EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)

Rehabilitation is a process rather than a definite result, and it is just one factor that I will consider alongside other factors when deciding on the early release of a convicted person who is eligible to be considered for such relief. – President Agius in Kunarac, para. 45

[A]t the ICTR and the ICTY, rehabilitation has been, on occasion, referred to as an additional sentencing goal, but it has not been defined… There is, however, no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes. In this regard, I observe that until recently the assessment of rehabilitation focused mostly on whether the convicted person had demonstrated good behaviour in prison. – President Agius in Bralo, para. 37

Having discussed in Part 2 the statutory provisions, rules, and practice directions for early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Residual Mechanism for Criminal Tribunals (IRMCT), let’s now look at the case law in answering the question I have set out to settle: Has IRMCT President Carmel Agius moved the goalposts?  But first, some prefatory remarks.

As with all international(ized) tribunals and courts, the convicted persons under IRMCT supervision are serving their time in prisons of States that have agreed to accept them. Where one ends up serving his or her time can make a difference not just in the quality of life behind bars, but also when it comes to early release – at least in theory.

How the selection occurs, i.e., based on what criteria a convicted person will serve out his or her sentence in which State (most convicted persons prefer the congenial atmosphere and progressive attitudes of Scandinavian prisons) is not relevant to our discussion other than to note that the President has the ultimate say where a convicted person ends up – provided the State is amenable. Ditto for early release.

As we will see, considering the virtually unfettered discretion given to the President under the factors we have seen, which, for the most part, are malleable and impressionistic, it should come as no surprise that the approaches on early release by the past and current Presidents of the ICTY, ICTR, and IRMCT are shaped not so much by precedence (though understandably sentences are as tailored as the attitudes and conducts of the convicted persons are distinct) but by personal philosophy.

ICTY/ICTR

In practice, convicted persons have  rarely been released prior to serving 2/3 of their sentence. This has become the adopted policy of the ICTY,1 Prosecutor v. Banović, IT-02-65/1-ES, Decision of the President on Commutation of Sentence, 3 September 2008, para. 15: “Notwithstanding the gravity of his crimes, I also note that Mr. Banović has currently served more than two-thirds of his sentence. Considering that other convicted persons similarly situated have been granted early release after serving two-thirds of their sentences, this factor further supports his eligibility for early or conditional release;” Prosecutor v. Tadić, IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, 24 June 2004, para. 4. though some convicted persons have managed to be released prior to serving 2/3 of the sentence. No case law states what is required for a convicted person to receive such special consideration allowing release prior to the 2/3 mark. The convicted person’s health problems and advanced age, on their own, are not considered so exceptional as to warrant early release before or after serving 2/3 of the sentence. The factor of rehabilitation is based primarily on reports by the State of incarceration and the psychiatrists or other examiners available to assess the convicted person’s personal rehabilitation. Lack of cooperation with the Prosecution, when no such cooperation has been sought, is considered a neutral factor that weighs neither for nor against a convicted person’s request for early release.

In Santić, President Robinson granted early release, even though he was three months short of serving 2/3 of his sentence, since good behavior credits earned under Spanish law could be added to the time he already served.2 Prosecutor v. Santić, IT-95-16-A, Decision of the President on the Application for Pardon or Commutation of Sentence of Vladimir Santić, 16 February 2009, para. 14.

In Tadić, President Meron denied early release, having observed that medical reasons are not the basis for early release in any of the jurisdictions in which convicted persons at the ICTY were serving their sentences.3 Prosecutor v. Tadić, IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, 24 June 2004, para. 5.

