The Protection of Prisoners’ Rights under International Human Rights Law: A Comparative Analysis of International Standards and the Kuwaiti Legal Framework ()
1. Introduction
The protection of prisoners’ rights represents a critical dimension of international human rights law that has evolved significantly over the past several decades. This evolution reflects a broader transformation in international law’s focus, moving from a state-centric paradigm to one that increasingly recognizes the individual as a subject of international legal protection (Klabbers, 2013: pp. 107-123). The progress in this field has elevated human beings and their dignity from being mere objects of international law to subjects thereof, capable of bearing rights and even obligations (Santos, 2013: p. 17). This transformation is particularly significant in the context of prisoners’ rights, as incarcerated individuals represent one of the most vulnerable populations within any legal system.
The necessity for international protection of inherent human rights emerged prominently in the wake of the First and Second World Wars—events in human history characterised by mistreatment, discrimination, and the denial of fundamental civil and political rights to millions of people (Weller, 2017). The promotion of human rights was not initially an intended goal for the drafters of the United Nations Charter. However, with the discoveries surrounding the Nazi concentration camps and the treatment of human beings therein, the participants in the San Francisco Conference felt obliged to change course and consider the protection of human rights as a key principle of the new organisation (Waters & Russel III, 2012: pp. 301-305). Article 55 of the Charter consequently enshrined the obligation of the United Nations and its members to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
This article provides a comprehensive analysis of the legal framework protecting prisoners’ rights at both international and national levels, with particular attention to the State of Kuwait. The selection of Kuwait as a case study is deliberate, given its unique legal position as a state whose domestic law is significantly influenced by Islamic Shari’a while simultaneously being a party to numerous international human rights treaties (Abiad, 2008: p. 163). This dual legal heritage presents both challenges and opportunities for the harmonization of international human rights standards with national legal traditions.
The article is structured into several interconnected sections. Following this introduction, Section 2 examines the international instruments that form the foundation of prisoners’ rights protection, including both hard law treaties and soft law guidelines. Section 3 analyses national legislation in Kuwait, with particular attention to the role of Shari’a in shaping domestic legal approaches to prisoners’ rights. Section 4 explores the fundamental rights of prisoners under both international and Kuwaiti law, organised thematically around health-related rights, privacy and family rights, and protection from violence. Section 5 addresses contemporary challenges facing the protection of prisoners’ rights, including prison overcrowding and the specific needs of female prisoners. The article concludes with an assessment of the compatibility between international standards and Kuwaiti legal practice, identifying both achievements and areas requiring further development.
2. International Instruments for the Protection of Prisoners’ Rights
The rights of prisoners are enshrined in numerous international instruments, each contributing distinct value to the overall framework of protection. These instruments span both binding treaties and non-binding declarations, collectively establishing a comprehensive set of standards for the treatment of incarcerated individuals. This section examines the principal international instruments relevant to prisoners’ rights, analysing their scope, applicability, and mechanisms for implementation.
2.1. The Universal Declaration of Human Rights
The 1948 Universal Declaration of Human Rights (UDHR) represents the foundational document upon which the entire edifice of international human rights law is constructed. The Declaration guarantees the freedom and dignity of all persons and enshrines numerous rights owed to every human being (United Nations General Assembly, 1948, UDHR, Arts. 2-3). It essentially defines what cannot be done to human beings and what must be done for them—and this expressly includes prisoners (OHCHR, 2018). Several provisions are of particular importance to incarcerated individuals, including the prohibition of torture and degrading or inhumane treatment, the recognition as a person before the law, and the right to family life (United Nations General Assembly, 1948, UDHR, Arts. 5, 6, 16).
However, certain limitations of the UDHR must be acknowledged. As a declaration adopted by the United Nations General Assembly, it has limited direct legal force and is more properly characterized as a political document expressing aspirational principles (Hannum, 1995: pp. 289-293). The then-President of the General Assembly, Herbert Vere Evatt, explicitly noted that despite the Declaration not being a convention that binds states to carry out and give effect to fundamental human rights, nor providing enforcement mechanisms, it represented the first step forward in a great evolutionary process (Peterson, 2018: pp. 8-9). Furthermore, the terms of the UDHR are broad and general, and with no dedicated tribunal or commission to interpret its provisions, its clarity is limited. Nevertheless, its significance as the foundational instrument of international human rights protection, including prisoners’ rights, cannot be overstated (Kumar, n.d.).
