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Protection of detainees: ICRC action behind bars

Published online by Cambridge University Press:  27 April 2010

Alain Aeschlimann
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Abstract

The author describes the history and the premises and characteristics of the action of the ICRC in favour of persons deprived of liberty. He believes that the efficiency of its approach, in particular the visits to detainees, is closely linked to the respect of a constant and rigorous working method including the modalities of the visits and the confidentiality of the interventions to the authorities. Finally, the implication of the ICRC is to be inscribed in a large process and is complementary to the efforts of the authorities, other organizations and mechanisms as well as of the international community at large. Its approach however remains unique in several aspects.

Type
Detention
Information
International Review of the Red Cross , Volume 87 , Issue 857: Detention , March 2005 , pp. 83 - 122
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 In this article, the term “detainee” will be used to mean all persons deprived of their liberty, regardless of their status.

2 See on this subject Stern, Vivien, A Sin against the Future: Imprisonment in the World, Penguin Books, London, 1998Google Scholar.

3 See in particular François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC, Geneva, 2003Google Scholar.

4 See in particular Moreillon, Jacques, The International Committee of the Red Cross and the Protection of Detainees, Henry Dunant Institute, Editions L' Age d'Homme, Lausanne, 1973Google Scholar.

5 In particular, the conditions and procedure for visits were developed and standardized.

6 For example, with regard to hunger strikes and the death penalty.

7 One of the first texts to mention the respect due to detainees is the Lieber Code of 1863, which is the first codification of the laws of war and contains instructions for the humane treatment of prisoners. It was drawn up for the Northern armed forces fighting in the American Civil War.

8 Article 2 of the Geneva Convention of 1929.

9 According to Article 86 of the Geneva Convention of 1929, interviews may be held as a general rule without witnesses (emphasis added).

10 This resulted in particular from the ICRC's visit in June 1944 to the Theresienstadt camp, a “model” Potemkin camp used by the Nazis as propaganda to disguise the atrocities committed against the Jews and other target groups. As he was not allowed to speak in private with the Jewish internees and was constantly escorted by SS officers, the ICRC representative did not realize the real nature of the camp, the true situation of its occupants and the fate that was in store for them.

11 Notably the Standard Minimum Rules for the Treatment of Prisoners (1977), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules) (1990), the Code of Conduct for Law Enforcement Officials (1979), the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).

12 See in particular Articles 2, 7 and 8 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987, which established the European Committee for the Prevention of Torture (CPT), and Articles 4, 13 and 14 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 2002 (not yet in force), which establishes the Sub-Committee on Prevention of Torture along with national mechanisms for the prevention of torture.

13 Articles 123 and 126 Third Geneva Convention relative to the treatment of prisoners of war of 1949 (GC III) and Articles 76, 140 and 143 Fourth Geneva Convention relative to the protection of civilian persons in times of war (GC IV).

14 Notably Resolution I of the 25th Conference (1986), Resolution IV of the 24th Conference (1981), Resolution XVIII of the 21st Conference (1969), Resolution XXXI of the 20th Conference (1965), and Resolution XIV of the 16th Conference (1938).

15 Currently, approximately 75% of the contexts in which the ICRC is visiting detainees are not situations of international or internal armed conflict.

16 Internal disturbances are characterized by a profound disruption of internal law and order, resulting from acts of violence which do not, however, have the characteristics of armed conflict. They do not necessarily imply armed action, but consist of serious acts of violence over a prolonged period or a situation of latent violence. For a situation to be qualified as internal disturbances, it is irrelevant whether there is State repression, whether the disturbances are prolonged or of brief duration but with long-lasting or intermittent effects, whether they affect part or all of the national territory, or whether they are of religious, ethnic, political, social, economic or any other origin. They include riots or isolated and sporadic acts of violence (see Article 1 (2) of Protocol II additional to the Geneva Conventions of 1977 (AP II GC)) whereby individuals or groups of individuals openly make known their opposition and their demands. They may also include struggles between factions or against the authorities in place, or acts such as mass arrests, forcible disappearances, detention for security reasons, suspension of judicial guarantees, the declaration of a state of emergency or the proclamation of martial law, see Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Martinus Nijhoff Publishers, Geneva, 1987, pp. 1354–1356 (N. 4471–4479)Google Scholar; Agreement of 26 November 1997 on the organization of the international activities of the International Red Cross and Red Crescent Movement, International Review of the Red Cross, No. 829, March 1998, p. 175Google Scholar; Harrof-Tavel, Marion, “Action taken by the International Committee of the Red Cross in situations of internal violence”, International Review of the Red Cross, May-June 1993, No. 294, p. 204Google Scholar.