In Vuković, President Pocar granted early release, having given weight to the fact that, according to the prison authorities and the convicted person himself, “Vuković has suffered considerable hardship due to the enforcement of his sentence in a foreign country, [and] he has not allowed those difficulties to impact upon his behaviour.”4 Prosecutor v. Vuković, IT-96-23&23/1-ES, Decision of the President on Commutation of Sentence, 11 March 2008, para. 10. Lack of cooperation with the Prosecution due to a failure by the Prosecution to request assistance was not held against the convicted person.5 Prosecutor v. Vuković, IT-96-23&23/1-ES, Decision of the President on Commutation of Sentence, 11 March 2008, para. 10. Instead, President Pocar stated that where no cooperation is requested, even a non-favorable report from the Prosecution “must be considered as neutral.”6 Id. President Pocar also held that “[i]n spite of those difficulties, [Vuković] has made a positive contribution to the prison environment and… the reports of the Norwegian authorities [are] strongly in favour of early release.”7 Prosecutor v. Vuković, IT-96-23&23/1-ES, Decision of the President on Commutation of Sentence, 11 March 2008, para. 6.

In Josipović, President Pocar granted early release, having considered that he was eligible for conditional release under Spanish law (where he was serving the sentence), and observing that according to the convicted person, “his isolation and his inability to communicate in Spanish [are] the reason why he is withdrawn and unable to engage in many activities,” and finding that “the likelihood of his successful reintegration into society appears to be high.”8 Prosecutor v. Josipović, IT-95-16-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Drago Josipović, 30 January 2006, para. 11: Josipović’s “isolation and his inability to communicate in Spanish is the reason why he is withdrawn and unable to engage in many activities.” Lack of cooperation with the Prosecution (no cooperation was requested or received) was “considered neutral to Josipović.”9 Prosecutor v. Josipović, IT-95-16-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Drago Josipović, 30 January 2006, para. 10.

In Gvero, President Robinson granted early release after serving more than 4/5 of his sentence, even though his appeal was still pending.10 Prosecutor v. Gvero, IT-05-88-ES, Decision of President on Early Release of Milan Gvero, 28 June 2010. President Robinson gave weight to the UN Detention Unit’s (UNDU) report stating that “Mr Gvero has a complex medical state and requires an operation to treat a potentially life threatening condition which he has so far refused to have in the Netherlands.”11 Prosecutor v. Gvero, IT-05-88-ES, Decision of President on Early Release of Milan Gvero, 28 June 2010, para. 12. President Robinson also considered the UNDU’s report that convicted person “ha[d] always been polite and pose[d] no management problems,” which in his view demonstrates some evidence of rehabilitation in favor of his early release.12 Id., para. 14.

In Krnojelac, President Robinson granted early release after serving 2/3 of his sentence, even though he was not eligible under Italian law.13 Prosecutor v. Krnojelac, IT-97-25-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Milorad Krnojelac, 9 July 2009. President Robinson considered that “Mr. Krnojelac’s exemplary behaviour during incarceration despite his prolonged illness, which has caused him severe pain and discomfort, is a persuasive indication of his rehabilitation.”14 Prosecutor v. Krnojelac, IT-97-25-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Milorad Krnojelac, 9 July 2009, para. 20.

In Jokić, President Robinson granted early release after serving 2/3 of his sentence, even though he had been found in contempt for refusing to testify at an ICTY trial.15 Prosecutor v. Jokić, IT-02-60-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Dragan Jokić, 13 January 2010. President Robinson explained:

Some of my colleagues have expressed the view that Jokić’s failure to cooperate with the Prosecution should be considered an important factor against his early release. However, I note that the Trial Chamber in the Blagojević and Jokić case considered that Jokić had cooperated with the Prosecution by appearing for two interviews with the Prosecution and voluntarily surrendering to the Tribunal and that this therefore mitigated his sentence. The Prosecution challenged this finding, but the Appeals Chamber held that the Trial Chamber had committed no error. In upholding the Trial Chamber, the Appeals Chamber held that an accused is not obliged to assist the Prosecution in proving its case and that any evidence of willingness on the part of an accused to be voluntarily interviewed by the Prosecution is evidence of a degree of cooperation, which he is entitled to withhold without adverse inference being drawn therefrom.16 Prosecutor v. Jokić, IT-02-60-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Dragan Jokić, 13 January 2010, para. 17.

