Rehabilitation and Early Release of Perpetrators of International Crimes: A Case Study of the ICTY and ICTR

Abstract

While cited as one of the goals of international sentencing and used as a factor for deciding on early release, rehabilitation of perpetrators of international crimes has thus far been neglected by academia and practitioners. This article presents an analysis of all ICTY and ICTR early release decisions handed down until July 2013, indicating how the tribunals have conceptualised rehabilitation of these ‘enemies of mankind’. After observing that the success rate of rehabilitating international prisoners is very high, we suggest that this may be attributable to (i) a lack of the Presidents’ critical evaluation of the materials upon which he bases his conclusions regarding prisoners’ rehabilitation and (ii) the fact that perpetrators of international crimes are a ‘different kind of perpetrator’. We offer suggestions to re-conceptualise rehabilitation in the context of international crimes and to adjust the enforcement system of international sentences in order to better promote rehabilitation.

The ICTY Library

“…Their level of rehabilitation plays a role in making that decision. However, it is assessed by looking at their general conduct in prison, whereas showing remorse or accepting responsibility seems to be of very limited consequence (Kelder, Holá, & van Wijk, 2014, p. 1186, as further demonstrated by Holá et al in this special issue. Resulting in an early release in all but exceptional circumstances, this automatized practice enables an inmate to return to his community after serving two thirds of full sentence with almost no attention paid to attitude toward the crimes he was convicted.…”

Does Remorse Count? ICTY Convicts’ Reflections on Their Crimes in Early Release Decisions

“…We have already discussed elsewhere that a clear conceptualization of rehabilitation of international prisoners is lacking and that many different factors, including prisoners' reflection on crimes, are taken into account by the President in different decisions without a principled approach (cf. Hola & van Wijk, 2016;Kelder et al, 2014). As the next section shows, ICTY prisoners have reflected on their crimes in many different shapes and forms, and it seems that no matter whether a convict acknowledges his responsibility, denies, or feels truly sorry, as a rule of thumb (with a couple of notable exceptions), the vast majority is early released after having served two thirds of their sentence.…”

“…Generally speaking, acknowledgement of the past wrong behavior and expression of remorse are beneficial for reintegration in society and can be considered signs of offender's preparedness to socially function in an acceptable way. However, this may be different in the context of international crimes and international criminal courts (Hola & van Wijk, 2016;Kelder et al, 2014). A convicted war criminal, who upon release by an international tribunal, plans to return to his country, where a society still endorses ideology and animosities, which fueled the war, may actually have an interest in denying having committed any crimes.…”

“…Rehabilitation ultimately aims to reintegrate the convict in society and to enable him "to socially function in a way that is acceptable to both himself/herself and society" ( van Kalmthout & Durnescu, 2008, p. 28). As we already touched upon in our previous work (Hola & van Wijk, 2016;Kelder, Hola, & van Wijk, 2014), in the context of international crimes and international criminal courts, this might, however, lead to a rather paradoxical scenario. If a society, to which a convict is released, still endorses and justifies the past violence, his reintegration prospects "to socially function in an acceptable way" after being released from a foreign prison might be much better, if he does not acknowledge having committed any crimes, nor shows any remorse.…”

Penal welfarism ‘gone global’? Comparing international criminal justice to The Culture of Control

“…Rehabilitation of convicted war criminals, or the ‘international prisoner’, has never been a dominant objective in international criminal justice. Although rehabilitation, or ‘resocialization’, 3 is referred to as a factor in early release decisions of those convicted by the ICTY, ICTR, and the ICC, the conceptualization and content of rehabilitation of the ‘“enemies of humankind” has been entirely neglected by academia and practitioners alike’ (Kelder et al., 2014: 1179). The drafters of the ad hoc international criminal tribunals’ statutes ‘almost entirely neglected questions regarding the enforcement of sentences’ (Holá and van Wijk, 2014: 8).…”