By Karla Marek

April 1993. Ahmići, a village in central Bosnia and Herzegovina, is attacked by Bosnian Croat military forces. With the purpose of cleansing the village of its Muslim population, the village is destroyed, houses are burned and 116 Bosniaks are killed.

February 2001: Dario Kordić, the former President of the Croatian Democratic Union of Bosnia and Herzegovina, is found guilty of war crimes and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY). As a leading regional politician, he supported and facilitated the planning and organisation of the Ahmići massacre as well as several ethnic cleansing operations within his sphere of authority. He is convicted to 25 years imprisonment during which he behaves well, works in the prison laundry, participates in two excursions and shows a stable personality. His risk to repeat criminal offences is deemed to be low and he maintains good relationships with his family. In the decision on Kordić’s early release, the President of the International Residual Mechanism for Criminal Tribunals (IRMCT) cites such demonstrations of rehabilitation, strong family attachments and his chances of successful reintegration into society as positive indicators for granting early release. In 2014, after having served two thirds of his sentence, Kordić is released early and returns to Croatia.

June 2023. A video goes viral on social media in which Dario Kordić recounts his perspectives on his prison sentence and the war: “I would do it all over again, I wouldn’t change a second, every second was worth it.” (news reporting on the video: Once a War Criminal, Always a War Criminal? | Balkan Insight, Hague convict says ‘it was worth it’ and he would ‘do it all over again’ – N1).

30 years after the Ahmići massacre and after having served 17 years in prison, a convicted war criminal affirms the righteousness of his killings. What does that tell us about the assessment of his early release? Did it fail?

Looking at what is known of his life after release, the prognosis seemed largely correct. Living with his family in Zagreb, he graduated with a Master’s degree in Theology from the Catholic Faculty of Theology in Zagreb and, on the 25th anniversary of the Ahmići massacre in 2018, announced his return to politics. The scene in the video shows Kordić sitting, smoking, and singing, surrounded by a relaxed-looking group of other people. There seems little doubt that Kordić has managed to achieve reintegration and financial stability in his post-release life. Additionally, there are no indications that he has relapsed into criminal behaviour.

If a war criminal’s rehabilitation is indeed indicated by his reintegration into a community, professional prospects and a law-abiding lifestyle, then Kordic’s risk assessment was correct. However, considering the detrimental impact of his statement on victim communities and Balkan societies, this assessment seems to overlook a serious societal risk that persons convicted for international crimes can pose.

Kordić’s case is not unique. Alongside prominent public figures such as Veselin Šljivančanin, Biljana Plavšić or Vojislav Šešelj, he is one of many individuals who were convicted by the ICTY, released early and then returned to their communities in the Western Balkans to deny their crimes (or the wrongfulness thereof), spread nationalist views and incite ethnic tensions and violence. Some joined extremist political parties, published books and gave interviews reaffirming ideologies that were causal to the crimes committed during the Yugoslav wars. Strikingly, many of them had been deemed sufficiently rehabilitated based on good conduct in prison, participation in field trips and satisfying performance in the prison’s kitchen, laundry or library. 

Unsurprisingly, this approach to early release was heavily criticised by academia and practitioners: it was questioned to what extent the indicators for sufficient rehabilitation were applicable to perpetrators of international crimes as they stem from the work with ordinary convicts. They rest on the premise that, if an individual committed crimes out of anti-social motives and struggled to fit into a structured life before incarceration, their trouble-free adjustment to the prison environment represents a development in social, cognitive and/or behavioural skills and therefore indicates positive chances of their social and crime-free reintegration after release. It can be argued that this prognostic value doesn’t hold for individuals who were well-adjusted citizens without any troubles fitting into society to begin with – such as the majority of perpetrators of international crimes.

Indeed, the game of early release changed in 2019 when the new President of the IRMCT declared that the rehabilitation of perpetrators of international crimes cannot be assessed through the same lens as ordinary criminals. Good conduct in prison was found inapt as the sole indicator for successful rehabilitation and instead, the President listed several indicators for rehabilitation: the individual’s expression of remorse, their capability to accept personal responsibility and attempts to foster reconciliation and forgiveness have been the focus of rehabilitation assessments since. As a result, significantly more early release requests have been denied. It is possible that, if Kordić’s assessment would have considered his reflections on past crimes more heavily, he would have not been granted early release. Considering the current scandal, the IRMCT’s new approach to early release decisions might therefore seem promising in the eyes of many.

However, this approach is also not without flaws. If early release decisions are based on the individual’s expression of remorse versus their denial of the crimes, it is only a fine line to establish one’s agreement with the Court’s findings as an indicator for early release. However, perpetrators of international crimes do after all have the right of free expression, including disagreement with the Court. The Court is to judge criminal accountability and, by the sentencing purposes of general and special deterrence, prevent future criminal offences. The Court is not responsible for judging an individual’s opinion. Additionally, it is questionable to what extent feelings of remorse are necessary for a law-abiding lifestyle.

Nevertheless, the societal impact that convicted war criminals have by spreading certain ideas and views related to their crimes and the previous conflict is arguably larger than for ordinary people due to the gravity of the crimes, the number of direct and indirect victims and the media attention they receive, even decades after the original crimes. It seems as if, compared to ordinary convicts, a possible threat of perpetrators of international crimes does not so much stem from the risk of recidivism, but from a harmful impact on society which can obstruct peacebuilding processes and strengthen ethnic division. From a legal perspective, it seems difficult to keep someone imprisoned based on ideologies without a concrete risk that they will commit new crimes (even though the Prosecutor of BiH has opened a case against Kordic for his recent statements). From a moral perspective, it seems questionable to deem someone rehabilitated and release them early into a highly divided post-conflict society cognizant of the risk that this individual will proactively enhance ethnic divisions and hinder processes of reconciliation. After all, the lack of recognition, denial of crimes and affirmation of hateful ideologies can pose a form of violence towards victim communities with a serious risk of re-traumatization.

The two perspectives might appear incompatible when it comes to determining early release standards. However, they do not interfere when perceiving the period of incarceration as a time for development. Even a more liberal stance in granting early release cannot overlook that efforts towards acceptance of responsibility could benefit victim communities, the receiving society and most likely the perpetrator themselves. Kordić was incarcerated for 17 years. What if the facilitation of a self-critical assessment of his crimes and his impact after release had been prioritised during those years instead of praising his work in the prison laundry?

Surely, there are challenges to instigating such carceral processes, many stemming from the fact that individuals convicted by the ICTY usually serve their prison sentence not in their own countries, but in different European states. The prison conditions and rehabilitation offers differ greatly between facilities, and language and cultural barriers complicate the communication between prison staff and convicted individuals. Additionally, domestic prison authorities are not trained to develop rehabilitation ‘programs’ tailored to the particularities of perpetrators of international crimes. However, instead of dismissing attempts to promote processes of reflection and recognition during incarceration, it rather seems like a call for action. If the international community takes the project of international criminal justice seriously, shouldn’t there be more efforts to prepare grounds for a benign release?

ABOUT THE AUTHOR

Karla Marek holds an MSc from Vrije Universiteit Amsterdam in International Crimes, Conflict and Criminology (2023) and an MSc in forensic and clinical psychology from University of Hildesheim (2021). Her thesis on the concept of reoffending of perpetrators of international crimes combines her expertise in (conventional) offender rehabilitation and risk prognosis with the field of international criminal law. She has previously worked inter alia for the Criminological Research Institute of Lower Saxony, the Research Department of the State Police of Lower Saxony and the German Child Protection Agency.

Featured Image Credit: EPA Photo Reuters Pools/ Jerry Lampen/ JFL.