Offender Rehabilitation in International Criminal Justice: Towards Implementation of Tailored Rehabilitation Programs.

• Author: Maier, Marina
• Position: American Society of International Law's 10th Midyear Meeting

Table of Contents Abstract Table of Contents I. Introduction A. Short statistical overview II. Rehabilitation in international criminal law A. The penological concept of rehabilitation B. Rehabilitation as a sentencing goal in the ICTY decisions C. Lyrical digression D. Decentralized enforcement and rehabilitation III. Rehabilitation assessment in the ICTY and IRMCT early release decisions A. Short statistical analysis of early release practices B. Legal framework for granting early release C. The lack of uniformity of rehabilitation assessment 1. Indications of rehabilitation in the early release decisions 2. Rehabilitation finally taken seriously? 3. Presidential discretion IV. Signs of rehabilitation at post-incarceration stage A. Life after release does it matter? B. Relevant factors 1. The rank of the perpetrator 2. Age of the perpetrator 3. Time served 4. Enforcement state 5. Ethnicity and homecoming 6. Recidivism V. Improvement proposals never too late? A. Release under conditions B. Tailored rehabilitation programs 1. Typological division of international perpetrators 2. Rehabilitation approach 3. Operational proposals VI. Conclusion I. Introduction

The proceedings at the ICTY, which were meant to establish historical facts about the past, bring justice to those who are responsible for the crimes, and pursue an overarching and ambitious goal of bringing reconciliation to the region of former Yugoslavia (1) unexpectedly led to "the transformation of the convicted war criminals into heroes in their home countries." (2) The lack of attention to the suitability and effectiveness of the rehabilitation programs offered by the prisons in the enforcement states for the perpetrators of international crimes as well as the absence of any such programs at the UNDU, and the unfortunate omission to include the detailed guidelines for the rehabilitation assessment during the early release procedure, led to the systematic early releases of the insufficiently rehabilitated war criminals to their communities. (3) Given the lack of their remorse and public apology and the generally warm welcome of "the heroes" back home, (4) it can be argued that such disrespect towards the ICTY Judgements (5) resulted in the scarcity of the positive effects of the international criminal justice in the affected region in general.

One can question how the rehabilitation of international perpetrators could contribute to the reconciliation process. What is expected of those offenders in addition to standing lengthy trial proceedings that were extensively covered by mass media and further serving their sentences in prisons? They carry a label of "war criminal" even after their release, which sounds even harsher in Bosnian/Croatian/Serbian language ("BCS")--"ratni zlocinac," where the root of the word "zlocinac" is "zlo," which means "evil." (6) While there are other terms to describe a criminal in its conventional sense in BCS--"kriminalac" or "pocinilac," the Yugoslavian war criminals are labelled exclusively with the word "zlocinac." (7) Ideally, they would return from prisons as changed people who sincerely regret what they have done and apologize before their victims. The victims in turn would be ready to accept the apology and move forward together towards reconciliation and re-build the peace in the post-conflict region. However, we need to leave these fantastic aspirations and admit the bitter reality--perpetrators do not always feel sorry for what they have done and nobody can force them to do so. To the contrary, they are often proud of themselves and their deeds and portray themselves solely as "saint protectors of their homeland," who suffer unjust conviction by a "biased western court." (8) Furthermore, the society where they return does not consist exclusively of their victims; in reality, it consists also of their supporters and admirers who, living in the community heavily affected by inter-ethnical war and tensions, often seek "heroes" to justify their own views on the conflict and rightfulness of the actions of their particular ethnical group. (9) Barbora Hola, Joris van Wijk, Francesca Constantini and Armi Korhonnen even go further in assuming that the reintegration of an international perpetrator into the society "might be much better, if he does not acknowledge having committed any crimes, nor shows any remorse" [emphasis added]; (10) there is arguably a certain need of the perpetrators to maintain the course on convincing themselves that they are innocent and do not regret anything. In this unique situation, it seems that the perpetrators re-socialize without being rehabilitated; however, does rehabilitation always imply remorse? The notion of remorse is sensitive; the sincerity of its expression is often questionable; and the views on its value for rehabilitation are different. The present research aims at analyzing the complex and under-researched concept of rehabilitation in International Criminal Law ("ICL"), empirically establishing the insufficient results of rehabilitation of the international perpetrators, primarily focusing on their reflection on the committed crimes.

