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Enhancing protection of the life and dignity of persons deprived of their liberty

07-12-2012 Feature

The ICRC will be participating (as an expert observer) in the Open-Ended Intergovernmental Expert Group Meeting on the Standard Minimum Rules for the Treatment of Prisoners, which will take place in Buenos Aires, Argentina, from 11 to 13 December 2012. The document below highlights some of the issues involved and the ICRC's views on them.

Founded in 1863 in reaction to suffering on the battlefield, the ICRC took an early interest in the situation of persons deprived of their liberty. Detainees were, historically, the third category of vulnerable person that the ICRC endeavoured to help, after the sick and wounded.

The ICRC’s detention-related work is based upon a comprehensive assessment of the situation both inside and outside places of detention, facilitated by a constructive dialogue with the detaining authorities. Assessment in places of detention is conducted under certain basic conditions, including interviews with detainees conducted without witnesses, individual follow-up and repetition of visits. A subsequent analysis of the information gathered enables the ICRC to identify the main risks that detainees face, together with other factors influencing their situation, including the challenges that confront detaining authorities in attempting to address humanitarian concerns.

The ICRC's analysis also enables it to propose practical solutions that help improve treatment, conditions of detention and other aspects of detention regimes, with the aim of protecting the life and dignity of people deprived of their liberty.

The organization is well known for its work visiting persons 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). In international armed conflicts, the Third and Fourth Geneva Conventions of 1949 and the First Additional Protocol of 1977 are the references on the treatment of prisoners of war and civilian internees. Article 3 common to the Geneva Conventions, Additional Protocol II of 1977 and customary IHL likewise contain provisions related to the treatment of persons detained in relation to NIAC.

The ICRC also takes action for persons deprived of their liberty in other contexts characterized by 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 helping improve respect for the life and dignity of persons deprived of their liberty. It will continue to work with detaining authorities, and to encourage them to take the necessary steps to ensure humane treatment and conditions of detention. In addition to its confidential bilateral dialogue with the authorities concerned, the ICRC undertakes action in respect of individual detainees, facilities, institutions and regulatory frameworks, and undertakes material or technical activities to help meet humanitarian needs.

The ICRC also welcomes all efforts to ensure that universally acknowledged international standards and norms concerning the protection of prisoners continue to provide up-to-date guidance on respect for prisoners' inherent dignity and value as human beings.

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

The first, an initiative of the ICRC, focuses exclusively on detention in relation to NIAC, where the detaining body may be either a State or a non-State actor.

The second 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.’

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

The ICRC and the targeted revision of the SMR

The UN-led process 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, inter alia, consider the existing SMR with a view to reflecting best practices and recent advances in correctional science, and make recommendations.

The ICRC has been following the SMR revision process and will continue to take part in it, as the SMR are a key standard against which to assess the extent to which States have attained minimum standards in protecting the life and dignity of persons deprived of their liberty. The SMR are an important source of inspiration and guidance as to the sorts of solutions that should be applied in places of detention, and the types of provisions that need to be incorporated into national laws, regulations and practices in order to guide prison administrations and other State bodies responsible for managing places of detention.

It is therefore of the utmost importance that the Standard Minimum Rules reflect advances made since 1957 through specific treaties and non-treaty based standards related to detention, 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 pursue its examinations and possible revisions of existing rules with those goals in mind.

In order to ensure prisoner protection, it is necessary to define in concrete terms how to ensure:

  • the fair and humane treatment of prisoners, their safety and their protection from torture, other forms of ill treatment, arbitrary or other abusive forms of punishment and other abuses of power;
  • humane and dignified conditions of detention, including accommodation, space, access to open air, water, food, hygiene and other essentials in sufficient quantity and quality, as well as the possibility for prisoners to engage in various meaningful activities;
  • adequate access to medical care and health services;
  • that prisoners are able to remain in contact with the outside world, first and foremost with their families;
  • that prisoners are adequately informed of their rights, including access to legal aid and representation;
  • that the special needs of vulnerable groups are taken into account,

It is also necessary to provide up-to-date, practical guidance.

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 around the world. 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 regards the treatment of persons detained in connection with non-international armed conflict

The humanitarian problems observed in detention related to non-international armed conflict, and the relative sparseness of binding IHL rules in this area, prompted the ICRC to initiate a process aimed at examining ways of strengthening legal protection for persons detained in relation to NIAC.

This initiative responds to Resolution 1, adopted at the 31st International Conference of the Red Cross and Red Crescent in December 2011. The Resolution invites the ICRC to, inter alia, pursue further research, consultation and discussion, in cooperation with States, and to propose a range of options and recommendations as to how the law may be strengthened in regard to NIAC-related detention.

The ICRC has identified four key areas in which the law governing detention in NIAC should be strengthened:

  • There is a need to strengthen the rules on material conditions of detention, to ensure that detaining parties, whether State or non-State, treat people in their power humanely.
  • Further provisions are needed to address the specific needs of certain categories of detainee, such as women, children, the elderly and the disabled.
  • The legal protection of security detaineesagainst arbitrary detention is insufficient.
  • Rules governing the transfer of detainees from one authority or another need to be strengthened, in order to ensure that detainees are protected against persecution, torture, enforced disappearance or even murder at the hands of a receiving authority.

To facilitate the necessary dialogue with States, the ICRC is hosting a series of regional consultations with government experts. Three regional meetings are taking place in 2012: in Pretoria jointly with the South African government (covering the African continent), in San José jointly with the Costa Rican government (covering Latin America and the Caribbean), and in Montreux, (covering North America, Europe and Israel). The fourth meeting, covering Asia, the Pacific and the Middle East, will take place in early 2013.