In Kabashi, President Robinson denied early release due to the severity of the offence, even though the convicted person had served 2/3 of his sentence.17 Prosecutor v. Kabashi, IT-04-84.R77.1-ES, Decision of President on Early Release of Shefqet Kabashi, 28 September 2011, para. 20. President Robinson considered that convicted person’s crimes – two occasions of contumacious refusal or failure to answer questions in the Haradinaj et al. case – are of serious nature, “because they threaten the effective functioning of the Tribunal.”18 Prosecutor v. Kabashi, IT-04-84.R77.1-ES, Decision of President on Early Release of Shefqet Kabashi, 28 September 2011, paras. 15-16. The convicted person’s suffering from Post-Traumatic Stress Disorder (PTSD) according to a medical report from UNDU was considered a neutral factor since “there is no indication from the report that [the convicted person’s] PTSD would cause him to be a danger to others.”19 Prosecutor v. Kabashi, IT-04-84.R77.1-ES, Decision of President on Early Release of Shefqet Kabashi, 28 September 2011, para. 17.

In Obrenović, President Robinson granted early release because he was found to have provided exceptionally substantial cooperation with the Prosecution (the details of this cooperation are redacted in the decision), even though he did not serve 2/3 of his sentence (ten years of his seventeen-year sentence).20 Prosecutor v. Obrenović, IT-02-60/2-ES, Decision of President on Early Release of Dragan Obrenović, 21 September 2011, para. 28. President Robinson also considered his service as a kitchen assistant and the report that he did not breach any rules or regulations during his detention as demonstration of “some rehabilitation” that weights in favor of early release.21 Prosecutor v. Obrenović, IT-02-60/2-ES, Decision of President on Early Release of Dragan Obrenović, 21 September 2011, para. 24. As I noted in the past, Obrenović had benefited in negotiating for a reasonable sentence in exchange for a guilty plea and full cooperation because his lawyers were proactive and the Prosecution was keen on flipping Obrenović into a prosecution witness.

In Tarčulosvki, Krajišnik, and Zelenović, President Robinson denied early release because the convicted persons did not complete 2/3 of the sentences, even though the law of the States in which they were serving the sentences provided for early release after serving 1/2.22 Prosecutor v. Tarculovski, IT-04-82-ES, Decision on Early release of Johan Tarculovski, 23 June 2011, para. 13; Prosecutor v. Krajisnik, IT-00-39-ES, Decision on Early Release of Momcilo Krajisnik, 11 July 2011; Prosecutor v. Zelenović, IT-96-23/2-ES, Decision of President on Early Release of Dragan Zelenović, 21 October 2011. In all three cases, President Robison considered “the treatment of similarly-situated prisoners” and that the practice of the ICTY is to consider the eligibility of a convicted person only serving 2/3 of the sentence.

In Blagojević, President Robinson first denied the convicted person’s early release after serving 2/3 of his sentence because of the high gravity of the crimes for which he was convicted. He was later granted early release after serving 3/4 of his sentence.23 Prosecutor v. Blagojević, IT-02-60-ES, Decision of the President on Early Release of Vidoje Blagojević, 3 February 2012, para. 25.

In Bala, President Meron granted early release after serving 2/3 of his sentence on condition that he continues to exhibit good conduct. In making his decision, the President considered the lack of remorse and the high gravity of the crimes (Bala was accused of personally killing nine people), though he found that Bala’s “incarceration has indeed put a significant strain on [his] family life, which weighs in favour of granting his petition for early release.”24 Prosecutor v. Bala, IT-03-66-ES, Decision of the President on Early Release of Haradin Bala, 28 June 2012, paras. 36, 39.

After 1 July 2013, jurisdiction over early release of ICTY and ICTR went over to the IRMCT.

