INFORMATION NOTE: 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