2.2. The International Covenants
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) represent the two principal binding instruments of international human rights law, to both of which Kuwait is a state party. With more than one hundred and seventy states parties, these Covenants constitute the most widely recognized international instruments protecting human rights. While they do not possess the same enforcement mechanisms as regional instruments such as the European Convention on Human Rights, the ICCPR and ICESCR have dedicated monitoring bodies in the form of their respective Committees (Sears, 2008: p. 4). These bodies, although not tribunals rendering binding decisions, regularly rule on cases concerning breaches of the Covenants and provide interpretations of their provisions in the form of General Comments.
Both Covenants contain binding provisions on numerous rights guaranteed to every individual, including prisoners, subject to legitimate limitations. While they contain principally the same protections as other instruments, their interpretation through soft-law mechanisms has extended their application specifically to the prison context, establishing detailed standards for the treatment of incarcerated persons.
2.3. The Arab Charter on Human Rights
Kuwait is a member of the Arab Charter on Human Rights, adopted at the fiftieth anniversary of the Arab League. The Charter was first adopted in 1994 but, due to criticism on several points, was revised in 2004 and now represents one of the more progressive instruments in the field of regional human rights law (Al-Midani et al., 2006: pp. 147-151). The Charter contains numerous provisions relating to rights such as the right to a fair trial and the prohibition of torture and inhuman treatment, as well as specific provisions concerning prisons and prisoners.
The principal limitation of the Charter has been its lack of an enforcement mechanism. However, in 2014 the Arab League concluded the Statute of the Arab Court of Human Rights, establishing an inter-state litigation organization for breaches of the Charter. This provides a neutral, supranational enforcement mechanism for the protection of human rights, similar in structure to the European Court of Human Rights. The Statute is set to enter into force upon its seventh ratification; however, to date only Saudi Arabia has ratified it. Nevertheless, these developments represent incrementally important steps in the evolution of human rights protection within the Arab League, including for prisoners.
2.4. Specialised Treaties
Alongside the general human rights instruments, several specialized treaties bear directly on prisoners’ rights. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applies to every person, including prisoners, and contains specific provisions relating to the education of prison staff and the review of interrogation techniques and arrangements concerning the treatment of persons subject to arrest, detention, or imprisonment. The Geneva Convention relative to the Treatment of Prisoners of War governs imprisoned participants in armed conflicts and, while seemingly of limited direct relevance, was historically the first international treaty to recognize that prisoners possess rights of their own, serving as a foundation for subsequent legislative developments (Chlopak, 2002: pp. 6-7). The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has had a major impact on discussions of gender-based violence in the prison system and the treatment of female prisoners.
2.5. Soft Law Instruments
The term “soft law” refers to non-binding rules, informal agreements, guiding principles, or standards that lack the formal binding character of treaty obligations (Wesierski, 1984: p. 44; Shelton, 2003). This is to be contrasted with ‘hard law,’ which denotes legally binding obligations written with precision in scope and applicability and typically supported by implementing legislation or case law (Abbott & Snidal, 2000: pp. 421-456). In recent developments in international law, soft law has become an increasingly preferred form of legal regulation (Chinkin, 1989: pp. 850-866), and such instruments must therefore be taken into account in any comprehensive analysis of prisoners’ rights.
The most notable soft-law documents concerning prisoners’ rights are the Basic Principles for the Treatment of Prisoners and the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Nelson Mandela Rules. The Basic Principles were adopted in 1990 as a consequence of two resolutions recognizing the civil status of prisoners and confirming that they are subjects of all human rights. The eleven Principles establish requirements including the abolition of prolonged solitary confinement, the creation of cultural activities in prisons, health services, and protection of religious beliefs.