17 In this article, the term “authority” is used in the broadest possible sense. It covers public or legal authorities (representatives of State structures), but also persons assuming responsibilities and acting in the name of an armed group or any other organized entity that is not recognized as a State.

18 Article 5 (2) lit. (d) of the Statutes of the International Red Cross and Red Crescent Movement which establish the ICRC mandate to provide assistance and protection to the victims of internal disturbances; see also Article 5 (3) of the Statutes.

19 Indirect reference to ICRC access to detainees outside situations of armed conflict can also be found in the resolutions of the International Conference of the Red Cross and Red Crescent (Resolution VI of the 24th Conference (1981) and Resolution XIV of the 16th Conference (1938)). Certain international conventions also refer to ICRC visits to detainees outside of armed conflicts (but do not constitute a legal basis for such visits): Article 6 (5) of the Convention against the Taking of Hostages (1979), Article 10 (4) of the Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989), Article 7 (5) of the Convention for the Suppression of Terrorist Bombings (1997), Article 9 (3) of the Convention for the Suppression of the Financing of Terrorism (1999), and Article 32 of the Optional Protocol to the Convention against Torture (2002). Lastly, Resolution 23 of the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990 – following which the General Assembly of the UN, in its Resolution 45/121, invited governments to be inspired by the resolutions and instruments adopted on said occasion to develop legislation and appropriate directives – states that “the international community has given [the ICRC] a mandate in the Geneva Conventions of 1949, the Protocols Additional thereto of 1977 and the Statutes of the International Red Cross and Red Crescent Movement, to protect persons deprived of their liberty as a result of these events [that is, situations of armed international and other conflict and internal troubles], in particular prisoners of war, civilian internees and security detainees”.

20 This was notably the case in President Mobutu's Zaire, where there was practically no budget assigned to prisons and where the prisoners had to pay to meet their essential needs, or die.

21 Article 3 common to all four Geneva Conventions explicitly spells out this principle: “Ihe application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

22 The ICRC has visited detainees held by numerous armed movements such as the TPLF (Tigray People's Liberation Front) in Ethiopia, the RPF (Rwanda Patriotic Front) in Rwanda, the SPLA/M (Sudanese People's Liberation Army/Movement) in Southern Sudan, UNITA (National Union for the Total Independence of Angola), the LTTE (Liberation Tigers of Tamil Eelam) in Sri Lanka, the FARC (Colombian Revolutionary Armed Forces) in Colombia, the main Kurdish parties and de facto authorities in Iraqi Kurdistan, de facto authorities in Abkhazia and in Nagorny Karabakh, the Palestinian Authority, etc.

23 For instance, the treaty signed in South Africa in 1995 and with Azerbaijan in 2000.

24 In a significant number of countries, particularly developing countries, the constitutional system and the laws are not implemented in full or are not respected throughout the national territory for a variety of reasons (budgetary problems, insufficient judges, refusal by civil servants and law enforcement officials to work in isolated regions or areas subject to security problems, etc.). In other cases, the executive suspends the application of certain laws either in actual fact or by adopting various decrees or directives.

25 This obligation is notably contained in Article 12 of the Convention against Torture.

26 In particular, on the basis of Article 4 of the Convention against Torture, but also under the provisions of the Geneva Conventions concerning grave breaches and other serious violations of international humanitarian law (Articles 40, 50, 129 and 146 of GC I, II, III and IV respectively).

27 For example in Somali or Burundi society.

28 Under Article 1 common to all four Geneva Conventions, the States Parties are required not only to respect the Conventions, but also to ensure respect for them in all circumstances.

29 The latter may be linked to the UN bodies established by treaties such as the Committee against Torture (established by the Convention against Torture), the Human Rights Committee (established by the 1966 Covenant on Civil and Political Rights), the Committee on the Rights of the Child (established by the 1989 Convention on the Rights of the Child); mechanisms established by resolutions of the UN Commission on Human Rights such as the Special Rapporteur on Torture, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, or the Working Group on Arbitrary Detention; the Office of the High Commissioner for Human Rights); or regional organizations (bodies established by regional treaties, such as the European Committee for the Prevention of Torture, the Inter-American Commission on Human Rights, or the African Commission on Human and Peoples' Rights) and mechanisms established by the resolutions of regional organizations (such as the Special Rapporteur on Prisons and Conditions of Detention in Africa; or they may be NGOs).

