Behind bars

Sometimes history is made in the most unlikely places. A few years ago most of us would have been hard pressed to find Guantanamo Bay on a map, but now the American naval base on Cuba is known worldwide as the site of a US detention centre. The same goes for Abu Ghraib prison, located just outside Baghdad, where the abuse of Iraqi detainees at the hands of US soldiers caused public outrage around the world. In what is often called the ‘global war on terror’, Guantanamo Bay and Abu Ghraib have become key battlegrounds for ‘the hearts and minds’ of global public opinion.

They have also focused public attention on an activity that has shaped the ICRC’s identity and image for decades: visits to prisoners of war (POWs) and other detainees. Since the First World War, the ICRC has visited detained combatants and civilians during most armed conflicts as well as in numerous situations of internal tension and political unrest. In 2004, ICRC delegates visited detention sites holding more than 570,000 inmates in nearly 80 countries. Yet, relatively little is known about these visits, mainly because the ICRC very rarely speaks about what it sees and hears behind prison walls.

A group of handcuffed and blindfolded detainees sit in the back of a pickup truck while being transferred to a detention centre following their arrest in Najaf, Iray, 25 February 2005.
© REUTERS / Ali Abu Shish, Courtesy www.alertnet.org

The first ICRC visits to prisoners of war during the First World War were motivated by concern for their vulnerability. Far away from home and with few legal safeguards, POWs were at the mercy of their keepers. Since then, international laws protecting people detained in connection with armed conflict have expanded considerably, as has the ICRC’s access to prisoners. However, the legal mandate underpinning its detention visits remains narrow. In international armed conflicts the Geneva Conventions explicitly grant the ICRC the right to visit prisoners of war and detained civilians. During civil wars or instances of internal violence that fall short of war, the ICRC has only the right to request access to detainees, which governments and other parties to such situations do not have the obligation to accept.

However, many ICRC visits take place in situations of violence that no longer amount to war. “Which detainees we want to visit depends on their needs and vulnerability,” explains Alain Aeschlimann, head of the ICRC’s department in charge of detention visits. “Even during situations of violence that fall short of war, people held for political reasons or because of their ethnicity are often vulnerable to abuse. The ICRC intervenes to ensure that detainees are treated humanely and with dignity.” Where domestic or international watchdogs such as the judiciary, the media, NGOs, foreign governments or the United Nations have little influence, the ICRC may well be the only institution that can monitor what goes on behind prison walls.

News from home. An ICRC delegate Distributes messages from relatives to detainees in the Pokhara district prison, Nepal.
©JON BJÖRGVINSSON / ICRC

Direct access

Prisons are designed to punish and control, and the people they hold are on the margins of society. Different rules apply here: relationships between interrogators, guards and prisoners and between the prisoners themselves are often characterized by a measure of discipline and even violence — whether sanctioned or not — beyond what would be considered acceptable in the outside world. Prisons never receive a high priority in terms of budget, which often poses problems related to the conditions of detention. To have an impact, the ICRC needs first to understand what is really going on. It needs to know who detains people (generally the government but it can also be non-state groups), where they are being held, anywhere from rebel-controlled jails to massive prisons holding thousands of inmates, and the rules that govern deprivation of freedom and places of detention.

Once inside a prison, ICRC delegates inspect the premises including cells, toilets and kitchens, and register detainees judged at risk or particularly vulnerable such as persons detained for security reasons or children. They interview inmates in private and speak to the officials in charge of a prison to hear their side of the story. They also make it possible for detainees to maintain contacts with their families outside through Red Cross messages. During follow-up visits, ICRC delegates also check on the whereabouts of registered detainees to prevent their disappearance. They also enquire about their judicial situation, and the respect of the basic judicial guarantees.