The Nelson Mandela Rules are far more detailed, containing 122 rules addressing issues ranging from solitary confinement to the bedding of prisoners and the treatment of their property. These rules provide comprehensive guidance that could serve as the foundation for a specialized convention on prisoners’ rights. Additionally, the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, known as the Bangkok Rules, expand upon CEDAW by addressing the special needs of female prisoners, including women-specific hygiene needs (Bangkok Rules, Rule 5) and gender-specific healthcare (Bangkok Rules, Rules 10-18).
Regional soft-law instruments also merit attention, including the Cairo Declaration on Human Rights in Islam (1990), which is crucial for understanding the relationship between human rights and Shari’a law, and the Human Rights Declaration for the Member States of the Cooperation Council of the Arab States of the Gulf (GCC Human Rights Declaration, 2014), which has a closer regional impact on Kuwait.
3. National Legislation in Kuwait
Kuwait operates under a written constitution that represents the primary piece of national legislation relevant to prisoners’ rights. The Constitution enshrines numerous rights owed to every person, including prisoners, and specifically provides for proper treatment. Beyond the Constitution, scattered provisions relevant to prisoners appear in various statutes, including the Penal Code, the National Security Law, the Personal Status Law, and the Procedures Law and Penal Trials.
3.1. The Role of Shari’a in Kuwaiti Law
Perhaps most significantly, Kuwait is an Islamic state where Shari’a law plays a central role in the legal system (Krawietz, 2008: p. 39). According to Article 2 of the Kuwaiti Constitution, Islamic Shari’a shall be a main source of legislation. There has been scholarly and political discussion about strengthening this provision to make Shari’a ‘the’ main source rather than ‘a’ main source (Al-Moqate, 1989). In practice, Shari’a is applied and adapted to specific cases through the practices of ijma (consensus) and ijtihad (independent reasoning). Case law is therefore crucial for understanding how Shari’a principles are applied in the context of prisoners’ rights.
There has been considerable controversy surrounding the application of human rights in Shari’a-based legal systems. The European Court of Human Rights ruled in the Refah Partisi v. Turkey case that some religious values might conflict with rights enshrined in the Convention (Refah Partisi (The Welfare Party) and Others v. Turkey, 2003: para. 128). However, in Otto Preminger Institut v. Austria, the same Court found that no inherent conflict between international human rights and Shari’a-based law can be presumed (Otto Preminger Institut v. Austria, 1994: para. 47). Indeed, the Quran and the Madinah codifications of the Prophet Muhammad in his Hadith, if followed properly, apply equally to all human beings regardless of their status or religious beliefs (Jimoh, 2011: pp. 153-166). Islam is guided by the pursuit of peace, or salaam, for all people (Chapra, 1979: p. 8).
3.2. Shari’a and Prisoners’ Rights
When it comes to prisoners, the Islamic concept of mujrimun encompasses the obligation of the state to rehabilitate convicted persons (Oladosu, 2001: p. 186). The Quran itself states that forgiveness is a means of closeness to Allah, which forms part of the basis for Shari’a’s distinctive treatment of prisoners (Quran 25:22). Rehabilitation is considered part of the Maslahah ‘Ammah, or ‘public interest,’ serving both as an ethical imperative and as a preventive measure to ensure that criminals cannot influence others to follow wrongful paths (Jimoh, 2011: p. 157). This approach is characterized by a mentality that criminals should be pitied rather than considered as outcasts, as Allah forgives all sins (Quran 39:53).
Al-Shirazi has conducted extensive research on prisoners’ rights under Shari’a and how the principle of mujrimun is applied in practice (Al-Shirazi, 2017). This codification, based on an examination of relevant holy texts and the teachings of Islamic scholars, identifies numerous rights including the right to health and hygiene, the right to food, psychological well-being, and the practice of religion. Significantly, these rights correspond closely to internationally recognised fundamental rights of prisoners. Therefore, not only is Shari’a consistent with international human rights law, but when properly applied it may be even better suited to safeguarding the dignity of prisoners.
