On 12 June, CICJ and NSCR organised an Expert Meeting entitled ‘Punishing International Crimes in Domestic Courts: Sentencing, Incarceration and Reintegration’. Here you can find a report of this seminar.
By Adina-Loredana Nistor.
Previously published in the December 2017 issue of the Newsletter Criminology and International Crimes.
“Time is the longest distance between two places.” – Tennessee Williams, The Glass Menagerie
They say time heals all wounds. That the pain diminishes, that the sorrow quietens. But can such a statement hold true when the wounds inflicted bear the memory of extraordinary violence, committed in extraordinary circumstances, during vicious conflicts that have over and over again shocked the world? Until a few decades ago, victims of mass atrocities were regarded as collateral damage in what were deemed to be necessary battles, thrives for independence and power, struggles between various groups of people, all wanting to gain a significant spot on the world map. However, the way in which the world had been responding to armed conflict and often unnecessary violence inflicted on civilians was about to change. And this change would bring new approaches to how perpetrators of gross human rights violations were about to be held responsible and how the punishment received would fit the crimes.
On 12 June 2017, professionals trained in (international) criminal law attended the Expert Meeting “Punishing International Crimes in Domestic Courts: Sentencing, Incarceration and Reintegration” organized by the Centre for International Criminal Justice (CICJ), VU University Amsterdam, and the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR). The meeting was supported by a VENI research grant from the Dutch Organization for Scientific Research (NWO) of Barbora Hola, by the NSCR and the A-lab. Through four moderated panels, the experts from around the world addressed (i) theoretical considerations on the issue; and the situation of domestic sentencing practices for international crimes in countries from (ii) former Yugoslavia, (iii) Latin America and (iv) Africa & Europe. The meeting, presided by Barbora Hola and Joris van Wijk from VU Amsterdam, opened with an introductory overview of the topic and on the historical considerations that need to be taken into account when discussing the present time reality of international criminal law.
It was only in the aftermath of WWII that a consensus was reached and when international legal recognition that crimes could invoke individual responsibility was achieved. This precedent created a split between two worlds: a world before the term genocide was coined, and the new world which now had a name for the unconceivable intentional destruction of people. Numerous international trials have taken place since the Nuremberg judgements were delivered. Prosecutions at domestic courts are also increasingly taking place and those responsible for monstrous crimes against humanity, war crimes and genocide are being punished. In the realm of ordinary, domestic crimes, imprisonment is a common form of punishment for violent offences in numerous countries. A similar approach has been adopted at the international level where international crimes have been prosecuted. However, despite the creation of various courts and tribunals and of the permanent International Criminal Court (the ICC), the numerous (imprisonment) sentences that have been passed and the fact that many international prisoners have served their time and have even returned to their home countries, an international penology (or practice) to offer guidance on how to address international perpetrators in terms of rehabilitation or integration is still lacking behind. Nevertheless, the enforcement of these international punishments continues to take place at the domestic level, in the prisons of a small number of States, which agreed to accept international prisoners.
International standards, impoverished domestic prisons: “the prisoners eat better than the staff”
A few of the panellists discussed the issue of international versus national standards. When envisioning a harmonization of the two, one cannot help but notice the dichotomy this process entails. Certain African countries regard the international criminal system, which for many is embodied in the ICC, as a force that separates the two (Africa and the ICC), while it seeks to have them collaborate. One of the speakers at the meeting underlined that the problem may not be one of a clash between domestic and international standards, since most African countries adhered to regional or international standards, but that is rather a matter of (insufficient to non-existing) resources. It is not for a lack of willingness that certain countries find it challenging to offer conditions of imprisonment that do not infringe upon the rights of the imprisoned, but rather the financial burden of achieving such conditions. In many national prisons, issues such as over-crowding and overall extremely poor conditions become even more controversial when the same buildings have separate wing for international prisoners, which are often created with the assistance of the international community. These wings adhere to higher international standards, and their prisoners benefit of better overall conditions compared to other, domestic prisoners. To quote one panellist, they “eat better than the staff” that work in these institutions. Ultimately, as the international standards are indeed an ideal that cannot be reached by all, they nevertheless serve as a model. Nations should always strive to reach this ideal, and not take steps back or lower the bar. On the other hand, if prison conditions of those considered “the most responsible” tried by the international courts are so much better compared to many of their followers tried and incarcerated by domestic courts, in ordinary existing prison, one might wonder what message such system sends.
Between then and now, between atrocities and trials
All presentations discussed different implementations of international standards into various national systems, and how the two merged and created new hybrids. Judges working in international courts and tribunals also bring with them experiences gained while working in domestic courts, thus shaping the way in which international criminal law is applied throughout proceedings and sentencing. The speakers also discussed how societal needs differ from the end of a conflict, when a retributive approach is often sought, to the moment the conflict and the crimes start to become history and other societal needs of often take over. As atrocities slowly become distant memories, societies transform, the laws change and the passing of time becomes a mitigating factor for those who stand trial for past crimes. Those responsible of heinous offences have often times been relieved from their sentences as a result of blanket pardons issued by certain governments, or their time in prison has been significantly reduced based on the perpetrators’ ‘good behaviour’ while incarcerated.
The selected papers from the expert meeting will be published in a special issue of the International Criminal Law Review, edited by Barbora Hola, Joris van Wijk and Roisin Mulgrew.