IRMCT

In Nikolić (Momir), President Meron granted early release,25 Prosecutor v. Bala, IT-03-66-ES, Decision of the President on Early Release of Haradin Bala, 28 June 2012, paras. 36, 39. even though he had not served the 2/3 of his sentence at that time.26 Prosecutor v. Momir Nikolić, MICT-14-65-ES, Decision on Early Release of Momir Nikolić, 12 October 2015, paras. 16, 19. President Meron considered that a prison report – providing a “very positive account of Nikolić’s conduct,” his regular contacts with his family, his good conduct allowing him to have escorted visits outside the prison, and his permanent job in prison – and Nikolić’s apparent assumption of responsibility for his actions, are factors that weigh in favor of his early release.27 Prosecutor v. Nikolić, MICT-14-65-ES, Decision on Early Release of Momir Nikolić, 12 October 2015, paras. 22-24.

In Bralo and Brdjanin, President Agius denied early release because, even though they had served 2/3 of their sentences, they did not demonstrate sufficient rehabilitation.28 Prosecutor v. Bralo, MICT-14-78-ES, Decision on the Early Release of Miroslav Bralo, 31 December 2019, paras. 21, 81; Prosecutor v Brdjanin, MICT-13-48-ES, Decision on the Application of Radoslav Brdjanin for Early Release, 28 February 2020, paras. 29, 96. During the consultations in Brdjanin, Judge Meron “querie[d] whether a convicted person is legally required to admit or accept responsibility for his crimes in order to demonstrate rehabilitation or as a precondition of release, and if not whether [President Agius’] analysis impermissibly treats this as a legal requirement.”29 Prosecutor v. Brdjanin, MICT-13-48-ES, Decision on the Application of Radoslav Brdjanin for Early Release, 28 February 2020, para. 94. In response, President Agius noted that “acceptance of responsibility… is but one of several positive indicators that can demonstrate rehabilitation [and] does not constitute a legal requirement to demonstrate rehabilitation, let alone serve as a precondition for early release.”30 Prosecutor v Brdjanin, MICT-13-48-ES, Decision on the Application of Radoslav Brdjanin for Early Release, 28 February 2020, para. 95.

In Martić, President Agius denied early release because he had not served 2/3 of his sentence, even though he was eligible under Estonian Law.31 Prosecutor v. Martić, MICT-14-82-ES, Decision on the Early Release of Milan Martić, 7 August 2020, p. 4.

In Bisengimana, President Meron granted early release, having reasoned that “[t]he facts that Bisengimana has retained close links with his family and has plans for his future suggest that he will be able to reintegrate into his family and society.”32 Prosecutor v. Bisengimana, MICT-12-07, Decision of the President on Early release of Paul Bisengimana and on Motion to File a Public Redacted Application, 11 December 2012, para. 25. In President Meron’s opinion, positive reports from the Prison Director – both regarding Bisengimana’s personal behavior and committed towards Prison’s activities – are factors that militate in favor of early release.33 Prosecutor v. Bisengimana, MICT-12-07, Decision of the President on Early release of Paul Bisengimana and on Motion to File a Public Redacted Application, 11 December 2012, paras. 26-27. President Meron also considered that Bisengimana’s guilty plea constitutes cooperation with the Prosecution.34 Prosecutor v. Bisengimana, MICT-12-07, Decision of the President on Early release of Paul Bisengimana and on Motion to File a Public Redacted Application, 11 December 2012, para. 30.

In Galić and Krstić, President Agius denied early release, having considered that in the context of international crimes “good behavior in prison cannot, on its own, demonstrate rehabilitation.”35 Prosecutor v. Galić, MICT-14-83-ES, Decision on the Early Release of Stanislav Galić, 26 June 2019, para. 38; Prosecutor v. Krstic, MICT-13-46-ES.1, Decision on the Early Release of Radislav Krstić, 10 September 2019, para. 30.

