By Barbora Hola and Joris van Wijk –
An extended version of this commentary is available here.
In her commentary Jessica Kelder raised the extremely interesting and in academia very much neglected issue of rehabilitation of international criminals during their incarceration. The matter of rehabilitation, however, is only one of many unexplored issues of the post-conviction phase at the international criminal tribunals. Generally, the question what happens to an individual convicted by an international criminal tribunal after the guilty verdict has consistently been neglected. In which countries do international prisoners serve their sentences? In what prisons and under what conditions? How many international convicts have already been released and how much of a sentence did they actually serve? What do individuals convicted for genocide, crimes against humanity or war crimes do after their release and how do they reintegrate back to their communities?
The empirical reality of the post-conviction phase at the ICTY, ICTR and SCSL largely confirms critical views expressed by the limited number of authors who have reflected on the current setup of the enforcement system of international sentences: it is not transparent, it is conceptually underdeveloped and leads to inequalities in the treatment of international prisoners. International prisoners are incarcerated in various countries around Europe and Africa and it is not clear what considerations, except for political factors, are taken into account when the tribunals decide on the enforcement country. The ICTY prisoners are scattered across 13 European countries and no country holds more than six ICTY convicts. The vast majority of the ICTR prisoners are sent to two countries: Mali and Benin and all the SCSL convicts, except for Charles Taylor who was recently transferred to the UK, are serving their imprisonment terms in Rwanda.
International prisoners are scattered in different prisons across and within these countries and subjected to largely differing prison conditions. On the one hand, within Europe they are integrated into domestic inmates’ populations and typically serve their time in units with domestic murderers, child molesters, or drug traffickers. They follow similar daily routines and are offered existing rehabilitation programmes. As pointed out by Kelder, one might question whether rehabilitating génocidaires and war criminals in the same way as ordinary delinquents makes much sense. Despite being usually convicted of very serious crimes, the international criminals committed their crimes under very specific (ideological, social, individual) circumstances. One might argue this should be duly reflected in designing their rehabilitation programmes. On the other hand, in Africa, international prisoners serve their time in special wings/prisons built or adjusted exclusively for international convicts in order to conform to international prison standards. This, however, creates huge discrepancies in the treatment of international prisoners and domestic prisoners not so ”lucky” to be convicted by an international court. Take the example of the Mpanga prison in Rwanda where hundreds of génocidaires convicted by Rwandese domestic courts are imprisoned with almost no privacy, sleeping in common dormitories and sharing social facilities. Within the same complex, a special wing for international convicts was built, currently hosting exclusively eight SCSL convicts, where each convict has his own cell with attached facilities, has access to computers and a possibility to exercise in the prison gym.
Almost half of all the persons convicted by the international tribunals have already been released – the majority of them before serving their full sentence. Sentencing at the tribunals (in particular at the ICTY) is criticized for its leniency especially in light of the gravity of crimes. In practice, the vast majority of convicts do not even serve their full sentences. Forty-six individuals (84% of the released) have been granted early release, generally after having served 2/3 of their imprisonment term. The tribunals’ Presidents consider these individuals rehabilitated from international crimes since they behaved well, attended work activities or language courses in the respective prisons and some of them eventually expressed remorse for their crimes. On the face of it, this high success rate in rehabilitating international prisoners can be considered a demonstration of a successful correctional policy. In how many national jurisdictions does it happen that almost all offenders of serious (conventional) crimes qualify for early release? At the same time, exactly this high ‘success rate’ begs a number of questions. Are offenders of international crimes really so well behaved and really so easy to rehabilitate as these data suggest? If so, how could that be explained? Perhaps by the nature of the crimes they committed or the nature of their personalities? Or could it be explained by completely other factors? The President of the tribunals is highly dependent on information provided by the authorities of the enforcing states when deciding on early release. Could it be that these enforcement states are somehow more lenient in their assessment of these international prisoners’ behavior and levels of rehabilitation compared to serious offenders who are to reintegrate in their own societies?
After their release, the international prisoners simply disappear from the radar of the international community (unless they enter a witness protection programme and cooperate with the tribunals) and there is no supervision of their conduct or any attention paid to their activities. Some go back to their countries of origin and return to political posts they held prior to or during the periods when crimes were committed. Some return as celebrated wartime heroes, write a bestselling book about their ‘unfair’ treatment at the tribunal and become public figures frequenting TV shows. Some just go back to their old house, cannot find a job, feel rejected by a society, lose their pension entitlements, and fight to make a living. Some simply cannot go anywhere since no country is willing to accept them and get stuck in the UN safe house together with those acquitted by the same international criminal tribunal who ended up in the same “limbo” situation.
It might be questioned whether this picture indeed represents what we as the international community envisage by “doing justice”. In any case, the inequalities and a lack of principled approach towards the regulation and enforcement of international sentences have clear repercussions for the tribunals’ legacy. To what extent the current system of enforcement of international sentences promotes or hinders the achievement of the multiplicity of goals the international tribunals claim to achieve, such as retribution, deterrence, rehabilitation or reconciliation, is a matter of considerable importance for any future evaluation of their effectiveness and legitimacy. In addition, the ICC adopted a largely similar approach to the enforcement of its sentences and despite being a permanent international criminal court the post-conviction phase as regulated in the ICC Statute largely resembles the system at the international criminal tribunals. It is therefore absolutely essential to further study the current system of enforcement of international sentences in order to evaluate the functioning of the ad hoc tribunals and their effectiveness and draw lessons for the future. This brief overview raised many important and interesting questions for this endeavor and might serve as a starting point for future discussions on the post-conviction stage of the international criminal justice system.