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.’