Development of human rights standards in post conflict penal systems Professor Andrew Coyle
International Centre for Prison Studies
King’s College University of London
Prisons in an ethical context Let me begin by saying a word or two about the need for prisons and prison systems to operate within an ethical context. One consideration, which must never be forgotten in all discussion about prisons, is that all prisoners are persons. No matter what crime they may be accused or convicted of, they remain human beings, entitled to respect. This recognition should influence prison staff in the way they carry out all their duties. It is also the foundation stone of good prison management. The details of prison management may vary from country to country since they have to be sensitive to local culture and circumstances. However, the need to operate within an ethical context is universal and is also one of the defining features of good prison management.
Without a strong ethical context the circumstances in which one group of people has considerable power over another can easily degenerate into an abuse of power. The world was shocked when it saw the photographs of abuse on prisoners by American staff in Abu Ghraib prison. What was even more shocking was that several of the staff involved were employed in civilian life as prison staff in the United States. The abuses in Abu Ghraib did not spring up in a vacuum. They were at the extreme end of a spectrum which began with the practices which are current in prisons in a few prisons in the United States.
What this means in practice is that those of us who work in prisons or are responsible for prisons must always ask ourselves, “Is what we are doing the right thing to do?” This ethos must pervade the whole management process from the top down. It must also apply to individual staff in their daily dealing with prisoners. It must be imparted to all personnel as the guiding principle of their work. It is also important for management to recognise that this same principle needs to be applied in the way they treat staff; they also are entitled to humanity and respect.
If prisons are managed within this ethical context then there is a possibility that they might be more than places of coercion and containment. They might also become places of hope, with a potential for change and personal development. Within them, prisoners can be given the opportunity to learn skills which will help them to find work after they are released, to be helped with problems of drug and alcohol abuse, to have their physical and mental illnesses attended to, and to be helped to return safely and securely to civil society.
Human rights and prison management
Since the overall theme of this presentation is human rights in prisons, I should say something about what this implies. In the International Centre for Prison Studies we work in prisons all around the world. We are often asked which country has the best prison system and which has the worst. Our answer is always the same. We cannot say that the prison system in one country or region is by its nature better than that in another country. All prison systems have strengths and weaknesses. There is no model of the right prison as they are intensely cultural institutions. The models of imprisonment in Western Europe and North America are based on Christian ideas of guilt, punishment and atonement. The Russian concept is of banishment and work. In many countries in this region the underlying principle is the need to remould the prisoner into a conforming member of society. In other parts of the world the whole idea of the prison as the main punishment for crime is an imposition, a colonial legacy, and still sits uneasily in the thinking of many countries in Africa or South Asia. Many of the deprivations involved in imprisonment are cultural and vary from region to region.
However, there are some principles which must apply in all prison settings. These are based on our common and universal humanity. The most important of these is articulated in the International Covenant on Civil and Political Rights. This United Nations Covenant is an important international treaty, which is binding on all countries which have ratified it. Article Ten of this Covenant states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
My personal experience over 30 years working in and around prisons and what I have seen in visiting prisons in over 50 countries has convinced me that the best model for prison management is that which is developed with a context of human rights. The term ‘human rights’ has sprung to prominence since the end of the Second World War but the principles which it encompasses are as old as humanity. It refers to the rights which we all have as a result of being human, the basic rights that are included in the Universal Declaration of Human Rights. The human rights model can be applied in all countries and cultures. It is not one which is based on a European or an American model of imprisonment, nor on an African or an Asian model, nor a Chinese or a British model. The international human rights standards have been universally agreed. Most of them have been drawn up and approved by the United Nations and are based on a series of principles which have been agreed by all countries, such as Article 10 of the International Covenant on Civil and Political Rights. All democratic governments will adhere to the principle that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
The International Centre for Prison Studies (ICPS) has undertaken prison reform projects in all regions of the world. One of its objectives is to raise the professional competence of prison staff. The Centre’s handbook A Human Rights Approach to Prison has now been translated into 14 languages and we have found that prison staff at all levels, including first line staff who work directly with prisoners, invariably react positively when provided with the handbook, understanding that it relates directly to the problems which they face in their daily work. We are currently in the process of producing a second issue of the handbook. Both this handbook and another recent publication from the Centre Guidance Notes on Prison Reform are now widely used in prison reform projects around the world.
UN Department of Peace Keeping Operations More recently ICPS has been working with the United Nations Department for Peacekeeping Operations (DPKO) to produce support and training materials for DPKO personnel involved in setting up prison administrations in post conflict countries. The need for early intervention in this field was identified by Sergio Vieira de Mello, former UN High Commissioner for Human Rights:
Unlike other nation-building tasks, the maintenance of law and order can not wait. If there is no law from day one, criminal activity thrives. Once established it is very hard to eradicate.
