Keynote address by the High Commissioner for Human Rights at the International Criminal Justice Sentencing and Post-Conflict Societies

Cape Town, South Africa, 13 October 2011

INTRODUCTION

I am delighted to speak today at the National Institute for Crime Prevention and Reintegration of Offenders. As you know, the reintegration of offenders who served their sentence is not only a desirable social goal. International human rights law requires states to work towards the reformation and rehabilitation of imprisoned offenders.

In preparing this lecture, I noted the institutional collegiality between NICRO, the Centre for Conflict Resolution and the Centre for the Study of Violence and Reconciliation. These two centres have done notable work in the area of post-conflict reconstruction and reconciliation in South Africa, and in Africa as a whole. In this lecture, I propose to bring those two themes together with NICRO’s own Offender Reintegration objective.

NICRO’s current programme in respect of offender reintegration appears to have an understandable focus on South Africa. But, I would like to suggest that your expertise is also needed on the international plane. I would therefore like to encourage you to lend your expertise and attention to the neglected question of how convicts of the international criminal justice system might be reintegrated into their respective societies; in order to allow them an opportunity to become better citizens who could play a role in reconciling and rebuilding the societies they once helped to plunge onto the path of social cataclysm.

I must confess that in my time as an international judge I did not apply my mind to these issues, as my mind was focused more on the need for justice for the worst crimes (through fair trials) and the resulting deterrence. But my position as the UN High Commissioner for Human Rights has given me a different perspective. Indeed, my mandate extends to the rights of all persons, including perpetrators of the worst crimes. When I speak out for the rights for rapists, murderers or terrorists, I do that in full recognition of the suffering they have caused. However, I am convinced that we can only defend our shared humanity in dignity, if we respect that even the worst among us never lose their right to be treated humanely and with dignity and be given a chance to make amends and contribute to the societies they had once violated. Aside from the perspectives of the mandate of my current office, I also truly believe, looking back on my role as a former judge in the international criminal justice system, that there is ample scope within the administration of international criminal justice for greater accommodation of rehabilitation, reconciliation and reconstruction also within the needs of post-conflict societies. And we must never write off the role that ex-convicts of that justice system can play in those regards.

Indeed, the Security Council arguably had this prospect in mind, when in establishing both the ICTR and ICTY they expressed the conviction that the prosecution of persons responsible for serious violations of international humanitarian law would enable not only the achievement of the aim of putting an end to such crimes and the taking of effective measures to bring to justice the persons who are responsible for them, but also would contribute to the process of national reconciliation and to the restoration and maintenance of peace. Regrettably, the administration of international criminal justice has not seen a properly blended approach in the pursuit of both these objectives. And I believe that it is time to start putting that issue squarely on the agenda of international legal policy discourse.

INTERNATIONAL CRIMINAL JUSTICE TODAY

International crimes—genocide, crimes against humanity and war crimes—constitute the worst crimes known to international law. It is the demand of the international community that the perpetrators of these crimes must be brought to justice. Yet, in fragile conflict- and post-conflict situations, States are frequently unable or unwilling to hold perpetrators accountable. This state of affairs carries a grave risk of descent into a social rut, in which more—often cyclical—instability and violations become endemic. Many perpetrators who are not held accountable will be emboldened to commit further crimes to undermine peace processes and thereby preserve their impunity. There is a tendency for their opponents to engage in retaliatory violations against those perceived as perpetrators of the provoking violations, and their accomplices and associates and sympathisers and even innocent relatives. Others may opportunistically shift their criminal energy to lucrative illegal activities such as the trafficking of drugs, weapons and human beings, which undermine the reconstruction of the rule of law and the social fabric of post-conflict societies.

It is therefore encouraging and important that since the 1990s, the field of international criminal justice, which had been completely frozen during the Cold War, has thawed and started to bloom. In the wake of conflict and atrocities, reconciliation through individual accountability, rather than collective amnesia, has become the norm and I am proud to say that my Office--through our own fact-finding and advocacy work and our support for Commissions of Inquiry appointed by the Human Rights Council and the Security Council are leading the way in making this norm a reality.