30 See in particular Daudin, Pascal and Reyes, Hernan, “How visits by the ICRC can help prisoners cope with the effects of traumatic stress”, in International Responses to Traumatic Stress, Baywood Publishers, New York, 1996, pp. 219–256Google Scholar.

31 There are five main forms of action:

– persuasion or promotion of a sense of responsibility: convincing the authorities to take action themselves to stop an abuse or violation or to help the victims thereof;

– support: direct or indirect cooperation with the authorities by giving them the means to fulfil their legal obligations;

– substitution: acting in lieu of the defaulting authorities to stop an abuse or violation or help the victims thereof;

– mobilization: generating the interest and external influence of other entities (States, NGOs, institutions of civil society, international or regional organizations) to obtain support enabling an abuse or violation to be prevented or stopped or to elicit encouragement or help for the authorities in fulfilling their legal responsibilities and obligations;

– denunciation: publicizing the existence of abuse and violations so as to exert pressure on the authorities and compel them to take action to stop an abuse or violation or to help the victims thereof.

– For definitions, see: Bonard, Paul, Modes of action used by humanitarian players: criteria for operational complementarity, ICRC, Geneva, 1999Google Scholar; Caverzascio, Sylvie Giossi, Strengthening Protection in War: A Search for Professional Standards, International Committee of the Red Cross, Geneva, 2001, pp. 29–33Google Scholar; Humanitarian Protection: A Guidance Booklet, Hugo Slim and Luis Enrique Eguren, ALNAP, London, 2005Google Scholar (forthcoming).

32 In situations of armed conflict, denunciation and calls for action by States party to the Geneva Conventions are based in particular on Article 1 common to all four Conventions which requires them “to respect and to ensure respect for the present Convention in all circumstances”.

33 See “Action by the International Committee of the Red Cross in the event of breaches of international humanitarian law”, International Review of the Red Cross, January-February 1981, No. 220, pp. 76–83Google Scholar; see also reference 42.

34 This was particularly the case in Ethiopia with the translation into Amharic of the manual “A Human Rights Approach to Prison Management: Handbook for Prison Staff”, Andrew Coyle, International Centre for Prison Studies, London, 2002Google Scholar.

35 In particular improving prison medical services.

36 The ICRC organizes courses at various levels (particularly basic courses and courses for instructors) with the main objective of creating a national long-term capacity to continue the same type of training. It seeks essentially to familiarize participants with the laws, ethical codes of conduct and professional standards in force, and places a very strong emphasis on respect for the physical and moral integrity of suspects during arrest and detention. It is careful not to teach techniques (e.g. for interrogation) in fields where it is not competent and could not get involved without compromising its principles of action, especially its neutrality. For police and security forces, the basis for these courses is found in the publication “To Serve and Protect: Human Rights and Humanitarian Law for Police and Security Forces”, ICRC, Geneva, 1998Google Scholar. For the armed forces the ICRC has published a training guide: The Law of Armed Conflict: Teaching File for Instructors, ICRC, Geneva, 2002Google Scholar.

37 This can take the form of international seminars on a regional scale, support for seminars organized by other organizations, national training seminars on international standards and workshops on various problems to do with imprisonment and the prison system. Where appropriate, these workshops are held with the participation of foreign experts or officials or specialized organizations.

38 Such training can take the form of practical workshops at a single prison, at a regional level, or at the national level, the implementation of pilot projects or the provision of technical experts.

39 For instance on the treatment of tuberculosis, or more generally on the organization of custodial services (judges, criminal investigation department, prison administration).

40 In 2004, e.g. in Rwanda, Madagascar and Guinea.

41 On this subject see in particular “Addressing the Needs of Women affected by Armed Conflicts: An ICRC Guidance Document”, ICRC, Geneva, 2004, pp. 113–160Google Scholar.

42 These conditions are: 1) the existence of large-scale and repeated violations; 2) the ICRC delegates have directly witnessed such violations, or their existence and extent and respective data have been established by means of reliable and verifiable sources; 3) the ICRC's confidential approaches to end these violations have had no impact or results; 4) a public statement by the ICRC would be conducive to the interests of the persons concerned. Cf. “Action by the International Committee of the Red Cross in the event of breaches of international humanitarian law”, International Review of the Red Cross, January-February 1981, No. 220, pp. 76–83Google Scholar.

43 “Excerpts from the executive summary of the ‘Report of the International Committee of the Red Cross (ICRC) on the treatment by the Coalition Forces of prisoners of war and other protected persons by the Geneva Conventions in Iraq during arrest, internment and interrogation’”, Wall Street Journal, 7 May 2004.

