HRC53: The purpose of prison should be to rebuild lives, not end them.
The 53rd Session of the Human Rights Council
19 June – 14 July 2023
Item 3 – Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Interactive Dialogue with the Special Rapporteur on extrajudicial, summary, or arbitrary executions
26th July 2023
By Maeva Giambrone / GICJ
Executive summary
On the 26th of June 2023, the 12th meeting of the 53rd Regular Session of the Human Rights Council considered the report of Mr. Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/53/29) during an interactive dialogue.
Mr. Morris Tidball-Binz opened the interactive dialogue by presenting the findings of his latest report, which focused on death in detention, and regretted the lack of investigation into most deaths in detention cases. He also called on states to implement the recommendation he made in order to avoid these deaths.
The Special Rapporteur underlined that many deaths in detention are preventable and explained how states can reduce them by following his recommendations.
Various delegations and the Special Rapporteur stressed the importance of respecting the Minnesota Protocol to collect and analyse data and to conduct enquiries into all cases of death in detention.
Civil society groups have denounced various situations around the world leading to numerous deaths in custody, specifically poor conditions of detention and prison overcrowding.
The Special Rapporteur concluded the discussion by stressing the need to collect information on deaths in detention and by recommending the establishment of a new data collection system.
Geneva International Centre for Justice (GICJ) congratulates the Special Rapporteur for his report on the death in detention and its recommendation. We remain extremely concerned about the high rates of death in detention and the lack of investigation to shed light on these deaths. We join the Special Rapporteur in urging states to ratify the OPCAT and to implement the Minnesota Protocol.
Background
An extrajudicial, summary or arbitrary execution means deliberately killing individuals outside of any legal framework, and it constitutes a violation of the most fundamental right that is the right to life.
The legal framework protecting people against these executions is mainly constituted by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which protect, in addition to the right to life, the right to a fair trial and the non-retroactivity of criminal law.
More specific documents exist for extrajudicial, arbitrary or summary executions, in particular the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the Economic and Social Council in its resolution 1989/65 on the 24th of May 1989. The fourth Principle stipulates that “Effective protection through judicial or other means shall be guaranteed to individuals and groups who are in danger of extra-legal, arbitrary or summary executions, including those who receive death threats” [1]. Another important document is the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions which became known as the Minnesota Protocol.
Aside from these documents, the Commission on Human Rights recommended in 1982 the creation of a Special Rapporteur who would report to the Commission on the occurrence and extent of the practice of summary or arbitrary executions, as well as make recommendations. Since then, the mandate has been renewed several times, most recently in June 2017. The mandate was extended in 1992 to add "extrajudicial" and "summary or arbitrary", demonstrating the adoption of a broader approach to executions to include all violations of the right to life. The current Special Rapporteur is Mr. Morris Tidball-Binz, a Chilean doctor, who was appointed on 1 April 2021.
The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified relevant international Conventions. In carrying out his mandate, the Special Rapporteur can:
1) Transmit urgent appeals to governments and other actors concerning individuals considered to be at risk of extrajudicial, arbitrary or summary executions.
2) Carry out country visits to monitor executions and make recommendations.
3) Submit annual reports to the Human Rights Council and the General Assembly on its activities.
Report of the Special Rapporteur
The report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/53/29) focuses on death in detention. Mr. Tidball-Binz recalled that mortality rates in detention are 50% higher than the general mortality rate, notably due to overcrowding and the length of sentences.
He went on to stress that executions carried out in the context of legal proceedings are not always legal. The death penalty can only be imposed for the most serious crimes, and judges must have a margin of discretion in deciding whether to impose it. However, many countries do not comply with these requirements.
He pointed out that states are responsible for the lives of people placed in detention and therefore, in the event of their death, they are presumed to be responsible unless they can prove otherwise. He explained that one consequence of this presumption of responsibility is that a State that has no control over the prisons on its territory should not imprison individuals there.
Following on, the report mentions various means of prevention in order to limit death in detention. Many causes can lead to these deaths, such as “lack of food or nutritious food, lack of potable water, absent or inadequate hygiene and sanitation, vermin infestations, dilapidated buildings, fires, exposure to temperature extremes and lack of access to health care”. Combating these causes would reduce the number of deaths.
The first measure concerns limiting the use of prison sentences. The Special Rapporteur explained that high incarceration rates have been shown to increase delinquency, and while some states have taken steps to reduce incarceration rates, others have increased sentence lengths and imprisonment rates.
In particular, the Special Rapporteur suggested that states limit pre-trial detention and abolish mandatory pre-trial detention, replacing it with release on bail. Likewise, incarceration for minor offences or offences of poverty should be replaced by other sanctions, including transformative and restorative justice approaches. States could take inspiration from rules implemented in Tokyo and Bangkok relating to the development and imposition of non-custodial measures. These rules give examples such as community service, fines, electronic surveillance, or home detention. Finally, to limit detention, Mr. Tidball-Binz evoked the need to take support measures for people leaving prison in order to prevent them from reoffending.