In response to the Rwandan Genocide and the atrocities in former Yugoslavia, the Security Council set up the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the early 1990s. Through these ad hoc mechanisms, the Council filled a gap in the international system resulting from the fact that at the time the International Criminal Court was no more than a distant dream in the hopes of a small group of international lawyers and diplomats and members of the International Law Commission as they worked on the Draft Code of Crimes against Peace and Security of Mankind.
Dozens of high ranking political and military decision-makers who instigated and organized international crimes were prosecuted and convicted by these two tribunals. More have been transferred to national courts to be judged. I myself served in the ICTR Trial Chamber that convicted Jean Kambanda, the Rwandan Prime Minister at time of the genocide, to life in prison. Colonel Theoneste Bagosora (a one-time chief of Army Staff in Rwanda) has been tried and convicted by an ICTR Trial Chamber. So, too, have General Augustin Bizimungu (Head of Rwandan Armed Forces at the time of the Genocide); Ms Pauline Nyiramasuhuko (Minister of Women’s Development) and many other former ministers, former regional governors, former mayors, and former thought leaders who had abused their positions and played leading roles in the Rwanda Genocide.

The former Serbian President Milosević was being prosecuted at the ICTY, when he died before his trial could be completed. The trials of the Bosnian-Serbs’ political leader Radovan Karadzić and their supreme military commander Ratko Mladić are underway at the ICTY. Biljana Plavsić, who seconded Radovan Karadzić in the political leadership of the Bosnian Serbs, was also charged and convicted of crimes against humanity and war crimes at the ICTY. As at the ICTR, the ICTY has also either put on trial many senior political leaders, military leaders and community leaders who played leading roles in realising the perpetration of the atrocities committed in the former Yugoslavia.

There are other positive examples of international justice at work. As we speak, former President of Liberia Charles Taylor has had to answer to charges of international crimes before the Special Court for Sierra Leone. Hopefully, we will soon see Hissène Habré, the former dictator of Chad, prosecuted in Senegal or extradited to another place that is willing and able to try him. The International Criminal Court, which was the final station in my judicial career, is nowhere as active as on our continent—not to single out Africans, but to provide justice to the victims, where national judicial systems fail, and to protect all us from more atrocities. Omar Al-Bashir, President of Sudan, Jean-Pierre Bemba, former leader of the opposition in the Democratic Republic of the Congo, and now also Muammar Gaddafi, his son and his top ranking security official are among those indicted by the ICC. Initiatives are underway in places like Burundi and the Democratic Republic of the Congo to establish special chambers that involve international prosecutors and judges.

Beyond Africa, an array of criminal courts and tribunals of an international character are holding perpetrators of international crimes accountable for their actions: The Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon or the Special Panels for Serious Crimes in East Timor to name but a few examples. Perpetrators of international crimes also have to worry about the domestic incorporation of the crimes in the Rome Statute and the universal jurisdiction that a number of countries exercise over international crimes regardless of where in the world they were committed.

The Security Council’s referral of the situation in Libya to the International Criminal Court earlier this year shows, that, with the necessary political will, the hand of justice can now reach perpetrators of international crimes regardless of where or who they are. In August this year, I called upon both the Security Council and the Human Rights Council also to refer the situation in Syria to the ICC.

SENTENCING INTERNATIONAL CRIMINALS

We continue to hope that momentum of international criminal justice rolls along with even greater steam to the desired end of holding accountable those who are implicated in the commission of international crimes.

What should we do with those who are arrested, prosecuted and convicted? The United Nations opposes the imposition of the death penalty under any circumstances. This stance is not inconsistent with the belief, which I share, that perpetrators of international crimes must receive appropriate punishment that fits the seriousness of their crimes. I, for one, have not shied away from handing down sentences of life imprisonment in the appropriate case. While at the ICTR, I was on the panel that passed sentence of life imprisonment against Kambanda and other organizers of the Rwandan Genocide.

This being said, in the actual practice of international courts, the majority of perpetrators will receive less than life, in view of their roles in the crimes committed, how well they had cooperated with the judicial process or the operation of other mitigating circumstances in their favour. One study found that out of 111 people convicted by the ICTY and ICTR up to June 2010, only 18 received life sentences.

Even those who are convicted to life, have may seek pardon, commutation of sentence or early release, according to the statutes of all contemporary international criminal courts and tribunals. Indeed, it is reasonably arguable that the right to seek pardon, commutation of sentence or early release is a human right. [I must quickly stress that I have not said that there is a correlative duty to grant the reprieve sought.] This logically follows from Article 10(3) of the International Covenant on Civil and Political Rights. According to this human rights norm, the essential aim of imprisonment shall be reformation and social rehabilitation. This logically presumes that the perpetrator should, in principle, be entitled to the opportunity to re-enter society for purposes of such rehabilitation and reformation. So when my colleagues and I told Mr Kambanda, during his sentencing at the ICTR, that we were sending him to jail for the remainder of his life, we should have perhaps added that considerations of human rights and the needs for reconciliation and reconstruction of Rwanda leave him a small backdoor for early release–if he reforms himself. Most countries that have life imprisonment foresee a right for lifetime prisoners to apply for parole after 15 or 20 years. The German Constitutional Court even found that a denial of any chance of parole breached the right to human dignity.

