Detention: Addressing the human cost

IRRC No. 903

Detention: Addressing the human cost

Detention can take various forms, but the deprivation of liberty inevitably carries costs that fall on the detainee, their family and the community at large. These costs, both individual and collective, are often linked to other, financial costs that authorities are unwilling to incur on behalf of a group of people who are out of sight. This short-termist calculation has serious implications for prisoners today, and for our societies in the future. Objectively assessing the human, social, political and financial costs of detention policies is essential to avoid detention becoming part of the problem it was meant to solve. In this edition, the Review takes stock of developments in detention practices and policies, and focuses on a range of challenges related to maintaining human dignity in detention, including overcrowding and aging prison populations. In drawing attention to the ongoing challenges associated with detention, the Review seeks to promote the human dignity of detainees.

Table of contents

  • Editorial: Out of sight, out of mind? Exposing the human cost of detention

    The conditions in which detainees are being held and the way they are treated are worsening in several countries, while the rest of the world turns a blind eye. Life for these detainees is a nightmare. Limited resources, punitive criminal justice policies and malfunctioning judicial systems lead to a host of problems: overcrowded cells or, conversely, solitary confinement in high-security prisons; violence and drugs; torture, ill-treatment and the absence of legal safeguards; a lack of hygiene, food, care and, at the end of the day, dignity.
    Vincent Bernard, Editor-in-Chief

  • Interview with Abdoulaye Kaka

    The Review has chosen to open this edition with an interview with General Abdoulaye Kaka as a representative of State practice in counterterrorism detention. The journal chose to focus on Niger as a State that is affected by an ongoing armed conflict and which arrests, detains and tries suspected members of a non-State armed group under its domestic legal system.
    Abdoulaye Kaka, Central Counterterrorism Agency in Niger

  • Prisoners’ objects: The collection of the International Red Cross and Red Crescent Museum

    The International Red Cross and Red Crescent Museum has a unique collection of prisoners’ objects – items made by conflict-related detainees and given to International Committee of the Red Cross (ICRC) delegates who, in keeping with the ICRC’s mandate under the Geneva Conventions, were visiting the prisons.
    Roger Mayou, International Red Cross and Red Crescent Museum

  • Current trends and practices in the use of imprisonment

    This article charts the rapid rise in the use of imprisonment in recent decades before considering some of the most pressing issues of concern in the use of imprisonment today. First among these is prison overcrowding, which continues to blight the record of many countries in their treatment of prisoners. To illustrate the potentially dire consequences of overcrowding – a problem common to many other countries and regions – an account is given of a recent visit to a prison in El Salvador. The article then provides an overview of the relevant regional and international standards on the treatment of prisoners, referring also to the role of judicial bodies in ensuring implementation.
    Andrew Coyle, ICPR
    Helen Fair, ICPR
    Catherine Heard, ICPR

  • The costs of incarceration for families of prisoners

    Family members of incarcerated people are often faced with financial, social and emotional costs related to the imprisonment of their loved ones. These costs can be conceptualized as investments both in the sustenance of personal relationships and in a greater social good in the form of assisting with the reintegration of former prisoners. In this article, we draw upon data from a mixed-methods study to elucidate the costs of detention on families of prisoners. We demonstrate that financial, social and emotional costs associated with imprisonment of a family member are interrelated and often compound each other, indicating the importance of addressing them in a holistic framework.
    Megan Comfort, RTI International
    Tasseli McKay, RTI International
    Justin Landwehr, RTI International
    Erin Kennedy, RTI International
    Anupa Bir, RTI International
    Christine Lindquist, RTI International

  • “Restoring hope where all hope was lost”: Nelson Mandela, the ICRC and the protection of political detainees in apartheid South Africa

    Amidst the violent upheavals of the end of empire and the Cold War, international organizations developed a basic framework for holding State and non-State armed groups to account for their actions when taking prisoners. The International Committee of the Red Cross (ICRC) placed itself at the very centre of these developments, making detention visiting a cornerstone of its work. Nowhere was this growing preoccupation with the problem of protecting detainees more evident than apartheid South Africa, where the ICRC undertook more detention visits than in almost any other African country. During these visits the ICRC was drawn into an internationalized human rights dispute that severely tested its leadership and demonstrated the troubled rapport between humanitarianism and human rights. The problems seen in apartheid South Africa reflect today’s dilemmas of how to protect political detainees in situations of extreme violence. We can look to the past to find solutions for today’s political detainees − or “security detainees” as they are now more commonly called.
    Andrew Thompson, University of Exeter

  • Overcrowding: Nobody’s fault? When some struggle to survive waiting for everyone to take responsibility

