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ICRC visits to people deprived of their freedom

01-04-2004

Purpose and conditions of ICRC visits 

 

 
Purpose of ICRC visits  

 
In any crisis situation, be it a full scale war or a case of internal political unrest, people deprived of their freedom can be subjected to various forms of abuse. Prisoners are part of the general population that finds itself at risk because of the conflict (in a broad sense). The reason why the ICRC is concerned by these victims of violence who happen to be behind bars is that this particular category of people is normally not accessible to other organizations.

The main purpose of ICRC visits is to ask the authorities to take any steps deemed necessary to improve the detainees'treatment. In case of emergency, the ICRC provides the inmates with medicines, clothing, toilet articles and food.

Among the problems encountered by the ICRC in the course of its visits are the particularly harsh conditions of detention often endured by detainees, ill-treatment, torture and even executions. Sometimes there is simply the fact that detainees are cut off from their families. In some cases, failure to observe judicial guarantees can amount to ill-treatment, since this has a serious impact on the physical and mental state of the individuals concerned. The ICRC's work in places of detention constitutes a form of active prevention of such practices.

It should be underlined, however, that it is up to the detaining authorities to ensure the protection of the people they take into custody, and that they can be held accountable if they fail to do so.

The ICRC's activities on behalf of prisoners have four main objectives:

  • to prevent or put a stop to disappearances and extra-judicial killings;

  • to prevent or put an end to torture and ill-treatment;

  • to improve conditions of detention where necessary;

  • to restore contact between detainees and their families.

Experience has shown that prison visits and the physical presence in a place of detention of people from outside can be an effective way of preventing the occurrence of abuses.

  
 

 An ICRC visit: facts are established, then authorities are approached  
 

ICRC teams to visit people deprived of their freedom consist of at least one delegate and one doctor or sometimes a nurse. The size of the team and the length of visits depend on the scale of the problems anticipated and the size of the premises to be visited: two people are enough to visit a police station in Sri Lanka, but one or more teams working together over several weeks will be required for the same task in large and heavily subdivided prisons holding 5,000 prisoners, such as that of Pul-i-Charki in Afghanistan.

  
 

 All ICRC visits follow a standard procedure and take place only if certain conditions are fulfilled  

ICRC visits to places of detention start with a preliminary exchange of views with the people in charge there to explain how the visits themselves are organized and carried out. Together with those same authorities, th e delegates then inspect the entire premises (cells, dormitories, latrines, showers, exercise yards, visiting rooms, kitchens, workshops, sports areas, places of worship, infirmary, punishment and solitary confinement cells, etc.). The most important part of the visit is the private conversations the delegates have with each prisoner who so requests, as well as with those to whom the delegates themselves wish to speak in private, at which neither the authorities nor the guards are present. In this way the ICRC team tries to find out what the prisoners regard as their main problems.

After analysing the information gathered and their own observations, the delegates submit their findings, conclusions and recommendations, together with a plan of action, to the people in charge of the place of detention and take note of their comments. In many cases, problems can be solved by establishing an ongoing working relationship with the local prison authorities.

The next step is to approach the higher authorities. Problems such as overcrowding, medical transfers and water or food supplies very often depend not only on the prison director but also on other authorities such as the Prisons Department or the Ministry of Health. Such approaches may take the form of interviews at various levels or of correspondence or written reports, depending on how great and how urgent the problem is.

The ICRC regularly provides the national authorities with a summary report on its findings over a given period or in a specific category of places of detention, which covers not only the problems identified but also any improvements observed or steps taken.

 Prior conditions  

Drawing on the experience acquired over the years, the ICRC has established guidelines enabling it to evaluate a prison system with maximum objectivity and submit con crete and realistic proposals which take local customs and standards into account.

Whatever the circumstances, the ICRC visits people deprived of their freedom only if the authorities allow it:

  • to see all prisoners who come within its mandate and to have access to all places at which they are held;

  • to speak with prisoners in private, without any third parties being present;

  • to draw up a list of prisoners during its visit whom it considers to come within its mandate, or to receive such a list from the authorities and to check and supplement it if necessary;

  • to repeat its visits to all prisoners of its choice if it considers that the situation so warrants, and to do so as often as it wishes.

 ConfidentiaI reports  

Until the late 1940s, the ICRC used to publish its reports on visits to prisoners. However, because its reports were sometimes used polemically for political purposes, thereby jeopardizing further dialogue with the authorities, the ICRC had to stop publishing them. Since then, ICRC reports have been submitted solely to the authorities concerned.