It is therefore, not surprising that, in practice, very few convicts of the international criminal justice system have been locked away for life. Among the seven principal Nazi Criminals who were neither acquitted, nor sentenced to death in Nuremberg, only Rudolf Hess served his life sentence and died in prison. Three other convicts were released early on grounds of ill health; three more after serving their full sentences of respectively 10, 20 and again 20 years. Moreover, the vast majority of second-tier Nazi functionaries, who were convicted in the many follow-up trials conducted by the Allied powers, were released after a few years. Out of 3,643 German war criminals held in custody of the Western Allies and other foreign countries in April 1950, more than two thirds had been released by August 1952.

The political exigencies of the Cold War also benefitted Japanese war criminals. A powerful movement, formed to achieve parole for these perpetrators, pressed U.S. President Truman to establish a Clemency and Parole Board for War Criminals in 1952. By the end of 1958 all Japanese war criminals had been released.

The record will not be much different for convicts of the current generation of international criminal justice system. In recent years, the first ICTR and ICTY convicts were already released from prison. As of the date of preparing this lecture, four convicts the ICTR have been released upon serving their full sentences for commission of international crimes. The fourth convict, Georges Ruggiu, a Belgian national who worked as a journalist at the infamous RTLM FM radio station, was released early upon an order of a Court in Italy (where he served his sentence) made apparently without ICTR approval.

The ICTY has been much more ‘generous’—both in sentencing and in confirming requests for early release. On average, a high-ranking decision-maker convicted by the ICTR received a sentence of 32 years imprisonment, compared to only 10 years for ICTY convicts. Consequently, a number of ICTY convicts have already been released. Notably, Biljana Plavsić was released in 2009 after she had served two thirds of her 11-year sentence for war crimes and crimes against humanity.

INDIVIDUAL REINTEGRATION AND COLLECTIVE RECONCILIATION

Many German and Japanese convicts, who were released in the 1950s, managed to have second careers in the newly established democracies. However, this was more probably a reflection of their keen opportunistic instincts and a permissive political environment, than the result of genuine reformation and rehabilitation. In Germany, for instance, the Allied powers launched re-education campaigns to inform the German public about the atrocities the Third Reich and delegitimise the racist ideology it was built on: there is no evidence that any or as much attention was particularly paid to the reformation and reintegration of convicted offenders in the post-World War II German society.

From a policy perspective, there is no evidence that reformation of convicts was a pressing need in Germany and Japan. Perpetrators had little choice but to integrate into the new order, as the regimes they served had been roundly defeated. Moreover, the societies they re-entered were not ethnically divided with the potential of internal conflict. Today’s generation of international criminals, however, typically commit their crimes in the course of identity-based violent intra-social conflicts that lacked a clear winner—the Balkans being a classic example. Or they waged campaigns of violent oppression against internal political opposition movements or ethnic minorities—as was the case in Cambodia, Sierra Leone, Libya and Rwanda.

In the aftermath of such internal crises, reconciliation is an urgent necessity and unreformed perpetrators may easily endanger fragile peace and reconciliation processes once they regain their liberty. The reintegration of individual perpetrators is therefore intrinsically linked to the larger collective reconciliation and enduring peace.

OPTIONS FOR REHABILITATION

I therefore disagree with those who regard international justice only as a tool of retribution and deterrence. In this regard, the Security Council displayed great insight into the potential of the penal justice system as an instrument of social reconciliation and reconstruction in when it established the ICTR. Notably, the Security Council was ‘[c]onvinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable [the] aim [of individual judicial accountability] to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace.’ Similar aspirations are also engaged in other post-conflict societies.

That is to say, the administration of international criminal justice can thus also contribute to reconciliation by establishing the historical truth, addressing the grievances of victims and encouraging perpetrators to atone for their crimes and help undo some of the harm they had done. This approach is also congruent with human rights law, according to which any punishment has to aim at reformation and social reintegration, regardless of how heinous crimes that were committed.

If we find ways to reintegrate ex-convicts of the international criminal justice system into post-conflict democratic societies, this can potentially be a very powerful contribution to the project of national reconciliation and reconstruction. After all, international criminal courts and tribunals generally aim to bring to justice those most responsible for international crimes. As a result, many of those who are prosecuted in the international judicial arena were charismatic and influential people in their societies before and while they committed atrocities. Hence, there remains a possibility that they may continue to be viewed as ‘heroes’ and role models even after serving their time in prison. Many Croatians, for instance, regard former General Ante Gotovina as the heroic military architect of the defence against Serb aggression and reacted with dismay as he was sentenced to 24 years for crimes against humanity and war crimes in April of this year.

