INCB’s tortured logic

Tuesday, April 3, 2012

hamid-ghodseOn several recent occasions, the International Narcotics Control Board (INCB) has refused to offer an opinion on sanctions that violate international law, such as the death penalty. The following is a transcript from a Civil Society Dialogue with the President of the INCB, Hamid Ghodse, during the UN Commission on Narcotic Drugs on 15 March 2012. For a commentary on the dialogue please see the article at Inter-Press Service titled, ‘Narcotics Watchdog Turns Blind Eye to Rights Abuses’.

INCB President Ghodse – Civil Society Dialogue: 15 March 2012

Prepared question: In the past two weeks the INCB has stated that it takes no position on on the death penalty for drug offences – one at a press conference in Thailand and one in our request for clarification. A number of prominent international lawyers, all death penalty experts, have written to CND member states raising their concerns about this, pointing out that this sanction is a violation of international law. At what point will the Board take a position on this matter?

GHODSE: I think it is basically the position of the Board, I hope that many of whom appreciate that we have to work within the constraints of the Conventions. A number of the issues, not only on the death penalty, not only sanctions, are left to the sovereign countries. And actually the level and kind of sanctions are left to the governments and not between the Board.

The plenipotentiary decided the sovereign governments, according to their own constitutions, according to their own national laws have to establish sanctions. And therefore the Board is not pro or anti death penalty because it cannot have a position because that is left to sovereign governments ...

In 2007, the theme the Board took up its own work on the proportionality of sanctions. Which means basically, we came in and said that major drug traffickers, well known in the world, get two year prison sentences and six months later out. Take a lot of agencies money, etc. And that is not proportional .... (inaudible)

To go back to your point ... That is the limit we had the whole chapter of the debate. Because Chapter One is thematic. It is not the policy of the Board. It just puts forward for the debate and discussion. That was the nearest which we could come within the mandate of the Board with regards to proportionality.

And in fact in 2003, we had a comprehensive paragraph on that referring to all the UN bodies, ECOSOC resolutions, General Assembly, etc. All of those. We tried to reiterate that. But then the Board accept, that one fact, that legal fact, the question of the sanctions is left to the sovereign governments.


But being silent does not mean being pro. The Convention does not condone nor preclude. It cannot do more legally, intellectually I think more than that.

Patrick Gallahue (Harm Reduction International): I would just like follow up on that. The Conventions don’t say anything on sanctions however you are talking about treaty interpretation, helping states interpret the treaty. And states do impose these sanctions as a means of abiding by the treaty. Many states will say that. Many states in this room are saying that – that their laws are there to enforce the treaty. And the Vienna Convention on the Law of Treaties states at Article 31, paragraph 2, subsection c, that treaties are to be interpreted according to other international obligations. No treaty exists in a vacuum. So if somebody is abusing your treaty by imposing these excessive sanctions, I don’t see how you cannot say something on that.

GHODSE: I think you do an excellent job. But that is your job to do that excellent job. That is your mandate. As I said, I could not be more clear in what I said, there is nothing in the Conventions, 1961, 1971, 1988 Conventions to say that you know we have to look at other Conventions. I wish the plenipotentiary would have had that thought to give that freedom to the Board. I think you have to respect that the Board does not deviate from its mandate. ...

This is basically you, as an NGO lobbying for that. You are doing an excellent job. You should continue to do that job. We admire you doing that job. You have to also recognise that the right Board does not have that latitude …

Allan Clear (Harm Reduction Coalition): Are you saying that there is actually no atrocity horrific enough that you will make an opinion about it – or resign or something? I am not calling for your resignation. Legal sanctions in different countries that include extrajudicial murder, extrajudicial killings, torture – there is no atrocity large enough that you could possibly step outside your mandate and say something?

GHODSE: No. 100 percent not. Because just basically we are not there to express our opinion … I think it is a question that the mandate of the Board is quite clearly stated in the Conventions. The day that you want to change that mandate you have to go through the plenipotentiary. And to get in fact, even when you talk about the General Assembly or this and that, don’t forget the international Convention is the consensus. It is not a majority vote. Therefore when you get ECOSOC to make a resolution, it is the majority that makes the resolution. Where you make the General Assembly it is the majority that makes a resolution, right. If you want to change the Convention, any of the Convention, you have to go to the plenipotentiary and so that to be the consensus…

Damon Barrett (Harm Reduction International): When talking about that there’s no article in the Conventions that states you can’t look to other areas of international law, with respect, you’re making a legal mistake. As you are probably aware the International Law Commission, as established by the UN Charter to codify international law, was very clear, in a huge study on the fragmentation of international law, that you cannot interpret any element of international law in a vacuum. That’s a quote – ‘a vacuum’, which I think is what’s happening here. We mention torture. Torture is a peremptory norm under international law, and if any treaty were to be entered into which sanctioned it, it would be null and void. That’s law. I think you’re making a legal mistake. So I would encourage the Secretariat and the Board to revise that.

