Veselin Slijvancanin (1963) was sentenced in 2007 by the ICTY. After serving 2/3 of his prison sentence he was sent back home where he was welcomed as a war hero, wrote a bestseller, became the guest star in several television shows, showing no remorse whatsoever. Tharcisse Muvunyi (1953) was sentenced in 2000 by the ICTR. He served his entire sentence in Tanzania and still lives in a UN safe house. He cannot return to Rwanda because it will not be safe for him there. These two examples illustrate that the eligibility for early release and life after release run unevenly in the international criminal justice system. Both are (surprisingly) understudied factors even though they are crucial for the preservation of the rule of law and the legitimacy of the international criminal tribunals. Therefore, the inequalities in circumstances for early release and the inequalities that perpetrators face after they are released are thought-provoking.
The enforcement of international sentences at tribunals is largely governed by the domestic laws of the individual enforcement states. Many scholars speak negatively of this fact arguing that international criminal law has become ‘politicized’, as different institutions across several countries are involved in the decision-making at the tribunals and influence things such as an early release. As a consequence there are significant inequalities in the treatment of international prisoners even when the central ambitions of international criminal law were and are meant to be pursued on a global level As Dana (2014) argues, “idealism about what international prosecutions can achieve has distorted the condemnation of high-ranking perpetrators” and consequently affected the just distribution of punishment among the actors responsible for mass atrocities.
Where have they gone?
When international prisoners are released, they are literally off the radar. Other than the so-called “Practice Directions” of for example the Special Court of Sierra Leone (SCSL) that has a guide towards conditional early release and the monitoring of SCSL prisoners, there is no official guideline on what is to happen to international prisoners when they finish their sentence in prison. Empirical research done by Holá and van Wijk (2014) demonstrates that the fate of international criminals mostly depends on the way the conflict ended in the respective countries. Whereas Hutu defendants are not eager to return to Rwanda as they might fear other prosecutions or some form of discrimination with a Tutsi-government in place, Serbs, Croats and Bosnians are often welcomed as war heroes on their return. Do the post-conviction situations in the two cases cohere to the same criminal justice criteria and more importantly, the rule of law itself?
The politicization of international justice
The tribunals aim to achieve several goals such as rehabilitation, retribution, reconciliation and deterrence through their sentencing but the legitimacy of these goals can easily be questioned when politics are dominating decision-making. Article 28 of the Statute of the International Criminal Tribunal for the Former Yugoslavia describes the conditions for the early release of a convicted criminal as follows:
“If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly”.
Following on from this article, rule 125 (the general standards for granting pardon or commutation) of the ICTY RPE states that the President is meant to consider the following factors before granting release: the gravity of the crime for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor. It is important to realise that these are factors that may be interpreted differently across the enforcement countries.
Success or favouritism?
So far forty-six individuals (84% of those released) were released before finishing their full sentence. Due to good behaviour or expressing remorse for their crime, persons convicted by tribunals are released early and therefore highlight the high ‘success rate’ of rehabilitation. However, as the convicted criminals are scattered across a variety of prisons with diverse circumstances and rules, the information on a prisoner gained by a tribunal will vary. Especially since the rehabilitation of an international prisoner might not be as important as the rehabilitation of a serious offender in the respective country who has to reintegrate in the particular society.
Caring personalities or mere luck? The question of justice
As Holá and Van Wijk point out, the fact that scholars have neglected the study of early release and life after prison in the case of international sentences almost entirely is surprising. Especially as the international criminal tribunals will only exist for a few more years, this may greatly affect the tribunal’s future legitimacy. The conditions under which international prisoners are released and what happens once they return to their country (or elsewhere) can and should be up for more discussion as it is clear many inequalities exist. The post-conviction stage and the way international prisoners end up spending the remainder of their lives calls into question whether or not there should be a principled approach or strategy to prevent inequalities in the situations of these prisoners. As their kind personalities could hardly have been the only deciding factor for early release or a warm welcome in their home country, it is important to consider how the tribunals can do justice equally for all parties involved.