Little consideration has to date been given to how we can help ensure that ex-convicts of the international criminal justice system could contribute to reconciliation or, at a minimum, refrain from fomenting or instigating more hatred, division and violence upon their release from prison. For the international judge that I once was, a case might have been concluded with me pronouncing the sentence. In international policy-making we do not have the luxury of judging and moving on to the next case. The historical record shows that most international convict will leave jail after a number of years. Many will remain a factor to be reckoned with and we have to think how to prepare for their release.

In approaching the subject, we should of course not be naïve. There are few examples of primary culprits who demonstrated genuine remorse. Many perpetrators will be so trapped in the web of ideological poison they themselves had spun, that it may be difficult to wean them from the extremist ideological convictions motivating their crimes. Among the 22 defendants at Nuremberg, for instance, only Albert Speer—who was initially Hitler’s architect and later coordinated the Third Reich’s slave labour machine as Minister of Armaments—is credited for showing a measure of genuine remorse for his actions. Speer published very self-critical memoirs after his release from prison (although he took liberties with the true extent of his knowledge about the holocaust); and it is said that he anonymously donated much of the proceeds of these memoirs to Jewish charities.

In Cambodia, Kaing Guek Eav (better known as Duch [pronounced: DOIK]), who ran the infamous Tuol Sleng torture center, is the only person among the upper cadres of the Khmer Rouge who has shown remorse for his actions and testified against his superiors, who continue to deny all responsibility for the killing fields.

At the ICTR, former Prime Minister Kambanda had initially pleaded guilty apparently upon an understanding that the Prosecution would not seek life imprisonment and would make other accommodations that would make life more comfortable for himself and his family. But upon being sentenced to life imprisonment, partly on account of the submission of the Prosecution who for reasons best known to them had requested the life imprisonment, an extremely bitter Kambanda lodged an appeal in which he argued that he had been misled by the Prosecution into pleading guilty.

If we look at the Rwanda and Yugoslavia, we also find perpetrators at mid-and lower-level positions who have pleaded guilty, expressed remorse and testified against more senior figures. For instance, Drazen Erdemović, who took part in the Srebrenica massacre, turned himself in despite death threats from fellow perpetrators. Before the ICTY he explained: ‘I wanted to help the International Tribunal understand what happened to ordinary people like myself in Yugoslavia.’ Later, Erdemović testified at great risk for himself and his family against former Serbian President Slobodan Milosović, even though he had already been released from jail.

Based on this anecdotal review—and more serious research is clearly needed—it is certainly arguable that the chances of genuine reintegration are larger with perpetrators of the second or third tier of responsibility. Incidentally, these convicts are typically also younger and serve lesser sentences, which increase the chance of them being released in time to still make a contribution to reconciliation and enduring peace. It may be that greater scepticism will attend expectations of reform and rehabilitation of the top echelons of criminal responsibility resulting from violent social conflicts based on group identity; but even they deserve a chance and the benefit of the doubt in that regard.

A FRAMEWORK FOR REINTEGRATION: INCENTIVES AND SAFEGUARDS

Remorse cannot be genuine if it is compelled by force or induced by venal lure; nor can positive moral convictions be dictated. Nevertheless, much more can be done to create a conscious framework of encouragement to help change negative mind-sets where such is possible, coupled with safeguards to prevent impenitent perpetrators from becoming obstacles the peace process.

Sentencing with a Reintegration Perspective

I believe that it is possible—and indeed desirable—to factor the process to rehabilitation into the sentencing process at the end of an international criminal trial. In their sentencing practice, international criminal tribunals tend to focus on retribution and deterrence. For instance, in discussing the objectives of sentencing in international criminal justice, an ICTY Trial Chamber in the Erdemović Case, even went as far as stating that ‘the particularities of [international] crimes … rule out consideration of the rehabilitative function of punishment. Retribution (in the sense of punishment of offenders for their crimes) and deterrence are important—not least since the victims also have a right to receive reparation, including the moral satisfaction of seeing their tormentors punished and the reassurance that violations will not recur.