44 “Red Cross finds detainee abuse in Guantánamo”, A. Lewis, New York Times, 30 November 2004; “Iraq: new war, old tactics?”, Newsweek, 24 January 2005.

45 See also de Sinner, Philippe and Reyes, Hernan, “Activités du CICR en matière de visites aux personnes privées de liberté. Une contribution à la lutte contre la torture”, in Cassese, Antonio (ed.) La lutte Internationale contre le terrorisms Nomos Verlagsgesellschaft, Baden-Baden, 1991, pp. 153–171Google Scholar; Daudin, Pascal et Reyes, Hernan, “How visits by the ICRC can help prisoners cope with the effects of traumatic stress”, in International Responses to Traumatic Stress, Baywood Publishers, New York, 1996, pp. 219–256Google Scholar; Reyes, Hernan, “Visits to prisoners by the ICRC”, in Torture Supplementum No. 1, 1997, pp. 28–30Google Scholar; Staiff, Marina, “Visits to detained torture victims by the ICRC (I): Management, documentation, and follow-up”, Torture, Vol. 10, No. 1, 2000, pp. 4–7Google Scholar.

46 These efforts were first made within the ICRC's role as the driving force behind IHL. The Statutes of the Movement stipulate (in Article 5 (2) lit g) that one of the major functions of the ICRC is “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof” (in Article 5 (2) lit g). In February 2003, the ICRC accordingly organized an international conference of governmental and non-governmental experts which examined the question of missing persons and adopted a declaration (see the ICRC report “The missing and their families: Summary of the conclusions arising from events held prior to the International Conference of Governmental and Non-Governmental Experts” (19–21 February 2003), (ICRC/The Missing/01.2003/EN-FR/10) and the “Acts of the Conference” (The Missing/03.2003/EN-FR/90)).

47 See United Nations High Commissioner for Human Rights, The Istanbul Protocol: Manual on the Effective Investigation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professional Training Series No. 8, United Nations, New York and Geneva, 2001Google Scholar.

48 See Nembrini, Pier Giorgio, Eau, assainissement, hygiène et habitat dans les prisons, ICRC, Geneva, 2004Google Scholar.

49 See Maher, Dermot, Grzemska, Malgosia et al. , Guidelines for the Control of Tuberculosis in Prison, World Health Organization, Geneva, 1998Google Scholar.

50 See the part Development of the legal framework and the ICRC visiting procedures (reference 11)2.

51 For a commentary on these minimum rules, see Making standards work, an international handbook on good prison practice, Penal Reform International, London, 2001Google Scholar.

52 An institution such as the European Committee for the Prevention of Torture (CPT) has adopted a different approach and has published the standards it recommends and on which it bases its work. They appear in reports drawn up by the CPT after its visits and made public if the State concerned agrees. See Rod Morgan and Malcolm Evans, Combating Torture in Europe, Council of Europe Publishing, Strasbourg, 2001.

53 Article 122 GC III; with regard to civilian internees see Articles 106 and 138 GC IV.

54 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 12 and 16(1).

55 Precise registration guidelines are given notably in the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (Principle 12) and the Standard Minimum Rules for the Treatment of Prisoners (Rule 7).

56 The right to know is stipulated in particular in Article 32 AP I GC. It also derives from Articles 69 and 70 GC III; Articles 25 and 26 GC IV; and Article 5. (2) lit.(b) AP II GC.

57 See in particular “The International Committee of the Red Cross and the torture”, International Review of the Red Cross, December 1976, No. 189, pp. 610–617Google Scholar. See also Sinner, Philippe and Reyes, Hernan, “Activités du CICR en matière de visites aux personnes privées de liberté: Une contribution à la lutte contre la torture”, in Cassese, Antonio (ed.), La lutte Internationale contre le terrorisme, Nomos Verlagsgesellschaft, Baden-Baden, 1991, pp. 153–171Google Scholar.

58 Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits “torture”. Article 16 also imposes an obligation to “undertake to prevent…other acts of cruel, inhuman or degrading treatment or punishment….which do not amount to torture.” While the Convention bans torture absolutely (“No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2), the “no exceptional circumstances” rule does not explicitly apply to cruel, inhuman or degrading treatment. However, the International Covenant on Civil and Political Rights (ICCPR) explicitly states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (Article 7). The prohibition of any derogation applies to both torture and cruel, inhuman or degrading treatment (Article 4 (2) ICCPR).

