COVID-19, prison overcrowding, and serving sentences for serious human rights violations
Existing international law prohibits the adoption of measures that create, de jure or de facto, impunity for persons convicted of serious
human rights violations, crimes against humanity, genocide or war crimes.
Measures such as amnesties, pardons, exemptions from criminal liability,
and benefits in the enforcement of sentences are null and void, and have no
legal effect. Likewise, humanitarian pardons can only be granted in cases
of terminal illness of imminent resolution.
At the same time, States have a general obligation to guarantee the
enjoyment of the rights of all persons under their jurisdiction, including
their prison populations: prison overcrowding is never acceptable and
constitutes a violation of several international obligations, including the
protection of the right to physical and mental integrity.
In the context of a pandemic such as COVID-19, where the risk of contagion
endangers the health and life of the population, States have a greater duty
to prevent violations of the rights of persons deprived of their liberty,
avoiding overcrowding and ensuring hygiene and sanitation in prisons and
other detention centers, as indicated by various United Nations Special
Procedures and the United Nations High Commissioner for Human Rights.
However, the legitimate and necessary measures to protect against COVID-19
and overcrowding should not lead, de jure or de facto, to impunity
for persons convicted in various parts of the world for serious violations
of human rights, crimes against humanity, genocide, or war crimes.
These individuals usually enjoy conditions of detention - established for
security reasons - that avoid mass contact (for example, through detention
in special establishments and/or in individual or two or three person
cells), which places them at an advantage in terms of safety and health
compared to other persons deprived of their liberty.
In the current health emergency, once general measures have been
implemented to avoid overcrowding of the prison population, if the problem
of possible overcrowding of persons imprisoned for committing serious human
rights violations, crimes against humanity, genocide or war crimes
persists, it is recommended:
(a) To relocate such prisoners to another prison facility where they have
safe and healthy detention conditions
(b) If this is impossible, provide for temporary house arrest with
appropriate controls: the person must return to prison once the emergency
situation has passed, to serve the remainder of their prison term.
(c) Under no circumstances are amnesties, pardons, exemptions from criminal
liability or benefits in the enforcement of a sentence applicable to
persons convicted of genocide, crimes against humanity or war crimes, as
established in international law