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Barbora Holá, Maja Munivrana, There is Something Special about War Criminals …: Constructing and Assessing the Rehabilitation of War Criminals at the ICTY/IRMCT and in Croatia, Journal of International Criminal Justice, Volume 21, Issue 1, March 2023, Pages 89–112, https://doi.org/10.1093/jicj/mqad006
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Abstract
This article assesses how the rehabilitation of perpetrators of international crimes is being constructed and evaluated at the domestic level, in particular in Croatia, and how it compares to international practice at the International Criminal Tribunal for the former Yugoslavia (ICTY) or International Residual Mechanism for Criminal Tribunals (IRMCT). The analysis is based on a convenience sample of early release decisions issued by the Croatian judiciary and the most recent early release decisions issued by the IRMCT. Up until very recently, rehabilitation of war criminals has been approached through a rather conventional prism, both at the ICTY/IRMCT and domestically. The most recent IRMCT early release decisions, however, developed a sui generis approach focusing primarily on an offender’s critical reflection on crimes, gravity of the offence and views of the larger community. At the same time, the Croatian approach to assessing rehabilitation remained centred around the perceived risk of reoffending. Due to inconsistencies in incorporating the various factors, however, there seems to be double standards being applied along ethnic lines. In this article, we analyse and contrast rehabilitation assessments and early release practices at the ICTY/IRCMT and Croatia and ask the proverbial question whether there is anything special about rehabilitating war criminals.
1. Introduction
For a long time, post-conviction issues at the International Criminal Courts and Tribunals (ICCTs) evaded the attention of international scholars and the public. These topics have gained prominence only in the recent decade in reaction to the exponential rise in the number of perpetrators who had already served large parts of their sentences and became eligible for early release. Commentators have criticized ICCTs’ dispersed system of enforcement of international sentences; ICCTs’ early release practices; and the conventional understanding of rehabilitation applied by ICCTs to international prisoners.1
As there is no unified international system of sentence enforcement, war criminals2 convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) or International Residual Mechanism for Criminal Tribunals (IRMCT) have been serving their sentences in prisons dispersed all over Europe.3 Consequently, the prison regimes to which these prisoners have been subjected to and rehabilitation programmes in which they have been participating vary. Neither the ICTY/IRMCT nor the various European countries enforcing international sentences have developed specialized rehabilitation programmes for perpetrators of international crimes.4 That is perhaps not so surprising given that the number of convicts each country has received from the ICTY/IRMCT is relatively low and that in these circumstances building a tailored rehabilitation programme would probably not have been economically justifiable or sustainable.5 According to available data, such programmes do not also exist in war-torn countries of the former Yugoslavia, which have prosecuted and sentenced a great majority of war criminals in their domestic courts.6
However, given the sui generis character of international crimes and their perpetrators, scholars have begun to argue for reimagining the concept of offender rehabilitation in the case of war criminals. Since there is a general presumption that outside the context of an armed conflict, war criminals are mostly well-socialized and law-abiding citizens, and consequently fundamentally different from ‘ordinary’ criminals, academics have called for the development of more tailored rehabilitation and resocialization programmes.7 Some have suggested that the rehabilitation of war criminals should be reconceptualized in a way that focuses on social integration and reconciliation.8 At the same time, reconciliation efforts and offender reintegration may not always go hand in hand. For some international prisoners at least, reintegration with their communities may be hindered if they acknowledge commission of any crimes, their personal involvement in the crimes committed or show remorse. Reconciliation on the other hand presupposes acceptance of responsibility, remorse and preferably (public) apology.9
Though academic discussions on reimagining the traditional conception of rehabilitation for war criminals are still ongoing, the criticisms of erratic early release practices, including assessments of rehabilitation, at the ICCTs have arguably already affected international decision-making. During his tenure, the IRMCT President Agius attempted to take a different stance from his predecessors and develop a sui generis approach to constructing and assessing the level of rehabilitation of international prisoners. Indeed, in contrast to previous practices, the most recent IRMCT early release decisions explicitly state that ‘it is not appropriate to look at the rehabilitation of perpetrators of genocide, crimes against humanity, or war crimes through exactly the same paradigm as rehabilitation of perpetrators of so-called ordinary crimes adjudicated at the national level’.10 Similar conversations and developments, however, have not, to our best knowledge, taken place at the national levels in the countries of the former Yugoslavia despite the fact that (i) a great majority of perpetrators of international crimes have been tried and sentenced by national courts; and (ii) that these sentences are enforced domestically and prisoners are released to the same society that experienced the crimes and their aftermath first hand.
This article therefore aims to fill this knowledge gap by assessing how the rehabilitation of war criminals is being constructed in one such domestic jurisdiction — Croatia, and how it compares to the most recent international practice at the IRMCT. In order to do so, we have reviewed available case law on early release of convicted war criminals issued by the Croatian judiciary and discussed how their rehabilitation is being imagined and assessed. Croatia is one of the Balkan countries, which experienced international crimes first hand during the wars in the 1990s and hundreds of war criminals have been prosecuted and punished by the Croatian courts since the end of the war.11 We compare the Croatian approach to rehabilitating war criminals to the international practice (primarily as discussed in the most recent early release decisions issued by the IRMCT President Agius). Focusing on the IRMCT and not the other ICCTs enables us to reflect on convergences and divergences among the two criminal justice systems, in which war criminals, who committed international crimes within the same conflict, are being ‘rehabilitated’ and oftentimes early released.
Before we delve into the ins and outs of war criminals’ rehabilitation as constructed and applied by the Croatian judiciary and the IRMCT, however, a couple of disclaimers regarding our methodology are warranted. First, there is no official data in Croatia about the number of convicted war criminals who have already served their prison sentences entirely, those who requested early release and the proportion of those to whom early release was either granted or denied.12 Furthermore, first instance early release decisions are not available through official search engines of Croatian case law.13 Therefore, our discussion of Croatian decision-making practice is based on a convenience sample of anonymized appellate decisions issued by the Supreme Court:14 the only publicly accessible decisions. Altogether, we analysed 19 appellate (final) early release decisions, six of which concerned repeated requests by the same prisoner. With the exception of one decision issued in 2013, all other decisions were issued between October 2018 and April 2021. In contrast to Croatia, all (redacted) ICTY/IRCMT early release decision are publicly available online. We, therefore, analysed 23 early release decisions issued by the President Agius (who as the President of the IRCMT had the sole authority to decide on early release of the ICTY prisoners) between January 2019 and May 2022.15 These decisions pertain to 17 individuals convicted by the ICTY.
The article starts with a brief discussion of what offender rehabilitation entails and how this concept can be applied to war criminals. The following section briefly reviews the most recent decisions on (conditional) early release issued by the IRMCT to discuss and critically reflect on the newly adopted, sui generis approach to assessing rehabilitation of international prisoners. Afterwards, we turn to Croatia and discuss how Croatian judges construe the rehabilitation of war criminals and under what conditions they grant early release. Given that the Croatian legislation does not provide for a particular set of rules for assessing rehabilitation of war criminals, this section analyses if early release practices reflect in any way the specificities of war crimes and their perpetrators. In the last part, we compare and contrast the sui generis approach to assessing rehabilitation newly developed at the international level to Croatian domestic practices and critically reflect on promises and challenges of both constructions of war criminal rehabilitation.