4. Fundamental Rights of Prisoners under International and Kuwaiti Law
Prisoners enjoy all fundamental rights owed to every person, regardless of their civil status (Hagyó v. Hungary, 2013: para. 84). However, most human rights instruments, both national and international, do not address prisoners’ rights as such, but rather state general principles that are later interpreted through case law or implementing legislation in application to prisoners. International human rights instruments have been exceptionally effective in improving conditions for inmates through due process safeguards, disciplinary hearing requirements, and numerous other protections. This section analyzes major rights owed to prisoners, with particular focus on how Kuwait has transposed these rights into its national system.
4.1. Health-Related Rights
Health-related rights constitute perhaps the most significant group of prisoners’ rights, both in scope and in their impact on other fundamental rights, including the right to life and the prohibition of inhumane treatment (Committee on Economic, Social and Cultural Rights, 2000, CESCR General Comment No. 14). The Basic Principles establish that all prisoners must be provided access to healthcare services available in the country, irrespective of their legal situation (Basic Principles, Principle 9). This principle corresponds to the UDHR’s proclamation that everyone has the right to a standard of living adequate for health, including medical care (United Nations General Assembly, 1948, UDHR, Art. 25(1)). Article 12 of the ICESCR provides that every person has the right to the highest attainable standard of physical and mental health. Committee on Economic, Social and Cultural Rights (2000) has stated that all state parties must provide a sufficient quantity and availability of public health and healthcare facilities, goods, services, and programmes (CESCR General Comment No. 14: para. 12).
Significantly, the Committee’s interpretation does not distinguish between prisoners and other citizens. The obligation under Article 12 and the Basic Principles is therefore to provide prisoners with the same level of treatment available to the community as a whole. This interpretation is reinforced by the Nelson Mandela Rules, which state that prisoners should be offered the same standards of healthcare available in the community (Nelson Mandela Rules, Rule 24).
The right to hygiene can be derived from both the right to health and the prohibition of degrading or inhumane treatment (Lines, 2008: pp. 3-53). Incarceration can pose a major hazard to human health due to neglected hygiene standards in prisons (Brinkley-Rubinstein, 2013: p. 1). Prisoners are statistically more likely to contract infectious diseases including HIV and tuberculosis (Brinkley-Rubinstein, 2013: p. 3; Schmitt et al., 2010: pp. 5-7). Under Shari’a law, prisoners must be accommodated in a manner that secures their health and hygiene needs, including access to fresh air, heating or ventilation as necessary, showers, and lavatories (Al-Shirazi, 2017). The Nelson Mandela Rules contain several provisions on hygiene and sanitation, requiring that prisons be equipped with adequate shower and bathing installations with suitable water temperature, that bathing be available no less than once a week, and that prisoners maintain personal hygiene (Nelson Mandela Rules, Rules 15-18).
Nutrition is another critical aspect of health-related rights. Nelson Mandela Rule 22 provides that every prisoner has the right to food with adequate nutritional value for health and strength, of wholesome quality, prepared and served by the prison administration. Proper food with adequate nutritional value is an important aspect of the right to dignity and humane treatment under both Article 3 of the European Convention on Human Rights and Article 7 of the ICCPR (see also Dudchenko v. Russia, 2017: para. 130). The Islamic tradition, as articulated by Imam Ja’far al-Sadiq, teaches that prisoners should be detained, fed, and treated well (Al-Shirazi, 2017: Chapter 4).
4.2. Privacy, Family, and Religious Rights
The right to private and family life is virtually uniformly recognized across legal systems and represents one of the oldest human rights (Warren & Brandeis, 1890: pp. 193-220). Prisoners, like any other persons, enjoy these rights, though different standards may apply given the constraints of incarceration. Neither the Basic Principles nor the Nelson Mandela Rules contain explicit provisions on private life or privacy as such. However, privacy protections can be derived indirectly from related provisions. For example, Nelson Mandela Rule 50 provides that searches of prisoners and cells must be conducted in a manner that respects the inherent human dignity and privacy of the individual being searched. Rule 65 recognizes the right to privacy in connection with religious rights, enshrining prisoners’ right to visit pastors in private (Nelson Mandela Rules, Rule 65(2)).