The ICRC reserves the right to publish its entire report if a detaining authority issues an abridged and consequently incomplete version of it. Whenever the ICRC visits prisoners of war captured during an international armed conflict, it also sends a copy of its report to their power of origin.

 Place of detention: one reality, three perceptions  

Steps taken by ICRC delegates on behalf of people deprived of their freedom are based on an analysis and consolidation of information obtained chiefly f rom three sources:

  • the authorities, who explain their view of the prison system and conditions of detention and tell of any problems encountered;

  • prisoners, who describe their own experiences and difficulties;

  • the delegates, who gather full information from those two sources and then form their own conclusions.

  
 Private interviews with prisoners: the cornerstone of ICRC action  
 

 
Conversations in strict privacy between delegates and individual prisoners, without any authorities present, are the cornerstone of ICRC action on behalf of people deprived of their freedom. Such interviews without witnesses, as they are sometimes called, serve a dual purpose: they give the prisoners a break from prison routine, one in which they can speak freely about what matters most to them and be sure of being heard; and they enable the ICRC to find out all about the conditions of detention and the treatment of prisoners. The interviewing delegate also enquires how the arrest and the subsequent questioning took place, and about the conditions of detention at the various places where the prisoner was temporarily held before arriving at the place visited. In addition, the delegate maybe given information about fellow prisoners whose arrest has not yet been notified to the ICRC or whom it has not been able to contact. He or she will ensure that the interview takes place without interference from other prisoners, who might seek to exert pressure.

The task of conducting such interviews is all the more delicate in that giving such an account often revives painful memories of traumatic experiences - and there is no ques tion of subjecting the prisoners to a fresh interrogation. There are no precise rules for interviewing them: it is up to the delegate to assess the situation on a case-by-case basis and adjust to it to create an atmosphere of trust. Sometimes the chance to speak to somebody from outside is enough for the individual prisoners to confide in the delegate, while at others it may take several visits before they will tell their story. Then again, they may open up only to the ICRC doctor. On the strength of the information thus gathered and after cross-checking, the ICRC decides what action should be taken.

Whenever necessary, interpreters are used to communicate with the prisoners, They are recruited by the ICRC itself and, to avoid any pressure, they are never nationals of the country in which the visits take place. If it has no suitable interpreters available, the ICRC may ask the prisoners to appoint one or more from among themselves; this practice is seldom adopted, however, since the prisoner interpreting a fellow inmate's remarks may be endangered by doing so or may distort what he or she says.

 A professional code of conduct drawn up with the prisoner interests in mind  

To the ICRC, the interests of the individual prisoners visited prevail over all other considerations. Their situation may lead to diplomatic approaches or some other intervention, but must always be handled with the utmost caution: a risk of reprisals against prisoners if allegations of ill-treatment are reported to the prison authorities may cause the ICRC to postpone its call for an investigation. Delegates will nevertheless contact other officials - often at a higher level - to prevent such situations from recurring. On no account will the ICRC quote a prisoner's statements without his or her express permission. It takes care to see that its interventions do not have any negative i mpact on the day-to-day life of inmates, and adapts them accordingly. Where there is overcrowding, for example, the most logical solution would presumably be to transfer some prisoners to other places of detention. But in many cases they might thus be taken far away from their families and deprived of their material support, which is sometimes vital. So delegates make sure that any transfers make due allowance for that consideration.

The ICRC is also careful not to disrupt the prisoners'own internal organization. To withstand the pressures of prison life to the best of its ability, every group of prisoners sets up its own structures which sometimes reflect the social hierarchy and political movements of the outside world. To request the transfer of prisoners from one block to another may upset that internal structure and have serious repercussions such as fights, rivalries between groups or the deprival of certain advantages linked to residence in a given block. On the other hand, the ICRC may ask for prisoners to be transferred because they are being taunted or ill-treated by cellmates for political or other reasons.

    

  
 

 Long-term dialogue and presence: a strategic choice  

The ICRC has chosen to work on the basis of dialogue with parties to conflict and with the authorities, seeking to influence their behaviour and persuade them to comply with humanitarian law and principles. But to do so a climate of confidence, which can only be created in the long term and through sustained work in the field, has to be established with all concerned. That is one reason for the ICRC's discretion. In exchange, it expects its contacts to show that they are willing t o take the political steps required to improve the situation.