2. Conceptualizing Offender Rehabilitation and Rehabilitation of War Criminals
Offender rehabilitation is an elusive concept that evades a generally accepted, consensual definition.16 It can be understood as both: an objective or a goal of criminal justice system and as a process or a set of practices.17 In very general terms, rehabilitation processes should lead to desired rehabilitation outcomes, which can in broad terms be seen as the perpetrator’s demonstrated ability to ‘socially function in an acceptable way’.18
In this way, offender rehabilitation always implies change — ‘a return to normal, law-abiding behaviour’.19 How such ‘a return’ should be achieved — by what means and in what contexts — has remained, however, the subject of discussions on penal rehabilitation ever since the 18th century.20 Rehabilitation as a penological concept has undergone many metamorphoses depending on the prevalent academic, social and political discourse and conditions. With the growing emphasis on liberal human rights throughout the second half of the 20th century, offenders started to be seen as moral agents and rehabilitation as their human right.21 Currently, offender rehabilitation is generally understood as a learning model. Offenders are recognized as moral actors and assisted in acquiring skills and resources for making choices that would better serve both their own interests and the interests of others (such as victims and society as a whole) in the name of increased public safety.22
Current academic and criminal justice policies discussions are dominated by two main competing models of rehabilitation: Risks-Needs-Responsivity model (RNR model) (or the so-called ‘risk-based’ or ‘What works?’ approaches) and Good Lives model (or the so-called ‘strengths-based’ or ‘desistance-based’ approaches).23 While the RNR model24 targets risk and the criminogenic needs of an offender, such as history of anti-social behaviour, impulsiveness, aggressiveness, anti-social cognitions or poor attachment to community or criminal friends, the Good Lives model adopts a more positive, empowering stance. It aims to equip offenders with the ability to secure primary human goods (such as knowledge, autonomy, friendship, social recognition or happiness) in socially acceptable and personally meaningful ways.25 In addition, offender rehabilitation practices are increasingly implementing principles stemming from the idea of the so-called ‘social rehabilitation’ (based, among others, on restorative justice principles focusing on relational dimension of rehabilitation).26 Social rehabilitation puts relatively more weight on social relationships in the preparation of prisoners for their return to society: rehabilitation is not limited to the individual and their readiness to reintegrate but it should also attempt to rebuild social relationships.27
Offender rehabilitation, therefore, has been understood in various ways. They all share the goal of decreasing chances of reoffending, but differ with respect to the ways in which to achieve this primary goal. Each also emphasizes different, broader goals such as the salvation of human souls and moral reform of an offender or healing of damaged relationships and mediation between offenders and victims.
In contrast to the unsettled but burgeoning debates on rehabilitation of ‘conventional’ offenders, rehabilitation of war criminals had literally been absent from any scholarly or professional discussions up until a decade ago. The dominant emphasis on punishing offenders for international crimes and the anti-impunity discourses surrounding their prosecutions seemed to have sidelined any thinking on their rehabilitation and reintegration.
The incipient commentary in this respect, however, does not take us too far. It criticizes the current ICCTs’ practices of incarcerating war criminals and releasing them early ‘under the pretence of their sufficient rehabilitation’ pointing towards principal, structural and systemic deficiencies of the international system of sentence enforcement and early release practices.28 Scholars lament that ‘[t]here is no clear conceptualization of what rehabilitation of international prisoners is [or should be], what the objectives of rehabilitative efforts are [or should be], what interventions are necessary to try to achieve these objectives and how to assess that someone indeed is rehabilitated’.29
International crimes (and their perpetrators) arguably differ from conventional crimes due to their systematic, large-scale character, the ideological and political context in which these offences are committed, and their politically and emotionally charged aftermath. A majority of scholars explain the behaviour of perpetrators of international crimes by ‘the extraordinary circumstances thesis’: during periods of societal upheavals and atrocities, a social and moral normative order, based on norms prohibiting inflicting harm on other human beings, becomes reversed and people are socialized into considering violence (against a targeted group) as a necessary and legitimate means to achieve their goals. Under such circumstances, leaders steer the violence and many otherwise law-obedient and well-socialized individuals become involved in atrocities and commit crimes. Perpetrators of international crimes are thus alleged to be of a different type compared to perpetrators of ordinary crimes, who are oftentimes deviant and poorly socialized.30 As a consequence of different criminogenic needs of war criminals and multifaceted harms caused by such crime, the rehabilitation of international criminals needs to be reimagined and reconceptualized in order to reflect the sui generis character of the crimes and of the perpetrators.31 What is required to achieve this, however, and whether existing ‘conventional’ rehabilitation programmes and interventions can form a suitable starting point for such exercise, is still open to debate.
3. Evaluating Rehabilitation at the ICTY/IRMCT
Despite the many ‘existential’ questions as to the conceptual boundaries and fundaments of the rehabilitation of war criminals, the ICTY/IRMCT practice has readily adopted and used ‘a level of rehabilitation’ as one of the criteria for assessing the eligibility of international prisoners for commutation of sentences and early release.32
The four factors the President is supposed to consider when making decisions on eligibility for early release are provided for in Rule 125 of the ICTY RPE/Rule 151 IRMCT RPE: the gravity of crimes, the treatment of similarly situated prisoners (i.e. the two-thirds rule),33 prisoner’s demonstration of rehabilitation and any substantial cooperation with the Prosecutor.
Since the legal guidance is virtually non-existent, ever since the first early release decision was issued in 1999 in relation to Dražen Erdemović,34 the ICTY/IRMCT Presidents have been assessing the level of rehabilitation of war criminals in their release decision-making practice. As will be demonstrated further below, however, the most recent decision-making significantly diverts from the practice of the previous years. In order to understand the shift, we very briefly summarize the previous praxis.
As noted in previous scholarship,35 the rehabilitation assessment seemed to have been more of an afterthought than an established and thought-out practice. Generally, scholars studying early release decisions identified a lack of consistency and coherence in evaluating the rehabilitation of international prisoners.36 A systematic document analysis of all the early release decisions issued by the ICTY and IRMCT Presidents up till 1 May 2015 identified no less than 16 different factors emphasized by the President in their determination of a prisoner’s demonstration of rehabilitation.37 These various factors, however, were not considered systematically nor consistently. Instead of using a clear definition and a set of pre-determined and well thought-through assessment criteria, the President relied on a seemingly coincidental ad hoc list of factors deemed relevant on a case-by-case basis to demonstrate a prisoner’s rehabilitation. These various considerations could be roughly categorized into four broad groups: (i) the period convicted persons spent in prison and their behaviour during incarceration, (ii) their future perspectives, (iii) their reflection on crimes and (iv) their personal characteristics.38 Importantly for our current purposes, it seemed that the decisive consideration in releasing war criminals early was the fact that they had served two-thirds of their sentence and behaved (relatively) well in prison. The fact that a prisoner, for instance, did not acknowledge responsibility or even continued denying their crimes did not seem to matter so much. The Presidents did not reflect in their rehabilitation assessments on (any) special character of international crimes and their perpetrators. The assessments fell back on conventional interpretations of rehabilitation and the Presidents to an extent randomly applied factors similar to those used in domestic criminal justice systems to assess rehabilitation of ‘ordinary’ offenders.
It, therefore, might come as no surprise that the international community (and domestic states acting on its behalf) was extremely successful in rehabilitating war criminals. It hardly ever happened that an early release application was rejected after a prisoner served two-thirds of their sentence. For instance, as of 2017 out of 58 released individuals at the time, 54 (which is 93% of those released) were released early.39 It happened only very occasionally that a request for early release was rejected, and usually if that was the case the predominant reason was that a prisoner had not served two-thirds of his sentence, not that there was something concerning about his rehabilitation.
The most recent IRMCT early release practice, to which we turn below, however, signifies a fundamental change in the assessment of the rehabilitation of war criminals at the international level. Perhaps in response to academic criticisms, perhaps as a matter of (very slowly) coming of age and maturing, or perhaps as a matter of external political pressures or personal proclivities, the IRMCT President Agius in his early release decisions fundamentally reframed and attempted to reform the existing scattered practice on how to evaluate the rehabilitation of war criminals.
A. There is Something Special about Rehabilitating War Criminals
Indeed, President Agius seemed to have wanted to draw a very thick line in the legacy of his predecessors regarding early release and the assessment of rehabilitation of international prisoners. Between January 2019 and May 2022, as noted above, 17 individuals convicted by the ICTY requested early release (some repeatedly) at the IRMCT. Two individuals were considered sufficiently rehabilitated and early released.40 In 15 instances, requests were rejected. In eight cases because a prisoner did not serve two-thirds of their sentence,41 which had been the predominant reason for rejecting early release in pre-existing practice. For the remaining seven rejected requests, however, the level of rehabilitation played a major role in President’s decision making — their requests for early release were denied (at times repeatedly)42 primarily because of an insufficient level of rehabilitation.
