The enforcement of sentences rendered by the international criminal courts and tribunals is quite distinct from the way in which prison sentences are enforced in domestic jurisdictions. The international criminal courts do not have a permanent prison at their disposal as their detention facilities were set up to hold only those awaiting trials or on trial. The tribunals are dependent on states to enforce their sentences. According to their Statutes the imprisonment is served in a state designated from a list of states that entered into a sentence enforcement agreement with a tribunal. The enforcement of international sentences is, in other words, “outsourced” to states willing to do so. The imprisonment is governed by the law of the enforcement state and subjected to the supervision of the tribunal.
By now 45% of all international convicts have been released, while a majority of these (84%) has been granted early release by the ICTY and ICTR. As of July 2013 the SCSL had not granted any early release yet. Similar to the regulation of conditions of imprisonment, domestic laws of individual enforcement countries govern the eligibility of international convicts for early release. In practice domestic laws regarding early release are divergent. For example in France, Finland or Italy convicts are eligible for early release after serving 1/2 of their sentence. In Belgium, Denmark, Sweden, Italy or Norway the necessary period is 2/3 of the sentence. Spain generally requires convicts to serve 3/4 of an imposed sentence. In Mali or Benin the domestic laws do not regulate any specific conditions in this respect. The final decision whether a person is to be released, however, lies with the Presidents of the tribunals.
As of 16 July 2013, 54 individuals applied for early release and early release was granted by the tribunals to 47 individuals. Although the reasons for granting or rejecting an early release application vary across cases, it seems that the decisive factor for granting early release is whether a defendant already served two-thirds of his/her sentence. It has become standard practice of the President to consider international prisoners eligible for early release after they have served two-thirds of their sentence.In practice, this means that majority of international convicts is actually serving much lower sentences than the sentences handed out by international judges at the end of a trial. Sentencing at the international tribunals is often criticized for its leniency and the practice of releasing almost all the international prisoners after serving 2/3 of their sentences might add additional fuel for the critical voices.
Theoretically the President is asked to consider also other factors when deciding on early release, such as gravity of crimes, rehabilitation of a prisoner or his/her cooperation with the tribunal. Often these factors, however, seem to be only pro forma mentioned by the President in early release decisions. No critical assessment of any of them seems to take place. For example, a lack of rehabilitation has hardly ever blocked an early release of an international prisoner. 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.In domestic criminal proceedings individuals are after being (early) released usually subjected to reintegration programmes and supervision of a parole officer. Nothing of this sort exists at the international level.
In general, the faith of released international prisoners is to a large extent determined by the way the conflict ended in their respective countries. The former Yugoslavia disintegrated into various successor countries to a large extent reflecting ethnic lines of the former fighting groups. The ICTY Serb prisoners are thus free to return to Serbia, Croats to Croatia, or Bosniacs to Bosnia, and are often welcome as war heroes in their respective countries. In contrast, Rwanda is now governed by a Tutsi based government and the ICTR Hutu defendants do not want to return to Rwanda fearing discrimination or additional prosecutions. 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.
International prisoners are scattered around different prisons across and within various countries (14 European and 3 African countries are enforcing international sentences) and are subjected to largely differing prison conditions with different daily regimes and varying emphasis on rehabilitation. The majority of the sentence enforcement agreements concluded between the tribunals and state authorities refer to international standards relating to treatment of prisoners. Despite this “common ground”, prison conditions vary greatly from state to state.
Prison systems in individual states are highly dependent on the national penal culture. In some states punishment is focused on retribution, in others rehabilitation is emphasized. These differences have obvious consequences for the imprisonment conditions and treatment of prisoners. Not only are there differences between individual countries regarding the general prison systems, but also within countries prison conditions largely vary among different prisons or even prison units within the same prison depending on a security level. Whether an international prisoner is placed in a high security prison, protective custody, regular prison or, for example, an open prison has a great consequences for his daily life and influences the execution of his/her sentence to a considerable extent. The law of the tribunals is virtually silent regarding the type of prisons international convicts shall be sent to. This determination lies with domestic authorities and arguably differs per state, but also per convict. This in practice leads to various discrepancies among international prisoners as to their daily prison regime and possibilities. For example, prisoners in Norway are living in single cells, generally do not share any sanitary facilities and have access to various activities developed for ordinary domestic criminals (even though language difficulties might in practice render the access moot). In contrast, in Italy Goran Jelisic (convicted for 40 years) had been at times sharing his cell with two to three other inmates and had had very limited possibilities to participate in work and study programmes.