    Visiting an overcrowded prison is a journey into the private life of each person deprived of his or her freedom, into the community of the detainees and of the staff working in such a place. Using the senses of sight, hearing, smell and touch, combined with empathy and time for observation, helps ICRC delegates to explore vulnerabilities, discover how detainees and staff cope, and grasp the intricate complexity of such a prison system. Beyond what is left of human dignity in these places of detention, when coping mechanisms become survival mechanisms, the suffering shows that overcrowding is wrong. It follows that if overcrowding is “nobody’s fault”, it is the responsibility of every individual and every institution of the criminal justice system to create solutions.
    Vincent Ballon, ICRC

  • Glimmers of hope: A report on the Philippine Criminal Justice System

    There is a saying: “Justice delayed is justice denied.” The perception of a continuing failure of the Philippine criminal justice system to deliver fast and efficient justice has inevitably led to the erosion of public trust in the government. As a consequence, citizens are laden with anxiety because of unabated criminality and violence in their communities. The type of justice that leads to peace and prosperity continues to be elusive in the Philippines as the worsening scenario of jail congestion continues to manifest its malevolent implications for the human rights of prisoners. It appears that the culprit is an overwhelmed machinery of criminal justice that has not been able to keep pace with growing rates of population, urbanization and criminality. There is also an apparent imbalance in the justice structure where there are too few judges, prosecutors and public defence attorneys to process the cases filed by the numerous law enforcers who file criminal cases. This leads to bottlenecks in criminal justice procedures and has resulted, in not a few instances, in human rights crises in jails. However, emerging developments give some hope to Filipinos.
    Roy Panti Valenzuela, Bureau of Jail Management and Penology (BJMP)

  • Overcrowding in the Peruvian prison system

    In this contribution the author examines overcrowding, one of the chronic problems that affect the prison system in Peru. First, the topic of the growth of the prison population during a determined period of years is addressed. Then, the author discusses three options for avoiding or controlling overcrowding in prisons: sending fewer people to prison, increasing the release of prisoners, and expanding existing prisons or building new ones. Finally, the article presents alternative measures of limiting freedom other than sending people to prison, and proposes a long-term solution which includes the participation of different sectors of the Peruvian government.
    Julio César Magán Zevallos, Former President of the Peruvian National Penitentiary Institute

  • Becoming a torturer: Towards a global ergonomics of care

    How do people become torturers? And how do we stop that transformation? This article addresses these questions by calling on academics and practitioners to consider caring for – expressing sympathy, understanding, and working with – the figure of the “not-quite-yet” torturer. We begin by noting the globality of torture across space and regime type, and suggest that this globality indicates how torture is – very frequently – not the result of any decision or order. This is followed by a discussion of the “consciousness” of the torturer vis-à-vis (1) their paradoxical emotional scarring by their own actions, and (2) their frequent descriptions of having, indeed, never themselves “intended” to torture someone.
    Jonathan Luke Austin, Violence Prevention Initiative
    Riccardo Bocco, Graduate Institute of International and Development Studies

  • The crisis of detention and the politics of denial in Latin America

    This article assesses the causes of the crisis of detention in Latin America. It is argued that this crisis, which manifests itself in overpopulation of the region’s prison systems, deficient infrastructure, prison informality and violence propelled ultimately by political processes, is mostly related to, on the one hand, disastrous human rights conditions inside Latin American prisons, and on other, the political denial of these conditions. This denial produces a state of institutional abandonment that is preserved by the interests of politicians and bureaucrats, who are engaged in denying prison violence and human rights abuses while simultaneously calling for more punishment and imprisonment.
    Paul Hathazy, National Scientific and Technical Research Council of Argentina
    Markus-Michael Müller, Freie Universität

  • Ageing prisoners: An introduction to geriatric health-care challenges in correctional facilities

    The rise in the number of older prisoners in many nations has been described as a correctional “ageing crisis” which poses an urgent financial, medical and programmatic challenge for correctional health-care systems. In 2016, the International Committee of the Red Cross hosted a conference entitled “Ageing and Imprisonment: Identifying the Needs of Older Prisoners” to discuss the institutional, legal and health-care needs of incarcerated older adults, and the approaches some correctional facilities have taken to meeting these needs. This article describes some of the challenges facing correctional systems tasked with providing health care to older adults, highlights some strategies to improve their medical care, and identifies areas in need of reform. It draws principally on research and examples from the United States to offer insights and recommendations that may be considered in other systems as well.
    Rachael Bedard, Icahn School of Medicine at Mount Sinai
    Lia Metzger, University of California
    Dr Brie Williams, UCSF

  • Strengthening IHL protecting persons deprived of their liberty: Main aspects of the consultations and discussions since 2011

    One key area in which international humanitarian law (IHL) needs strengthening is the protection of persons deprived of their liberty in relation to non-international armed conflicts (NIACs). While the Geneva Conventions contain more than 17 5 rules regulating deprivation of liberty in relation to international armed conflicts in virtually all its aspects, no comparable legal regime applies in NIAC. Since 2011, States and the International Committee of the Red Cross (ICRC) have worked jointly on ways to strengthen IHL protecting persons deprived of their liberty. Between 2011 and 2015, the ICRC facilitated consultations to identify options and recommendations to strengthen detainee protection in times of armed conflict; since 2015, the objective of the process has shifted towards work on one or more concrete and implementable outcomes. The present note recalls the legal need to strengthen detainee protection in times of NIAC and the main steps that have been taken over the past years to strengthen IHL.
    Tilman Rodenhäuser, ICRC