In Simba, President Meron granted tearly release, having considered that “although Simba does not accept responsibility for his crimes … remorse is not generally considered as [a primary requirement].”36 Prosecutor v. Simba, MICT-14-62-ES.1, Public Redacted Version of the President’s 7 January 2019 Decision on the Early Release of Aloys Simba, 7 January 2019, para. 44. President Meron also considered the prison warden’s description of Simba’s behavior as well as the psychiatric report that “Simba is social, cooperative, and has family to support him upon release,” leading him to conclude that Simba “has demonstrated some signs of rehabilitation.”

In Brdjanin, Semanza, and Bagosora, President Agius denied early release to the convicted persons, having considered that their failure to accept responsibility for the crimes for which they were convicted showed that they were not sufficiently rehabilitated.37 Prosecutor v. Brdjanin, MICT-13-48-ES, Decision on the Application of Radoslav Brdjanin for Early Release, 28 February 2020, paras. 80-81; Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 67; Prosecutor v. Bagosora, MICT-12-26-ES.1, Decision on the Early Release of Theoneste Bagosora, 1 April 2021, para. 49.

In Semanza, President Agius denied early release, having considered that his recognition of the genocide is “insufficient to demonstrate rehabilitation:” “He neither accepts responsibility for the crimes for which he was convicted nor does he link his expressions of sympathy to the victims of his crimes. He has therefore not engaged in any critical reflection upon his crimes.”38 Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 72. President Agius also considered that the age and health conditions raised by the convicted person as favoring early release did not rise to the level of warranting early release, even after serving 2/3 of sentence,39 Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 96; See also Prosecutor v. Kunarac, MICT-15-88-ES.1, Decision on the Early Release of Dragoljub Kunarac, 31 December 2020, para. 84. and that Semanza did not demonstrate evidence “of sufficiently compelling humanitarian grounds which would warrant overriding the above negative assessment.”40 Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 96.

In Kunarac, President Agius denied early release, having reasoned that “[the convicted persons’] failure to sufficiently demonstrate rehabilitation and the high gravity of his crimes both weigh heavily against his early release.” He also added that “there is no evidence before me that demonstrates the existence of compelling humanitarian grounds which would warrant overriding this negative assessment.”41 Prosecutor v. Kunarac, MICT-15-88-ES.1, Decision on the Early Release of Dragoljub Kunarac, 31 December 2020, para. 86.

In Bralo, President Agius denied early release but identified a non-exhaustive list of positive indicators of rehabilitation, which would become the list of factors to consider in IRMCT’s jurisprudence in subsequent cases: 42See also Prosecutor v. Brdjanin, MICT-13-48-ES, Decision on the Application of Radoslav Brdjanin for Early Release, 28 February 2020, para. 49; Prosecutor v. Semanza, MICT-1326-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 46; Prosecution v. Kunarac, MICT-15-88-ES.1, Decision on the Early Release of Dragoljub Kunarac, 31 December 2020, para. 43; Prosecutor v. Bagosora, MICT-12-26-ES.1, Decision on the Early Release of Theoneste Bagosora, 1 April 2021, para. 43; Prosecutor v. Miletić, MICT-15-85-ES.5, Decision on the Early Release of Radivoje Miletić, 5 May 2021, para. 47.

      • acceptance of responsibility for the crimes a person was convicted for or for actions which enabled the commission of the crimes;
      • signs of critical reflection of the convicted person upon his or her crimes;
      • public or private expressions of genuine remorse or regret;
      • actions taken to foster reconciliation or seek forgiveness;
      • evidence that a convicted person has a positive attitude towards other nationalities;
      • participation in rehabilitation programmes in prison;
      • a person’s mental health status;
      • positive assessment of a convicted person’s prospects to successfully reintegrate into society.43 Prosecutor v. Bralo, MICT-14-78-ES, Decision on the Early Release of Miroslav Bralo, 31 December 2019, para. 39.

