Protecting and improving the lives of detainees - Human Rights Council
Speech by Mr Peter Maurer, President of the ICRC, 25th session of the Human Rights Council, High-level segment, Geneva.
Mr President, Madam High Commissioner for Human Rights, Your Excellencies, Ladies and Gentlemen, representatives of States, international organizations and civil society,
I am pleased to be able once again to take part in the deliberations of the Human Rights Council. Called to work in the same situations and interested in the same themes, we must deepen our exchanges, within our respective mandates and working methods, to ensure the continuity of the protection and assistance provided for all victims of armed conflict and other situations of violence.
I am convinced of the importance of striving for complementarity in approaches between different actors working in the field of human rights and humanitarian law. In doing so, the ICRC’s primary concern is to maintain the trust of parties to a conflict through a bilateral and confidential dialogue. The ICRC’s proximity to victims depends on this dialogue.
That said, I am convinced that we must encourage thematic exchange, based on experience, and that the Council provides a conducive environment for doing so. Hence, I am here today to share with you some of the ICRC’s actual experience in the domain of detention. In doing so, I will explain the working method that characterizes all of the ICRC’s activities, and which is based on an understanding of each context, proximity to victims, and which aims to ensure the most appropriate responses to victims’ needs.
It is clear that one organization’s action alone is not enough to improve the worldwide response to cover all protection and assistance needs in armed conflicts and other situations of violence.
Very soon after its establishment, the ICRC endeavoured to improve the situation of people deprived of their liberty. It developed its practices in prisoner-of-war camps and later in civilian internment camps during international armed conflicts. In order to respond more effectively to the urgent needs of the most vulnerable, the ICRC then steadily extended the scope of these initial activities to further categories of people deprived of liberty, such as security and common-law detainees, as well as migrants, wherever they are detained. Subject to the explicit agreement of the authorities concerned, it now acts not only in armed conflicts, but also in other situations where detention conditions require a humanitarian response and where there is a real risk of ill-treatment or even disappearances. In 2012, the ICRC conducted detention-related activities in more than 97 operational contexts. The same year, it made more than 4,900 visits to 1,700 places in which more than 540,000 individuals were detained.
The current state of affairs. The vulnerability of people deprived of their liberty is one of the main reasons for the ICRC’s concern for this segment of the population.
In many countries there is unfortunately little understanding, or even a complete lack of interest, in detention-related issues, despite the fact that more than 11 million people are in prison and almost 30 million enter and leave prisons every year. Incarceration rates show that countries are tending to make greater use of imprisonment: long sentences and pre-trial detention are on the increase. While the prison population is still predominantly male, more and more women and children are being held in places of detention without any of the requisite changes in infrastructure. In some places, foreigners account for more than half the detainees. However, the growth of the prison population is not always accompanied by an increase in the necessary resources. The lack of resources then has an impact on the whole system and results in greater pressure on the prison administration and staff, who are inadequately equipped and trained. It is also reflected in the excessively long judicial delays, inability to meet nutritional and health needs and obsolete or inappropriate infrastructure.
For several decades and in widely varying detention contexts, the ICRC has been an eyewitness of the effects of overcrowding on detainees and their families. It is a grave humanitarian problem that leads to such a deterioration in living conditions during detention, that they sometimes become inhumane. Tens of thousands of detainees are forced to live for long periods in overcrowded cells without enough room to move, sit down or sleep. Being confined in a small space, often in appallingly insanitary conditions and with no privacy, makes deprivation of liberty – oppressive enough in itself – still more testing. The human dignity of detainees is eroded and their mental and physical health is seriously affected. Tensions among detainees and between prison staff and detainees are exacerbated, thereby significantly increasing the risk of physical, psychological and sexual violence.
In most countries society has little interest in detainees, sometimes even regarding them as barely human. This attitude is reflected in budgetary priorities and the resources made available for running places of detention. When it comes to health, the ICRC notes that general system-wide shortcomings are often amplified in places of detention. And yet the health problems arising from the spread of infectious diseases (such as tuberculosis and HIV), drug addiction and the increased prevalence of mental illnesses are now more pressing than ever.
It is true that the ICRC has also noted an awareness of this situation on the part of the authorities and a wish to reduce the adverse effects of detention. For example, steps are being taken to enable people deprived of their liberty to maintain contact with the outside world and for children in detention to have access to education. In the field of criminal justice, thought is being given to support measures for convicts and to alternatives to imprisonment. International cooperation programmes on the rule of law or the reform of judicial systems sometimes include a component on the prison system.
