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Protecting detainees

01-07-2013 Feature

The ICRC participated as an expert observer in the December 2012 Open-Ended Intergovernmental Expert Group Meeting on the Standard Minimum Rules for the Treatment of Prisoners in Buenos Aires. In parallel, the ICRC is leading a process aimed at strengthening the provisions of IHL that cover people detained in connection with non-international armed conflict.

Introduction

Although founded in 1863 in reaction to suffering on the battlefield, the ICRC took an early interest in the situation of people deprived of their liberty. Historically, detainees were the third category of vulnerable person that the ICRC endeavoured to help, after the sick and wounded.

Our detention-related work is based upon a comprehensive assessment of the situation inside and outside places of detention, facilitated by constructive dialogue with the detaining authorities. We conduct our assessments in places of detention under certain basic conditions, such as interviewing detainees without witnesses, following up on individual cases and repeating our visits. We then analyse the information gathered, in order to identify the main risks that detainees face and the other factors that influence their situation, including the difficulties that detaining authorities face in attempting to address humanitarian concerns.

Our analysis also enables us to propose practical ways of improving treatment, conditions of detention and other aspects of detention regimes, with the aim of protecting detainees’ lives and dignity.

The ICRC is well known for visiting people detained in relation to international and non-international armed conflicts (IAC and NIAC), for which it has a specific mandate to monitor respect for international humanitarian law (IHL).

The ICRC’s priority is to ensure that detainees are treated humanely and with respect for their dignity, regardless of the reasons for their detention.

We also endeavour to help people detained in other situations of violence, social tension and unrest.

With more than 10 million people currently living in detention, and worrying indications that the situation in prisons globally is deteriorating, the ICRC is more committed than ever to enhancing respect for the life and dignity of detainees. We will continue to work with detaining authorities, and to encourage them to ensure humane treatment and conditions of detention. In addition to engaging in confidential dialogue with detaining authorities, the ICRC takes action regarding individual detainees, facilities, institutions and regulatory frameworks, and undertakes practical activities to help detainees.

The ICRC and international efforts to enhance the protection of prisoners

The ICRC welcomes efforts to ensure that international detention standards continue to provide up-to-date guidance on respect for prisoners' inherent dignity and their value as human beings.

At the time of writing, two important but distinct efforts are underway:

  • The first initiative, led by the UN Commission on Crime Prevention and Criminal Justice, aims to review the Standard Minimum Rules for the Treatment of Prisoners (SMR), approved in 1957. This text, while not legally binding, seeks to set out good principles and practice for the treatment of prisoners ‘criminal, civil, untried or convicted,’ including ‘persons arrested or imprisoned without charge.’
  • The second, an initiative of the ICRC, focuses on detention in relation to non-international armed conflict, where the detaining body may be either a State or a non-State body.

Where they deal with basic protection for those deprived of their liberty, IHL and human rights standards are largely similar. These two separate processes could therefore arrive at similar solutions on a number of issues.

The ICRC and the targeted revision of the Standard Minimum Rules

The UN-led revision of the SMR responds to UN General Assembly resolution A/RES/65/230 of December 2010 and UN Economic and Social Council resolution E/RES/2012/13 of July 2012.

These invite an open-ended intergovernmental expert group to consider the existing SMR with a view to reflecting best practices and recent advances in correctional science, and make recommendations. An inter-governmental meeting of experts in December 2012, which the ICRC attended in an observer capacity, reported back to the April 2013 meeting of the UN Crime Commission. Additional time was allotted for the process, which will allow proposals to be further developed and discussed. The Government of Brazil has offered to host the next meeting, scheduled for late 2013/early 2014. Reports and other material from previous meetings (including a meeting of academics and civil society at Essex University, which the ICRC attended as an observer) are available on the UNODC Crime Commission webpage.

The ICRC will continue to take part in the SMR revision process, as the SMR are an important standard against which to assess the extent to which States have attained minimum standards in protecting detainees. The SMR are also an important source of guidance as to the types of solution to apply in places of detention, and the types of provision to incorporate into domestic legislation, regulations and practices in order to guide prison administrations and other State bodies responsible for managing places of detention.

All this makes it extremely important that the Standard Minimum Rules reflect the advances that treaties and detention-related standards have introduced since 1957, and that they reflect progress in correctional science and best practices. The ICRC hopes that the process of updating certain parts of the SMR that is taking place within the Vienna-based Commission on Crime Prevention and Criminal Justice will reflect those goals.

Key issues currently under discussion in relation to the SMR include:

  • the overriding principle of respect for prisoners’ inherent dignity and value as human beings;
  • medical and health services;
  • disciplinary action and punishment, including the role of medical staff, solitary confinement and diet;
  • deaths in custody;
  • torture and inhuman or degrading treatment or punishment of prisoners;
  • the protection and special needs of vulnerable groups, including prisoners with disabilities;
  • access to legal representation;
  • complaints and independent inspection;
  • out-dated terminology;
  • staff training.

Failure to fully comprehend the issues listed above and to provide adequate solutions in those areas is behind most of the humanitarian problems encountered today in places of detention. This failure results in severe suffering for prisoners, for their families and for staff in places of detention, and creates problems for the broader community.

The ICRC-led process aimed at strengthening IHL as it applies to people detained in connection with non-international armed conflict

In 2011, the humanitarian problems observed in NIAC-related detention and the lack of IHL provisions prompted the 31st International Conference of the Red Cross and Red Crescent to adopt Resolution 1, launching a process to strengthen the law in this area. The Resolution invites the ICRC to pursue further research, consultation and discussion with States and other relevant bodies, and to propose ways of ensuring that IHL remains practical and relevant in protecting people who have been detained in connection with a non-international armed conflict.

As a first step in implementing the 2011 Resolution, the ICRC has held four Regional Consultations with government experts. The consultations have sought States’ views on whether and how to strengthen the IHL as regards deprivation of liberty in NIAC in four key areas:

1. Conditions of detention

Including:

  • the adequacy of food, water and shelter;
  • access to medical care;
  • contact with the exterior;
  • other factors relevant to humane treatment.

2. The protection of vulnerable detainees

Including:

  • women;
  • children;
  • the elderly;
  • people with disabilities.

3. Arbitrary deprivation of liberty and the grounds and procedures necessary to prevent it

4. Detainee transfers and protection against IHL violations by receiving authorities

 

The ICRC will publish reports summarizing the discussions at each Regional Consultation.