Author: INSPIRE

Graduated with a Master’s degree in International Humanitarian Law and International Human Rights Law (IHRL), my first encounter with prisons’ issues were mostly through a legal prism. My first experience with the detention environment took place during an internship in a human rights organisation in Lomé (Togo). Here, I carried out monitoring activities in detention with the aim of submitting an alternative report to the United Nations human rights bodies on the issues of the carceral system in the country. Afterwards, I continued to study the provisions of the IHRL regarding detention through my academic and professional experiences.

Currently I am working as assistant coordinator of RESCALED in France. In this respect, taking my background knowledge into account, it is interesting to question in what way RESCALED is relevant from an IHRL point of view.

1. Prisons and human rights: Key principles of the IHRL

First, I will recall the main principles of the IHRL regarding detention.

Some International and Regional Human Rights norms are specifically focused on the treatment of incarcerated persons and others include references to this. Although deprivation of liberty is allowed under the IHRL, it must be carried out in a humane and dignity-respecting manner.[1] Persons deprived of their liberty continue to have their fundamental rights, without other restrictions than those inherent to detention.[2] Consequently, incarcerated persons may not be subjected to inhumane and degrading treatment. The European Court of Human Rights, like other human rights bodies, has qualified the conditions of detention as inhumane and degrading in several cases.[3] This qualification is based on the size of the individual space, access to walks and activities, privacy, access to natural light, ventilation and hygiene, amongst other things.[4] In addition, other rights that are guaranteed by international texts, such as the right to privacy and family,[5] freedom of religion,[6] the right to vote,[7] the right to health,[8] etc. also apply to incarcerated persons.

2. RESCALED in the light of the IHRL: Pillars in compliance with human rights

The majority of prison systems face problems, such as overcrowding, characteristics of facilities and difficulties in accessing care and activities, that prevent prisons from meeting these IHRL standards.

By proposing a new model for places of deprivation of liberty, RESCALED offers an alternative that can be compliant with the requirements of the IHRL: replacing the current large prison institutions by small-scale, community-integrated and differentiated detention houses.

2.1 Small-scale – Normalization

First of all, with the principle of a small-scale house instead of a large prison institution, RESCALED aims to normalize the conditions of detention, i.e. to create a place of deprivation of liberty in which the conditions of life resemble as closely as possible those of life in freedom.[9] Normalizing detention conditions is in accordance with international principles on detention. The European Prison Rules state that “life in prison shall approximate as closely as possible the positive aspects of life in the community“,[10] and the United Nations Standard Minimum Rules for the Treatment of Prisoners (hereafter referred to as the Nelson Mandela Rules) state that “the prison regime should seek to minimize any differences between prison life and life at liberty“.[11]

2.2 Community integration

Second, the detention house should be community-integrated, which creates a dynamic interaction between the detention house and the community and thus facilitates the reintegration into society. This is in line with international texts which indicate that the treatment of persons should aim primarily at the reintegration,[12] reformation and social rehabilitation of incarcerated persons.[13] In particular by “establish[ing] in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so [and] encourag[ing] their self-respect and develop their sense of responsibility”.[14]

The community integration of detention houses, that RESCALED proposes, echoes international provisions. These state that prisons should encourage incarcerated persons to establish or strengthen relationships with external persons and organisations that can assist their reintegration and that “co-operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged”. More specifically, prison systems are encouraged to strengthen or establish links with public health services to enable continuity of care and access to the same standard of care. By giving incarcerated persons a role in the community and having them interact with the community, RESCALED adheres to these principles of international law and even seeks to go further.

2.3 Differentiation

By differentiation of detention houses RESCALED aims to place incarcerated persons in the best context according to their needs. Namely providing the right security level and offering services, activities and programs that fit the needs of the residents.

The Nelson Mandela Rules provide that incarcerated persons should be placed in groups to ensure that they are treated according to their abilities and needs with a view to their social reintegration.[15] Detention houses, given their small scale and the differentiation of the programmes they offer, therefore make it possible to meet these requirements in a comprehensive manner.