The ICRC invites the States (…) to redouble their efforts to improve the general situation as regards detention practices and to devote time and energy to this matter not only in peacetime, but also during armed conflicts and other situations of violence.
Shouldn’t it be recognized that detainees are members of society? Isn’t the way we treat detainees a reflection of how much consideration we show for respect for human dignity, the very cornerstone of human rights? Guaranteeing decent and humane conditions of detention is a fundamental aspect of the right to justice. We must therefore have the courage to raise these issues if we want to avoid places of detention becoming lawless spaces outside society and schools of violence. The work required is difficult, but not impossible.
Here I would like to mention a few courses of action and measures that might improve the situation.
Protecting detainees. The treatment of detainees is primarily a matter for the detaining authority, which is responsible for providing for their needs in full compliance with the applicable standards. It has often been said in connection with criminal detention that places of detention are a mirror of society and the values it promotes. From this standpoint, society is itself a substantial regulative factor. It can exert a beneficial influence on the authorities through the media and civil society. Lawful, transparent procedures, national and international prevention mechanisms, ombudsmen and national human rights committees all serve as means of curbing and avoiding abuse and impunity.
The purpose of ICRC visits to places of detention is to ensure that detainees – whatever the reason for their arrest and detention – receive dignified, humane treatment complying with international standards and rules. The needs of individuals deprived of their liberty are the ICRC’s primary concern here and its action therefore rests on a comprehensive, in-depth assessment of the situation both inside and outside the place of detention using clearly defined methods. An analysis of the information gathered should enable the ICRC to identify the main problems facing detainees and to detect the existence of other factors affecting their situation, such as the detaining authorities’ difficulties in contending with humanitarian problems or respecting judicial guarantees. It should also make it possible to suggest practical, multidisciplinary means of preventing ill-treatment and improving conditions of detention so that the lives and dignity of people deprived of their liberty are accorded greater respect. The ICRC’s activities, of which visits to detainees and maintaining contact with them remain essential elements, may therefore include legal protection measures, measures to improve facilities, institutions or standards, the provision of material assistance, or technical support aimed at building the capacity to respond to humanitarian needs.
Far from claiming a monopoly, the ICRC tries to take into account the effective action and positions of other organizations active in the sphere of detention. It participates in the operational coordination needed to facilitate the work of each organization and ensure that activities are as complementary as possible, while at the same time preserving the trust of detention authorities, detainees and their families in its neutrality independence.
Strengthening normative framework. Any activity aimed at improving detention conditions – and more generally all protection activity – is based on the rule of law. Minimum conditions of detention cannot be guaranteed without reference to legal obligations and knowledge of standards, in particular human rights law, international humanitarian law – where it is applicable – and domestic law. We must be proactive in encouraging accession to the relevant international treaties, the adoption of national legislation, the establishment of reliable national institutions, the setting up of internal supervisory mechanisms, promotion of an awareness of binding standards and prohibited practices and training in those standards, the introduction of penalties for instances of abuse and the adoption of assistance and reparation measures for victims.
There is no shortage of reference material in this area and it is constantly being developed. Some texts are increasingly regarded as the relevant international standards. They include the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. A number of regional treaties have also been adopted and some professional organizations have relevant codes of conduct. Mention should also be made of the work of the Working Group on Arbitrary Detention and the Council’s forthcoming deliberations on the human rights of persons deprived of their liberty, which will undoubtedly prove to be a highly instructive discussion.
The debates surrounding the revision of the Standard Minimum Rules for the Treatment of Prisoners, adopted in 1957 are focusing on some current fundamental humanitarian issues arising in places of detention, such as solitary confinement and failure to respect medical ethics. These are very distressful problems for detainees, their families and the staff of places of detention; they also have adverse repercussions on the whole community. This is why the ICRC considers it important that the work now under way pays due heed to these matters and comes up with satisfactory answers to them.
The ICRC is particularly interested in the subject of detention during non-international armed conflicts, irrespective of whether the detaining authority is a State or a non-State party. The humanitarian problems observed in detention in non-international armed conflict and the scarcity of rules of humanitarian law governing this subject, prompted the 2011 International Conference of the Red Cross and Red Crescent to invite the ICRC to pursue further research and consultation with States and other relevant bodies and to propose means of ensuring that humanitarian law remained practical and relevant to the protection of persons detained in the context of non-international armed conflict. The ICRC has therefore held various regional consultations during which government experts were invited to express their views on the need to strengthen this body of law and the means for doing so.