59 Article 13 (1) GC III (referring to prisoners of war) and Article 27 (1) GC IV (referring to protected civilians). See. also Article 31 and/ 32 GC IV (prohibition of coercion respectively of corporal punishment and torture) and Articles 11 and 75 AP I GC.

60 Article 3 common GC (1) (1) lit. a and d. See also Article 4 AP II GC.

61 Provided for in particular in Articles 5 to 9 of the United Nations Convention against Torture, Articles 49 and 50 GC I of the First Geneva Convention, Articles 50 and 51 GC II of the Second Geneva Convention, Articles 129 and 130 GC of the Third Geneva Convention III, Articles 146 and 147 GC IV of the Fourth Geneva Convention and Article 85 AP I.

62 See Doermann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court, ICRC/Cambridge, 2003, pp. 44–70CrossRefGoogle Scholar.

63 Thus, the difference between the various notions lies mainly in the intensity of the pain and suffering and the absence of any specific underlying intent, unlike torture. To be categorized as inhuman or cruel treatment (the terms are considered synonymous), an act must result in a significant level of pain or suffering, at times described as serious. Outrages upon personal dignity are acts which entail a significant level of humiliation or debasement and express contempt for human dignity.

64 See for instance the jurisprudence of the European Court of Human Rights: “The five techniques [wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink] were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (…). The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance”; Ireland v. the United Kingdom, ECHR, 18 January 1978, para. 167.

65 See in particular Reyes, Hernan, “Torture and its consequences”, in Torture, Vol. 5, No. 4, 1995, pp. 72–76Google Scholar.

66 In practice, the ICRC may nevertheless come to use the term “torture” when:

– the methods used indisputably amount to torture, especially when the level of physical and psychological suffering was undeniably intense;

– the cumulative effects of difficult conditions of detention and treatment have or could have major psychological consequences (for example a combination of factors over a certain length of time, such as keeping detainees in total uncertainty as to their fate, “manipulation” of their surroundings and living conditions, and the use of special interrogation techniques).

67 See The Istanbul Protocol, op. cit. (note 47), a basic reference text in terms of the documentation of torture. On the same or other closely related issues, see also Giffard, Camille, The Torture Reporting Handbook, Human Rights Centre, University of Essex, Colchester, 2000, p. 159Google Scholar; Peel, Michael and lacopino, Vincent (eds.), The Medical Documentation of Torture, London and San Francisco, 2002, p. 227Google Scholar; Sironi, F., Bourreaux et victimes: Psychologie de la torture”, Odile Jacob, Paris, 1999Google Scholar; Reyes, Hernan, “ICRC visits to prisoners”, in Torture, Vol. 3, No. 2, 1993, p. 58Google Scholar, “Visits to prisoners by the ICRC”, in Torture Supplementum No. 1, 1997, pp. 28–30Google Scholar, and “The role of the physician in ICRC visits to prisoners”; Staiff, Marina, “Visits to detained torture victims by the ICRC (1): Management, documentation, and follow-up”, Torture, Vol. 10, No. 1, 2000, pp. 4–7Google Scholar and “Visits to detained torture victims by the ICRC (II): The psychological impact of visits and interviews with detained torture victims”, in Torture, Vol. 10, No. 2, 2000, pp. 41–44Google Scholar.

68 See Amnesty International, Combating Torture: A Manual for Action, London, 2003Google Scholar; Kälin, Walter, “The struggle against torture”, International Review of the Red Cross, No. 324, 1998, pp. 433–444CrossRefGoogle Scholar.

69 As it is doing, for instance, with the Algerian Red Crescent Society.

70 European Prison rules adopted by the Committee of Ministers of the Council of Europe on 12 February 1987 available at: <http://www.uncjin.org/Laws/prisrul.htm> (last visited 29 March 2005).

71 Notably Article 71 GC III and Articles 25, 107 and 116 GC IV.

72 In particular, Principle 19 of the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment and Rule 37 Standard Minimun Rules for the Treatment of Prisoners.

73 Articles 82 to 88 and 99 to 107 GC III.

74 Articles 31, 33, 66 to 75 and 117, 118 and 126 respectively GC IV.

75 Article 75 of Additional Protocol I.

76 Article 3 common to the Geneva Conventions and Article 6 AP II.

77 It did so, for example, in Iraq at trials of Iranian POWs during the Iran-Iraq war, in Kuwait after the Gulf War and the reinstatement of the Kuwaiti government in 1991, and in Ethiopia after 1994 at the trials of the Derg dignitaries.

78 Article 17 (3).

79 Article 32 of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.