The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

http://opiniojuris.org/2015/08/27/the-post-incarceration-life-of-international-criminals/

7 Responses

  1. Outside the Hallowed Halls of peacable white academia, i.e. among many Africans, the referred statement is – quite perceptively – understood as an intentional travesty, or as sheer cynicism on the bodies of the victims.

  2. I agree with you Kevin, although I would note that it’s NOT the case that we treat domestic criminals who have served their sentences “no differently than any other citizen.” Of course we _should_ treat them that way but in the U.S. at least felony disenfranchisement remains a reality for millions of ex-convicts and a criminal record makes it notoriously difficult to find employment.

  3. Thanks for this post and raising some crucial points.

    Just two issues. First, the reason I see it as potentially a “least worst option” is that, in my view, the right of the ex-convict to pursue higher education needs to be seen in light of the perceptions and feelings on many victims and survivors who have been, by logical extension of the ex-convict’s actions, prevented from pursuing educations themselves. There is a risk that the ex-convict is privileged, treated better and better supported than the victims and survivors of his or her atrocities. That strikes me as a warped form of justice. We see this dilemma play out already in critiques of prison conditions in Scheveningen versus life conditions in many affected communities. My point, which perhaps wasn’t made clear enough in the post, is simply that this is a sensitive dilemma.

    Second, I agree I could have been clearer with my use of “allowed” in the post. What I mean here is whether universities should or should not allow convicted war criminal to attend their institutions as universities. But, with regards to tribunals, I think the bigger question is whether they should encourage / support ex-convicts in pursuing such studies or other activities in their post-incarceration lives.

  4. Thanks for an interesting post Kevin . I do agree generally speaking . That observation of unique academic contribution of criminals of such , is also a very good one , yet :

    I can’t agree with that general observation , that one criminal ,and one type of criminality , are similar to others . There is a huge difference between all sorts of types criminals and criminalities.

    For some it is a way of life, has to do with bad socialization process (bad instincts) for others : one of .Some others, are more rational and philosophical, some others are victims (or were) and driven by it, some favor the killing from short range, eye to eye one , some are more synthetic (remote control, from cockpit and so forth….) one scroll can’t have it all .

    But , Interestingly , some would be encouraged by studies ,why :

    Well, the human being, can’t without adopting ideology , even the utmost horrific criminal, would tend to idealize and ” conceptual” his actions, So , by studying, they gain more conceptual material for attribution process, better justifying so, prime criminal instincts ( Darwin and survival is the ultimate example ) already proven in battle field .
    Thanks

  5. I think this is a really interesting topic, which is yet to receive significant attention: how to reintegrate previously convicted war criminals back into society.

    Kevin, when you state, “once an international criminal has served his sentence, he should be treated no differently than any other citizen”, do you believe this in the absolute?

    To take one example: should previously convicted child sex offenders be allowed to work in schools after their release from prison? In other words, are there not some limits that we can legitimately place on convicted criminals based on their prior conduct as a reasonable precaution for the protection of society?

    The example of permitting Lubanga to undertake a doctorate is more interesting because the pursuit of education seems to be precisely the type of activity we should be encouraging convicted criminals to undertake after their release. I agree that, as a matter of principle, this sort of activity must be both permitted and encouraged.

    However, as with many areas in the international criminal justice context, the “in principle” position runs up against the harsh reality of how the world currently functions. In many cases, defendants judged at the global level already receive preferential treatment compared to their domestic counterparts in terms of fair trial rights and sentencing leniency (particularly in countries where the death penalty is still permissible!), as well as living a relatively comfortable life in The Hague compared to the victims and the local communities they affected.

    Does this preferential treatment justify lowering global standards? In my view, absolutely not. But the question arises: How can the preferential treatment be justified to victims and local communities?

    Against this background, in the current world we live in, whatever ventures Lubanga pursues upon release have the potential to exacerbate feelings of resentment and anger concerning his perceived preferential status. The challenge for those working in the field is how to respond to these concerns. And I’m not sure the “they have paid their debt to the international community” argument, as much as it is correct as a matter of principle, is likely to hold much weight if, and it is a big “if” that will likely vary depending on the particular case and context, victims and local communities still feel that the offender in question has not yet paid a sufficient debt to them through their time spent in The Hague.

  6. With respect, the underlying premise, namely that a criminal who has served their sentence should be treated like anyone else, is false. A criminal who has served their sentence should be released be prison. That’s all it entitles them to. It does not oblige other people to pretend they never committed a crime in the first place. The child sex offender working as a teacher is a good example. A Gestapo officer running a police force is another. Is there any harm in a former employer of child soldiers doing a PhD? Probably not. But should he get the benefit of supervision and a bursary over another Congolese student who is equally qualified and is not a convicted war criminal? No – particularly when only the latter could conceivably be regarded as a fit and proper person to become a professional educator (or indeed hold any other position of authority).

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