohibited by law. The more than 30-page-long report contains 21 principles that should be taken into account when it comes to enforcing criminal law in individual countries around the world. Among them are e.g. rules on "reproductive and sexual rights", abortion, prostitution, HIV, "conscious sexual conduct" and "sexual orientation, gender identity and gender expression".

The Commission points out, inter alia, that criminal law ought not to infringe on the right to make decisions regarding one's own body, when it comes to matters such as sexuality and reproduction, as pregnancy, contraception, including emergency, comprehensive abortion care, prevention of sexually transmitted infections, affirmation of sexual orientation or gender identity services and goods, including information. The authors of the publication indicate that abortion should be excluded from the scope of criminal law. They claim it should also be legal to perform, assist or provide an abortion, medication or abortion-related services.

Lawyers who signed the text also stress that no criminal charges should be brought against behavior "allegedly harmful to pregnancy, such as alcohol or drug use." The Commission also points out that "Criminal law enforcement should reflect the rights and capacity of persons under the age of 18 to make decisions about engaging in consensual sexual conduct and their right to be heard on matters affecting them."

The report also addresses the subject of prostitution. According to the authors, no criminal law should prohibit the facilitation, organization, advertising, provision of information or the renting of premises for the purpose of exchanging sexual services between consenting adults for money, goods or services.

The Commission points out that criminal law cannot prohibit "the use of drugs or the possession, purchase or cultivation of drugs for personal use, including by persons under the age of 18 or who are pregnant". Moreover, according to the authors of the report, "no one can be held criminally responsible for performing life-sustaining activities in public places, such as sleeping, eating, preparing food, washing clothes, sitting or performing hygiene activities, including washing, urination and defecation, or similar acts in public places where no suitable alternatives are available'.

As indicated by the Commission, these rules are intended to provide a clear and transparent legal framework and practical guidance on the application of criminal law to conduct related to:

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

consensual sexual activities, including in contexts such as extramarital sex, same-sex sexual relations, teenage sexual activity and sex work;

· gender identity and gender expression;

· not disclosing, exposing or transmitting HIV;

· drug use and possession for personal use;

· homelessness and poverty.

The International Commission of Lawyers is a non-governmental organization, founded in 1952, currently operating on five continents. Its main task is to ensure the gradual development and effective implementation of human rights and international humanitarian law, to secure the implementation of civil, cultural, economic, political and social rights, as well as to care for the rule of law and the independence of the judiciary and legal professions in the world.

“The International Commission of Jurists is a permanent group of 60 distinguished lawyers - including senior judges and academics, representing various parts of the world and legal systems. The documents they prepare have been used in the past by international organizations, and what is worrying is the fact that the authors indicate that the genesis of the project was a meeting in 2018 with the Joint UN Program on HIV/AIDS - UNAIDS and the Office of the High Commissioner for Human Rights - OHCHR" – stresses Weronika Przebierała, the director of Ordo Iuris Center for International Law.

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