As an example of good practice, he referenced the Netherlands as an example where a reduction in prison population by replacing short-term prison sentences by community service, enabled the prison population to be halved and around twenty prisons to be closed.
The second way to prevent death in detention is to respect and protect the right to health. To do so, the Special Rapporteur highlighted that states must provide prisons that are safe, liveable, clean, that are not overcrowded, have adequate food, and monitor prisoner’s health. He recommends that states abandon inhumane methods of suicide prevention and that prisons employ sufficient and well-trained staff.
The third way to prevent death in detention is through investigation. Indeed, the report considers that all deaths in detention should be notified to an independent organ for investigation. It is clearly stated that the death of an individual under the control of the prison authorities constitutes a death in detention. However, deaths in detention also occur when prisoners die outside prison, for example during transport or when they are in hospital. Equally, any deaths occurring within a month of release should, in the Special Rapporteur's view, be presumed to be related to detention.
Mr. Tidball-Binz regretted that investigations into deaths in custody are still very rare. Many states are unaware of the existence of the Minnesota Protocol or do not take it into account. It encourages states to provide training for all staff in contact with prisoners. He also deplores the fact that very few countries have laws on investigations into deaths in detention.
The last way to prevent these deaths is by collecting information. The Special Rapporteur recalled the 2019 recommendation of the Human Rights Council to create systems to collect and analyse information about death in detention. Yet currently there is no global data. It is also because certain causes of death are difficult to classify, such as suicide which can be classified as accidental death or death due to unknown causes.
The Special Rapporteur concludes his report with a number of recommendations. In particular, he recommends that incarceration be kept to a minimum, that prison sentences not be pronounced where conditions of detention violate human rights, and that independent bodies be set up to monitor prisons.
Interactive dialogue on the Special Rapporteur Report
Geneva, 26 June 2023. At the 53rd Regular Session of the Human Rights Council, the Special Rapporteur on summary executions held an interactive dialogue regarding death in detention and how states can reduce them.
The Special Rapporteur opened the meeting by raising the need for an increase in resources to carry out his mandate. He explained that he had not been able to respond to all the requests he had received due to a lack of resources. He went on to point out that extrajudicial executions continue to increase around the world, as do cases of selective assassination of dissidents, human rights or environmental activists, journalists or representatives of minorities and other vulnerable groups. Many of these deaths in detention constitute femicide and are rarely investigated. The Special Rapporteur also referred to the use of the death penalty in violation of international law.
He exhorted states to focus their attention on this situation to find a global solution, as these deaths are unacceptable, given that States have an obligation to respect and protect the lives of people deprived of their liberty. In addition, many of these deaths could be avoided if States adopted measures that were not onerous. Mr. Tidball-Binz therefore called on them to implement the recommendations contained in his report to reduce the number of deaths in detention in order to comply with their international commitments.
The Special Rapporteur then evoked his visit to Argentina in November 2022, which was a first since the creation of the mandate in 1982. He noted that the country had built up a solid and practical human rights culture, particularly with the successes achieved in the areas of truth, justice and reparation. His visit enabled him to see these successes, the good practices, but also the problems that persist in Argentina. These included the excessive or unlawful use of force by the police and deaths in custody, which mainly affect the most disadvantaged people, which, in his view, contributes to making this phenomenon invisible while guaranteeing impunity for the perpetrators and the continuation of these practices.
He also regretted that investigations into deaths in custody do not meet international standards, and more specifically the Minnesota Protocol, which sets standards in forensic matters. The Special Rapporteur has therefore made recommendations to improve these investigations and the recording of deaths, and to ensure that the use of force complies with international standards.
Following this, the country concerned, Argentina, thanked the Special Rapporteur for his visit and stated that they would continue the dialogue. The country's representative acknowledged that Argentina still faced challenges, in particular the elimination of institutional violence. This is why a law wasenacted to create the necessary tools to combat this phenomenon. It was also stated that the State was counting on human rights training for the security forces and the various actors in the penitentiary system. Lastly, Argentina stressed the importance of the special procedures for identifying the weaknesses of states and exchanging ideas to improve institutions and legislation and thus prevent and eliminate institutional violence.
The European Union noted that the number of people who die in prison is largely unknown, but the mortality rate in prison is known to be at least 50 % higher than the mortality rate in the community. The EU representative stressed the importance of preventing arbitrary executions and that to do so would require stricter application of the principle of responsibility in cases where such killings occurred. She stressed that states must investigate all cases of death in custody promptly, effectively, independently, and impartially. She also asked the Special Rapporteur how it would be possible to improve data collection so that these deaths in custody would be less invisible and therefore better combated.
