Does Remorse Count? ICTY Convicts’ Reflections on Their Crimes in Early Release Decisions

• Date: 01 December 2018
• DOI: 10.1177/1057567718766228
• Published date: 01 December 2018
• Subject Matter: Articles

Article

Does Remorse Count? ICTY

Convicts’ Reflections on Their

Crimes in Early Release Decisions

Barbora Hola, Joris van Wijk, Francesca Constantini,

and Armi Korhonnen

Abstract

Based on all publicly available International Criminal Tribunal for the Former Yugoslavia (ICTY) early

release decisions as of May 31, 2017, this explorative article empirically analyzes, systematizes, and

evaluates how ICTY convicts reflected on their past crimes during early release proceedings

and how this affected decision-making of the ICTY President regarding their level of rehabilitation

and early release. For this purpose, we developed an analytical framework distinguishing between

acknowledgement of responsibility and remorse, as two forms of reflection on the past crimes, and

their general and personal dimensions. Our analysis demonstrates that of all 53 individuals early

released at the ICTY, 36% were considered sufficiently rehabilitated and a part of their sentence

pardoned without any information regarding their outlook on the crimes they had been convicted

of. Only 19% of the early released prisoners acknowledged their personal responsibility and

expressed remorse for the crimes they committed. Others denied, only partially accepted

responsibility and/or showed remorse on a general level, which, however, did not bar their early

release. The article argues that this haphazard practice brings into question the ICTY legacy with

respect to its goal of offender rehabilitation and its potential effects on reconciliation in the Former

Yugoslavia.

Keywords

ICTY, early release, remorse, acknowledgement of responsibility, rehabilitation

More than two decades ago, the United Nations Security Council passed the Resolution 827

establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first ad hoc

international criminal court set up since the post–WWII Nuremberg and Tokyo tribunals. The

Tribunal was created to prosecute persons responsible for war crimes, crimes against humanity,

and genocide committed at the territory of the Former Yugoslavia since 1991. Volumes of (critical)

Netherlands Institute for the Study of Crime and Law Enforcement (NSCR), Amsterdam, the Netherlands

Corresponding Author:

Barbora Hola, Nederlands Studiecentrum Criminaliteit en Rechtshandhaving, Postbus 71304, 1008 BH Amsterdam,

the Netherlands.

Email: bhola@nscr.nl

International CriminalJustice Review

2018, Vol. 28(4) 349-371

ª2018 Georgia State University

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DOI: 10.1177/1057567718766228

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scholarship have been written about the work of the ICTY, its establishment, laws and procedures,

sentencing, victims and witnesses testifying before the court, or its contributions to history writing or

effect on reconciliation in the postconflict societies (cf. D’Ascoli, 2011; Kutnjak Ivkovic´ & Hagan,

2011; Morris & Scharf, 1995; Orentlicher, 2008; Stover, 2005; Wilson, 2011). As the Tribunal’s

mandate came to an end in December 2017, the ICTY’s legacies in all these different areas are being

discussed and evaluated. In this article, we aim to contribute to these discussions by turning the focus

on individuals tried by the Tribunal. We discuss a very particular aspect of the ICTY proceedings:

How convicts reflect on their past deeds at the time of their (early) release. We analyze how and to

what extent offenders’ reflections on the past crimes are considered during the President’s decision-

making regarding their early release and how this might affect an evaluation of the ICTY’s legacy

with respect to its goal of offender rehabilitation and its potential effects on reconciliation.

In addition to its core mandate of prosecuting and trying individuals accused of international

crimes, on various occasions, the I CTY has expressed its aspiration not only to rehabilitate

convicted offenders but also to promote reconciliation. In its sentencing judgments, offend er

rehabilitation is often mentioned as one of its sentencing goals, and the level of rehabilitation

is one of the criteria for granting early release to individuals convicted by the Tribunal. Despite

the recent statements by the ICTY President Carmel Agius that the Tribunal did not have the

mandate to offer reconciliation and consequently has “not dealt with it at all,”

1

the ICTY has

since its inception on multiple occasions referred to its role in reconciliation in the Yugoslav

region (Clark, 2009a; cf. ICTY, 1998; Prosecutor v. Drazen Erdemovic, 1998, para. 21). In any

case, the Tribunal has certainly constituted one of the major actors in the transitional justice and

recovery process following the wars in the Former Yugoslavia. Its indictments, proceedings,

verdicts, sentence pronouncements, and the (early) release of those convicted have undoubtedly

affected reconciliation processes and relationships among individuals and communities on the

ground, even if unintentionally, c ollaterally, and negatively (cf. Cl ark, 2012; Hayden, 2011;

Meernik & Guerrero, 2014).

Rehabilitation ultimately aims to reintegrate the convict in society and to enable him “to socially

function in a way that is acceptable to both himself/herself and society” ( van Kalmthout & Dur-

nescu, 2008, p. 28). As we already touched upon in our previous work (Hola & van Wijk, 2016;

Kelder, Hola, & van Wijk, 2014), in the context of international crimes and international criminal

courts, this might, however, lead to a rather paradoxical scenario. If a society, to which a convict is

released, still endorses and justifies the past violence, his reintegration prospects “to socially

function in an acceptable way” after being released from a foreign prison might be much better,

if he does not acknowledge having committed any crimes, nor shows any remorse. Also, as Ander-

son (2017, p. 230) argues, narratives of denial may even be psychologically functional as this allows

perpetrators to maintain positive self-identities; it can protect the self from threats, increase self-

esteem, decrease depression, improve physical health, and ease social relationships. Reconciliation

between former adversaries, on the other hand, can arguably only meaningfully start once perpe-

trators accept their role in the commission of crimes, de monstrate remorse, and even sincerely

apologize for their deeds. Denying ones’ crimes or—even worse—justifying the past behavior or

stating that one would act the same in similar circumstances may outrage victim groups, tear open

old wounds, and possibly create instability in an already fragile region. It is difficult to conceive true

reconciliation if perpetrators continue to deny any responsibility, justify the past crimes, and offer no

regret.

The above presents an obvious paradox. For successful reintegration it may, for some offenders,

be best not to acknowledge any crimes or show remorse; for reconciliatory purposes, it is best if they

do. The question remains how offenders and judges at the ICTY have over the past years in actual

practice dealt with issues of acknowledgement and remorse. To what extent, for example, does the

President in early release decisions take into account the counterintuitive thesis that (continued)

350 International Criminal Justice Review 28(4)