Generally, ICTY prisoners are typically integrated into domestic prison populations in the respective prisons. They are treated as any other foreign prisoners in the domestic context. In Africa, international prisoners are separated from domestic prisoners and concentrated in a special ‘international’ wing.
Prison authorities have to deal with the fact that international prisoners are usually incarcerated in countries far away from their countries of origin and that this may substantially limit possibilities of family visits. For example, in France a prisoner was never visited by his family for four and a half years, according to his counsel due to practical obstacles such as costs of travelling and housing or visa requirements. Prison officials from Norway and Rwanda underlined the extra costs of family visits to the international prisoners and the limited possibilities of international prisoners to maintain contact with their families. For this reason the national authorities may provide special treatment for international prisoners. When international prisoners are visited by their family members in Norway or France, for example, special arrangements are made regarding visiting hours. These are adjusted to allow the prisoners to spend as much time as possible with their family within the limited timeframe available. In other instances, prison authorities have adopted specifically tailored measures to alleviate the unique problems facing international prisoners.
A Norwegian prison official on this: ‘We asked ourselves how we could give [one of the international prisoners] something as a compensation for the lack of family contact and the limitations he faced in leaving prison. So he could take a coffee outside, get some physical activity.’ Prison officials offered the international prisoner the possibility of additional escorted leaves from prison. This started with a closely monitored visit to the local town, gradually leading to several trips a month which included cycling, Nordic skiing, watching football matches or making a two-day hike in the mountains. Not all international prisoners are, however, provided with such options.
With respect to leaves, our data suggest that the approach across countries and prisons, again, differs considerably. National officials generally deny requests to leave the country of imprisonment and go home, at times even when faced with tragic personal circumstances. In Sweden international prisoners are not permitted to go on unaccompanied leaves: ‘They can, together with prison staff, three to four times a year go on leave for a maximum period of four to six hours.’ In contrast, a representative from a Norwegian prison stated that:
‘[a]lso the Hague people can go on leave. This is not directly after their arrival. But if they behave well, they too are allowed to go on (unaccompanied) leave. In principle, detainees have the right to a maximum of 18 days per year. If they have children or special needs, this can be upgraded to 30 days. Inmates can for example request to visit a friend, or stay a weekend over with family members. The prison officers can set conditions, for example that they are not allowed to leave a certain area.’
One of the prisoners in Norway who became acquainted with a Serbian family living in the vicinity of his prison was for example allowed to spend some weekends at their place. In contrast, prisoners in Rwanda are not under any circumstances allowed to leave the prison, unless they need to see a doctor. In such cases, they are escorted by prison wardens to a medical facility.
One of the most interesting questions regarding imprisonment of international criminals is their rehabilitation. Rehabilitation is often cited as one of the goals of international sentencing and it is particularly emphasized at the enforcement stage. In Europe international prisoners are (with slight modifications) incorporated into domestic prison populations and are generally offered the same rehabilitation programmes as ordinary domestic criminals. To many international prisoners, working on rehabilitation may mean not much more than working in the laundry department.
As one of the prison officials in Norway noted: ‘For us, it is important to treat them like anybody else who committed a serious crime.’ There are, however, several problems with this approach. First, international prisoners are usually kept in high security establishments and do not progress through the system to lower security regimes. Rehabilitation programmes in many countries are adjusted to the progressive nature of incarceration and a larger variety of rehabilitative activities is available in lower security prisons.
Second, rehabilitative programmes are usually offered in the local language of the prison, which may prevent international prisoners from participating. Finally, and most importantly, it is questionable to what extent rehabilitation programmes developed for ordinary criminals are suitable for international prisoners who committed their crimes under very specific circumstances. Many criminologists consider that those who violated international criminal law are a different type of criminals than ordinary rapists or murderers.