Differentiation, according to the security level and the introduction of dynamic security, also meets the requirements of the Nelson Mandela Rules, which state that detention facilities should not provide the same level of security for all incarcerated persons and should have varying degrees of security according to the needs of different groups.[16] By offering a level of security that is appropriate to the risks posed by individuals, detention houses seek to balance security, humane treatment and preparation for release and therefore propose to implement the principles set out in the above rules.

3. The IHRL to change the detention framework?

In conclusion, RESCALED, through the three pillars of a detention house, suggests a model that seems to meet the requirements of the IHRL and seems to be likely providing solutions to the violations of fundamental rights witnessed in detention today.

Furthermore, the inscription of RESCALED in these legal principles could lead to thinking of the IHRL as a means to change the framework of penitentiary systems. While international law can be seen as relatively indeterminate and allowing interpretations of norms and concepts,[17] it is still marked by balances of power in favour of the interests of some actors over others.[18] It is therefore possible to question whether IHRL has the potential to be a means of changing the framework of penitentiary systems or whether it is rather a tool to identify and respond to problems without changing this framework.

In this respect, it seems interesting to broaden the reflections on detention, on its being, functions, place in society, etc. Because of the interdisciplinary approach of RESCALED, we question those aspects and shine a new light on detention.

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[1] See for example: Article 10 International Covenant on Civil and Political Rights (ICCPR).

[2] See for example: Human Rights Council, resolution 24/12, 26 September 2013. European Court of Human Rights (ECHR), Campbell and Fell v. UK, n°7819/77 and 7878/77, 1984.

[3] See for example: ECHR, J.M.B. and others v. France, n°9671/15 and others, 2020. Human Rights Committee, Brown v. Jamaica, 775/1997, § 6.13.

[4] See for example: ECHR, Muršić v. Croatia, n°7334/13, 2016. ECHR, Cucolas v. Roumania, n°17044/03, 2011.

[5] Article 8, European Convention on Human Rights. Article 17, ICCPR.

[6] Article 9, ECHR. Article 18, ICCPR.

[7] Article 3, 1st Additional Protocol to the ECHR. Article 25, ICCPR.

[8] Article 12, International Covenant on Economic, Social and Cultural Rights.

[9] Dan Kaminski, “Droits des détenus, normalisation et moindre éligibilité”, Criminologie, vol 43, n°1, spring-summer 2010.

[10] Rule 5, European Prison Rules.

[11] Rule 5.1, United Nations Standard Minimum Rules for the Treatment of Prisoners

[12] Rule 4.1, United Nations Standard Minimum Rules for the Treatment of Prisoners

[13] Article 10.3, ICCPR

[14] Rule 91, United Nations Standard Minimum Rules for the Treatment of Prisoners

[15] Rule 93 and 94, United Nations Standard Minimum Rules for the Treatment of Prisoners

[16] Rule 89.2, United Nations Standard Minimum Rules for the Treatment of Prisoners

[17]  Martti Koskenniemi, “From Apology to Utopia – The structure of international legal argument”, Epilogue, 2005

[18] Rémi Bachand, “Les quatres strates du droit international analysées du point de vue des subalternes”, Revue Québécoise du droit international, 2011.

Cycles can be discerned in a person’s life; day and night, winter, spring, summer, autumn. There are also cycles to unravel in society. In 1922 Clara Wichmann was 36 years old and was mainly concerned with changing criminal law. She advocated not detaining people in prisons. One hundred years later, I’m 36 years old and I work for the movement RESCALED that works to replace small-scale detention centers with large prisons. There is exactly a century between us. But when I read her text, it doesn’t feel that way.

The realization that, on the basis of Clara Wichmann’s ideas, we have not succeeded in stopping the construction of large prisons in the hundred years between us, makes me humble. She laid an important criminological foundation with her ideas, both in an ideological sense and in a scientific sense. Yet a hundred years later we see the same patterns: of class society, of the rhetoric of retaliation, and of reducing crime to an act of the individual rather than the result of the organization of society. I therefore do not have the illusion that a radical change in our criminal justice system will take place soon. I do wish, as a society, to treat each other in a more civilized way. And that can be thought through in the legal system by thinking from a circular justice perspective.

