Visits to persons deprived of their freedom: the experience of the ICRC
11-04-2007 No Alain Aeschlimann and Nicolas Roggo
The ICRC deploys considerable efforts to bring a minimum of humanity to places of detention and to ensure that the dignity of detainees is systematically respected. This is a complex task and one that calls for unfailing determination. Visits to people who are deprived of their liberty as practised by the ICRC also call for great adaptability and are thus a core issue in an extremely wide field of activities.
The International Committee of the Red Cross (ICRC) is the oldest international mechanism in effect for monitoring detention conditions. Its visits to persons deprived of liberty actually began in 1870 (during the Franco-Prussian War, when ICRC staff visited prisoners-of-war to distribute letters from their families and relief parcels) and were subsequently given international validation by the States concerned. The First World War was the setting for more intensive ICRC involvement in this field: reports were compiled on visits with a view to improving the detention conditions of prisoners-of-war, and the individual data on those prisoners were centralized. This led to the adoption of the 1929 Geneva Convention relative to the Treatment of Prisoners-of-War, which made provision for the monitoring of detention by the ICRC. The visit procedures followed by the organization were thus defined for the first time in an international treaty. These procedures were not mandatory, however, with regard to one factor which was later to prove crucial interviews with detainees in private.
During the Second World War, the absence of this sine qua non and the fact that some visits were supervised by Nazi officers prevented the ICRC from obtaining a full and objective picture of internment conditions. On the basis of this experience, the organization vested itself with a stricter methodology and ensured that that methodology was enshrined, in 1949, in the Third and Fourth Geneva Conventions relative to the treatment of prisoners of war and to the protection of civilians in time of war respectively. These visit procedures are thus also binding on all States by virtue of Art. 126 of the Third 1949 Geneva Convention and Art. 143 of the Fourth 1949 Geneva Convention, which thus formally apply to situations of international armed conflict. The same rules customarily apply in situations other than international armed conflicts, where ICRC access to prisoners is not automatic and has to be negotiatiated.
This methodology includes access to all detainees who are protected by the Geneva Conventions or who fall within the remit of the ICRC (in particular persons detained for reasons connected with State security), access to all infrastructures and installations used by and for detainees, repetition of visits, and the opportunity to interview the detainees of the ICRC’s choice freely and in private (without witnesses). Procedures of this nature proved their worth and served as a model for several international and national mechanisms that were subsequently established, in particular t he European Committee for the Prevention of Torture (CPT).
In the decades following the Second World War, the ICRC constantly developed its activities in aid of persons deprived of their liberty, seeking in particular to include a growing number of detainees in its delegates’ visits. In all armed conflicts (both international conflicts and those occurring within the borders of a State), the organization has invoked international humanitarian law and has called on the parties involved to honour their international commitments, in particular by granting the ICRC access to all persons captured in the course of military operations. Whenever internal unrest or other situations of internal violence has broken out in various parts of the world, the ICRC has taken the initiative of offering its services to the authorities concerned. In most cases, the latter have realized the advantage of facilitating access to their places of detention for a neutral, impartial and independent body, which has gained unparalleled experience in assessing detainee treatment and detention conditions in situations of crisis.
In 2004, for instance, over 570,000 persons deprived of liberty benefited from ICRC involvement and activities in places of detention in over 70 countries.
The benefit of visits
Prisoner-of-war camps, prisons or remand prisons are by definition isolated, enclosed spaces. The prison wall isolates the inmates from any external intrusion or the eyes of any unauthorized persons. One of the consequences inherent in this isolation is the risk that power-based attitudes and a power structure will develop between individuals (between guards and prisoners or amongst the prisoners themselves) which depart more or less from what is “normal” behaviour, i.e. behaviour complying with legal requireme nts and with the values of the prevailing society and its culture.
But does the occasional presence of an external observer in this closed environment suffice to improve the situation and normalize behaviour patterns? There is no doubt that this impromptu presence is in itself comforting for detainees, who feel less forgotten and abandoned to their fate. This relief only lasts for a few hours, however for the duration of the visit and of the ICRC presence. It can happen in particular that abuse occurs or is repeated once the visitors have left.
Visits only have a tangible effect on the treatment of prisoners if there is open and sincere dialogue with the authorities responsible for the places of detention, for they are the only authorities in a position to impose remedial measures aiming to correct the dysfunctional problems and to apply sanctions in the event of the abuse of power. This dialogue is based on the observations, criticisms and recommendations which are submitted to them by the ICRC delegates following each visit and which generate the discussions.