The pertinent question is to what extent domestic prison officers and therapists are able to implement the tribunals’ ambitious goal of rehabilitating international offenders. A representative of a small prison in Norway mentioned that the ICTY never directly or via the Ministry instructed prison authorities to work on rehabilitation. Arguing that it was unusual to have inmates who committed such (levels of) violence, the representative also questioned to what extent the prison would have the expertise to provide such guidance. ‘For normal crimes we have programmes. Programmes like “breaking drug abuse” or “breaking violence”. Many prisoners go to these programs, they talk in group sessions or individually about the crime. (…) But what competence do we have to deal with them [the ICTY convicts]? (…) To think about a programme for war criminals is out of reach (…) We are not educated in these matters.’
International tribunals convict accused individuals when the Prosecution proves beyond any reasonable doubt that the crimes were committed and the accused is responsible for these crimes. The only punishment available to international judges upon conviction is imprisonment. The execution of prison sentences rendered by the international criminal courts and tribunals is quite distinct from the way in which prison sentences are enforced in domestic jurisdictions. The international criminal courts do not have a permanent prison at their disposal as their detention facilities were set up to hold only those awaiting trials or on trial. The tribunals are dependent on states to enforce their sentences. According to their Statutes the imprisonment is served in a state designated from a list of states that entered into a sentence enforcement agreement with a tribunal. The enforcement of international sentences is, in other words, “outsourced” to states willing to do so. The imprisonment is governed by the law of the enforcement state and subjected to the supervision of the tribunal.
In practice, international prisoners are scattered around different prisons across and within various countries (14 European and three African countries are enforcing international sentences). For this reason they are subjected to largely differing regulations and prison conditions and subjected to different daily regimes with varying emphasis on rehabilitation.
It is not entirely clear what considerations, except for political factors, are taken into account when designating an enforcement state. The majority of decisions and communications within each tribunal and with individual states are confidential. For example, the ICTY has concluded enforcement agreements with 17 different European countries, with prisoners scattered across 14 of them. No country has been enforcing sentences for more than 6 ICTY convicts. On the other hand, the ICTR and SCSL have pursued a different designation strategy. The ICTR concluded 7 enforcement agreements with 3 African and four European countries. The vast majority of the ICTR prisoners are sent to 2 countries: Mali and Benin. The SCSL entered into an enforcement agreement with 4 countries. All its convicts (except of recently-convicted Charles Taylor who was transferred to the UK), however, are serving their sentences in Rwanda. The ICTR and SCSL prisoners are not only concentrated in a very limited number of countries but also serve their sentences in a special prisons or special wings interacting only with each other in contrast to the ICTY prisoners who are dispersed into domestic prison populations.
Why are these prisoners not sent back to their countries of origin to serve their sentences home? Since the conflict in the former Yugoslavia was still ongoing when the ICTY was established, countries of the former Yugoslavia were excluded from the possibility to enforce ICTY sentences. It has been argued, however, that since the circumstances have fundamentally changed, it should by now be possible to (also) enforce ICTY sentence in the countries of the former Yugoslavia, especially taking into account the possibility of the ICTY to transfer cases for trials to these countries. It seems that political reasons and the fear that the ICTY convicts will be accepted as war heroes with VIP treatment prevents this from happening.
In contrast to the ICTY, the ICTR Statute explicitly includes Rwanda as one of the possible enforcement countries and in the SCSL Statute, Sierra Leone is even given preference to enforce the Court’s sentences. Only ‘if circumstances so require’, shall the individuals convicted by the SCSL serve their imprisonment in another willing state. In practice, none of the ICTR or SCSL convicts is serving his/her sentence in the country where (s)he committed crimes. The reasons for this range from security fears and the perceived inability of domestic prison authorities to prevent escape of international prisoners, to humanitarian considerations relating to conditions and the treatment of prisoners, such as overcrowding of prisons or insufficient sanitary conditions. Despite the fact that Rwanda has built a new prison facility - Mpanga prison - to ensure that ICTR convicts can serve their sentences in accordance with international standards, concerns have been raised that ICTR prisoners could spend their whole sentence in isolation in violation of their right not to be subjected to inhuman punishment. Currently, the prison is exclusively used to host the SCSL convicts and persons transferred from ICTR and third countries to face domestic prosecution in Rwanda.