Also, in Bralo, President Agius considered that cooperation with the Prosecution must be substantial in order to be considered as a factor weighing in favor of early release. 44Prosecutor v. Bralo, MICT-14-78-ES, Decision on the Early Release of Miroslav Bralo, 31 December 2019, para. 72; referring to Prosecutor v. Simić, IT-95-9-ES, Decision of the President on Early Release of Blagoje Simić, 15 February 2011, para. 31; Prosecutor v. Sikirica, IT-95-8-ES, Decision of the President on Early Release of Duško Sikirica, 21 June 2010, para. 21.

In Serushago, President Meron granted early release, having considered his cooperation with the Prosecution as a factor weighing in favor of early release, even though he testified in some cases but refused in others.45 Prosecutor v. Serushago, MICT-12-28-ES, Decision of the President on Early Release of Omar Serushago, 13 December 2012, para. 30.

In Lazarević, President Meron granted early release, having considered as substantial cooperation with the Prosecution, the convicted person interviews with and statements to the Prosecution.46 Prosecutor v. Lazarević, MICT-14-67-ES3, Decision of the President on the Early Release of Vladimir Lazarević, 3 December 2015, para. 22; Prosecutor v. Kunarac, MICT-15-88-ES.1, Decision of the President on the Early Release of Dragoljub Kunarac, 2 February 2017, para. 59; Prosecution v. Kunarac, MICT-15-88-ES.1, Decision on the Early Release of Dragoljub Kunarac, 31 December 2020, para. 74.

In Lukić, President Agius denied the convicted person’s request for an expedited decision on early release based on his susceptibility to coronavirus due to his advanced age and health conditions. President Agius decided that these circumstances did not warrant an “expedited” decision on his request for early release since the IRMCT was monitoring conditions in the enforcing State and would decide the early release motion in the regular course.47 Prosecutor v. Lukić, MICT-14-67-ES.4, Decision on Motion for Immediate Provisional Release of Early Release of 1 May 2020, 14 August 2020, p. 4.

 Wrap up

The Presidents of the ad hoc tribunals were entrusted with the authority to determine when a convicted person could be released prior to serving their entire sentence. While early release eligibility does not equal actual release, former IRMCT President Meron’s remarks in Corić (opening quote, Part 2) suggest that save for any special circumstances that could be considered as an aggravating factor (bad behavior while in prison), early release upon eligibility is presumptive (in other words saving 1/3 of the sentence imposed is baked into the mix):

the Mechanism has inherited a long standing practice of granting requests for early release upon completion of two-thirds of a sentence absent particular circumstances that warrant against it.

In a sense, the IRMCT President, in consultation with others, acts as a parole board. Aside from considering certain factors, there’s the philosophical bent of the President. Invariably, this protean human factor will dictate the extent to which the President will give give weight to any of the enumerated factors in determining whether to grant early release, including whether to place a premium on a convicted person having to effectively confess by accepting responsibility, expressing remorse, and claiming to have been rehabilitated. Why should this be required in earning early release, if by all other measures (including the factor that the composite sentence has early release after 2/3 baked into it), the convicted person has served his or her time in prison absent particular circumstances that warrant against it?

And what of the convicted persons that rightfully feel that they were unjustly convicted? Or those that feel they did not receive a fair trial (in that the Trial Chamber erred in assessing the evidence) and the Appeals Chamber – unlike in Bemba at the ICC – rubber stamped the findings of fact without doing even a modicum of an assessment, hiding behind a standard of review that virtually ensures errors of facts will go unchecked? Have they not been sufficiently punished without adding the indignity of having to, in a sense, falsely confess or falsely accept responsibility, when ostensibly, the sentence has already factored in any failure to confess or lack of acceptance? Here I am reminded of General Slobodan Praljak taking poison and killing himself rather than accepting the outcome of the Trial and Appeals Chamber which he felt (and I concur, see here, here, here, here, and here) was the result of flawed and unfair proceedings.