One of the key aims of ICRC visits is to find out how detainees have been treated since their arrest and during their term in prison. Since ill-treatment of prisoners is typically carried out in secret, ICRC delegates rarely witness torture, but rely instead on information provided by the detainees themselves during interviews carried out in private. When reporting on the possible ill-treatment of detainees, the ICRC generally cannot provide evidence that is beyond reasonable doubt but aims to provide information sufficiently credible to warrant a formal investigation by the authorities. ICRC staff carefully cross-checks information provided by detainees and examines them for the physical and psychological symptoms of ill-treatment. Apart from physical injury and pain, torture may often have a profound effect on the mental health of detainees. It can lead to confusion and disorientation, sleep disturbance, flashbacks, anxiety, depression or psychotic illness. As a consequence, the participation of medical personnel in ICRC visits is key. ICRC medical personnel ask detainees to describe the symptoms brought about by ill-treatment; they observe their behaviour and appearance and examine their physical and mental state. The analysis of these findings helps to assess the credibility of a detainee’s allegations, says Jonathan Beynon, an ICRC doctor specializing in detention health issues. “If a detainee says he was burnt in a particular way with an iron rod a month ago I would expect to see evidence of such burns,” he explains. “However, increasingly, the perpetrators of torture know how to avoid leaving any physical evidence and use psychological methods. Still, the absence of physical signs does not mean that torture was not used. In fact, the psychological signs can be just as telling.” Documenting the psychological damage caused by torture is particularly complex since both acute and long-term symptoms need to be analysed and related back to possible ill-treatment.

At Baku, Azerbaijan, in the special treatment institution for prisoners suffering from tuberculosis. Initial and final interviews between ICRC staff and prison management are essential stages of prison visits.
©ICRC

National Societies and detained migrants

Some National Societies conduct detention visits as part of their humanitarian mandate. They focus on the specific needs of detained asylum seekers and migrants including, for example, people who have breached the terms of their visa. The Canadian Red Cross Society has been visiting detention places since 1999 when the mass arrival of Chinese boat people in western Canada and their detention by authorities led to public concern. Trained volunteers now regularly monitor the situation of foreigners arrested under Canadian immigration laws. “This is part of our humanitarian mandate and has been recognized as such by the Canadian government in an agreement we signed in 2002,” explains Johanna Hökeberg, the Canadian Red Cross Society’s assistant manager for detention monitoring. “We consider these detainees a particularly vulnerable group in need of protection.” As a neutral and independent monitor, the Red Cross tries to ensure that the detainees are treated in accordance with Canadian law and international norms such as the United Nations Standard Minimum Rules for the Treatment of Prisoners.

How to deal with migration is a controversial political issue in Australia where public opinion is divided on the government’s policy of mandatory detention. During their regular visits to detention centres, Australian Red Cross workers help detainees to communicate with their families through Red Cross messages, organize activities such as sewing and cooking classes, and provide clothing, phone cards and newspapers in different languages. “The detainees view our visits very positively even though our agreement with the government stipulates clear limits to what we can do,” explains Hang Vo, the Australian Red Cross manager of international tracing and refugee services, herself a refugee from Viet Nam. “We don’t really deal with detainee abuse allegations or publicly advocate on behalf of detainees. But there are a number of other organizations that do.”

Like the ICRC, the Canadian and Australian Red Cross have opted to conduct their detention visits largely outside the spotlight of media attention. Their findings are discussed confidentially with the authorities in charge. According to Peter Robinson, a Canadian Red Cross Society volunteer who leads detention visits and who was formerly an ICRC detention delegate in Rwanda, there are other similarities with the ICRC: “Private interviews with the detainees, a professional but firm relationship with the detaining authorities, and the consistent application of international standards.”

Both the Canadian and Australian Red Cross are aware that their reasons for conducting detention visits are not always understood and accepted by members and the public at large. “Initially we were concerned that the public would simply not support the work of the Red Cross with people often accused of not really being refugees,” explains Hang Vo. “However, within the Red Cross there has already been a shift of perceptions. I think the more people know about our work in places of detention, the more they accept that it makes sense.”