Visits thus serve primarily to “establish the facts”: to understand how the place of incarceration and the system work, to detect problems in the daily lives of detainees, and to document any abusive practices or violations of the rights of detainees defined by the regulations in force and international standards. It is on this basis that the authorities are approached and any other measures are taken.
The visit procedure
Before a visit is carried out, the situation, problems and modus operandi of the place of detention are documented and analysed as precisely as possible. This prior analysis includes factors such as the policies and practices pursued by the aut horities (and in particular the objectives to be achieved by imprisonment and the characteristics of the various systems prevailing in the prisons), how the authorities operate particularly those involved with the administration of justice , the financial means, physical facilities and human resources available to the authorities, and how the various types of detention places are organized.
The actual visits comprise first of all an observation phase covering factors such as the geography and architecture of the premises, the conditions in which the prisoners are housed, the security system or relations between the personnel and prisoners. This phase involves the inspection of the entire premises of the prison or place of detention by the ICRC delegates and provides insight into many aspects of the detainees’ daily lives.
But if their observations are to be objective the delegates must endeavour to ascertain how the infrastructures are really used: do prisoners really have access to the showers, for example, and to the sports ground, the workshops, and so on. To do so, they must obtain information from the administrative and custodial staff as well as from the detainees and must record it systematically. And of course the detainees must be able to speak freely and to relate any ill-treatment they have suffered or any other personal problem. The choice of prisoners whom the ICRC delegates interview (and who must not be solely the prisoners’ designated or self-appointed spokespersons) is thus crucial. The same applies to the venue of the interviews.
The ICRC observers must show great tact and sensitivity in this respect. For whether a visit takes place while the prisoner is still undergoing interrogation or at a later stage, after sentencing, it is always a sudden intrusion into a closed world. A world which involves slow, ponderous and unchanging routine and in which power structures between guards and prisoners and amongst the prisoners themselves are often hidden and insidious. The power structures that have developed amongst all of the inhabitants of this closed place are subtle and often fragile. Occasional external visitors must be careful not to break the dynamics prevailing within the system or to suddenly change the balance of power, since they are otherwise liable to cause imbalances which will be a source of further suffering for persons whose position is already weak or vulnerable. Furthermore, ICRC delegates must at all costs avoid creating false hopes, particularly of release.
Except in exceptional cases where immediate and uncompromising intervention by the ICRC delegates can prove necessary in order to demand, with all the necessary precaution, that the authorities take radical action immediately, the visitors must arm themselves with patience. This means that they must act intelligently, with great humility and sensitivity and the ability to listen in order to penetrate the complex world of a place of detention.
Prisoners often clearly have a great deal to confide in their interviews with ICRC delegates, but they are in such a position of submission that it would be dangerous for them to suddenly start confiding with outsiders, whom the local authorities often see as a threat. The delegates must thus have patience and persevere in order to gradually create the climate of trust which will enable the prisoners to confide in them. It is essential that they be alert to all of the more or less obvious signs through which they can sense the general atmosphere. This requires having a clear understanding of the limits of any initiatives that are possible without unnecessarily exposing the persons they want to protect. The ability to listen is a treasure and it requires that the listeners allow themselves to be guided by impressions or simply by signs and looks to read between the lines, as it were.
However great the delegates’ experience of prison realities may b e, any form of prejudice must be avoided. ICRC delegates must retain the faculty of surprise, for each place of detention is a unique microcosm. This openness and ability to listen must not be taken for naïveté, which the authorities often use as an argument in order to deny certain facts. There is always a risk of being taken in – by prisoners or guards and delegates must bear this in mind; common sense and a rigorous approach will enable them to remain objective and credible.
The ICRC is known and sometimes criticized for the discretion surrounding its visits and in particular its observations. Its attitude is often misunderstood, particularly by the media and certain public opinions. The organization is sometimes seen as a secret institution.
The discretion which the ICRC obliges itself to observe does not aim to conceal important information from the public, nor does it seek at all costs to maintain good relations with all parties even States that are notorious for flouting the recognized rights of persons who have been deprived of their liberty. The ICRC seeks cooperation rather than confrontation with the authorities and is committed to maintaining direct and frank dialogue with the powers that be, which can make the difference if they can be persuaded to do so. That dialogue must be free from recriminatory exchange and political considerations that would be liable to divert ICRC activities from their sole objective, which is humanitarian.