In recent years the UN has been called on to assist countries in the immediate aftermath of armed conflict to re-establish the infrastructure of society. In order to achieve this, the UN has a Department of Peace Keeping Operations (DPKO). Within this department there is a Criminal Law and Judicial Advisory Unit (CLJAU). This unit has a Judicial Officer and a Corrections Officer whose task is to advise DPKO and peacekeeping operations on legal and judicial systems and on prison issues. When it was set up in 2003 this unit was based within the Civilian Police Division but in 2004 it was transferred to the Peacekeeping Best Practice Unit (PBPU). This change was made for two reasons. First, it reflected the fact that the unit was needed to advise on rule of law issues across the whole of DPKO and not just on police matters. Secondly, it was a recognition that in any peacekeeping operations in post conflict countries there needs to be a clear distinction between police and prison operations. The CLJAU is currently working on prison reform projects in countries such as Liberia, Côte d’Ivoire, Sudan, Haiti and the Democratic Republic of the Congo.
UN DPKO personnel training package For the last two years ICPS has been working with the DPKO, helping it to develop best practice guidelines for implementing prison programmes in executive peacekeeping operations. In January 2006 the DPKO produced a manual providing guidance on how to provide support to prison structures in post conflict countries and since then DPKO and ICPS have been working together to produce a training package for the personnel who make up the international teams working on prison reform.
The training package identifies a number of guiding principles for the establishment of a prison system. The first of these is that prisons should be managed according to the rule of law. This should be an obvious principle but in the heat of an immediate post conflict situation it may well be that some of those who are in prison may have previously paid scant attention to the rule of law and there may well be a temptation for those who are placed in charge of them to exact revenge rather than to follow the requirements of law.
Next there is the need to ensure that the prison administration is a civilian, public service answerable, preferably, to the Minister of Justice and separate from the police and the military. For these reasons, when the Council of Europe expanded into Eastern Europe in the course of the 1990s it placed an obligation on new member states to transfer the responsibility for prison administration from the Ministry of the Interior or of Security to the Ministry of Justice. The arguments for such a transfer were strong but what was not entirely understood at the time was that in many of the countries concerned the Ministry of the Interior was a politically strong, well resourced government department, while the Ministry of Justice was often weaker and less well-financed. In a number of jurisdictions responsibility for prisons was indeed transferred but not all of the finance went with them, placing the Ministry of Justice under even greater pressure.
There is also a responsibility on the peace keeping authority to ensure sensitivity to the cultural and religious background of the country concerned. This may apply especially to operational issues such as arrangements for body searches, use of dogs and mixed gender staffing. Reform activities should be carried out with the aim of ensuring maximum involvement of local prison administrators and identifying future leaders of a fully functioning civilian prison administration.
Another principle is that there must be local ownership of the work that is being done. The UN personnel need always to bear in mind that they are guests in the host country. They are there to assist the local authority to develop a sound basis for prison administration, not to impose their own model. It may be difficult to develop a strong sense of local ownership in the transitional phase but all reform activities should be carried out with the aim of ensuring maximum involvement of local prison administrators and identifying future leaders of a fully functioning civilian prison administration.
Prior to commencing any work, the UN prison personnel must have a good grasp of the current local political situation. Prisons may have lost their meaning as part of a justice system and be solely associated in the minds of many with detention without trial, torture and executions. People may have been swept off the street and have disappeared into the prison, never to be seen again. In some countries the prison system may never have been in good standing with the local population. The history of the legal system and the method of dealing with disputes and wrong-doers must be taken into account. Prisons are part of the legal framework of any state and will have developed within a legal context. For example in a state with a French-derived legal system, pre-trial detention will be seen differently and be governed by different procedures than in an system derived from common law. In many countries judges have a formal prison oversight role and will hear prisoners' complaints. In some jurisdictions the public prosecutor is required to ensure the legality and conditions of detention. Public prosecutors may also be the final point of complaint for prisoners who have exhausted other mechanisms.
When planning post-conflict reconstruction it is important to ensure that re-building the justice system is given high priority and that the establishment of a detention system is clearly seen as an important part of that process. Policing is usually seen as the first priority, so that the military can hand over the responsibility for keeping basic order on the streets to a civilian force, albeit a temporary one. There is an argument for ensuring that the establishment of policing, detention facilities and some judicial power proceed alongside each other. In that way, the policing and the detention function will be carried out against a background of legality brought by the creation of the judiciary.