Early warning

During visits, delegates also evaluate the material conditions of detention, focusing on the quality of accommodation, food, water, hygiene and sanitation, and the availability of medical help. “There are places where detainees die of malnutrition,” explains Nicolas Roggo, an ICRC detention adviser. “Yet the actual punishment of detainees is to be deprived of their freedom, not to be without food, water or health care.” Particularly in poor countries, underdevelopment and insufficient resources, such as trained prison staff, frequently cause the problems observed. But often there is also a real lack of political will to improve prison conditions since helping detainees is rarely a priority.

Where problems are observed, the ICRC initially tries to persuade the detaining authorities to assume responsibility for ensuring that detention conditions reach the necessary minimum standard. This often operates as an early warning, it directs government attention to previously ignored problems and offers the expertise and training needed to tackle them. Duncan McLaughlin, a former prison governor in Northern Ireland who himself dealt with visiting ICRC teams, considers this crucial: “Prison systems rarely change themselves. Prison directors will say, ‘We have always done it like this.’ My experience is that significant change usually comes about as a result of outside pressure.”

If the authorities fail to act in time to avoid serious humanitarian problems in prisons, the ICRC can take a more hands-on approach. This often also brings benefits for common-law detainees who, although not usually registered by the ICRC, also suffer the impact of inadequate conditions. One of the ICRC’s largest assistance programmes for detainees took place in Rwanda after the genocide in 1994 when tens of thousands of suspects were crammed together in prisons so overcrowded that many did not even have sufficient space to sit down. In such exceptional circumstances, the huge needs and the limited government response left the ICRC with no option but to provide food, water and medical care for most detainees. It even took the unusual step of helping to build a prison to alleviate overcrowding. The possible drawback of this approach is that the detaining authorities may simply refuse to spend money on prisoners if they know that the ICRC will intervene anyway to prevent an emergency.

Contrary to human rights organizations such as Amnesty International or Human Rights Watch, the ICRC relies on confidential contacts rather than public statements and condemnation when it comes to convincing governments to deal with problems in their places of detention. It believes that its confidential approach outside the media spotlight allows authorities to make the necessary improvements inside prisons without publicly ‘losing face’ or politization. But what if they simply choose to ignore the ICRC, knowing full well that it will probably never criticize them in public? According to Alain Aeschlimann, “The ICRC’s confidentiality has limits. By accepting the ICRC’s presence in their prisons and its way of working, the authorities commit themselves to dealing with the sensitive issues it reports on, such as torture, in good faith.” Where the political will to listen and act is absent, the ICRC may decide to suspend its visits or try to exert pressure by mobilizing other players that have an influence on the detaining authority. As a last resort, the ICRC can also publicly comment on the situation in a prison provided a number of conditions are met, most importantly that the organization believes this will help the detainees concerned. This does happen, albeit rarely.

A private interview with a detainee in Anayancy prison, Quibdo, Colombia.
©BORIS HEGER / ICRC

Confidentiality and transparency

The ICRC’s contacts with detaining authorities came under intense scrutiny following publication in the media in May 2004 of a confidential ICRC report on Abu Ghraib prison. Published without the organization’s consent, the report addressed problems such as those shown in released photos that had shocked world opinion. While some critics accused the ICRC of deliberately leaking the report to harm the United
States, others considered its public silence about what it had seen at Abu Ghraib as evidence of collusion with the most powerful nation on earth and one which also happens to be the ICRC’s biggest donor.

Abu Ghraib illustrates the dilemma the ICRC faces in its relationship with detaining authorities. On the one hand, engaging in confidential dialogue rather than public condemnation facilitate ICRC access to places of detention and can undoubtedly increase the likelihood of governments tackling problems in their prisons because they won’t have to admit publicly to their failings. On the other hand, they may simply ignore the ICRC’s reports but pretend that the organization’s public silence represents a stamp of approval for their detention system. There are no easy solutions here. Taking a more muscular stance towards detaining authorities may result in their blocking ICRC contacts with detainees especially where they are under no legal obligation to grant access. Conversely, if the ICRC is perceived as acting too meekly towards the detaining authorities, this raises serious doubts about the organization’s independence and neutrality.