The President marked this new era in Bralo43 by stipulating general principles to guide the assessment of a prisoner’s level of rehabilitation. These principles have been consistently restated in subsequent early release decisions.44 The President acknowledged that there is indeed ‘no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes’.45 In stark contrast to the then existing practices, the President dismissed ‘good behaviour in prison’ as the sole factor to demonstrate rehabilitation of international prisoners, especially ‘given the particular nature and scope’46 of international crimes. According to the President ‘it is not appropriate to look at the rehabilitation of perpetrators of genocide, crimes against humanity or war crimes through the exact same paradigm as rehabilitation of perpetrators of domestic or ordinary crimes’.47 Therefore, a sui generis nature of the crimes and their perpetrators warrants a sui generis nature of approaching the assessment of their rehabilitation.
In contrast to previous practice, where releasing a prisoner early after serving two-thirds of the sentence was more or less a rule and an expectation, the President also distinguished the new era by turning such presumptions of early release upside down. ‘[A]s a general rule’ international prisoners should serve their full sentence unless they have demonstrated ‘a certain degree of rehabilitation’.48 In this respect, the gravity of the crime committed becomes a proverbial threshold and a determinant of ‘how rehabilitated’ a prisoner ought to be. The graver the crime, the more compelling the demonstration of rehabilitation must be.49
The exact contours of how rehabilitation of international prisoners ought to differ from the conventional ‘paradigm’, how it is defined and what the goals of rehabilitating perpetrators of international crimes are, however, remain obscure. It seems that one of the primary goals of rehabilitating international prisoners has become inducing their moral change. The President puts elevated emphasis on a prisoner’s full acknowledgement of responsibility, critical reflection on crimes and expressions of genuine remorse.50 In this respect, it seems that prisoners are expected to fully acknowledge their individual responsibility for the crimes mirroring the exact findings of what the ICTY convicted them of. Prisoners who do not do so fully (and preferably publicly)51 are deemed to rationalize and/or minimize their behaviour, or are considered to be in denial, and therefore, not sufficiently rehabilitated.52 Rehabilitation goals, however, seem to reach beyond an individual cognitive and emotional reflection on the past (mis-)deeds and encompass also successful reintegration, which should not threaten the fragile peace and prospects of reconciliation among victims and perpetrators in the region.53 In Bralo, the President stipulated that ‘actions …to foster reconciliation or seek forgiveness’ and ‘evidence that [a prisoner] has a positive attitude towards other nationalities’54 count among positive indicators of rehabilitation. Last but not least, the President considers behaviour in prison, which however now seemed to have significantly diminished in importance,55 prisoner’s personality, mental state and risks of reoffending.56
Therefore, the most recent years have signified a fundamental turn in assessing rehabilitation of war criminals at the ICTY/IRMCT. In stark juxtaposition to the preceding practice, it is now assumed that international prisoners should serve their full sentence, unless they are considered sufficiently rehabilitated. In contrast to the past, ‘a sufficiently rehabilitated war criminal’ not only ‘behaves well in prison, participates in language courses or in a kitchen brigade, has (or claims to have) at least some idea about his/her future after release’57 but also needs to persuade the President that he took in his responsibility, fully, unconditionally, and exactly as the Tribunal established it, and that his release will not threaten the fragile peace in the region and reconciliation prospects.
4. Rehabilitating War Criminals in Croatia
A. The Relevance of Rehabilitation — the Croatian Legal Framework
It would be reasonable to assume that in response to the sheer volume of war criminals convicted to prison sentences in Croatia, Croatian legislators or penal administrators would provide at least some guidance as to what a ‘sufficiently rehabilitated war criminal’ should look like. Yet, there is no such guidance either in the law or policy governing the enforcement of sentences for war crimes. Consequently, the Croatian judiciary applies the ‘standard’ set of rules to construe and assess the rehabilitation of war criminals.
Like at the international level, within the Croatian legal framework rehabilitation is a relevant consideration at different procedural stages. It influences determination of sentence severity, since each punishment should, among other goals,58 strive to ‘exert an influence on the perpetrator’ not to reoffend. Rehabilitation is, furthermore, the main and the only explicitly mentioned purpose of prison enforcement, ‘which should enable [the prisoner] for life in freedom in accordance with law and social rules’.59 Finally, next to the ‘one-half of the prison sentence served’ rule, demonstration of rehabilitation governs the early release of prisoners. The law stipulates that any prisoner — including a war criminal — can be released early if sufficiently rehabilitated, i.e. if it is reasonable to expect that he or she will not commit a[nother] crime.60
The rehabilitation assessment in the context of release decisions is made by a panel of three county court judges and can be appealed. The following factors should guide this assessment: (i) offender’s personality, (ii) their prior life/convictions, (iii) other pending charges, (iv) attitude to the committed offence and relationship to the victim, (v) conduct during incarceration, (vi) success of the incarceration programme, (vii) (expected) changes in their conduct after commission of crime, (viii) living conditions and readiness to be reintegrated into society.61
B. Evaluating Rehabilitation in Croatian Courts
One would assume that in comparison to the ICTY/IRMCT, rehabilitation assessments would be done more thoroughly by Croatian courts since judges are immersed in the same society that experienced the crimes first hand and war criminals are being released to that same society. Yet, this is not the case. Overall, Croatian early release decisions are generally very short and cases of war crimes are not an exception. The average length of a decision is two pages and not a single available (appellate)62 decision exceeds three pages. Therefore, it comes as no surprise that only very limited space, if any, is dedicated to the meaning of rehabilitation and its assessment.63 Furthermore, even though our sample of decisions is quite limited and the rehabilitation assessments contained therein even more so, there is a noticeable lack of consistency in the evaluation of factors guiding the assessment.
An in-depth analysis of all the available appellate decision reveals three trends: (i) early release is not granted automatically to war criminals who have served a sufficient amount of time, (ii) the gravity of the crimes is a relevant consideration, yet not directly linked to the assessment of a necessary level of rehabilitation, but enters the assessment through a backdoor, so to say, via the elusive concept of the purpose of punishment and (iii) the rehabilitation of war criminals is not seen as inherently different from the rehabilitation of perpetrators of ordinary crimes, hence the standard set of indicators apply.
1. The Non-automatic Nature of Early Release
Of the 13 individuals that requested early release, only six were released,64 whereas in seven instances their requests were denied (in four of them repeatedly). In four out of the seven cases, the requests were rejected because the prisoner did not serve the ‘sufficient amount’ of the sentence.65 The rest were denied primarily because of their unsatisfactory level of rehabilitation or because of the gravity of their crimes despite having served what is generally considered ‘long enough’ time in prison.
On the face of it, this indicates a relatively restrictive practice towards early release of war criminals, possibly in line with the general approach to early release of perpetrators of more serious offences in Croatia. Scarce research suggests that prisoners serving prison sentences of more than five years, a category to which the majority of war criminals belong, constitute a relatively small percentage of the early released probation population.66
One of the outstanding features of Croatian early release jurisprudence is the often-invoked three-quarters threshold. Even though it is not mentioned as a benchmark in the legislation governing early release,67 it seems that there is almost an unwritten rule requiring a prisoner to serve at least three-quarters of the sentence. The reasoning behind this practice can only be presumed,68 but research shows it is not peculiar to the context of war crimes; instead, it governs early release of perpetrators of ordinary offences too.69 However, releasing prisoners, including war criminals, after having served three-quarters of their sentence is not automatic.
2. Falling Back on Gravity to Keep (Some) Offenders In
Gravity of crimes is not explicitly mentioned as one of the criteria either for early release or for rehabilitation assessment, yet it enters early release decision-making indirectly — as an implicit underlying element of other sentencing goals, namely deterrence and retribution. According to Article 170 of the Prison Sentence Execution Act, the court should deny early release if, ‘in view of the obtained opinions, it assesses that in order to achieve the purpose of punishment, it would be necessary to continue serving the sentence’. In fact, in six out of seven cases in which early release was denied the Supreme Court emphasized that, taking into account the nature and the gravity of the offence, the part of the sentence enforced was not sufficient to achieve the purpose of punishment. These decisions stress that the purpose of punishment consists not only of special prevention and rehabilitation but also of the ‘expression of social condemnation and strengthening of citizens’ trust in the rule of law and the legal order, all through strengthening awareness of the danger of committing criminal acts and the fairness of punishment—something that is achieved not only through sentence determination, but also through its duration and manner of enforcement’.70 The graver the crime, it seems, the more convincing the demonstration must be that the purpose of punishment has been achieved even before serving the full sentence. Yet, how this is being assessed in practice remains elusive. In any event, even when strong indicators of offender rehabilitation are present, gravity as part and parcel of other sentencing goals can affect — and prevent — early release.