  
 

 The limits of discretion  

Dialogue with the authorities, and not the systematic denunciation of violations of international law and the humanitarian principles, is the course of action adopted by the ICRC. It does not allow itself to be swayed by the modern media or any other form of political pressure. But if serious and repeated violations occur and its own confidential approaches are in vain, or it finds that the authorities clearly have no intention of respecting international humanitarian law, it may decide to speak out. In such cases it calls upon the States party to the Geneva Conventions, and the international community as a whole, to ensure respect for that law. It did so, for instance, in the late 1980s in an attempt to obtain the release, at the end of active hostilities, of prisoners of war captured during the conflict between Iran and Iraq.



Categories of prisoners visited by the ICRC

In international armed conflicts covered by the 1949 Geneva Conventions and their Additional Protocol I, the ICRC concerns itself with persons deprived of their freedom if they are:

 - prisoners of war within the meaning of Article 4 of the Third Geneva Convention and Article 44 of Additional Protocol I;  - civilian internees within the meaning of Article 4 of the Fourth Geneva Convention.  With regard to non-international armed conflicts,  covered by Article 3 common to the four Geneva Conventions and by Additional Protocol II, international humanitarian law does not give a precise definition of persons protected by Article 3 and by the relevant provisions of Articles 4, 5 and 6 of Additional Protocol II.  They may be combatants belonging to government or rebel forces, or civilians arrested by the government or captured by the rebels because of their support - whether real or perceived, active or passive - for the opposing forces, and they are entitled to protection regardless of whether or not they have been tried by a court of law. As regards internal disturbances and any other situation that calls for action on the part of a specifically neutral and independent organization  , there is no single feature common to all detainees entitled to ICRC protection. The ICRC is concerned with persons arrested on account of a situation of internal strife - whatever the government may call them or the legisla tion used to deprive them of their freedom. It is clearly not enough to think in terms of a detainee's political motives. For example, many people needing ICRC protection may , have been arrested solely on account of their ethnic or other origin, without having ever been politically committed in any way. Nor can the ICRC just consider the offence ascribed to the detainees. Political opponents are sometimes imprisoned for criminal offences, such as disruption of public order, vagrancy or illegal possession of firearms. The penal code in many States qualifies as criminal offences activities which may in fact be of a political nature. In addition, the decision to charge a detainee under a particular law may be founded on purely arbitrary considerations. Each of the above criteria may be useful, but none is sufficient in itself. The ICRC may request access to detainees as different as a captured guerrilla, a peasant accused of collaboration with the armed opposition, a student who has demonstrated against those in power or a member of an ethnic group held in connection with events that have prompted the ICRC to offer its services. All these detainees have in common the fact that, rightly or wrongly, they are considered by the detaining authority as real or potential opponents. Here it should be pointed out that the type of offence of which a detainee is accused, whether sabotage, acts of terrorism, subversion or dissidence, is of no importance to the ICRC. The ICRC never questions the reason for a person's arrest.

Legal bases

The international humanitarian law contains many provisions relating to the situation of people deprived of their freedom.

In International armed conflicts, the following persons are protected by the Geneva Conventions of 1949 and Additional Protocol I thereto:

  • prisoners of war, by the Third Geneva Convention which is devoted entirely to them (for instance, during the Gulf War, Iraqi prisoners detained by the Coalition forces and prisoners from Coalition countries in the hands of Iraq);

  • civilian internees (i.e. civilians deprived of their freedom as a precaution for security reasons), by the Fourth Geneva Convention of 1949 on the protection of civilians in wartime (for instance Iraqi nationals living in the United Kingdom, Italy and France and interned there from the start of the Gulf War);

  • in the event of territorial occupation, persons suspected or accused of committing acts hostile to the occupying power, persons tried for such acts and penal law prisoners, by the provisions of the Fourth Geneva Convention (for instance, Palestinians detained or interned by Israel).

The States party to the Geneva Conventions have formally undertaken to allow ICRC delegates to visit the aforesaid persons in the event of international armed conflict.

In non-international armed conflicts, on the other hand, people who are not or are no longer taking part in the hostilities, particularly those deprived of their freedom, are protected by Article 3 common to the Geneva Conventions and by Additional Protocol II.

The ICRC steps in on their behalf by virtue of the right of initiative assigned to it by the Conventions. In practice, it draws on the concepts applicable to international armed conflicts to define the categories of prisoners to whom it wants access: members of government armed forces, armed rebels captured by enemy forces, and civilians arrested by the government or the armed opposition on grounds of their real or presumed support for the other side. The ICRC likewise visits people who are likely to be persecuted because of their ethnic origin.