Not all convicted persons are so keen to be released early that they are willing to say whatever is expected of them, to feign acceptance, rehabilitation, remorse. To grovel.

Is not exacting an admission as a condition for early release an unnecessary pound of flesh? Does it not seem cruel to impose an additional punishment and to force a convicted person to trade his honestly held beliefs for his or her freedom? Of course, the flip side is that since a final conviction is final; whether a convicted person wishes to maintain his or her innocence is his or her choice to make, but this should not impede the President from factoring this into the equation the convicted person’s lack of acceptance, failure to confess, or self-acknowledgement of being rehabilitated, or being remorseful. Fair enough. But how useful is this, and does it not come across as a cynical charade?

Maybe that’s what Red is trying to tell us in The Shawshank Redemption during his third parole hearing after serving 40 years of a life sentence. Responding irreverently on whether he has been rehabilitated, he shares the wisdom that has come from reflection and self-criticism – that if possible, he would go back in time and try talking some sense to that young man he once was, to set him straight and tell him the way things are. Red knows he can’t. What’s done is done. Miming words of contrition and rehabilitation, even if sincere, will change nothing. So why bother?

Technically, President Agius is not moving the goal posts. However, it does seem unsettling and inequitable that he is adding preconditions and expectations for some convicted persons that were not required by preceding ICTY/ICTR/IRMCT Presidents for early release, or were already contemplated when length of sentence was determined.

As to whether President Agius is excessively unpunctual in considering the applications, the raw data, absent further information, says yes. For example, it took 26 months to issue a decision in Miletić, 24 months in Bagosora, 22 months in Stakić, 16 months in Prlić, and 14 months in Milosević.48 Prosecutor v. Miletić, MICT-15-85-ES.5, Decision on the Early Release of Radivoje Miletić, 5 May 2021; Prosecutor v. Bagosora, MICT-12-26-ES.1, Decision on the Early Release of Théoneste Bagosora, 1 April 2021; Prosecutor v. Stakić, MICT-13-60-ES, Decision on Sentence Remission and Early Release of Milomir Stakić, 31 December 2020; Prosecutor v. Prlić, MICT-17-112-ES.2, Decision on the Early Release of Jadranko Prlić, 23 March 2021; Prosecutor v. Dragomir Milošević, MICT-16-98-ES, Decision on the Early Release of Dragomir Milošević, 29 July 2020.

Although lack of transparency makes it difficult to discern why these delays have occurred under President Agius’ watch, some criticism may be warranted. He does not need months and months to gather, digest, and assess the information required of him to consider in deciding whether to grant or deny early release. The IRMCT is not so overwhelmed with pressing matters that prevent President Agius in dealing with early release applications with a modicum alacrity. It can be argued that the relative brevity of the decisions suggest that the material to review and the process of that review is not so massive as to justify the delay.  Taking as much as 26 months or even as little as six months to render these early release decisions is hardly acting expeditiously as required by the Practice Direction. These inexplicable delays in themselves, regrettably, lend to perceptions that they are purposeful, designed to cruelly inflict further punishment by months (or years) of uncertainty.

As for best practices for my defence colleagues, my suggestion is to start early in gathering all that will be required for a comprehensive consideration of an application. The jurisprudence shows what is expected from a convicted person. Simply claiming good behavior while serving time does not amount to rehabilitation – nor will it earn any bonus points toward claiming remorse, acceptance of responsibility, or fitness to reintegrate into society. I further suggest that prior to making an application, in order to manage expectations, it is advisable to inform the client/convicted person of how previous applications have been decided, disabusing the client of the notion that seems to have been accepted as an article of faith that release is automatic upon serving 2/3 of the sentence.

In wrapping up this series on early release, I hope in some small measure I have provided a point of departure to launch your future applications for early release not only at the IRMCT but in other international(ized) criminal tribunals and courts where early release is not explicitly prohibited.

Good luck!

Footnotes[+]

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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