In one of the analysed cases, the Court denied early release stating that the offender, a Serb, was convicted of committing a war crime against the civilian population — ‘a criminal offense which by its nature and protected value, ranks among the most serious criminal offences, especially bearing in mind exceptional persistence, callousness and cruelty of the committed criminal act, as well as permanent damage caused to the victim’s mental health’. In light of the gravity of the offence, the remaining part of the prison sentence (two years) was seen as too long to be reduced despite LJ.R.’s good behaviour in prison and the fact that at the time of his request he had served more than three-quarters of his sentence.71
Along the same lines, in case of another offender, a Montenegrin, the Supreme Court overturned the first instance decision granting early release, emphasizing that the County court placed too little weight on the high gravity and the social danger of the act, which due to its nature and protected value, constituted one of the most serious crimes.72
In contrast to these decisions rendered in respect of offenders belonging to ‘enemy forces’, five early release decisions issued for Croatian offenders either do not mention the gravity of the offence at all (three cases)73 or explicitly argue that gravity is not a factor to be considered at this stage (two cases). In the latter cases, the Supreme Court rejected the state attorney’s argument that early release would be premature given that three-quarters had not been served and the prisoner was serving the sentence for ‘one of the most serious crimes’. Instead, the Court held that the gravity of the crime committed was already reflected in the amount of the sentence the prisoner was serving.74 In the opinion of the Court, the type of criminal offence and the circumstances under which it was committed were relevant factors at sentence determination, while early release is governed only by the parameters described in Article 59(2) of the Criminal Code and the assessment ‘whether it is reasonable to expect that the prisoner, having served at least one-half of the sentence to which he has been sentenced shall not commit the offence’.75
While on the face of it the inconsistent use of gravity of crimes as a consideration to keep ‘enemy’ offenders in prison could indicate ethnic bias, the size of our sample makes it difficult to draw any generalizable inferences. Similar inconsistencies arguably exist in cases of (more serious) ordinary offences too, not marked by any division along ethnic lines.76
3. There Seems to be Nothing Special about Rehabilitating War Criminals
There is nothing in the letter of law, or in jurisprudence, that would imply that the rehabilitation of perpetrators of international crimes is seen as inherently different from the rehabilitation of perpetrators of (serious) ordinary offences. If there is no distinct conceptualization of rehabilitation of war criminals and the only objective of the rehabilitative process is crime prevention, then it is hardly surprising that there are no specific rehabilitative interventions in prisons tailored to war criminals. War criminals, as all other offenders, participate in classic rehabilitation treatment with a focus on education, work, activities and contact with family.77
Since the exclusive goal of offender rehabilitation in Croatia is the prevention of reoffending and war criminals are put on par with conventional criminals, if there is anything sui generis about assessing rehabilitation of this category of perpetrators, it is that such conventional approach actually works in favour of war criminals. For example, in one case in which early release was granted, the court explicitly assessed the likelihood of reoffending as not high due to the fact that the war crime for which the prisoner was serving his prison sentence was committed under specific circumstances of war.78 This corresponds to the ‘extraordinary circumstances thesis’79 — a paradigm according to which war criminals are otherwise well-adjusted, law-abiding citizens, who by their nature are not likely to reoffend in ‘peaceful’ times. Whereas this theory is still under-researched and empirically untested, notably at least two out of 13 war criminals from our Croatian sample had a documented history of other violent offences pre-war.80
If there is nothing special about the rehabilitation of war criminals then there is no reason not to rely on the standard set of indicators. Not a single analysed decision refers to peace and reconciliation as broader goals of the rehabilitative process. Very limited value, furthermore, is given to any proof of a moral change, i.e. remorse and acceptance of responsibility. Only one early released Croat expressed remorse,81 whereas three decisions of those who were released do not contain any reference to either remorse or acceptance of responsibility. In the fifth the Court stated, that ‘even though the prisoner considered himself a victim of a political persecution, he accepted his punishment in its entirety’.82 It seems that T.M’s ‘acceptance of punishment’ was assessed as a positive indicator of his rehabilitation, without delving into what it actually meant. This statement, however, implies that T.M. neither accepted his responsibility nor showed remorse — yet the Court granted early release. Consequently, it appears that remorse and acceptance of responsibility are not indispensable requirements that courts need to establish to deem a war criminal sufficiently rehabilitated — at least, so it seems in our sample, not for Croats.
In contrast, for ethnic Serbs the situation seems to be slightly different. Chances for early release of Serbs who deny responsibility and do not express genuine remorse seem to be reduced. In one case of a convicted Serb, the Court considered particularly relevant not only the fact that offender denied responsibility but also that he (i) used all the available means to avoid extradition, (ii) compared the Croatian penitentiary system to a Nazi camp and (iii) ‘tried to falsely portray himself as a victim of Croatian judiciary and ethnic bias’.83 The Court was of the opinion that not changing his attitude towards the committed offences even after having served nine of a ten-year sentence proved that the purpose of punishment had not yet been achieved.84 In two other cases in which early release was denied, the Court questioned either the genuineness of the remorse85 or the scope of the offender’s acceptance of responsibility, which was evaluated as irrelevant since the prisoner (still) sought to justify his actions by a superior order.86 Another prisoner, whose early release was rejected, denied his personal responsibility, arguing that tempore criminis he was a member of another unit, but expressed general remorse for the overall suffering and offered his condolences to the families of those who were killed.87 The only early released Serb accepted his responsibility (in full) and expressed remorse.88
In all of the analysed cases, the Court took notice of the reports of penitentiaries and of applicants’ good behaviour in prison, (successful) participation in a prison programme,89 estimated (mainly low) risk of recidivism,90 engagement in work, family ties and future reintegration prospects (such as a place to go to and a job). In contrast to mental health, which is not mentioned in any of the analysed cases, physical health is discussed in almost all the decisions, yet inconsistently. In several cases, the Court took notice of the prisoners’ impaired health, but highlighted that medical assistance was available in prison and that poor health could serve as a reason for intermission of prison enforcement, not early release.91 In others, however, the Court referred to poor health as one of the important factors pulling in favour of release,92 thus turning early release into release on humanitarian grounds.
5. So, Is There Anything Special about Rehabilitating War Criminals? Contrasting the International and the Domestic
Up until very recently, the rehabilitation of war criminals had been approached rather conventionally, both at the ICTY/IRMCT and domestically in Croatia. Such reliance on ‘standard operating procedures’ used for conventional offenders has actually worked in favour of war criminals. Since such individuals are generally well-socialized and well-behaved outside of a war context, their chances of reoffending or causing trouble in prison (as the two major criteria in conventional assessments) are much lower, and thus their chances for early release arguably higher. Yet, as the previous paragraphs discussed, as much as at the recent early release practices at the ICTY/IRMCT as in Croatia, within each system in its own way, there seems to have been something special about war criminals when it comes to assessment of their rehabilitation.
In the past couple of years, winds of change have begun to blow at the ICTY/IRMCT. President Agius marked a new era in early release rehabilitation assessments discarding previous ‘permissive’ practices.93 Early release at the international level stopped to be a mere, almost automatic, reward for good behaviour in prison after serving two-thirds of one’s sentence. Instead, the assessment of the level of rehabilitation has been reframed and gained elevated importance as a factor for considering eligibility for early release. In contrast to pre-existing practice, international prisoners are now expected to critically reflect on their misdeeds, re-evaluate their past behaviours, demonstrate full acknowledgment of responsibility (exactly as adjudicated by the ICTY) and/or express genuine remorse. Additionally, it seems that their return should not compromise reconciliation and fragile transitional justice processes.94 Finally, gravity of crime is now considered as a ‘factor of fundamental importance’ calling for a full enforcement of the sentence and scaling, in a way, rehabilitation assessment — the graver the crime, the more convincing the demonstration of rehabilitation must be.95
Therefore, it took the Tribunal almost two decades (since Erdemović’ early release in 1999) to take a step back, think and realize that perhaps there indeed might be something special about war criminals when it comes to their rehabilitation. Yet, this newly conceived appreciation of rehabilitation is not without its problems. In addition to concerns arising from ex post facto changes relating to the manners of sentence execution,96 by nominally including victims, their association and local authorities the IRMCT made rehabilitation assessment partially dependent on external factors, thus transcending predominantly individual focus of rehabilitation assessment. Additionally, linking rehabilitation assessment to the complete and utter deference to the ICTY findings97 can leave one with an impression and uneasy feeling of judicial censorship. Finally, gravity is arguably the most powerful determinant of sentence severity, therefore, as Dirk van Zyl Smit argued ‘[t]o consider it again at the release stage seems palpably unjust’.98
In contrast to the ICTY/IRMCT, Croatian authorities apparently never took a step back to reflect if there is indeed anything special about the rehabilitation of war criminals. Instead, standard operating practices remain dominant. Findings of this study, although relatively limited in its reach due to a small sample size, undermine the initial assumption that over time domestic authorities would have developed a more thorough and nuanced approach to rehabilitation and early release of war criminals. The length of Croatian early release decisions alone indicates a cursory assessment and lack of sui generis conceptualization of rehabilitation of war criminals. Rehabilitation is approached through the prism of ordinary serious crimes and consequently narrowly construed, its main goal being that of crime prevention. The conventional set of criteria is being applied to to-be-released war criminals focusing on their behaviour in prison and post-release reintegration prospects mainly relating to a job or family ties.