The ICRC may also offer its services to the authorities in the event of internal unrest, as in South Africa during apartheid or in Romania following the fall of the Ceaucescu regime. In such cases it acts, according to the gravity and urgency of the humanitarian needs observed, on the basis of the humanitarian right of initiative laid down in the Statutes of the International Red Cross and Red Crescent Movement and accepted by the States. For its detention-related activities those two criteria are determined by factors such as the number of arrests, the effectiveness of supervisory mechanisms within the country, the conduct of police and security forces and allegations of ill-treatment and disappearances. Then again, the ICRC may offer its services to the authorities in other situations such as serious disruptions of law and order or the lack of minimum guarantees of individual safety, for instance, if many people are affected or if it believes that its intervention may reduce tension.

Over the years the ICRC has steadily extended the scope of its activities: criminal law offenders are included in its representations and visits if they share the same premises as persons arrested in connec tion with civil unrest, or if they are suffering as a direct result of that situation. For example, if prison food supplies are inadequate (thus affecting all prisoners, regardless of their status or the reasons for their arrest), the ICRC asks the authorities to take the necessary steps to remedy the shortage. Any additional assistance provided by the ICRC is distributed to all prisoners alike.



Legal safeguards

One aspect of protection: upholding legal safeguards  

The ICRC intervenes to ensure that certain universally recognized principles enshrined primarily in the Geneva Conventions and their Additional Protocols are respected by all belligerents or other parties involved: no person may be deprived of his or her freedom except on grounds and in accordance with procedures provided for by law or established local custom. The ICRC has therefore acted in conflict situations to see that the legal safeguards laid down in international humanitarian law are applied. It has for instance requested that prisoners of war accused of criminal offences be informed of the charges and evidence against them, in accordance with Articles 99 ff. of the Third Geneva Convention, and that the right of prisoners not to testify against themselves be respected. One State holding prisoners of war under investigation for the murder of another prisoner was reminded by the ICRC of the ban on extorting confessions, the right of the accused prisoners to be defended by a lawyer qualified to prepare their defence, their right to the services of an interpreter, etc.

 

Article 6 of Protocol II additional to the Geneva Conventions
 

Preventing forced disappearances

Individual monitoring to prevent extrajudicial executions and forced disappearances of people under arrest  

Any situation of conflict or violence within a country brings with it the risk of disappearances and extrajudicial executions: people whom the powers that be would like to neutralize may well face summary execution, die as a result of brutal treatment or be confined in unofficial holding centres without their families being informed of their fate.

In order to prevent disappearances, the identity of people arrested must be established as soon as possible and their cases kept under observation. The ICRC therefore asks to be informed promptly of the arrest of all people deprived of their freedom whom it considers to come within its mandate or who are in danger of disappearing, and to see them without delay. When visiting such prisoners, the ICRC registers their names and all other personal data and transmits them to their families. It can thus keep track of these people throughout their imprisonment, for each time it visits their place of detention it asks to see them again. If this is not possible, it will want to know why, and ask to be informed of the respective prisoner's whereabouts. If a prisoner is transferred, the ICRC will try to visit him or her at the new place of detention. Such visits will continue until the person is released, and individual monitoring may not stop even then, for famil ies sometimes have to be contacted to check that a prisoner really has been released in due and proper form. If the situation so requires, particularly when the ICRC cannot gain access to a person whom it has previously visited, it repeatedly contacts the highest authorities both orally and in writing until it receives satisfactory information as to that person's situation and whereabouts.

The ICRC also contacts the authorities when its delegates are given eyewitness accounts of arrests, or at the request of families who report that a relative is missing.

 Registration and notification: a safeguard  

    

 The ICRC has, found that the risk of extrajudicial execution or disappearance is frequently greater when the authorities have no reliable system for monitoring the prisoners' presence at, transfer to or release from places of detention. To lessen that risk it stresses the need for such a system; in particular, it recommends that registers be kept or that the authorities in the capital be systematically notified of each arrest, transfer or release. It also points out the advantages to the detaining authorities of doing so, i.e. being able to improve the organization - whether food supplies or security arrangements - of everyday life in places of detention. Delegates have sometimes helped to establish a monitoring system at the national level, for instance by training local officials or providing material assistance. In Peru, the ICRC got the army to notify Lima of all arrests. Last but not least, the ICRC systematically checks information provided by the authorities against the lists it draws up during its visits or eyewitness accounts provided by the population.  