Civilization Process

Circular justice is a plea for the moral development of society. The legal system should not be intended to establish an individual morality of guilt, but should be an in-between space that is primarily aimed at balancing and, where necessary, restoring the network of political, social and cultural relations through connecting past, present and the future.

Everyone agrees that a person exhibits morally culpable behavior to a greater or lesser extent. But what about acting in and from society? When do we speak of a more or less civilized society? An individual has the responsibility and obligation to justify his behavior. Shouldn’t that also apply to systems we’ve created together? There is too often a gap when it comes to taking responsibility when things go wrong. While the power of moral development lies precisely in the rejection of social habits that are harmful to fellow human beings.

This is how I remember a visit, long ago, to a former prison in Rome. In the Middle Ages, people were imprisoned in a dungeon in too small a space with too many people. The guide said that people had to sleep sitting down because otherwise they would drown in the low water in which they were forced to live. When we look back on this, we find it morally reprehensible. In two hundred years, the writer Arnon Grunberg wrote a few years ago in a footnote to the Volkskrant, we will find our criminal justice system barbaric.

The civilizing process is continuously going on in a business cycle. However, as far as I’m concerned, certain outdated systems, such as prison, may finally be gaining momentum for real change. Let’s take the next step and decide not to put people in large prisons anymore. Let’s recognize our social responsibility in the creation of crime. The result is that we no longer punish people, but that actions have consequences. Consequences for individuals as well as for us as a society. And yes, there may be differences in the way we express these consequences. The concept of circular justice offers plenty of scope for this.

By Veronique Aicha, March 18, 2022

Link naar Nederlandse versie

Belgium continues to build large-scale prisons that are based on a 19^th century model. These new prisons are larger than ever. While Belgium used to be a pioneer and an example of a constitutional state that protects its citizens, it now lags behind with a prison system that does not do justice, neither to the incarcerated people, nor to the victims and taxpayers. I am an incarcerated person and I read that each year millions of euros are spent on prisons. Yet, in my opinion, this system has no purpose and disregards people’s needs. It reduces human beings to mere numbers and is therefore not fit for today’s society.

In today’s society, gender identities are a ‘hot topic’ and heavily discussed. People are not born as boys or girls but they are considered boys or girls, and people who identify themselves differently should still be tolerated and accepted in this society. Sometimes I think: I am not born as a criminal but I am considered as one. What if I were considered a boy who did not receive enough attention? In prison, I have become a citizen that does not fit so easily into society, and yet, I will soon return to society. Instead of preparing this return, a prison tends to push incarcerated people, and often also their partners and children, towards social exclusion and economic poverty.

In the meantime, alarming situations are happening within these prison walls. I am surprised to see that proper support is lacking in a prison facility in which people, like myself, are serving long sentences. Support for addiction to medication or drugs, for instance, is necessary. When people with additions enter prison, they drown even more in their problems and their debts keep building up. People who are caught with drugs are not supervised and supported. They are on their own. What does exist, however, is a repressive approach: being transferred from an open section to a closed one, or put into isolation. This is no solution. It is sad that the facility itself is failing to provide the necessary tools. In search of solutions, different departments and governments are mainly pointing and looking to one another, without offering help.

In sum, we may ask ourselves if this outdated mentality is still justifiable? Is it acceptable to continue to financially invest in a state facility that does not offer solutions? Let us innovate and rethink the goals of detention. Let us be ground-breaking and keep up with the present and the future and invest in detention houses. In such houses, people are not restricted in their personal growth. This is crucial because such fundamental restrictions take everything away from people, who are then left with nothing when they return to society. In such houses, incarcerated people gain a new sense of responsibility and a close connection with society. This is lacking in today’s prisons.