However, despite these conventions, there might indeed be something special when it comes to assessing war criminals’ rehabilitation by Croatian courts. Since the war was fought largely along ethnic lines, our sample indicates that the same ethnic lines seem to divide rehabilitation assessments for war criminals. Seemingly double standards in assessing rehabilitation for Serbs and Croats, reflecting the divisions during the war, are manifested (i) by reliance on gravity, which appears as a factor used in favour of a longer or full enforcement of sentence only with respect to ethnic Serbs; and (ii) by varying assessments of the ways how offenders look back and reflect on their crimes. Out of 13 war criminals whose early release requests we analysed, five were Croats, six were Serbs99 and the ethnicity of the remaining two could not be established. All five Croats were released early, some even before having served three-quarters of the sentence. Out of six convicted Serbs only one was released early — and only after having served three-quarters of the sentence, even though typical signs of rehabilitation in his case were present even before, at the time of his first request.100 In the two remaining cases early release was denied. In one of them, a standard set of requirements were not met and early release request was dismissed due to a clear danger of reoffending.101
Therefore, on the face of it, Serb war criminals appear to fare worse than their similarly situated Croatian counterparts. Findings of bias in judicial decision making are not new.102 Research shows that implicit biases among judges might account for (racially) disparate outcomes in the criminal justice system.103 In the countries of the former Yugoslavia, including Croatia, judges still seem to operate in a social environment of divided ethnic realities in which international crimes committed by one’s own forces are considered legitimate or to an extent at least justified.104 The results of this study suggest that defendant ethnicity might have shaped case outcomes in the post-trial phase, similarly to how they have shaped indictments and sentencing.105
6. Conclusion
This explorative article is one of the first to analyse and contrast rehabilitation assessments and early release of war criminals who have committed crimes within the same conflict but were tried and sentenced either at the international or domestic courts, in particular at the ICTY/IRCMT and in Croatia. We asked the proverbial question, whether there was anything special in rehabilitating war criminals in either of the criminal justice systems, and how the two compare.
The analysis revealed that the most recent early release decisions issued by the IRCMT fundamentally reframed the pre-existing meaning and significance of the level of rehabilitation as one of the criteria for early release of international prisoners. The IRCMT President Agius seemed to have concluded that indeed there is something special in rehabilitating war criminals and attempted to draw new contours of rehabilitation assessment. In this new paradigm, a moral change of offenders, manifested in their critical reflection on their crimes and full acceptance of their responsibility, gained much more elevated importance than before. It remains to be seen if the newly appointed IRCMT President Gatti Santana will revert to the old practices of perfunctory rehabilitation assessments or uphold and further develop the sui generis interpretation introduced by her predecessor. In contrast, in Croatia, judges have relied on a traditional construction of rehabilitation, developed for and applied to, conventional offenders. Neither critical reflection on crimes nor remorse by a prisoner are required. The fact that critical reflection on crimes is not an indispensable pre-requisite for early release of war criminals in Croatia is hardly a surprise — in societies which have not come to terms with their own past, war criminals, especially ones’ own, can hardly be expected to reflect on their past wrongdoing. Since to our knowledge no tailored penitentiary programmes focused on dealing with specific criminogenic risks and needs of war criminals nor targeted to develop their future strengths and resilience exist, neither internationally nor domestically, there is a considerable incoherence between expectations of rehabilitation and realities of rehabilitative programmes. Requiring reflection and changed attitude from an individual where there are no tailored rehabilitation programmes geared towards these objectives, and also, in particular at the domestic level, no broader social changes, is very demanding.
Furthermore, we argued that in Croatia the currently applied standard set of indicators actually works in favour of war criminals, at least for ethnic Croats. The seemingly double standards applied along ethnic lines and potential biases against ‘enemy offenders’ indicate special metrics applied to assessments of ‘enemy’ war criminals’ early release and rehabilitation. Yet, given the small size of our sample and highly individualized nature of early release decisions, it is difficult to conclusively tell to what extent ethnic biases mirroring the war divisions actually account for disparate outcomes in Croatian early release jurisprudence and assessments of rehabilitation. What is certain, however, is that the lack of consistency leaves room for allegations of bias, which are in fact often made by Serb war criminals.106 More empirical, systematic research is needed to confirm or rebut these allegations and impressions.
The authors would like to thank the anonymous reviewers and all the participants at the expert roundtable organized at Vrije Universiteit Amsterdam in June 2022 for their comments and input.
Footnotes
See J.M. Kelder, B. Holá and J. van Wijk, ‘Rehabilitation and Early Release of Perpetrators of International Crimes: Case Study of the ICTY and ICTR’, 14 International Criminal Law Review (ICLR) (2014) 1177–1203.
In this article, we use the label ‘war criminal’ to denote all perpetrators of international crimes, including genocide and crimes against humanity, as is common in Bosnian, Croatian and Serbian languages spoken in parts of the former Yugoslavia (‘ratni zločinac’). In addition to being commonly used, this label better corresponds to the Croatian (and regional) legal framework, in which the law tempore criminis did not recognize crimes against humanity as a distinct offence, but only war crimes and genocide. Although initially in Croatia genocide charges were occasionally brought, that practice soon ended and consequently all perpetrators of international crimes in Croatia were prosecuted for one of three types of war crimes. For more about the Croatian legal framework see M. Munivrana Vajda, ‘Domestic Trials for International Crimes – A Critical Analysis of Croatian War Crimes Sentencing Jurisprudence’, 19 ICLR (2018) 15–38, at 19. Therefore, the expressions ‘war criminals’ and ‘perpetrators of international crimes’ are being used interchangeably.
The ICTY/IRMCT prisoners are serving their sentences in countries, which have concluded agreements in this respect with the Tribunal. They are never to be sent to prisons located in any of the countries of the former Yugoslavia. More about the designation of prison sentence enforcement state in J.V. Wijk and B. Holá, ‘When Justice is Done: The ICTY and the Post-trial Phase’, in C. Stahn, C. Agius, S. Brammertz and C. Rohan (eds), Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach (Oxford University Press, 2020) 424–442, at 425 ff.
See e.g. E. Riegler, ‘Rehabilitating Enemies of Mankind: An Exploration of the Concept of Rehabilitation as a Sentencing Aim at the ICTY and the ICC’, 20 ICLR (2020) 701–727, at 708–709.
For the overview of states in which war criminals are serving their sentences see United Nations, IRMCT, Enforcement map, available online at https://www.irmct.org/en/about/functions/enforcement-of-sentences (visited 1 September 2022).
M. Buljubašić, ‘Rehabilitation Programmes for Convicted War Criminals in Domestic Prisons in Bosnia and Herzegovina: Case Study of Sarajevo Prison’, 19 ICLR (2019) 69–94, at 77; EU in Serbia, ‘OSCE Report on War Crime Proceedings in Serbia’, 27 October 2015, available online at https://europa.rs/osce-report-on-war-crime-proceedings-in-serbia/?lang=en (visited 10 September 2022).