We must welcome all efforts being undertaken to ensure that internationally recognized norms pertaining to the protection of people deprived of their liberty are updated and continue to contribute, in all circumstances, to the respect of the dignity of detainees and to their inherent value as human beings. In all circumstances, when it comes to protection from torture or all other forms of cruel, inhuman or degrading treatment or from summary execution and forced disappearance, human rights and humanitarian law are as one in prohibiting them absolutely. The ICRC will continue to participate in strengthening and promoting these legal standards concerning the protection of people deprived of their liberty. It will also continue to share its experience, in particular by publishing handbooks in its areas of competence. For example, in 2013 it published a Handbook on strategies to reduce overcrowding in prisons in cooperation with the United Nations Office on Drugs and Crime.
Thinking beyond the crisis. Shouldering responsibilities in relation to detention requires a firm political will and long-term commitment. Any initiative on the subject should be preceded by a thorough analysis of specific needs in each context. Exchanges of experience should be encouraged in order to identify the most appropriate responses. The ICRC invites the States represented here today to redouble their efforts to improve the general situation as regards detention practices and to devote time and energy to this matter not only in peacetime, but also during armed conflicts and other situations of violence. We are convinced that much could be done during crises to mitigate the humanitarian impact of strife and thus prevent serious lapses. We call on you to establish conceptual and practical links between emergency relief and development work. It seems to me that these considerations should be borne in mind in discussions on setting development goals for the period after 2015, if there is a genuine determination to mainstream human rights into them.
Strengthening compliance mechanisms. Unfortunately, all too often bad conditions of detention, and, generally, breaches of the law, are due to intentional and deliberate acts or negligence. An unwillingness to respect or ensure compliance with the law, impunity and the lack of supervision all create an environment conducive to violations of the law and form a substantial obstacle to the effective protection of individuals. During armed conflicts, this situation has tragic humanitarian consequences, as is evidenced today by the huge number of civilians who are killed or wounded, of victims of arbitrary detention and ill-treatment, of displaced persons and of persons separated from their families or reported missing.
It is therefore vital to put in place effective means of ensuring greater respect for the law. The principal challenge lies in persuading the parties concerned to comply with the rules by which they are bound.
The ICRC participates through its visits and its representations to authorities in efforts to improve respect for the law (visits to places of detention, protection of the civilian population, confidential representations to authorities in the event of breaches of humanitarian law, etc.). Its role is, however, inherently restricted by its mission, working methods and the situations in which it takes action. It therefore focuses on confidential bilateral dialogue with each party to the conflict, provided such dialogue exists and that sincere efforts are made. The purpose of such discreet representations is to convince the parties responsible for breaches to change their behaviour and fulfil their obligations.
In the United Nations, and especially in this Council, various processes have been developed to this end: thematic or contextual resolutions, the establishment of special procedures, observer and fact-finding missions, inquiries or the reporting of violations. The ICRC acknowledges that peer-to-peer pressure is a vital means of bringing about a change of behaviour. Is it necessary to draw attention to the fact that under humanitarian law, States have a duty not only to respect the law, but also to ensure its respect?
In this regard, the major contribution made by the Universal Periodic Review must not be overlooked. The discussions which it prompts and the commitments to which States must then give effect in their national action plan are helping to build a system designed to ensure better respect for human rights and, when applicable, humanitarian law.
Other initiatives are also under way. At the request of the 31st International Conference of the Red Cross and Red Crescent, in 2012 Switzerland and the ICRC jointly launched a process of consulting States and other relevant actors about practical ways of strengthening compliance with humanitarian law and improving the dialogue among States with regard to questions of interest in this sphere. In this context, they jointly convened a number of meetings at which States expressed their firm support for the establishment of a forum permitting regular dialogue on humanitarian law and a determination to pursue the debate concerning this forum’s possible functions.
There are many challenges. Whatever steps are taken, their success will depend on our ability to take advantage of their diversity, while at the same time seeing them as an integral part of a collective effort to strengthen the system as a whole.
In 2013 the ICRC deepened its dialogue with the Council. It is clear that one organization’s action alone is not enough to improve the worldwide response to cover all protection and assistance needs in armed conflicts and other situations of violence. It’s here that it is essential that we further deepen our exchange and our dialogue in order to reinforce protection and assistance, through complementarity in our actions. Such complementarity encourages multi-faceted and relevant responses, supports the implementation of effective and sustainable action, and builds an environment conducive to greater respect for the law.
I wish the 25th session of the Human Rights Council every success in its work.