Establishing a framework of legality: The final group of countries includes those that are in transition to democracy or are immediately post-conflict. Throughout the 1990s many of the countries of the former Soviet Union in Eastern Europe and Central Asia fall into this group. In these countries there are terrible problems with overcrowding, which in the worst situations means three prisoners having to sleep in turns in one bed, and of ill-health, with 10% of all prisoners suffering from active tuberculosis. In a number of these countries there have been significant changes over the last five or ten years. There has been a determination to reduce the use of imprisonment, seeing excessive use of imprisonment as a negative reflection of the democratic values of society. In Russia, for example, it has been recognised that penal reform cannot be achieved in isolation from the rest of the criminal justice system. It can only be achieved if there is political will, if there is legislative change, if the other major elements in the criminal justice process, especially the judiciary and the prosecution service, are involved in the process and if the public and the media are re-assured that these changes will not threaten public safety.
Experience in some of these countries has also demonstrated that change is not invariably progressive. Poland provides a useful case study in this respect. In the early 1990s its prison administration was quick to rid itself of its communist legacy and for a few short years was a beacon of reform for the region. In some aspects its prison policies were in advance of other countries in the Council of Europe which it had just joined. However, in the last decade Poland has adopted many of the bureaucratic tendencies of its Western European neighbours as it attempts to deal with a relentless increase in prison numbers.
Women must be kept in separate accommodation from men.
They should be supervised by women detention officers.
Their specific needs should be provided for.
Juveniles should only be kept in detention as a last resort.
They must always be kept separate from adults.
Their welfare should be prime consideration in decision-making.
Monitoring and Inspection
All detention centres should be regularly inspected by an independent external body.
The role of non-prison punishments Even in countries where non-custodial sentences were available before a conflict it is unlikely that they will still be flourishing after a conflict. It is sensible to proceed on the basis that such penalties will be re-instated in due course and not to get into the habit of sending all convicted people to prison, including those who have committed minor offences. In some countries there may have been an informal or customary system for dealing with inter-personal and property offences in the community. Such a system may still be in existence and may be able to handle minor offences without recourse to a formal justice system. The prosecuting authority should be encouraged to divert minor cases away from the courts whenever appropriate.
Practicalities of delivery in the stabilisation phase First steps to rebuilding a prison system It is reasonable to assume that the first steps to setting up a detention system will have been taken by the military, who may have used detention in the immediate post-conflict situation when they intervened to fill the law and order vacuum. It is important that the military should be able to hand over to a civilian body as soon as possible. In some countries the military have previously run the prisons as a leftover from a conflict or military dictatorship many years before. Converting to a civilian system when the military position is so entrenched is likely to present real difficulties.
One way of doing this is to make a clear distinction between prisoners of war and civilian prisoners.
If there was a prison system in existence before the conflict the best approach might be, as far as possible, to re-instate and rebuild it within the new legal and human rights framework. Although the system might have been corrupt and the personnel ill-trained, they may represent the best hope for a quick restoration of some form of normality. They may also welcome a return to their old work, especially if there is a prospect of some professional training. However there will be some members of the former prison staff whose return to their old career will not be possible or appropriate if, for example, they are known to have tortured people or carried out executions. If the prison system before the conflict was known to be abusive and corrupt one method of proceeding which may command public support and ensure some input of expertise might be to rebuild the system using former staff from the junior ranks and providing them with the training they need to take over management roles.
If it is not possible to re-instate the former prison system, the temptation to make do with a system run by the military or the police should be resisted, as this will delay the point at which the country can return to a normal justice system. Immediate steps should be taken to establish a civilian prison system. The planning for this should be done by the Justice Ministry with international help. The basis of the system should be the international human rights framework and the traditions and culture of the state concerned. It will be wise to involve the judiciary so that they can have confidence in the system being set up and accept their responsibilities for ensuring the rule of law prevails in the prisons. The police will have an interest in seeing secure institutions in which they can have confidence. However, they should have no role in the management of the prison system.
Bringing in international civilian prison staff Often in post-conflict situations prison staff from other states are brought in under the sponsorship of intergovernmental organisations such as the United Nations to manage prisons in the transitional phase, to help the local system to be established and to train the new recruits. Most states when asked to provide staff do not seek out those with special training or international experience but send those who volunteer or whose services are not needed in their own country. It is essential that the mix of those who are sent includes some people who:
have worked in middle and senior management positions and have genuine operational prison experience in a system that is based on the international human rights standards
have experience of dealing with unconvicted, female and young prisoners
are experienced prison trainers
are experts in prison law
Standards should be set governing the recruitment of the international mission prison staff and recruitment should include a personal interview and consideration of application by an appropriately qualified person. In particular, recruiters should look for:
previous international experience
exemplary personal history
ability to adapt to different environments
experience of training
Whilst prison experience is highly valuable, candidates from other backgrounds should not be excluded provided they are suitable.