The situation is considerably clearer with respect to family-related rights. The Basic Principles connect this right with the right to remunerated labour as a means of supporting one’s family (Basic Principles, Principle 8). The Nelson Mandela Rules contain explicit provisions in this regard, with Rule 58 providing prisoners with the right to communicate with their family and friends regularly through written correspondence or in person. Access to family visits cannot be restricted even for disciplinary purposes except for a limited time and only for purposes of security and order (Nelson Mandela Rules, Rule 43). Under Shari’a, the Islamic legal system is notably liberal in this regard, with an additional provision that students have the right to visit and attend lectures of their imprisoned teacher—teachers remain teachers even in prison (Al-Shirazi, 2017).
The right to family life extends beyond existing relationships to encompass the creation of new family relations. In Frasik v. Poland, the European Court of Human Rights confirmed that prisoners enjoy the right to marry under Article 12 of the Convention (Frasik v. Poland, 2010: paras. 91-93). Research has extensively explored how the family relations of prisoners affect their mental health and the success of their rehabilitation (Bays et al., 1991: pp. 254-257). McCarthy has further noted that imprisonment is difficult for the family itself, and that proper communication can be crucial for the repair and maintenance of family relationships (McCarthy, 2018: pp. 378-395). Kuwait has introduced legislation following these principles, placing the family at the centre of psychological growth and development (UN Human Rights Committee, 1998, HR/CRC/98/48).
4.3. Protection from Violence
Violence in prisons is a frequent occurrence, both between inmates and between guards and prisoners (Ellis, Grasmick, & Gilman, 1974). This phenomenon has been the subject of extensive interdisciplinary, sociological, and psychological research (Zimbardo, 2008). Violence should be avoided as it can potentially infringe upon prisoners’ rights to dignity, humane treatment, and even their right to life. International human rights law has therefore established numerous safeguards to protect prisoners and prison staff from arbitrary violence.
Given the prison environment, where tensions are often elevated, some degree of force may be necessary. The Nelson Mandela Rules establish two crucial principles in this regard. First, Rule 82 prohibits prison staff from resorting to the use of force except in self-defence, in cases of attempted escape, or in response to active or passive physical resistance to an order based on law or regulations. Second, Rule 76 provides that staff members should receive proper training concerning security and safety, including when and how to resort to force. The implementation of these rules in Kuwait requires further research, as understaffing, corruption, and abuse of power have been identified as significant concerns requiring scholarly attention from a legal perspective (Jones, 2019; Savage, 2021).
Disciplinary measures are also subject to human rights limitations. As noted earlier, restrictions on family visits are rarely compatible with the right to family life. Similarly, there have been documented cases of penitentiary centres imposing additional imprisonment time as a form of disciplinary sanction (Amnesty International, 2021). The proper regulation of disciplinary procedures within prisons represents an area requiring further research and development within the Kuwaiti context.
5. Contemporary Challenges for the Protection of Prisoners’ Rights
This section outlines current issues facing Kuwait in relation to prisoners’ rights, based on international and non-governmental organisation reports, and considers possible solutions. These challenges are not unique to Kuwait but reflect broader trends affecting prison systems worldwide.
5.1. Prison Overcrowding and Standards of Care
One of the most significant challenges facing the Kuwaiti prison system is overcrowding. In 2022, Kuwait was required to pardon prisoners in order to reduce the incarcerated population and provide better care for the remaining inmates (The New Arab, 2021). This included the deportation of foreign nationals to serve sentences in their home countries and the release of minor offenders (US Bureau of Democracy, 2021: p. 5). Overcrowded prisons have been a major concern not only for dignity but also for health, particularly during the COVID-19 pandemic (Penal Reform International, 2020). Overpopulation reduces the capacity of prisons to rehabilitate offenders or to protect society effectively (Rogers, 1982: pp. 52-53), and increases the likelihood of violent outbursts between inmates.
