The project empirically investigates penal purposes and conditions under which sentences imposed by the ICTY (International Criminal Tribunal for the Former Yugoslavia) are enforced in different European prison systems. The analysis explores how such enforcement practice influences the legitimacy of international criminal punishments and how it impacts the overarching goals of international criminal justice, such as reconciliation and maintenance of peace.

The pro­ject rep­res­ents a sig­ni­fic­ant con­tri­bu­tion to the cur­riculum of the In­ter­na­tion­al Max Planck Re­search School on Re­tali­ation, Me­di­ation and Pun­ish­ment (IM­PRS RE­MEP) on the use of pun­ish­ment as an in­stru­ment of so­cial con­trol and gov­ernance of se­cur­ity on supra­na­tion­al and na­tion­al levels. It also provides one of the first com­pre­hens­ive in­ter­dis­cip­lin­ary stud­ies on the en­force­ment of in­ter­na­tion­al sen­tences, filling the ex­ist­ing re­search gap and provid­ing valu­able facts as well as re­com­mend­a­tions for fur­ther de­vel­op­ment of law and prac­tice in this im­port­ant area of justice.

The ICTY (In­ter­na­tion­al Crim­in­al Tribunal for the Former Yugoslavia) has pro­foundly in­flu­enced the de­vel­op­ment of pen­al re­ac­tion to in­ter­na­tion­al crimes dur­ing more than 20 years of its ex­ist­ence. Be­sides provid­ing a much-needed mo­mentum for pro­sec­u­tion and ad­ju­dic­a­tion of in­ter­na­tion­al crimes, the Tribunal also es­tab­lished a sys­tem for en­force­ment of sen­tences where, in the ab­sence of of­fi­cial in­ter­na­tion­al pris­on fa­cil­it­ies, con­victed per­sons are be­ing transfered to na­tion­al pris­ons in those European states that entered in­to spe­cial agree­ment for that pur­pose with the Tribunal, to serve their sen­tences there. None of the states of the former Yugoslavia are al­lowed to en­force the ICTY sen­tences.

The nature of such an en­force­ment sys­tem begs ques­tions which chal­lenge the le­git­im­acy of in­ter­na­tion­al pun­ish­ment as an ac­cep­ted in­stru­ment of so­cial con­trol. First, the re­search eval­u­ates the ad­equacy of na­tion­al pris­on sys­tems, in terms of con­di­tions, re­gimes and pro­grams, to pur­posese­fully ad­dress the dis­tinct­ive nature of crimin­al­ity which dif­fer­en­ti­ates most of in­ter­na­tion­al pris­on­ers from or­din­ary pris­on pop­u­la­tion. Second, con­sid­er­ing the al­loc­a­tion of in­ter­na­tion­al pris­on­ers to vari­ous European states, the re­search meas­ures the level of stand­ard­iz­a­tion of such en­force­ment, a key factor for the over­all per­cep­tion of the le­git­im­acy of ICTY sen­tences. Con­sequently, the re­search eval­u­ates to what ex­tent the en­force­ment and its out­come pur­pose­fully con­trib­ute to the over­arch­ing goals of in­ter­na­tion­al crim­in­al justice, such as res­tor­a­tion and main­ten­ance of peace between con­flict­ing parties.

The em­pir­ic­al in­quiry is groun­ded in qual­it­at­ive meth­od­o­logy; i.e. qual­it­at­ive con­tent ana­lys­is of case files and me­dia re­ports and semi-struc­tured in­ter­views with both ICTY pris­on­ers and ex-pris­on­ers, na­tion­al pris­on staff in en­for­cing states and ICTY/MICT of­fi­cials.

Find­ings of the pro­ject in­dic­ate that some of the is­sues re­lat­ing to the im­pos­i­tion of the ICTY sen­tences are also present with­in the mech­an­ism of their en­force­ment. Pen­o­lo­gic­al frame­work is par­tic­u­larly un­der­developed with re­gard to sub­stan­tial re­flec­tion on the pur­poses of im­pris­on­ment and meth­ods to achieve them (i.e. re­hab­il­it­a­tion of per­pet­rat­ors of in­ter­na­tion­al crimes). This res­ul­ted in an am­bigu­ous set of rules which in prac­tice can lead to dis­cre­tion­ary de­cisions, politi­ciz­a­tion and in­equal­ity in the pris­on treat­ment of in­ter­na­tion­al of­fend­ers. Pris­on­ers seem to be ran­domly al­loc­ated to an en­force­ment state, where they are mixed with with or­din­ary pris­on­ers and sub­ject to gen­er­al (if any) re­hab­il­it­a­tion pro­grams, the ef­fect of which in many cases is rather du­bi­ous. Af­ter­wards, they are usu­ally re­leased pri­or to serving their full term in pris­on, mostly based on good be­ha­vi­or and seem­ingly without any sort of form­al su­per­vi­sion which in prac­tice amounts to de facto com­mut­a­tion of their pun­ish­ment. When this is also sup­ple­men­ted by a grand re­cep­tion and ded­ic­a­tion of high hon­ors upon re­turn to their home states, the over­all mech­an­ism could be seen to greatly de­tract from the re­con­cili­at­ory ef­forts of the con­flict­ing parties. This is cer­tainly an un­wanted out­come, since 'the con­tri­bu­tion to res­tor­a­tion and main­ten­ance of peace' is pre­cisely one of the most im­port­ant prin­ciples un­der which the ICTY op­er­ates. Ad­di­tion­ally, the en­force­ment prac­tice shows a lack of reg­u­lat­ory uni­form­ity and a non-trans­par­ent at­tri­bu­tion or deni­al of priv­ileges and prerog­at­ives to in­ter­na­tion­al pris­on­ers, which can in fact also lead to a sig­ni­fic­ant ag­grav­a­tion of en­force­ment of their sen­tences.

Fur­ther read­ing:

  • Vo­jta, F. (2018). Pun­ish­ment and Sen­tence En­force­ment for Ser­i­ous Vi­ol­a­tions of In­ter­na­tion­al Hu­man­it­ari­an Law Com­mit­ted in the Former Yugoslavia (PhD Thes­is). Al­bert-Lud­wigs-Uni­versität, Freiburg i. Br.
  • Vo­jta, F. (2018). En­force­ment of In­ter­na­tion­al Sen­tences in Light of the ICC De­cision in Lu­b­anga and Katanga Cases. Free­dom From Fear Magazine, (14), 29–35.
  • Vo­jta, F. (2014). Pun­ish­ment and Sen­tence En­force­ment for Ser­i­ous Vi­ol­a­tions of In­ter­na­tion­al Hu­man­it­ari­an Law Com­mit­ted in the Former Yugoslavia. In A.-M. Getoš Kalac, H.-J. Al­brecht, & M. Kilch­ling, Map­ping the Crim­in­o­lo­gic­al Land­scape of the Balkans: A Sur­vey on Crim­in­o­logy and Crime with an Ex­ped­i­tion in­to the Crim­in­al Land­scape of the Balkans (pp. 401–428) Schriften­reihe des Max-Planck-In­sti­tuts für aus­ländisches und in­ter­na­tionales Stra­frecht : Pub­lic­a­tions of the Max Planck Part­ner Group for Balkan Crim­in­o­logy. Ber­lin: Dunck­er & Humblot.
  • Vo­jta, F. (2014). Some Ob­ser­va­tions on the En­force­ment of In­ter­na­tion­al Sen­tences in the Case of the ICTY. Spe­cial In­ter­na­tion­al Is­sue, 32–33.

Research School: Research on Retaliation, Mediation and Punishment