Whatever their background incoming staff will need briefing about:
the security situation
the state’s immediate past history and culture and traditions
the pre-conflict prison system and attitudes towards it by the public
the international human rights framework governing detention (it cannot be assumed that they will be familiar with this)
The first task of the international personnel The role of the international staff will be to train local personnel as quickly and effectively as possible. In order to emphasise the need for a civilian prison service separate from the police and the military and staffed by trained people, a dedicated prison training school should be set up in a suitable existing building. Training of prison staff from former times or new staff can then begin.
In some circumstances training may include visits to other countries to gain experience of how to run prisons and to see different systems in action. Visits to prison systems in other countries are often used as a technique for spreading an awareness of different ways of running prisons. Such study visits can be very productive when the visit is planned in detail, specific aspects are being studied and the lessons reflected upon. They can also be counter-productive when visitors from a very different culture see a prison system out of context. When visiting a foreign country it is helpful if the visitors meet not only official representatives but also organisations that might have criticisms of the system being visited.
Interpreters The role of interpreters can be very sensitive. They need to be trusted, linguistically competent and have some familiarity with the subject-matter. The selection and recruitment of local interpreters to assist in the training might be done with a view to them enlisting in the prison service at some point in the future. They might also act as liaison officers to the international prisons team and advise on language and cultural issues. The interpreters, who might be paid from the outset as prison staff, might on completion of their training and if they are suitable play a role in the training of local staff as trainers.
Relationship with the military In the initial post-conflict phase the military may still be playing a role in maintaining law and order and military police may be holding detainees in some form of military detention. The role of the international civil prison staff in this situation would be as advisers to the military on imprisonment matters, with a view to encouraging a rapid move to civilianisation. The military for their part may need to support civil prison staff with access to military defence equipment so that the prison service is able to hold prisoners securely and safely.
Prison systems in situations of scarce resources In very poor countries prisoners may have traditionally survived on food and medicines brought in by relatives. If there are shortages of food and the whole population in a post conflict situation is living on humanitarian aid, the prison system will be in the same position. Although it takes time to establish agriculture so that food can be produced in the prison it is advisable to start from the assumption that feeding prisoners will be a problem and also that the prisons may need to produce not only food, but also probably washing materials, blankets, clothes and shoes. Unless that assumption is made the prison system may start off dependent on humanitarian aid and not be able to survive without it.
Medical care All prisoners are entitled to receive adequate medical care. Access to such care must be provided from the point of first detention. In a situation of conflict and warring factions there may well be issues about injuries and how they have been sustained. In the pacification process the military may have been involved in operations that lead to accusations of ill-treatment. Detention centres must therefore have access to independent and trusted medical staff who examine sick prisoners and those with injuries. In very poor countries the detention system will probably need help from the International Committee of the Red Cross or Medicins Sans Frontières if it is to meet its health obligations to the detainees.
Transparency 38. The ICRC is likely to have a very important role to play. It has the right to visit all places where people are detained in time of conflict and its reports will be a helpful indication to the authority in charge in the post-conflict phase that the arrangements are acceptable. However, reports from the ICRC are in normal circumstances confidential. Other mechanisms are needed to make sure that accurate information about the prisons, the regime and the treatment is in the public domain and rumours about ill-treatment and abuse can be squashed. Openness is essential from the beginning and will be in the interest of the new administration. Representatives of faith organisations, humanitarian non-governmental organisations and independent lawyers or others persons need to be allowed to visit the prison, discuss their findings with the authorities and communicate publicly what they have seen. Families whose relatives have been detained may need to see someone in authority and reassured. Family visits are a requirement. If the family is able to report to the outside world that their detained family member is fit and well rumours about ill-treatment will be less likely to be believed. Monitoring by an independent person, inspector or judge, and publicising of the findings can provide public reassurance.
Integration into rebuilding of criminal justice system as a whole The various parts of the criminal justice process are interdependent. The police and prosecutors may require suspects and accused persons to be held in prison. Courts and judges need to be in place to hear cases so that detainees are not held in custody indefinitely. Agreements need to be made between all parts of the system about the amount of detention there is to be in the system, not just because of the limited capacity but also for good policy reasons. All parts of the system have to integrate into their activities the framework of the international human rights standards, for example, no torture, the presumption of innocence for untried people, treatment of children in accordance with the UN Convention on the Rights of the Child.