CJCCJ/Volume 63.4 (2021)
Imprisonment for International Crimes: An Interdisciplinary Analysis of the ICTY Sentence Enforcement Practice
By Filip Vojta
Berlin: Duncker & Humbolt. 2020. 375 p.
Filip Vojta’s Imprisonment for International Crimes is an in-depth critical analysis of the enforcement of sentences imposed by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Although enforcement has garnered little academic attention, Vojta persuasively argues for its critical importance to the legitimacy of the international war tribunal regime. Imposition of a sentence is only the first step towards fulfilling the international criminal court’s objectives. Vojta identifies rehabilitation as the sentencing objective that best leads to mutual understanding and reconciliation between the victims and the macro-criminal (see below). Meaningful rehabilitation and lasting reform of macro-criminals can only be realized during the enforcement phase of the sentence. Targeted institutional programming, which encourages prisoner self-reflection, can break the cycle of ethnic violence and lead to national healing.
The book is divided into seven chapters. Chapter one outlines the research question and methodology as the book is an extension of Dr. Vojta’s doctoral work. The research question generally looks at the current sentencing enforcement process, sentence enforcement in practice, and the outcome of enforcement to determine whether the ICTY sentencing objectives are fulfilled. Vojta’s research approach is exceptionally comprehensive, combining analyses of sentencing methodology, legal decisions and media reports along with interviews of prisoners, prosecutors and international tribunal officials. Vojta’s research approach contextualizes the enforcement of sentences in theory and practice, resulting in a readable and insightful treatise.
Chapter 2 provides an introduction to the issues engaged by the enforcement of ICTY’s sentences. Vojta underlines the critical need for the home state to accept the imposed sentences as legitimate. Legitimacy can be undermined when the home state perceives sentencing enforcement practices as unfair and inconsistent. It is Vojta’s premise throughout the book that the ICTY enforcement practices are too discretionary and too dependent on the various host states, who enforce the sentences in their national prison systems. As a result, ICTY sentences fail to fulfill the primary sentencing objectives of deterrence and rehabilitation. Without consistent and productive sentencing outcomes, international support for the entire sentencing process is at risk. Vojta urges a revised sentencing enforcement regime that will produce better sentencing outcomes, thereby preserving the legitimacy of international tribunals.
Chapter 3 explains how macro-criminals differ from ordinary offenders typically found in the prison population. Macro-criminals are a particular category of offenders who commit horrific crimes of immense magnitude, often ideologically driven. These offenders are well-spoken, intelligent, stay within the prison rules and are viewed by prison officials as model prisoners. However, without targeted rehabilitative programming that creates space for self-reflection and reconciliation with their victims, these well-behaved offenders may be released from custody without significant strides toward attitudinal change. Without transformative change, the rehabilitative effects of the prison sentence are minimal. Throughout their sentence, macro-criminals, who maintain the status quo, often gravitate to their old ideological attitudes and power bases upon return to their home states.
Chapter 4 examines the many facets of rehabilitation and applies it to the macro-criminal. To highlight the prime importance of rehabilitation in sentence enforcement, Vojta evaluates Spandau Prison as an example of an international prison with little to no rehabilitative effects. This stark reminder of the past highlights the critical need for a fair and just sentence enforcement system, creating meaningful attitudinal change and acceptance of responsibility for past actions.
Having laid the foundational information, Vojta describes the current ICTY sentence enforcement regime in Chapter 5. The vertical system of sentence enforcement is founded on the vital principle that no offender serves their sentence in their home country. One of the primary reasons for this unique structure is the instability of the home country, torn by civil and ethnic war, and the lack of infrastructure and emotional capacity to enforce the sentences of local war criminals. Although this reasoning appears sound, implementation of the rule in practice is mired in bureaucratic difficulties. States must be found who are not only willing to host macro-criminals in their prison systems but are also able to take on the cost of sentence enforcement. Although these structural problems are not insurmountable, they can impact the ultimate rehabilitative effects of the sentence. For instance, the host state will enforce the sentence according to their national laws and practices, including eligibility for release. As each state have differing release practices, inequities are created between those macro-criminals serving sentence in different host states.
Chapter 6 details the enforcement of ICTY sentences in practice, beginning with how the international tribunal determines where the sentence will be served, and the agreements made between the international tribunal and the host states. Once a placement is determined, Vojta reviews the mechanisms in place for review and supervision of the enforcement of that sentence, including prison conditions, treatment, and programming available to the macro-criminal. Vojta then discusses the criteria for early release and the role of the international tribunal in the decision to release a macro-criminal. Finally, Vojta discusses the post-release situation and the return to the home jurisdiction. This overview reveals a concerning disconnect between sentence enforcement in practice and the primary sentencing objective of rehabilitation. In practice, minimal rehabilitative programming, which is entirely dependent on the host state, is directed towards the specific needs of the macro-criminal.
Moreover, the ICTY oversight mechanisms are not robust enough to drive change, resulting in minimal transformative effects from the various host state carceral systems. As Vojta notes “the general opinion is that international prisoners return to their home states where they are celebrated as heroes or martyrs who sacrificed themselves for their homeland” (p. 307). For a vast number of citizens of that home state who were victims of the macro-criminal, this outcome impacts the ability of the country to heal and come together as one nation. This has the further negative consequence of undermining the legitimacy of the international regime as the victims and offenders view the tribunals as ineffective, unfair and unjust.
In his final chapter, Vojta offers workable recommendations for change. Identifying the discretionary nature of sentencing enforcement as a vital issue, Vojta suggests the standardization of enforcement practice. This would involve consolidation of institutions that would enforce the sentence, thereby increasing the number of macro-criminals serving a sentence in one facility. The institutions would be regional and located closer to the home state, permitting closer familial ties, which aids in rehabilitation. Such regional prisons would create equities between macro-criminals, as treatment would be consistent between prisoners. Importantly, regional prisons would be able to offer meaningful rehabilitative programming targeted to the unique needs of the macro-criminal. Prison space dedicated to the macro-criminal would also encourage dialogue between ideological factions, promoting understanding and empathy between offenders. This would promote reconciliation before releasing in the hopes of furthering much-needed healing in their home states.
Standardizing the enforcement process would also better engage the ICTY in sentence enforcement decisions such as early release practices. Directly connecting the ICTY to sentence enforcement would also increase the supervisory function of the tribunal and create stronger ties between ICTY and the home state. They would then benefit from better reintegration of the macro-criminals into the political and social environment. More robust connections will have the apparent effect of increasing the legitimacy of international justice in the eyes of the home country.
Vojta’s publication deftly takes the reader through the intricacies of the sentencing enforcement of macro-criminals, providing insight and clarity to an over-looked area of international criminal justice. Sentence enforcement, which fulfills rehabilitative objectives by changing macro-criminals’ attitudes and perspectives, can ensure global stability, reduce violence, and create a positive space for healing and understanding. International tribunals and international efforts to stand up for victims of war crimes are laudable. Still, they can only have a lasting effect if the sentences imposed on macro-criminals are enforced in a manner that ensures that justice is not only done but is seen to be done.
Imprisonment for International Crimes is an engaging and nuanced treatise, focussing on the less visible function of international war tribunals in its enforcement of sentences for war crimes. In this book, Vojta successfully makes a case for reform of that regime, which will interest scholars in criminology and law and policymakers who can lead change. Vojta’s research and dedication to this topic ensures that justice will be present and accounted for in the enforcement of international sentences. This publication will make a lasting and welcome contribution to scholarship in the area.
LISA SILVER
UNIVERSITY OF CALGARY