B. Holá and J. van Wijk, ‘Rehabilitating International Prisoners’, in R. Mulgrew and D. Abels (eds), Research Handbook on the International Penal System (Edwar Elgar Publishing, 2016) 274–295. See also Buljubašić, supra note 6, at 71, with further references; M. Maier, ‘Offender Rehabilitation in International Criminal Justice: Towards Implementation of Tailored Rehabilitation Programs’, 53 Case Western Reserve Journal of International Law (2021) 269–328, available online at https://scholarlycommons.law.case.edu/jil/vol53/iss1/11 (visited 10 September 2022).
Buljubašić, supra note 6, at 71, citing R. Mulgrew, Towards the Development of International Penal System (Cambridge University Press, 2013), at 208–266. See also Maier, supra note 7, arguing that a reconceptualized rehabilitation programme could serve as the first brick for building reconciliation in society, at 325–328.
B. Hola et al., ‘Does Remorse Count? ICTY Convicts’ Reflections on Their Crimes in Early Release Decisions’, 28 International Criminal Justice Review (2018) 349–371, at 350.
Decision on the Application for Early Release of Nebojša Pavković, Pavković (IRMCT-14-67-ES.2), The President of the Mechanism, 18 May 2022, § 44.
According to the data received from the Chief State Attorney’s Office on 7 September 2022, in Croatia alone by 30 June 2022, proceedings have been initiated against 3757 persons, 681 of whom were convicted and proceedings against 670 persons are ongoing. Similar processes took place in the other former Yugoslavian countries. In Bosnia and Herzegovina from 2004 until 2020 a total of 594 proceedings with 904 defendants were completed. In Serbia, by the end of 2014, 160 persons were prosecuted and 27 final judgements issued, convicting 73 persons. Comp. OSCE, War Crimes Case Processing in BiH (2004 – 2020), information available as of 31 May 2021, https://www.osce.org/bs/mission-to-bosnia-and-herzegovina/494884 (visited 30 September 2022) and EU in Serbia, ‘OSCE Report on War Crime Proceedings in Serbia’, 27 October 2015, available online at https://europa.rs/osce-report-on-war-crime-proceedings-in-serbia/?lang=en (visited 10 September 2022).
There is currently no publicly available/published or collected unpublished data on the total number of early release cases either, making it impossible to identify the proportion of approved requests in the total number of received proposals. Z. Kokić-Puce, G. Brkić and S. Maloić, ‘Uvjetni otpust u perspektivi suvremenog hrvatskog zakonodavstva i kaznenopravne prakse probacijske službe’, 27 Hrvatski ljetopis za kaznene znanosti i praksu (2020) 715–744, at 726. These authors also point to ‘a distinct lack of domestic research’ (at 740).
Vrhovni sud Republike Hrvatske (Eng. Supreme Court of the Republic of Croatia, hereinafter: SCRC), Sudska praksa (case law) https://sudskapraksa.csp.vsrh.hr/home. The authors have also searched the other database, IUS INFO which is password protected, www.iusinfo.hr.
In 2021, this power was assumed by the newly established Visoki kazneni sud (Eng. High Criminal Court, hereinafter: HCC), hence one of the analysed decisions was issued by the HCC, not the SCRC. Judicial decisions in Croatia are generally anonymized before their digital publication, so that all the names are replaced with the initials, in line with what is seen as respect for national and EU privacy rights; see Council of Europe, ‘Croatia: Improving Data Protection and Efficiency in Justice Via Digitalisation’, 12 October 2022, available online at https://www.coe.int/en/web/national-implementation/-/croatia-improving-data-protection-and-efficiency-in-justice-via-digitalisation (visited 19 January 2023).
The first author in her previous work extensively researched and analysed the pre-existing ICTY/IRCMT early release decision-making and rehabilitation practices. Parts of the discussion included in this article are therefore also based on that research.
The discussion in this section is loosely based on Holá and van Wijk, supra note 7.
G. Robinson and I. Crow, Offender Rehabilitation: Theory, Research and Practice (SAGE Publications, 2013), at 2.
Ibid.
Ibid.
P. Raynor and G. Robinson, ‘Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy’, 1 European Journal of Probation (2009) 3–20, at 5.
Ibid., at 12; indeed, the right to rehabilitation has by now been stressed in various international hard and soft law instruments, such as Art. 10(3) of the International Covenant on Civil and Political Rights adopted 16 December 1966 by UN GA Res. 2200A (XXI).
F. McNeill, ‘Four Forms of “Offender” Rehabilitation: Towards an Interdisciplinary Perspective’, 17 Legal and Criminological Psychology (2012) 18–36, at 23.
Ibid., at 18.
D.L.L. Polaschek, ‘An Appraisal of the Risk–Need–Responsivity (RNR) Model of Offender Rehabilitation and its Application in Correctional Treatment’, 17 Legal and Criminological Psychology (2012) 1–17, at 10.
Robinson and Crow, supra note 17, at 102.
Ibid., at 124–138. Social rehabilitation as an umbrella term encompasses the approaches that focus on a prisoner’s place in society, access to social resources, and return to citizenship including such dimensions as housing, employment, social support, etc.
Robinson and Crow, supra note 17, at 152.
Holá and van Wijk, supra note 7.
Ibid., at 290. See also Buljubašić, supra note 6; J.H. Choi, ‘Early Release in International Criminal Law’, 123 Yale Law Journal (2014) 1784–1828.
Cf. H.C. Kelman and V.L. Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (Yale University Press, 1989); M.A. Drumbl, Atrocity, Punishment and International Law (Cambridge University Press, 2007); A. Smeulers, ‘Perpetrators of International Crimes: Towards a Typology’, in A. Smeulers and R. Havemen (eds), Supranational Criminology: Towards a Criminology of International Crimes (Intersentia, 2008). However, these (theoretical) claims lack empirical validation. There are also scholars who argue that during conflict periods criminal acts are often committed by already ‘rogue’ elements in society such as released prisoners and criminals: J. Mueller, ‘The Banality of Ethnic War’, 25 International Security (2000) 42–70.
Cf. Holá and van Wijk, supra note 7, at 290–294.
In addition to early release, rehabilitation has also served as one of general principles informing judges on what factors to take into account as relevant in determining sentence severity. For more see B. Holá and J. van Wijk, ‘Life After Conviction at International Criminal Tribunals: Empirical Overview’, 12 Journal of International Criminal Justice (JICJ) (2014) 109–132.
The IRMCT President in one of his first decisions determined that ‘all the ICTY and ICTR convicts supervised by the Mechanism are to be considered eligible for early release upon the completion of two-thirds of their sentences, irrespective of the Tribunal that convicted them’ and irrespective of the laws of the state of enforcement. Decision on Early Release of Paul Bisengimana, Bisengimana (IRMCT-12-07 (ICTR-00-60), The President of the Mechanism, 11 December 2012, § 20.
Decision of the President on Early Release, Erdemović (IT-96-22-ES), The President of the ICTY, 13 August 1999.
See, Holá and van Wijk, supra notes 7 and 32; Kelder, Holá and van Wijk, supra note 1; G. Vermeulen and E. De Wree, Offender Reintegration and Rehabilitation as a Component of International Criminal Justice? (Maklu Publishers, 2014).
Ibid.
Kelder, Holá and van Wijk, supra note 1.
For more detailed discussion of each of these categories see Holá and van Wijk, supra note 7, at 284–286.
Holá et al., supra note 9.
Decision on the Early Release of Milivoj Petković, Prlić et al. (MICT-17-112-ES.5), The President of the Mechanism, 16 December 2021; Decision on the Application for Early Release of Sreten Lukić, Šainović et al. (MICT-14-67-ES.4), The President of the Mechanism, 7 October 2021.
Decision on the Early Release of Stanislav Galić, Galić (MICT-14-83-ES), The President of the Mechanism, 26 June 2019 and 24 March 2021; Decision on the Early Release of Radislav Krstić, Krstić (MICT-13-46-ES.1), The President of the Mechanism, 10 September 2019; Decision on the Early Release of Dragomir Milošević, Milošević (MICT-16-98-ES), The President of the Mechanism, 29 July 2020; Decision on the Early Release of Milan Martić, Martić (MICT-14-82-ES), The President of the Mechanism, 7 August 2020; Decision on the Early Release of Vujadin Popović, Popović et al. (MICT-15-85-ES.2), The President of the Mechanism, 30 December 2020; Decision on the Early Release of Milomir Stakić, Stakić (MICT-13-60-ES), The President of the Mechanism, 31 December 2020 and 22 December 2021; Decision on the Early Release of Goran Jelisić, Jelisić (MICT-14-63-ES), The President of the Mechanism, 11 March 2021; Decision on the Early Release of Jadranko Prlić, Prlić et al. (MICT-17-112-ES.2), The President of the Mechanism, 23 March 2021.