Dialogue provides a basis for a flow of objective information based on regular contact with prisoners and leads to the formulation of proposals for solutions. Permanent dialogue with all officials, irrespective of rank, is also a means of making the visit part of a continuous process and helps furthermore to improve the feeling of proximity between the authorities, th e law enforcement services and detainees.
Continuous dialogue as construed by the ICRC must be founded on a relationship of trust. It is through the confidential nature of the ICRC’s work that such a relationship is established and developed. Confidentiality is a working method and a strategic choice. It also allows actors to work independently on issues that are generally very sensitive. What is more, confidentiality undeniably facilitates access, particularly to places which the authorities are reluctant to open to external observers. By accepting the ICRC’s working methods and its presence and involvement in places of detention, the authorities agree to open discussions on sensitive issues such as the occurrence of torture and undertake to deal with them in good faith.
The ICRC must also ensure that the authorities do not take advantage of its presence and activities. There are thus limits to confidentiality. Whenever the ICRC’s representations and efforts have no significant impact or the authorities fail to abide by the working methods that have been agreed, the ICRC can decide to state its concerns publicly. But the organization only decides to resort to public exposure when strict conditions are fulfilled and in particular whenever it is confident that abandoning its reserve in this way will benefit the detainees and will not jeopardize them. There is sometimes a very fine line between the hope that things will improve and the risk of being instrumentalized it is often a veritable tightrope walk. Resorting to public exposure is thus a difficult decision to take. It is only through reliable analysis and the integrity of decisions that pitfalls can be avoided and a coherence of approach can be maintained in the various contexts in the long term.
Diversified means of action
As stated above, visits alone do not suffice; the mere fact of conducti ng them has in itself little impact. So how does the ICRC go about ensuring significant protection?
One of the specific features of the ICRC is that it is both a monitoring mechanism and an operational agency. This means on the one hand that the organization has a capacity for action which enables it to maintain regular presence at the local level in these operational arenas and to entertain ongoing dialogue with the authorities and all actors who can influence the course of events. And on the other hand the ICRC can make a very real difference by intervening directly in aid of vulnerable persons whenever the circumstances in which they find themselves comprise a risk for their physical or moral integrity, without awaiting the hypothetical results of representations to the authorities.
In view of the needs observed, the ICRC can thus prevail upon the authorities concerned to assume responsibility and can make recommendations and exert pressure by mobilizing influential external factors of change. But if the situation is serious and requires urgent intervention the organization can also implement its own operational capacities in order to restore a satisfactory state of affairs. Whenever measures taken in a place of detention reveal that some of the detainees are suffering from severe malnutrition, for instance, the ICRC can carry out a therapeutic feeding programme to ensure their survival. This will give the authorities concerned time to vest themselves with the means of taking action in the longer term. And finally, the ICRC can also opt to provide structural assistance or to support relevant projects which the authorities design and conduct. In concrete terms, this can include the following, depending on the circumstances:
advice in connection with normative issues (such as the law on prisons or regulations on the organization of prisons, etc.);
advice, sometimes accompanied by material assistance, concerning the establishment and organization of administrative structures;
the creation of special training courses for the law enforcement bodies (police forces, security forces and armed forces), for prison staff or for specialists working in a prison environment (such as medical staff or the staff in charge of water supply and sanitation facilities);
the organization of inter-disciplinary workshops for professionals from various trades and occupations involved in identical issues;
action to put the authorities in touch with organizations specializing in fields where the ICRC does not profess to have special knowledge;
the organization of the exchange of family news between detainees and their relatives (in the form of Red Cross messages).
And finally, as was stated in the previous section, whenever a situation of deliberate abuse persists despite the ICRC’s constructive and discreet efforts and concrete aid, the organization can consider disclosing its concerns.
A variety of activities in connection with visits
The ICRC has developed recognized expertise in a number of fields connected with the treatment of detainees and physical detention conditions.
First of all there are the activities aiming to combat summary executions and disappearances.
Registering detainees at risk i.e. recording the exact details of their identity as soon as possible after capture or arrest and then monitoring these persons until they are released is one of the measures the ICRC takes where such abuse is likely to happen. The organization can then ascertain the fate of these persons through regular visits.
