Prisoners' rights in international law

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Prisoners' rights in international law are found in a number of international treaties. For the most part these treaties came into existence following the two World Wars and the body of law continues to be added to and amended.

Contents

History

The events of World War I and World War II had a profound effect on international law due to the widespread denial of civil rights and liberties on the basis of racial, religious, and political discrimination. The systematic use of violence, including murder and ultimately genocide, the use of slave labor, abuse and murder of prisoners of war, deportations, and confiscation of property forced changes to the status quo. Over the proceeding decades, large scale changes began to occur in all areas of international law, and prisoners’ rights were no exception.

Now, there are international instruments

Further there are recommendations which lay down codes by which prisoners should be dealt with. Foremost amongst them are

Third Geneva Convention

The Third Geneva Convention defines humanitarian protections for prisoners of war. [1] Prisoners of war are defined as:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that they fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. [1]

Prisoners of war may not renounce rights secured by the Conventions. [1] Those rights include the rights to humane treatment which prohibits specifically violence causing death or seriously endangering health, or physical mutilation or scientific or medical experiments, protection from acts of intimidation, insults and public curiosity, protection from reprisals, exercise, protection from physical or mental torture, adequate physical and psychological treatment, to keep personal items including money, to be evacuated if the territory in which they are held becomes too dangerous, to adequate food, water, shelter and clothing, sanitary living conditions, religious freedom, and to complain. [1] Detaining powers have the right to use appropriate force in the event of escape or a riot, to require prisoners to given their name and rank, and to utilize prisoners for labor as long the work doesn't have to do with the war effort. [1]

The 1929 Geneva Convention on Prisoners of War was adopted in 1929 but was significantly revised and replaced by the Third Geneva Convention in 1949. [1] The United Nations Security Council is the final international tribunal for all issues relating to the Geneva Conventions. All signatories to the UN Charter, of which there are 193, are bound by the Geneva Conventions.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights came into force 23 March 1976. [2] Article 10 of the International Covenant on Civil and Political Rights provides that any person deprived of their liberty shall be treated with humanity and dignity. [2] The article imposes a requirement of separation of prisoners in pre-trial detention from those already convicted of crimes, as well as a specific obligation to separate accused juvenile prisoners from adults and bring them before trial speedily. [2] There is also a requirement that the focus of prisons should be reform and rehabilitation, not punishment. [2] These provisions apply to those in prisons, hospitals (particularly psychiatric hospitals), detention facilities, correction facilities or any other facility in which a person is deprived of their liberty. [3] The article complements article 7 of the Covenant, [2] which bans torture or other cruel, inhumane or degrading treatment, by guaranteeing those deprived of their liberty with the same conditions as that set for free persons. [4]

UN Standard Minimum Rules for the Treatment of Prisoners

The United Nations Standard Minimum Rules for the Treatment of Prisoners came into force in 1955. [5] The standards set out by the UN are not legally binding but offer guidelines in international and municipal law with respect to any person held in any form of custody. [6] They are generally regarded as being good principle and practice for the management of custodial facilities. The document sets out standards for those in custody which covers registration, personal hygiene, clothing and bedding, food, exercise and sport, medical services, discipline and punishment, instruments of restraint, information to and complaints by prisoners, contact with the outside world, books, religion, retentions of prisoners’ property, notification of death, illness, transfer, removal of prisoners, institutional personnel and inspection of facilities. [6] It also sets out guidelines for prisoners under sentence which further includes treatment, classification and individualisation, privileges, work, educations and recreations, and social relations and after-care. [6] There are also special provisions for insane and mentally abnormal prisoners, prisoners under arrest or awaiting trial, civil prisoners and persons arrested or detained without charge. [6]

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment entered into force on 1 March 2002. [7] The Convention establishes the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the Committee). [8] The Committee is permitted to visit all places of detention, defined by the convention as "any place within its jurisdiction where persons are deprived of their liberty by a public authority." [7] Once a state government is notified of the intention of the Committee to carry out a visit it is required to allow access to the territory with the right to free travel without restriction, full information of the facility in question, unlimited access to the facility and free movement within it, the right to interview any person being held within the facility, communicate freely with any person whom it believes can supply relevant information and access to any other information which the Committee feels is necessary to carry out its task. [7] All information gathered is confidential. [7] In exceptional circumstances a state may make representations based on grounds of national defence, public safety, serious disorder in custodial facilities against a visit to a certain place or at a certain time. After each visit a report is drawn up with any possible suggestions to the state in question. [7]

Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities entered into force on 30 March 2007 and has 154 state parties. [9] The Convention’s purpose is to "promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity." [10] Persons with disabilities are defined as those "who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."" [10] Article 13 of the Convention relates to access to justice for persons with disability. It provides that in order to "ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff." [10]