The group of Baltic and Nordic countries, represented by Finland, deplored the excessive number of deaths in custody, reflecting the failure of states to respect the right to life for all. She pointed out that women should not be imprisoned solely for exercising their reproductive rights. However, the representative noted that positive reforms have been undertaken in various states, such as the use of alternatives to deprivation of liberty.
A group of 34 states expressed concerns about the presence of the Wagner group in Mali, which killed more than 500 civilians in a village. A High Commissioner report underlined cases of extra judiciary executions, gender-based violence, torture and other ill-treatment committed by this group that could constitute war crimes or even crimes against humanity. The member states of this group called on Mali to conduct impartial and independent investigations into these allegations. They also called for urgent implementation of the report's recommendations to ensure that foreign armed forces and military personnel comply with their obligations under international law.
Peru stated that the first step in eradicating deaths in detention is to address socio-economic factors. This refers to factors that contribute to delinquency which if accounted for could help reduce the incarceration rate, which in turn will reduce prison overcrowding and improve detention conditions. Peru is therefore trying to improve the conditions in which its prisoners are held, in order to enhance their ability to be reintegrated into society.
Finally, Costa Rica emphasised that deaths in custody should be understood to include deaths occurring in pre-trial detention, in psychiatric centres as well as deaths during transfers. The state recognised that it is experiencing difficulties in this area and that the report is therefore an excellent practical tool for finding solutions to respect and protect the rights of persons deprived of their liberty. In particular, he suggested setting up independent, periodic monitoring systems. Lastly, the state asked to avail itself of technical assistance in order to set up databases on prisoners, before finally asking the Special Rapporteur what could be done to prevent the deaths of former prisoners during the first few months of their release.
A number of civil society organisations were subsequently permitted to speak on the report’s findings. NGOs welcomed the report of the Special Rapporteur and the focus on death in detention. They denounced the situation in countries such as Australia, which disproportionately incarcerates First Nations people, Saudi Arabia, which still uses the death penalty, even on children, Colombia and Honduras for the numerous massacres, and Brazil, where 70 % of prisoners are black.
These organisations have noted that too many countries have poor conditions of detention, which exacerbates the phenomenon of deaths in detention. Similarly, many of these NGOs have called on governments to reduce incarceration, in particular by using non-custodial alternative sentences, in order to reduce prison overcrowding. This overcrowding could be reduced by using pre-trial detention only in exceptional circumstances and as a last resort.
Concluding Remarks
The Special Rapporteur responded to a number of questions raised by delegations. He stressed the need to collect information on deaths in detention, as to date we still do not know how many individuals are concerned. It is estimated that this would affect tens of thousands of people, but there is no certainty. Mr. Tidball-Binz explained the need for a system to determine the cause of death that would be easy to use. Yet in order to establish these databases, deaths must already be registered and investigated. Every death must be investigated, and the information made public so that best practice can be developed. He then reiterated the need to ratify the OPCAT, as this would enable independent inspections of places of detention, which would help prevent deaths in custody.
The Special Rapporteur concluded his remarks by calling on states to respect the recommendations made in his report and to assist him as much as possible in carrying out his mandate.
Resolution
On 12th July 2023, the Council adopted by consensus the resolution HRC 53/4 presented by Sweden and Finland to extend the mandate of the Special Rapporteur on summary executions for another three years.
Finland presented the resolution allowing the role of Special Rapporteur to continue to bring to the attention of the United Nations General Assembly, the Human Rights Council and the High Commissioner information about serious violations related to extrajudicial, summary or arbitrary executions that require their immediate attention or that call for early intervention to prevent the situation from deteriorating. This resolution contained an updated scope reflecting the revised United Nations manual on the effective investigation of summary, arbitrary or extra-judicial executions. Finland also explained that the aim of the resolution is to be in line with UNGA Resolution 77/218 of December 2022.
The consensus resolution clearly expresses states’ concerns over impunity and the denial of justice seeing as executions still prevail in many countries. This climate of impunity will lead to the continuation of summary executions.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) commends the efforts made by states to develop good practices in the area of detention. Indeed, it is necessary to improve detention conditions and reduce prison overcrowding to limit deaths in detention. However, we remain concerned about the growing number of deaths in detention in many States.
We join the Special Rapporteur in calling on states to ratify the OPCAT, implement the Minnesota Protocol, and respect the right to life of their prisoners. It is imperative that states act and acknowledge their responsibility for these deaths to put an end to them. To this end, they must establish databases and conduct impartial investigations into all deaths in detention. Similarly, they must limit the use of preventive detention, which should only be used in exceptional circumstances.
Finally, we welcome the adoption of resolution HRC 53/4, which will enable the Special Rapporteur to continue to visit countries and make recommendations. We call on states to implement all the recommendations contained in the report in order to limit deaths in custody, which will be a first step towards putting an end to summary executions.
Executions, Arbitrary and Summary Executions, Detention, HumanRights, Geneva, geneva4justice, Justice, GICJ, GenevaInternationalCentreForJustice
References
[1] Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989