Preventing torture and other forms of ill-treatment is also an essential ICRC objective. It is known that risks of abuse of the physical integrity and dignity of persons are particularly high in the course of interrogation during the first few hours or days following arrest or capture. Documenting cases of torture or other cruel, humiliating or degrading treatment, essentially on the basis of accounts by victims, is difficult work, which requires both rigorous precision and great ability to listen with compassion. Conveying these “allegations” to the authorities concerned and preparing the arguments to be developed in order to induce them to agree to open an in-depth dialogue often involve extremely delicate negotiations, particularly when the authorities flatly deny all of the evidence which the ICRC delegates have gathered. The ICRC also occasionally organizes special training courses in this field with a view to improving knowledge of international norms and standards.
In order to preserve its neutrality the ICRC does not, in principle, express an opinion on the grounds cited for a person’s incarceration. On the other hand, problems concerning the respect of fundamental legal guarantees are a further field with which the organization is concerned. Such problems often have significant humanitarian consequences, particularly for the mental welfare of detainees. Taking the statements made by detainees and, in certain cases, its own observations in the courtroom as a basis, the ICRC can thus draw the attention of the competent authorities, and in particular the judicial authorities, to dysfunctional problems. The organization can thus highlight cases where certain fundamental legal guarantees have apparently not been respected. The main problem in many contexts in which the ICRC works is the very long lapse of time during which no information is available on the grounds for placing or for keeping people in detention and the extremely cumbersome judicial procedures. Here gain, the organization may run training courses or discussion and awarenes s-raising seminars on the problems that prevail. These courses and seminars sometimes provide an opportunity to bring together representatives from the judiciary, the prison authorities and the police.
The ICRC’s activities aiming to preserve the health and minimum well-being of detainees form a further very vast field of action. Hygiene, water supply, aspects of nutrition and medical care are all areas in which the ICRC has developed recognized expertise. On the basis of their observations, ICRC doctors and engineers provide the authorities with abundant advice on simple and effective ways of improving the situation and sometimes run training sessions. The ICRC staff are also in a position to set up emergency action in these fields if the authorities are not equipped to cope with situations of crisis: therapeutic feeding whenever detainees are suffering from severe malnutrition due to problems or even a breakdown in the food chain, construction of water tanks whenever water supply is irregular or inadequate, rehabilitation of kitchens and measures to improve the efficiency of wood-burning stoves whenever firewood is scarce, renovation or construction of new sanitation facilities (latrines, septic tanks, showers) whenever the environment is liable to affect detainees health, emergency response in the event of epidemics such as cholera, etc.
Tuberculosis and the potential ravages of the disease in places of detention, where there is by definition a high rate of promiscuity, have been a major ICRC concern for some time. The organization has developed activities in several contexts, particularly in the southern Caucasus, to assist the authorities in establishing screening systems as well as health care systems based on the DOTS method (Directly Observed Treatment, Short Course). It has also collaborated with the World Health Organization (WHO) on the compiling of a manual laying down guidelines for controlling tuberculosis in prisons. See Dermot Maher, Malgosia Grze mska et al ., Guidelines for the control of tuberculosis in prisons, World Health Organization, Geneva, 1998.
Anxiety and the physical and psychological consequences suffered by prisoners who have been subjected to torture and other forms of ill-treatment are further issues in the health field. The ICRC doctors must be able to listen to these concerns, dispel any unfounded fears, and inform prisoners of any after-effects which might persist. The ICRC does not have the capacities to attend to treating these cases itself, nor is that its mission, particularly during detention. However, it often encourages detainees to consult specialized institutions and organizations once they have been released. Likewise, the ICRC sometimes encourages such institutions to become involved in prisons in coordination with the authorities.
The ICRC deploys considerable efforts to bring a minimum of humanity to places of detention and to ensure that the dignity of detainees is systematically respected. This is a complex task and one that calls for unfailing determination. Visits to people who are deprived of their liberty as practised by the ICRC also call for great adaptability and are thus a core issue in an extremely wide field of activities. For these visits take place in a wide variety of contexts ranging from poor countries, where detainees sometimes only survive thanks to the urgent organization of therapeutic feeding programmes, to the most economically developed countries, which place certain detainees under a very high security regime with the corollary of the virtual dehumanization of the individual. It is difficult to imagine that the ICRC’s mission in the detention field might one day come to an end: there is always another crisis where prisoners in need await the organization’s int ervention.
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- This article was published in French in "Médecine, santé et prison", Editions Médecine et Hygiène, Geneva, September 2006.