Breaches of prisoners' rights in international law

United States

Guantanamo Bay

The United States government has been accused of many breaches of prisoners’ rights in international law. The most publicized case is the detention facility it maintains in Guantanamo Bay, Cuba. The American government claimed that the facility was not covered by the Geneva Conventions protecting prisoners of war as the detainees were ‘enemy combatants’. [11] Regardless of the status accorded to detainees, international law still prohibits torture. It is now clear that the CIA allowed water boarding [12] which is a breach of international law which prohibits cruel, humiliating or degrading treatment. [13]

Afghanistan

In Afghanistan, US soldiers are accused of abusing prisoners in a secret prison in Bagram Air Base. The prisoners held there were exposed to extreme temperatures, not given adequate food, bedding, or natural light and religious duties were interfered with. [14] There are also claims of abuse in Shebarghan prison in northern Afghanistan for which America is jointly responsible with the Afghan government. Shebarghan prison is claimed to be overcrowded with inadequate bathing and ablution facilities, as well as lack of food and medical care. [15]

Iraq

In 2003, accusations started to emerge of prisoner abuse in Abu Ghraib prison. US soldiers at Abu Ghraib prison serving there were accused of beating prisoners, forcing prisoners to strip, forcing prisoners to masturbate, threatening prisoners with dogs, smearing prisoners with faeces, making prisoners simulate sex and form naked piles. [16] There was also accusations that prisoners were raped, sodomised and beaten to death. [16]

Related Research Articles

International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. There are many varying types, but most can be classified into two broad categories: declarations, adopted by bodies such as the United Nations General Assembly, which are by nature declaratory, so not legally-binding although they may be politically authoritative and very well-respected soft law;, and often express guiding principles; and conventions that are multi-party treaties that are designed to become legally binding, usually include prescriptive and very specific language, and usually are concluded by a long procedure that frequently requires ratification by each states' legislature. Lesser known are some "recommendations" which are similar to conventions in being multilaterally agreed, yet cannot be ratified, and serve to set common standards. There may also be administrative guidelines that are agreed multilaterally by states, as well as the statutes of tribunals or other institutions. A specific prescription or principle from any of these various international instruments can, over time, attain the status of customary international law whether it is specifically accepted by a state or not, just because it is well-recognized and followed over a sufficiently long time.

<span class="mw-page-title-main">United Nations Convention Against Torture</span> International human rights instrument against torture and cruel or unusual punishment

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights treaty under the review of the United Nations that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

<span class="mw-page-title-main">Solitary confinement</span> Strict form of imprisonment

Solitary confinement is a form of imprisonment in which an incarcerated person lives in a single cell with little or no contact with other people. It is a punitive tool used within the prison system to discipline or separate incarcerated individuals who are considered to be security risks to other incarcerated individuals or prison staff, as well as those who violate facility rules or are deemed disruptive. However, it can also be used as protective custody for incarcerated individuals whose safety is threatened by other prisoners. This is employed to separate them from the general prison population and prevent injury or death.

Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.

Stress and duress is a term which has been used by the United States to describe interrogation techniques authorized for use by the United States Armed Forces upon detainees who are determined to be a threat to the United States during the War on Terrorism. These techniques are claimed to cause "inhuman and degrading treatment" but which the George W. Bush administration claims do not cause "suffering of the particular intensity and cruelty implied by the word torture".

<span class="mw-page-title-main">War Crimes Act of 1996</span> United States Law that defines a war crime to include a "grave breach of the Geneva Conventions"

The War Crimes Act of 1996 is a United States federal statute that defines a war crime to include a "grave breach of the Geneva Conventions", specifically noting that "grave breach" should have the meaning defined in any convention to which the United States is a party. The definition of "grave breach" in some of the Geneva Conventions have text that extend additional protections, but all the Conventions share the following text in common: "... committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health."

<span class="mw-page-title-main">Prisoners' rights</span> Rights of detainees

The rights of civilian and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the United Nations' Minimum Rules for the Treatment of Prisoners, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities.

Ghost detainee is a term used in the executive branch of the United States government to designate a person held in a detention center, whose identity has been hidden by keeping them unregistered and therefore anonymous. Such uses arose as the Bush administration initiated the War on Terror following the 9/11 attacks of 2001 in the United States. As documented in the 2004 Taguba Report, it was used in the same manner by United States officials and contractors of the Joint Interrogation and Debriefing Center at the Abu Ghraib prison in Iraq in 2003–2004.

<span class="mw-page-title-main">Human rights in Switzerland</span> Overview of the observance of human rights in Switzerland

Human rights are largely respected in Switzerland, one of Europe's oldest democracies. Switzerland is often at or near the top in international rankings of civil liberties and political rights observance. Switzerland places human rights at the core of the nation's value system, as represented in its Federal Constitution. As described in its FDFA's Foreign Policy Strategy 2016-2019, the promotion of peace, mutual respect, equality and non-discrimination are central to the country's foreign relations.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or shortly Committee for the Prevention of Torture (CPT) is the anti-torture committee of the Council of Europe. Founded to enforce the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the CPT visits places of imprisonment in signatory countries and issues reports on violations of the convention.