Generally, criminologists distinguish four stages which the convicted individual passes after the verdict: (i) designation; (ii) incarceration; (iii) early release; and (iv) post-release. (11) The last stage is the least examined in ICJS. (12) Building upon the available information, this research aims to establish the linkages between three of these stages by examining them through the lens of rehabilitation; namely, rehabilitation in prison, rehabilitation assessment in early release decisions, and signs of rehabilitation at the post-release stage. Although the designation of an enforcement state is an important part of the procedure in the decentralized enforcement system, and acknowledging its usually long duration, it can be only concluded that, unfortunately, there were no rehabilitation programs offered at the UNDU during this stage.

For the purposes of rehabilitation assessment, the released Yugoslavian offenders can be divided into two groups: according to the author's research 42 individuals who were transferred to the prisons of the enforcement states, and 26 individuals who served their sentences exclusively at the UNDU. Setting aside the deceased individuals, the analysis of guilty plea statements, evaluation of rehabilitation in the early release decisions as well as the lives post-incarceration of the 38 war criminals who served their sentences in different European prisons ("Research Group") constitutes an essential part of this research. (13) The group of the perpetrators who served their sentences solely at the UNDU are excluded from the empirical part of the analysis since the purpose of this research is to show the unsuitability of the offered penal or criminal rehabilitation programs in the enforcement states for the perpetrators of international crimes. (14) The comparison between prisons' results and the UNDU's results would only make sense if the UNDU offered any rehabilitation model for the detainees; due to the disproportionality of the time served in prison to the time spent at the UNDU, any comparison based on the particular enforcement states would not be suitable for the UNDU group.

It is noted that the information about the post-incarceration phase of the released offenders was collected by the author from different open sources, such as news articles, interviews, books authored by perpetrators, Facebook and LinkedIn personal pages, etc. All the quotations are provided in the author's translation from BSC. Given the general scarcity of information, biased and unreliable local media, the effort is on assessing the information impartially, without distortions and unjustified conclusions. Some information can hardly serve as an indication of any sign of rehabilitation; the perpetrators are often very cautious in expressing their views on the committed crimes. There is certainly a need for more profound interview-based research, where the released perpetrators would have the opportunity to elaborate on their attitude towards committed crimes and the suitability of the rehabilitation programs offered to them; such research would significantly contribute to the existing academic writings.

What is the outcome, apart from the fact that the Research Group showed limited signs of rehabilitation and remorse? The need to act is indisputable, and although Hola and van Wijk, among others, consider abandoning the idea of rehabilitation of international perpetrators completely, (15) the present research provides for statistical data supporting the following: current insufficient results of rehabilitation, claims that the ICJS should be effective at all its stages, rehabilitation should be taken seriously, more attention should be on the rehabilitation in the decentralized enforcement system, and integration of tailored rehabilitation programs ("TRPs") should be considered a challenging but possible operational solution.

1. Short statistical overview

   For the purposes of this research, since it includes a statistical assessment of different aspects, a short overview of the ICTY activities in numbers will be provided. Based on the author's research, the ICTY sentenced 90 individuals, 59 of those have already served their sentences (16) and either returned to their home countries or relocated to a third country. The majority, in fact, returned to their previous homes; however, since the former Yugoslavia disintegrated into various independent successor states, to a large extent "reflecting ethnic lines of the former fighting groups," (17) Bosnian Croats usually relocate to Croatia, whereas Bosnian Serbs to Republika Srpska ("RS") in Bosnia and Herzegovina ("BiH") or Serbia. (18) Twenty individuals are still serving their sentences in prisons. (19) Additionally, as of the date of this writing, August 2020, two...