 A step-by-step approach  

 The ICRC analyses each item of information gathered by its delegates in the field in order to ensure that it really does see all people who come within its scope. If it feels that it is not being given access to all the prisoners it wishes to see, it contacts the authorities to enquire about them. Its work is therefore not confined to the prisoners it visits, but is also based on statements made to its delegates by people who themselves witnessed an arrest, by the families of missing persons or by prisoners who report that a fellow inmate has disappeared.  

 Pisoners sometimes tell delegates that they have been held at places which the authorities have not reported to the ICRC. In such cases, the ICRC will negotiate access to the places in question and ask to be systematically informed of their existence. However, if it believes that unofficial detention - and hence the danger of disappearances - may increase if it steps in, it may decide to postpone its intervention. It will nonetheless try, on the basis of any information it can obtain and especially the testimony of credible fellow prisoners, to keep a check on the situation of people detained at such places.  

 
 

 Restoring family contact: a vital task  

To maintain decent conditions of detention it is essential to preserve contact between prisoners and their families, not only for psychological reasons but also because the family can provide the prisoner with often vital material support. But family links are sometimes severed by conflict or unrest, or the detaining authority may decide for security reasons to forbid all such contact. The ICR C will then step in to restore it, asking that prisoners be authorized at least to communicate with their kin by means of Red Cross messages (the content of which is restricted to personal and family news), to keep in touch with them and to receive family visits throughout their detention. If necessary the ICRC may, in cooperation with the National Red Cross or Red Crescent Society, provide financial assistance or organize transport to help families to get to the prison, since prisoners are often held thousands of kilometres away from their homes and are otherwise totally cut off from their loved ones. ICRC has facilitated family visits in South Africa. Indonesia, Israel, the occupied and autonomous territories and the Philippines.



Women and children in prison

Women and children in prison are particularly vulnerable and therefore need specific protection. Admittedly, women are generally less likely than men to be deprived of their freedom on account of a conflict but, when they are, their conditions of detention are sometimes worse than those of other prisoners.

The accommodation provided for women may be too cramped if only one detention centre is set aside for them. The fact that prisons often have no female staff may have serious consequences, including certain forms of harassment by guards. During its visits, the ICRC pays special attention to the situation of women prisoners, who are moreover usually visited by female delegates. When they are political prisoners, the ICRC bases its approach on the very specific rules laid down in the Geneva Conventions on the special treatment of prisoners of war and civilian internees, which stipulate that:

  • women must be especially protected against any attack on their honour;

  • women must be held in separate premises, accommodation and sleeping quarters, under the immediate supervision of women;

  • separate sanitary conveniences must be provided for women;

  • the authorities must take account of the sex of prisoners when assigning work to them;

  • account must be taken of the prisoner's sex when disciplinar y penalties are applied;

  • female prisoners may be searched only by female guards;

  • expectant mothers and mothers with dependent infants must be given additional food and a regular medical examination. For childbirth they must be admitted to a qualified establishment and receive care there equal to that provided for the general population.

If necessary, the ICRC may invoke rules other than those of international humanitarian law, for instance the United Nations Standard Minimum Rules for the Treatment of Prisoners or the ethical code of the World Medical Association.

In some circumstances children may remain with their mother throughout her sentence. In others, the ICRC recommends the authorities to release such children on humanitarian grounds, provided their family can receive them.

Children are imprisoned too, either for criminal law offences or because they have been caught up in the turmoil of events, or even because they have been enrolled as combatants. For them, the loss of freedom may be very hard to bear and have lasting effects on their development. The ICRC insists on the psychological and emotional equilibrium, development and education of young prisoners being maintained as far as possible, and urges the detaining authorities to see that the following requirements are met:

  • the questioning of children and all other necessary procedures must take place without delay;

  • Children in captivity must always be kept in quarters separate from adult quarters, unless housed with their families;

  • if they are not released and their detention is extended, children must be transferred as soon as possible to a specialized establishment for minors;

  • Children must receive food, hygiene and medical care suited to their age and general condition;

  • as far as possible, child prisoners must spend much of the day outdoors;

  • Children must be able to continue their schooling;

  • Children must be able to keep in regular contact with their families.

The ICRC cooperates in the field with other inter-governmental and non-governmental organizations such as UNICEF and the Save the Children Fund.