Decision on the Early Release of Miroslav Bralo, Bralo (MICT-14-78-ES), The President of the Mechanism, 31 December 2019; Decision on the Application of Radoslav Brđanin for Early Release, Brđanin (MICT-13-48-ES), The President of the Mechanism, 28 February 2020 and 1 April 2022; Decision on Dragoljub Kunarac’s Application for Early Release, Kunarac et al. (MICT-15-88-ES.1), The President of the Mechanism, 31 December 2020; Decision of the President on the Early Release of Radivoje Miletić, Popović et al. (MICT-15-85-ES.5), The President of the Mechanism, 23 October 2018 and 5 May 2021; Decision on the Applications for Early Release of Vlastimir Đorđević, Đorđević (MICT-14-76-ES), The President of the Mechanism, 3 November 2021; Decision on the Application for Early Release of Bruno Stojić, Prlić et al. (MICT-17-112-ES.3), The President of the Mechanism, 11 April 2022; Pavković, 2022, supra note 10. Radoslav Brđanin was eventually released by the new President Gatti Santana (Decision on the Application of Radoslav Brđanin for Early Release, Brđanin (MICT-13-48-ES), The President of the Mechanism, 3 September 2022) but solely for ‘compelling humanitarian reasons’, due to his terminal illness. He died only several days after being released. See more about the concept of ‘compassionate release’ in Roísín Mulgrew’s article in this symposium..
Bralo, 2019, supra note 42.
Brđanin, 2020, supra note 42, §§ 48–51; Kunarac, 2020, supra note 42, §§ 42–45; Miletić, 2021, supra note 42, §§ 44–47; Đorđević, supra note 42, 2021, §§ 46–49; Stojić, 2022, supra note 42, §§ 44–47; Pavković, 2022, supra note 10, §§ 44–47; Lukić, 2021, supra note 40, §§ 51–54.
Bralo, 2019, supra note 42, § 37.
Ibid., § 38.
Ibid.
Ibid., § 40.
In Miletić, 2021, supra note 42, § 39, the President noted that ‘the graver the criminal conduct in question, the more compelling such a demonstration should be’.
Bralo, 2019, supra note 42, § 39. However, the President is careful enough to add that ‘acceptance of responsibility does not constitute a legal requirement to demonstrate rehabilitation and is not precondition for early release’. See, for instance, Miletić, 2021, supra note 42, § 52; Stojić, 2022, supra note 42, § 62.
See Miletić, 2021, supra note 42, § 52 where Miletić, as part of his petition for early release, filed a confidential letter ‘of the results of [his] reflection upon the war in the former Yugoslavia, crimes committed during that time, and his role therein’. The President ordered Miletić to file a public redacted version of his early release application, which Miletić did, excluding the letter. The President concluded that it was ‘a deliberate decision by Miletić to keep the precise content of the letter from the public’ which is not ‘according to the notion of genuine expression of remorse’.
See for instance, Brđanin, 2020, supra note 42, §§ 54–63; Brđanin, 2022, supra note 42, §§ 52–54; Kunarac, 2020, supra note 42, §§ 64–66; Đorđević, 2021, supra note 42, §§ 65–70; Stojić, 2022, supra note 42, §§ 53–64; Pavković, 2022, supra note 10, §§ 56–60. Cf. Petković, 2021, supra note 40, §§ 48–42 where the President concludes ‘I consider it particularly important that Petkovic had the courage to publicly admit the crimes he committed and to accept the judgments of the ICTY convicting him’. For comparison to the previous practices of assessing acknowledgment and remorse see Holá et al., supra note 9.
In this respect, the President at times assesses attitudes of victims, victims’ associations, local authorities and witnesses towards a prisoner’s early release. Cf. Miletić, 2021, supra note 42, §§ 72–75.
Bralo, 2019, supra note 42, § 39.
For instance, Brđanin showed impeccable behaviour in prison, but lacked critical reflection on the crimes he committed and, therefore, was twice denied early release in this period. Brđanin, supra note 42.
Bralo, 2019, supra note 42, § 39.
Holá and van Wijk, supra note 7, at 286.
‘The purpose of punishment is to express public condemnation of the committed criminal offence, raise the confidence of citizens in the legal order based on the rule of law, exert an influence on the perpetrator and all others so that they do not commit criminal offences by raising awareness of the perils of committing criminal offences and of the fairness of punishment and allow the perpetrator’s readmission into society.’ (Art. 41. Kazneni zakon (Eng. Criminal Code, hereinafter: CC), Official Gazette 125/11, 144/12, 56/15, 61/15, 101/17, 118/18, 126/19, 84/21).
See Art. Zakon o izvršavanju kazne zatvora (Eng. Execution of Prison Sentence Act, hereinafter: EPSA), Official Gazette 14/21. The new EPSA adds that achievement of this goal contributes to protection of the community. According to scholars, offender rehabilitation and resocialization constitutes a crucial goal of sentence enforcement. See I. Bojanić and M. Mrčela, ‘Svrha kažnjavanja u kontekstu šeste novele Kaznenog zakona’, 13 Hrvatski ljetopis za kazneno pravo i praksu (2006) 431–449, at 440.
Art. 59(1) CC.
Art. 59(2) CC.
Available first instance decisions in cases of ordinary offences are equally short.
The majority of decisions do not even mention the word ‘rehabilitation’ as such, but instead simply analyse the factors listed above and generally discuss the likelihood of reoffending.
Two of them only following a repeated request.
In one case of a repeated request, a full year has not passed from an earlier request from the same prisoner, which is a formal requirement according to Art. 166(3) EPSA, so even though the prisoner had served three quarters in the meanwhile, the Court refused to consider his second request. Č.B., SCRC I Kž 615/2020-4 of 2 November 2020 (hereinafter: Č.B. II).
This could imply that early release is rarely granted to serious offenders. Kokić-Puce, Brkić and Maloić, supra note 12, at 738. That is, however, only one of the possible explanations, and further research is needed. Another explanation could be that the percentage of longer prison sentences in Croatia is lower than the percentage of prison sentences of up to five years, hence it is only logical that these prisoners are less represented in the overall early released prison population. See Croatian Bureau of Statistics, Adult Perpetrators of Criminal Offences by Type of Decision, 2021 (PSZ-2022-1-1), 5 April 2022, available online at https://podaci.dzs.hr/2022/en/29161 (visited 3 October 2022).
Art. 59 of the Criminal Code requires the minimum of one half of the prison sentence served.
It might have to do with the earlier provision which required the warden to request early release ex officio, on behalf of each prisoner, a month before three quarters of a sentence would have been served — this provision has been left out of the new EPSA, supra note 59.
See, for example, recent media reports in a well-known case of the offender who was sentenced to three years and nine months for beating his girlfriend and was early released after having served three quarters of the sentence, D. Miljuš, ‘Darko Kovačević Daruvarac odradio tri četvrtine kazne zbog premlaćivanja djevojke i sada želi na uvjetnu slobodu: ‘Obitelj ne može bez mene, a čeka me i posao’, (Slobodna Dalmacija), available online at https://slobodnadalmacija.hr/vijesti/crna-kronika/darko-kovacevic-daruvarac-odradio-tri-cetvrtine-kazne-zbog-premlacivanja-djevojke-i-sada-zeli-na-uvjetnu-slobodu-obitelj-ne-moze-bez-mene-a-ceka-me-i-posao-1168054 (visited 3 October 2022). See, e.g., SCRC, I Kž-uv-85/2021-4 of 8 June 2021. The Supreme Court granted early release to a prisoner sentenced to 21 years of imprisonment emphasizing he had served three-quarters of the sentence. In another case, the Supreme Court assessed that remaining seven out of 20 years of imprisonment constituted a large unserved part of the sentence and rejected as irrelevant that the prisoner had served two-thirds of the sentence, SCRC, I Kž 120/2019-4 of 14 March 2019. In 86.5% of all early releases from 2013 to 2019, early release was granted only in the last year of prison sentence enforcement, indicating that despite rather lenient law, requiring only one half of the prison sentence served, in most cases prison sentence is reduced only at the very end of its enforcement. See Kokić-Puce, Brkić and Maloić, supra note 12, at 734.