  • National security and the right to liberty in armed conflict: The legality and limits of security detention in international humanitarian law

    This paper examines the legality and limits of security detention in armed conflict situations. It particularly investigates the issues of whether the protection of national security is a legitimate ground to restrict the right to liberty of persons in situations of international or non-international armed conflict, and if so, what are the limits to a State’s prerogative to restrict the right to liberty of individuals suspected of threatening its national security.
    Zelalem Mogessie Teferra, African Court on Human and Peoples’ Rights

  • International humanitarian law’s old questions and new perspectives: On what law has got to do with armed conflict

    The question of whether international humanitarian law (IHL) has an impact on how armed conflicts are conducted is a controversial one. Sceptics claim that the law is virtually irrelevant in determining State behaviour in armed conflict. Proponents point to its importance in mitigating the suffering caused by war. This paper looks at recent scholarship from historians, political scientists, economists and lawyers that challenges traditional narratives held dear by the law’s sceptics and proponents alike. It then discusses implications of these approaches for a current understanding of the role of IHL in today’s armed conflicts. The new perspectives allow for a broader understanding of IHL’s central issues and permit us to ask more pertinent questions when looking at the law with the aim of putting it to use for the protection of civilians.
    Thomas Forster, United Nations Office of the High Commissioner for Human Rights

  • When is a conflict international? Time for new control tests in IHL

    This article clarifies the control a State should have over an armed group for the triggering act of an international armed conflict and for the internationalization of non-international armed conflicts in international humanitarian law. It explains the reasons for the distinction between these two types of attribution and details the specificities of each test, with an innovative approach. The author proposes new control tests for both triggering and internationalization, rejecting the effective and overall control tests regarding internationalization proposed by the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. For instance, regarding the internationalization of a non-international armed conflict, a general and strict control test is proposed. Finally, this article addresses specific issues like the difficult question of the control required for an occupation through an armed group.
    Djemila Carron, Law Faculty of the University of Geneva

  • Reports and documents: Protecting people deprived of their liberty

    Whatever the reason for their detention, people deprived of their liberty are, by definition, vulnerable. They have been taken out of their normal environment and are no longer allowed to manage their own lives.

  • Reports and documents: ICRC report on the visit to “Robbeneiland” (Robben Island) Prison on the 1st May, 1964, by Mr G. Hoffmann, Delegate General of the International Committee of the Red Cross in Africa

    On 1 May 1964, Georg Hoffmann, the International Committee of the Red Cross (ICRC) Delegate General in Africa, inspected Robben Island Prison, where some twenty days earlier Nelson Mandela was visited for the first time. Having access to political prisoners in apartheid South Africa, the ICRC sought to ensure that detainees lived in decent conditions and were treated humanely.The following is the report of the detention visit conducted by Georg Hoffmann. The document provides a detailed overview of the living conditions, work and medical treatment of detainees, as well as recommendations given to prison authorities after the visit. The report was confidential at the time of writing. It was made public in 2004 and is reproduced for the first time here in the Review.

  • Reports and documents: What’s new in law and case law around the world? (Winter/Spring 2016)

    Biannual update on national implementation of international humanitarian law January–June 2016

  • Book review: Does Torture Prevention Work?

    Does Torture Prevention Work?, by Dr Richard Carver from Oxford Brookes University and Dr Lisa Handley, an independent scholar from the United States, is the first independent and global study of the impact of torture prevention measures. The research provides important new insights into the most effective ways to reduce incidences of torture. Carver and Handley led a team of researchers in fourteen countries, and asked them to look at torture and prevention mechanisms over a thirty-year period. Their research demonstrates that torture can be prevented.
    Olivier Chow, ICRC

  • Book review: The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law

    The Extraordinary Chambers in the Courts of Cambodia (ECCC) were established by a joint agreement between the United Nations and the Kingdom of Cambodia in 2006 to try senior leaders and those most responsible for crimes committed under international and domestic law during the era of Democratic Kampuchea from 1975 to 1979.
    Katie Shea, Federal Prosecutor

  • Book review: Compliant Rebels: Rebel Groups and International Law in World Politics

    In the last few years, the role and status of rebel groups have become essential topics of analysis and discussion for a better understanding of current international dynamics. Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that over the last few decades the increasing participation of rebel groups in the international realm has led to many discussions and complex debates.
    Ezequiel Heffes, Geneva Call

  • Books and articles: New publications in humanitarian action and the law (Spring 2016)

    This selection is based on the new acquisitions of the ICRC’s Library Service