GHODSE: Thank you for that advice. We are not going to do anything more on that. You can continue with your differences of views.

But also I want to use the opportunity to thank all of those NGOs, which many of you, in fact the overwhelming of you, in communicating with the Board verbally or in writing, in a very professional and courteous manner. Which, some of you agree with the Board positions and some of you do not. But we are also disappointed, when, not many, only one or two NGOs, which use the non-professional language when you are communicating with my Secretary and using the (inaudible) threatening (inaudible) … It is unfortunate. I don’t want to elaborate. But it is extremely unfortunate. But as I said I thank the overwhelming [number] of the NGOs, and civil society, that keep their courteous communication with the Board, that let’s (inaudible) the continuation of the dialogue that otherwise (inaudible) to be offensive to the members of the Secretariat. That is not the way that I have seen the NGOs, the overwhelming of you, to do.

Gloria Lai (IDPC): You mentioned that the Board can make recommendations, and it has raised the issue of the proportionality before, so is it not able to make a recommendation on specific sanctions? … What is stopping the Board from making a recommendation on excessive sanctions?

GHODSE: Well as I said, at the cost of repeating, we can make a recommendation as the Convention allows us to make. The level and type of the sanctions – whatever type – is left to the sovereign government. Therefore the Board cannot do anything more, or anything less. The Chair [of the informal dialogue] actually has articulated elegantly. The question is that this [the INCB] is a quasi-judicial [body], this is not a signatory to the Convention. This is not a Board which can change the Convention. It is that basically the governments – when I say I was not just paying complement when I say you are doing an excellent job, I really believe that you are doing an excellent job, really. (inaudible) You need to put the pressure where it should be. And that is the governments to make it. The governments they make the decisions, the governments they create the Convention. The governments. Therefore, on that element (inaudible) …

Therefore, I think it is basically, it is not that the Board sat there and said that whether, for example, torture is good or not… (inaudible)

Individual members of the Board may have their opinions, in fact, it is very likely they share very many views, right. But the Board as a body is not the place to put the pressure and ask questions. Pressure has to come, as the Chair [of the informal dialogue] said, to the governments to make the remedy on this issue.

Joanne Csete (Open Society Foundations): On this very particular issue, when you visit a country and leave making a recommendation as for instance in the 2011 report, you left Viet Nam recommending in paragraph 117 that Viet Nam reinforce its existing institutions including compulsory treatment centres. This comes at a time when we have a very good and credible and even peer-reviewed mountain of evidence that the compulsory treatment centres in Viet Nam are essentially forced labour camps. There is no treatment that happens there. When the Board says something like that it is a recommendation. It is a statement to a Member State of what they should be doing. In this case, we know that torture is happening in these camps. In paragraph 583 you list other countries that have compulsory treatment centres. The United Nations agencies have just come out with a statement saying these treatment centres should be closed. When will it be that the INCB will say in two Member States you should be closing these centres where clearly there is no treatment and where heinous human rights abuses are happening?

GHODSE: Yes, I think there are two issues there. First, when they send a mission, the mission has the benefit of getting the information form the NGOs there. In fact, we met with a few of the embassies, which they do not … (inaudible) If we get that information we try to make the best use of that information. (inaudible) …

Second, if I read the documents clearly, it is not a question of the endorsement of the torture, punishment. There are a number of the countries which they need your help because, actually, there are a number of the countries they are using the detention centres, they call it correctional treatment, et cetera. Which I visited a few years ago, right. Which it is basically beyond belief that it is not, if you like, in line with any of the sort of the treatment that we have of patient, et cetera.

Therefore, I think its basically that needs your help. For us, and also, your help. It is not [to] condone.

How many times in the Board’s report … that is our view - to say that the comprehensive treatment, rehabilitation, social reintegration, the spectrum of good treatment. We actually say that it is the drug addict’s right to have access to good treatment. And of course, nobody can call good treatment of the question of torture. Nobody can call it of the hard labour, et cetera. But basically, when it comes, which the mission … had limited information. …

That was a programme, for example, that has been funded by the UNODC … (inaudible)

Our programme is very limited, short term. It goes to a country for two or three days. That’s why your contribution is of value. What I was talking about is, your own organisation, which communicates directly or indirectly, has been, I want to acknowledge, has been very, very extremely professional. That is you’re not always agreeing with the Board, sometimes you are critical of the Board. But the vocabulary which you use is courteous. That is exactly what we are doing today.

I have been treating the heroin addict, the cocaine addicts, I have been (inaudible) for their rights for the last 40 years. And I continue to do so, and therefore I have been working with some of the people of the NGOs since the late 1960s and 1970s. They have been my counterparts as a private individual, as a practitioner.

I do not want one day that all of you agree with us. But let me say that where we should put the pressure and the support so that we achieve the best for those, not only drug addicts but also the community.

This blog originally was published on the Harm Reduction International Blog