Yet, it is possible and desirable that there be also room for rehabilitation in the sentencing process. As the Appeals Chamber of the ICTY found in the Delalić Case: while rehabilitation should not be given undue weight in international sentencing, it is a relevant factor. Courts already take into account reform efforts displayed by the defendant in court: whether the defendant admits guilt, shows remorse and offers testimony that uncovers the truth about violations, helps establish chains of responsibility and sheds light on the fate of victims. However, more attention should be paid to behaviour outside of court process. In this connection, due cognizance could be given in the sentencing process to words and even more to actions tending to promote reconciliation between the opposing camps and to provide material reparation to victims.

Parole proceedings

Similarly, in parole proceedings, the notion of ‘good behaviour’ on the part of convicts of international criminal justice system should focus more on whether they have genuinely distanced themselves from the extremist ideologies underlying their crimes and made good faith efforts to promote reconciliation even while serving their prison sentence. Regarding the ICTY’s decision to release Biljana Plavsić early, for instance, the Tribunal was criticized, because it had taken into account her guilty plea, expressions of remorse in court and her good prison record, including the fact that she took part in prison walks and occupied herself with cooking and baking. However, the Court failed to consider media statements she made long after her conviction from prison, which suggested that she had only pleaded guilty out of tactical considerations of her own self-interest and had still did not recognize the crimes committed and her role therein.
Existing legal frameworks already require courts to factor in the potential contribution a convict can be expected to make to the peace and reconstruction process, if released early. According to the Rules of Procedure and Evidence of the International Criminal Court, for instance, the Court must look at a number of factors to decide on an application for early release, including:

• genuine dissociation from the crime,
• the prospect of re-socialization and successful resettlement,
• the risk that early release would cause significant social instability, and
• efforts made by the perpetrator that benefit the victims and their families.

However, there are big differences between how courts operationalize these legal framework, as the divergence in the early release practice of the ICTY and ICTR shows.

I would expect that the work of specialized organisations such as NICRO would be very helpful in this regard, not only in helping to establish a sound and standardized assessment methodology, but also in working with in-mates in order to afford them the opportunity and avenue of helping with national reconciliation from penitentiary, as well as in helping in the assessment genuineness of reform and rehabilitation of the in-mate seeking early release.

Practical reintegration measures

This legal framework needs to be coupled with practical reintegration measures for convicts, while they are in prison and after their release. In particular, it is well worth the effort to explore what valuable lessons to be learned from programmes of reintegration for members of extremist groups or terrorist organisations. Like other organized and indoctrinated criminals, perpetrators of international crimes also have to be provided with viable strategy to exit the networks of material and ideological support that entangle them.

Voluntary re-education programmes and carefully arranged encounters with victims or convicts from the opposing camp, may also set in motion processes of reflection and internal reform. I would therefore encourage organisations such as NICRO to develop reintegration projects to engage with international criminals. Once established, judges could build cooperation with such reform programmes into their sentencing and parole practice.

Necessary safeguards

We should of course also introduce certain safeguards to prevent those who shun or resist all offers of rehabilitation, particularly when they belong to the top echelons of criminal responsibility, from reclaiming power and undermining peace and reconciliation.

For one, international courts should explore the option of conditional early release, i.e. suspended sentences. Conditions could entail a requirement not to engage in violent criminal activity, war propaganda or advocacy of national, racial or religious hatred.

I am generally critical of rules that deny voting rights to ex-convicts who have served their sentence. I am also sceptical about banning people from public service based on very general criteria, such as mere membership in the former ruling party. However, certain restrictions for international criminals who seriously abused public power vested in them are acceptable and even desirable—especially when such ex-convicts have not demonstrably reformed their ways. A number of countries, for instance, ban people who were implicated in a coup d’état or committed serious human rights violations from assuming elected office or sensitive functions in the military, intelligence and law enforcement fields. I would not question the legality and good sense of such bans. In many situations, I have myself called for vetting exercises aimed at removing perpetrators of human rights violations from the army and police.

CONCLUSION

The topic of reintegration of convicts of international criminal justice is complex and requires continuous thinking. This brief lecture can only be an invitation to such further and continuous thinking.

I invite NICRO and kindred organisations to contribute to the project. I expect that NICRO, in particular, is able to convert the expertise gained in offender reintegration at the national level to useful programmes in the international arena of criminal justice, with the view to assisting in national reconciliation and reconstruction in post-conflict societies in Africa and elsewhere.

I must stress, of course, in concluding, that any effort aimed at reforming individual perpetrators must be flanked by a much wider efforts to rebuild trust within the community. It is indeed a most powerful impetus for the reform of ex-convicts of the international criminal justice system if they were to discover that the community they once had in their thrall has moved on and is no longer interested in their hatemongering.

I thank you for your attention.

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