The Abu Ghraib crisis also led to questions about the ICRC’s effectiveness. If ill-treatment was going on despite ICRC delegates’ visits, critics argued, what real difference do they make? There is mounting pressure on the ICRC to be more transparent amid concerns that governments facing the threat of terrorism are increasingly willing to sidestep human rights and international humanitarian law when it comes to detaining suspects. “In the past,” says Pierre Kraehenbuehl, the ICRC’s director of operations, “we used to say, ‘Trust us, we are doing our job.’ Now we have to demonstrate that what we are doing achieves results. It obliges us to prove that we are effective on our own terms, without watering things down.”

The hundreds of thousands of detainees seen by the ICRC every year are probably in the best position to judge the effectiveness of its visits. Many of them are no doubt frustrated by the ICRC’s refusal to challenge the grounds for detention — this, the organization argues, would exceed its strictly humanitarian mandate — and by a reluctance to denounce publicly the plight of the detainees concerned. Others question the organization’s independence towards the authorities that detain them, or have difficulties to accept ICRC limits. Even so, most detainees are grateful for the ICRC’s presence and what it achieves during what are often the darkest days of their lives. “It was thanks to the ICRC that we regained our human dignity,” wrote Ali Najab, a Moroccan fighter pilot, in a letter to the ICRC president following his release by the Polisario front after 25 years in detention. “Despite the enormous difficulties they faced they were always able to alleviate the situation and, thanks to their tact and patience, they were able to assist and comfort us and act as an umbilical cord between prisoners and our families by means of Red Cross messages.”

Monitoring abuses

Loubna Freih is the former Geneva director of Human Rights Watch, an international organization which monitors compliance with human rights and campaigns against abuses.

Human Rights Watch publicly denounces human rights violations to put pressure on governments and parties to a conflict while the ICRC favours confidential, behind-the-scenes contacts with them. Don’t these two different ways of working contradict each other?
Not at all. Human Rights Watch raises its voice publicly, knowing that this may sometimes result in not having access to detainees or other victims in a given country. We work through the public ‘naming and shaming’ of human rights offenders, while the ICRC uses its confidential working method as a means to get into prisons and see detainees. We think these methodologies complement each other. Both types of organizations are needed.

What is the added value of the ICRC’s work in places of detention?
It is important that there is an organization such as the ICRC which can systematically have access to and visit detainees. This is particularly the case in situations where the more things are kept secret, the more you are likely to see the worst imaginable human rights offences.

The ICRC argues that its strategy of confidential dialogue allows it to have an influence on governments, to convince them to put an end to abuses in prisons. Can this work?
It can work, provided the ICRC is able to go up the chain of command, meet the right people in the right ministries. If it does not get a sufficient response to its reports on prison abuses, being able to say, “We were there, we saw it, we have the information, here is the report” is very important. The ICRC can probably have most impact where people at the highest level of government simply do not know what their prison officials are doing. However, when you are faced with governments who ignore the ICRC, it can be extremely difficult. They think that nothing will happen to them because the ICRC will not go public with the information it has. Here the ICRC is a bit weak. It should probably be more consistent about explaining its procedures and mandate to the public and demonstrating some of the successes it has
achieved.

Since the attacks on 11 September 2001 the protection international humanitarian law grants detainees has been criticized. What challenges does this changed environment bring for the ICRC?
The ICRC is indeed being challenged not least by the countries actually responsible for violations of the law. Some of the criticism is due to ignorance and this is where the ICRC needs to communicate more to explain what it does and how it does it. Another challenge for the ICRC is to decide what to do when faced with a persistent offender. It has a procedure to increase the pressure on offenders, but does it work? The ICRC must be able to tell the offender, “This is what we’ll do if you don’t change the way you are treating detainees.”