Al-Eifan and Alayash have proposed an alternative to traditional incarceration that may help address overcrowding in Kuwait (Al-Eifan & Alayash, 2014: pp. 697-722). They argue that restitution orders, rather than criminal proceedings resulting in imprisonment, may be significantly more efficient for certain categories of offences. Such restitution can take various forms, including payment of monetary compensation, participation in work programmes, or provision of services to the injured party. While using a civil law remedy for criminal matters may appear unconventional, both systems pursue similar objectives, including public safety and economic efficiency. Should this approach prove effective, it could offer a potential solution to the overcrowding problem while maintaining appropriate responses to criminal conduct.
5.2. Female Prisoners
Women require special care in prisons, and penitentiary institutions should accommodate their particular needs (Bangkok Rules, Rules 10-18). According to Al-Shirazi’s codification of Shari’a law relating to prisoners’ rights, women must be provided with access to facilities and medical care similar to those available outside prison (Al-Shirazi, 2017). Pregnant women require additional care, and where the prison environment poses a danger to her or her child, she must be transferred to a civilian hospital where these needs can be appropriately met. Despite the challenges involved (Buncy & Ahmed, 2014: p. 16), particularly given male guardianship rules over children (Middle East Eye, 2022), women can also keep their children in prison after birth and are provided with necessary childcare equipment (Al-Shirazi, 2017).
Perhaps among the most important aspects of care for female prisoners is the accommodation of victims of gender-based violence. The Bangkok Rules provide that women should be subjected to comprehensive screening of mental and physical health to determine, inter alia, whether they have suffered sexual abuse or other forms of gender-based violence prior to incarceration (Bangkok Rules, Rule 6). Women are to be treated according to their mental condition, particularly if they have been victimized, in order to properly secure rehabilitation. Despite the impact of CEDAW on Kuwaiti social and legal life (George, 2020: pp. 43-64), the treatment of women in the Kuwaiti prison system remains an area requiring further research and development.
6. Conclusion
This article has examined the protection of prisoners’ rights under international human rights law and Kuwaiti national legislation, revealing both substantial alignment and areas requiring further development. The international framework, established through binding instruments including the ICCPR and ICESCR, regional treaties such as the Arab Charter on Human Rights, and soft-law standards including the Nelson Mandela Rules and Bangkok Rules, provides comprehensive guidance for the treatment of incarcerated individuals.
Kuwait’s legal system, shaped significantly by Islamic Shari’a, demonstrates considerable compatibility with international human rights standards. The analysis reveals that the theoretical foundations of rights under Shari’a, particularly the concept of mujrimun emphasising rehabilitation and the public interest, align closely with the goals articulated in international instruments. Indeed, when properly applied, Shari’a principles may offer enhanced protections for prisoners’ dignity and welfare.
Fundamental rights of prisoners, including health-related rights encompassing access to healthcare, hygiene, and adequate nutrition; privacy and family rights; and protection from violence, are recognized under both international law and Kuwaiti national legislation. The Nelson Mandela Rules have been particularly influential in establishing detailed standards that both complement and extend the general provisions of binding treaties.
Significant challenges remain, particularly in addressing prison overcrowding and ensuring adequate standards of care for all prisoners. The specific needs of female prisoners require continued attention, building upon the framework established by the Bangkok Rules and CEDAW. The development of the Arab Court of Human Rights offers promise for enhanced regional enforcement of human rights standards, though its effectiveness will depend upon broader ratification of its establishing statute.
This article identifies a notable gap in the academic literature concerning the comparative analysis of prisoners’ rights protection in the Kuwaiti context. While substantial case law and legislation exist, there is insufficient research on how these standards are implemented in practice. Future research should address this gap, particularly regarding the treatment of female prisoners, the implementation of violence prevention measures, and the development of alternative sentencing approaches to address overcrowding.
The protection of prisoners’ rights represents a continuing challenge for all legal systems. Kuwait’s engagement with international human rights mechanisms, combined with its distinctive legal heritage, positions it to contribute meaningfully to the ongoing development of standards for the treatment of incarcerated persons. The compatibility demonstrated between Shari’a principles and international human rights law suggests that effective protection of prisoners’ rights need not require the abandonment of cultural and religious legal traditions, but rather their thoughtful integration with evolving international standards.