There are cases, both documented and alleged, that involve the usage of torture by members of the United States government, military, law enforcement agencies, intelligence agencies, health care services, and other public organizations both in and out of the country.

<span class="mw-page-title-main">Optional Protocol to the Convention Against Torture</span> 2002 treaty supplementing the UN Convention Against Torture

The Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a treaty that supplements to the 1984 United Nations Convention Against Torture. It establishes an international inspection system for places of detention modeled on the system that has existed in Europe since 1987.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment was adopted by the member states of the Council of Europe, meeting at Strasbourg on 26 November 1987. After the European Convention on Human Rights, the Convention for the Prevention of Torture is widely regarded as being one of the most important of the Council of Europe's treaties. The Convention marks a fresh and preventive approach in handling human rights violations. It was subsequently amended by two Protocols. Additionally, the Committee for the Prevention of Torture was established to comply with the provisions of the convention. This body is enabled to visit any place within the jurisdiction of the states' parties where people are deprived of their liberty in line with the articles of the convention.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The widespread and systematic use of torture in Turkey goes back to the Ottoman Empire. After the foundation of the Republic of Turkey, torture of civilians by the Turkish Armed Forces was widespread during the Dersim rebellion. The Sansaryan Han police headquarters and Harbiye Military Prison in Istanbul became known for torture in the 1940s. Amnesty International (AI) first documented Turkish torture after the 1971 Turkish coup d'état and has continued to issue critical reports, particularly after the outbreak of the Kurdish-Turkish conflict in the 1980s. The Committee for the Prevention of Torture has issued critical reports on the extent of torture in Turkey since the 1990s. The Stockholm Center for Freedom published a report entitled Mass Torture and Ill-Treatment in Turkey in June 2017. The Human Rights Foundation of Turkey estimates there are around one million victims of torture in Turkey.

The Institute of Therapy and Investigation into the Effects of Torture and State Violence is a multidisciplinary non-governmental organisation based in Bolivia. It offers assistance to those affected directly or indirectly by torture and state violence through rehabilitative means.

The issue of human rights in Tanzania, a nation with a 2012 population of 44,928,923, is complex. In its 2013 Freedom in the World report, Freedom House declared the country "Partly Free".

Prisoners in New Zealand are afforded numerous, but not all, human rights. Criticisms by a United Nations report in 2014 highlighted various issues that constitute ill-treatment of prisoners, such as remand prisoners being routinely held on lock-down for 19 hours per day, an increasingly strict prison regime, and the mixing of adult and youth prisoners.

Cruel, inhuman or degrading treatment (CIDT) is treatment of persons which is contrary to human rights or dignity, but is not classified as torture. It is forbidden by the Universal Declaration of Human Rights, Article 3 of the European Convention on Human Rights, the United Nations Convention against Torture and the International Covenant on Civil and Political Rights. Although the distinction between torture and CIDT is maintained from a legal point of view, medical and psychological studies have found that it does not exist from the psychological point of view, and people subjected to CIDT will experience the same consequences as survivors of torture. Based on this research, some practitioners have recommended abolishing the distinction.

The prohibition of torture is a peremptory norm in public international law—meaning that it is forbidden under all circumstances—as well as being forbidden by international treaties such as the United Nations Convention Against Torture.

References

  1. 1 2 3 4 5 6 "International Committee of the Red Cross" . Retrieved 1 May 2012.
  2. 1 2 3 4 5 "The Office of the United Nations High Commissioner for Human Rights". Archived from the original on 5 July 2008. Retrieved 1 May 2012.
  3. ↑ "Office of the High Commissioner of Human Rights". Archived from the original on 8 November 2005. Retrieved 1 May 2012.
  4. ↑ "Office of the High Commissioner of Human Rights". Archived from the original on 8 November 2005. Retrieved 1 May 2012.
  5. ↑ "Office of the United Nations High Commissioner for Human Rights". Archived from the original on 4 May 2012. Retrieved 1 May 2012.
  6. 1 2 3 4 "United Nations Refugee Agency" . Retrieved 1 May 2012.
  7. 1 2 3 4 5 "European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment" . Retrieved 1 May 2012.
  8. ↑ "European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punt" . Retrieved 1 May 2012.
  9. ↑ "United Nations". Archived from the original on 26 January 2008. Retrieved 1 May 2012.
  10. 1 2 3 "United Nations". Archived from the original on 25 December 2006. Retrieved 1 May 2012.
  11. ↑ "BBC". 5 April 2006. Retrieved 1 May 2012.
  12. ↑ "BBC". 15 May 2009. Retrieved 1 May 2012.
  13. ↑ "BBC". 15 May 2009. Archived from the original on 28 January 2009. Retrieved 1 May 2012.
  14. ↑ "Al Jazeera" . Retrieved 1 May 2012.
  15. ↑ Leaning, Jennifer; Heffernan, John (2 February 2002). "Forgotten Prisoners of War". The New York Times. Retrieved 1 May 2012.
  16. 1 2 "BBC". 11 January 2008. Retrieved 1 May 2012.
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