T.M., SCRC I Kž 413/2019 of 28 August 2019. T.M.’s first early release was denied, whereas his second request was granted after having served three quarters of the sentence, without reference to gravity. See also F.V., SCRC I Kž 557/2020-4 of 12 October 2020.
LJ.R., SCRC I Kž 45/2020-4 of 3 April 2020. Interestingly, the Court added that despite findings of reduced danger of reoffending, secured future prospects (family support and a job) and positive report of the penitentiary, neither special nor general prevention had been achieved due to lack of genuine remorse and his impulsiveness and emotional instability.
Č.B., SCRC I Kž 164/2020-5 of 3 April 2020 (hereinafter: Č.B. I). He was convicted for violating the rules of international law during the armed conflict by initiating an attack on the civilian population and settlement — an indiscriminate attack that targets the civilian population and illegally and arbitrarily destroys property on a large scale, causing grave damage to property.
Interestingly, in one of those cases it was mentioned in the earlier decision denying early release.
V.M., SCRC I Kž 8/2019-4 of 16 January 2019.
V.M., SCRC I Kž 554/2018-4 of 25 January 2018.
Compare the decisions in which the courts held that early release depended (exclusively) on the convict’s resocialization, regardless of the length of the remaining sentence (as long as one half had been served) while type and the gravity of the committed offence should affect only sentencing (HCC I Kž-uv-130/2021-6 of 14 September 2021, SCRC I Kž 71/17-4 of 14 February 2017) with the decisions in which the Supreme Court explicitly held that the purpose of punishment is not achieved only through sentence determination, but also by the method and length of its enforcement (e.g. SCRC I Kž 65/16-4 of 9 February 2016). Consequently, in light of the gravity of the offence and the remaining part of the sentence as yet unserved, it rejected the request as premature.
I. Kovčo Vukadin, V. Žakman-Ban and A. Jandrić Nišević, ‘Prisoner Rehabilitation in Croatia’, 12 Journal of Criminal Justice and Security (2010) 143–162, at 152.
Ž.B., SCRC I Kž 126/2019-4 of 28 February 2019. As a side note, Ž.B. was an ethnic Croat, sentenced to 10 years of imprisonment for the war crime of killing Serb civilians.
See supra note 30.
G.A., HCC I Kž-uv 60/2021-4 of 15 April 2021, was convicted for robbery and theft, in concurrence with a war crime, to an aggregate sentence of nine years and two months. Another case was V.M., supra note 74.
In V.M. the Supreme Court simply stated that the prisoner expresses remorse for the crimes he committed, without any further inquiry into its genuineness and the motives behind, V.M., supra note 75.
T.M., SCRC I Kž 109/2020-4 of 5 March 2020.
D.V. served his sentence in full, and was subsequently expelled from Croatia to Serbia. Most of the 13 years and 6 months long sentence was, however, served in extradition prison in Australia. D.V., SCRC I Kž 532/2019-4 of 22 October 2019 (hereinafter: D.V. II). See also M. Stojanovic and A. Vladisavljevic, ‘Croatia Frees Serbian War Criminal ‘Captain Dragan’, Balkan Transitional Justice, 28 March 2020, available online at https://balkaninsight.com/2020/03/28/croatia-frees-serbian-war-criminal-captain-dragan/ (visited 3 October 2022).
Interestingly, the court did not bring that fact in connection with the danger of reoffending. See D.V. II, Ibid., and a similar formulation in the previous rejection, D.V., SCRC I Kž 668/2018-4 of 5 December 2018 (hereinafter: D.V. I).
LJ.R., supra note 71. The Court was concerned that since LJ.R.’s attitude towards his crimes changed only during the early release request proceedings (report from penitentiary revealed that he denied his responsibility and found the punishment undeserved), his remorse was not real but was made solely with a view to receive benefits.
Č.B. I, supra note 72.
Đ.S., SCRC I Kž 572/2020-4 of 15 October 2020.
M.P., SCRC I Kž 229/2020-4 of 8 May 2020 (hereinafter: M.P. I) — the first decision in which early release was denied despite M.P.’s remorse and other positive factors because three-quarters of the sentence had not been served at the time and the second decision M.P., SCRC I Kž 473/2020-4, 3 September 2020 (hereinafter: M.P. II).
D.V. was assessed as maladjusted and his participation in the Programme of serving the prison sentence was evaluated as barely satisfying, he was placed under intense supervision, and disciplinarily sanctioned once. DV II, supra note 84.
The only case in which the risk of re-offending was estimated as very high was the case of G.A., a war criminal convicted of other crimes too (robbery and theft). In his case there was also no evidence of after prison support and his cousin, with whom G.A. was supposed to live in a shared household indicated he was afraid as G.A. attacked him before, G.A., SCRC I Kž 537/2020-5 of 1 October 2020 (hereinafter: G.A III).
See art. 163(2)(1) of EPSA. LJ.R., supra note 71 and 1st decision in T.M. — T.M., SCRC I Kž 413/2019-4 of 28 August 2019 (hereinafter: T.M. I).
V.M., supra note 74. This was especially visible in case of T.M., who had a series of severe strokes in prison, was released in March 2020 and died soon afterwards (in November 2020). See Jutarnji.hr, ‘U 69. godini preminuo osuđeni ratni zločinac Tomislav Merčep’, 17 November 202, available online at https://www.jutarnji.hr/vijesti/hrvatska/u-69-godini-zivota-preminuo-osudeni-ratni-zlocinac-tomislav-mercep-15031807 (visited 10 October 2022).
In addition to reframing rehabilitation assessments, the practice of conditional early release was introduced at the IRCMT in 2019. See also article of Lina Strupinskiene in this symposium.
These external factors seem to be taken into account more consistently than in the previous years. However, the question still remains to what extent only a lip service is paid to these considerations and the assessment is merely pro-forma.
Miletić, 2021, supra note 42, § 39.
In extreme cases such modifications can violate the principle of legality. In Del Río Prada v. Spain, ECtHR [GC], app. no. 42750/09, Judgment of 21 October 2013 [GC], § 89, the Court accepted the possibility that measures taken by the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the ‘penalty’, thus falling within the scope of Art. 7 § 1 of the ECHR and prohibition of retroactive application of penalties. Such measures must be distinguished from changes made only to the ‘manner of execution’ of the sentence, which do not fall within the scope of Art. 7 § 1. The change in early release practices by the IRMCT after the majority of prisoners had been early released under more ‘permissive’ circumstances would perhaps be considered as altering only the ‘manner of execution’ of the sentence and not affecting its ‘scope’. Yet, the distinction between a measure that constitutes a ‘penalty’ and one that constitutes ‘enforcement’ of a penalty is not always clear in practice and requires a careful legal analysis. See ECtHR, Registry, Guide on Art. 7 of the European Convention on Human Rights — No punishment without law: the principle that only the law can define a crime and prescribe a penalty, updated on 31 August 2022, § 19,
In some instances, even with respect to exact mode of responsibility, a topic heavily contested even within the ICCTs. See e.g. Pavković, 2022, supra note 10, § 40.
D. van Zyl Smit, ‘International Imprisonment’, 54 The International and Comparative Law Quarterly (2005) 357–385, at 373.
Or fought for the other side in the conflict.
M.P. II, supra note 88.
G.A., supra notes 80 and 90.
See e.g. J. Rachlinski et al., ‘Does Unconscious Racial Bias Affect Trial Judges?’ 84 Notre Dame Law Review (2008–2009) 1195–1246.
Ibid., at 1197.
Cf. M. Milanović, ‘Understanding the ICTY’s Impact in the Former Yugoslavia’, EJIL: Talk! Blog of the European Journal of International Law, 11 April 2016, available online at https://www.ejiltalk.org/understanding-the-ictys-impact-in-the-former-yugoslavia/ (visited 15 October 2022).
See Munivrana Vajda, supra note 2.
See D.V. II, supra note 84 and LJ.R., supra note 71.
