[W]hile it has been consistently emphasized that the two-thirds point is a mark of eligibility and not an automatic right to release, 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. This practice was initiated by Judge Claude Jorda, during his tenure as President of the ICTY, and continued by subsequent Presidents of the ICTY thereafter.
President Meron in Corić, para. 38
In Part 1 I promised to settle the question of whether International Residual Mechanism for Criminal Tribunals (IRMCT) President Carmel Agius has moved the goalposts and perhaps even demanded confessions of guilt from convicted persons by adopting additional factors for early release. To answer this question, we must first look at the history of early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the IRMCT, and how the jurisprudence has evolved over the past 20 plus years. In this post I will deal with the practice directions. I will then end the series in the next post by examining a number of cases, which should provide a good basis to draw some conclusions and some best practices.
Early history – ICTY & ICTR
Early release at the ICTY/ICTR is not judge-made practice. Although the term “early release” is not found in any of the revisions/editions of the Statute or the Rules of Procedure and Evidence (RPE or Rules) of the ICTY and ICTR, Article 28 of the ICTY/ICTR Statutes and ICTY/ICTR Rules 125/126 provide for pardons and commutations of sentence.
Article 28 allows the Presidents of the Tribunals to decide on pardons and commutations of sentences based on the interests of justice and general principles of law, with Rules 125/126 providing the “general standards” to be considered: “the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.”
Adoption of practice directions In April 1999, ICTY President Gabrielle Kirk McDonald, “having consulted with the Bureau [the President, the Vice-President and the Presiding Judges of the Trial Chambers], the Prosecutor and the Registrar,” issued the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal. The ICTR adopted its Practice Direction (not available online) a year later, on 10 May 2000, mirroring the ICTY’s, with both ad hoc tribunals establishing the following procedure:
Notification of eligibility The State where the convicted person is serving a sentence must notify the Tribunal at least 45 days prior to the convicted person becoming eligible for early release under the domestic law of that State.
Duties of the Registrar The Registrar in turn should:
- notify the convicted person;
- request reports and observations from the State about the convicted person’s behavior, general conditions of his or her imprisonment, and psychiatric and psychological evaluations;
- request the Prosecutor to submit a detailed report of any cooperation that the convicted person has provided to the Office of the Prosecutor; and
- obtain any other information the President considers relevant.
The relevant authorities are required, where possible, to submit the information within 14 days. The Registrar is then responsible for forwarding this information to the President and to the convicted person.
Participation of the convicted person The convicted person is given 10 days to examine the information and make submissions on the matter to the President, either in writing or by telephone or video-link.
Consultation process The President forwards a copy of the gathered information, along with the President’s comments, to the Bureau and the Sentencing Chamber, to review within a period of time specified by the President. After this, consultations take place.
Decision and its execution In deciding whether to grant early release, the President considers the factors in ICTY/ICTR Rules 125/126 as well as the views of the Bureau and the Sentencing Chamber. The decision shall be made at least seven days prior to the date of eligibility, and shall be made public, unless the President decides otherwise. If the President decides that early release is inappropriate, he must specify the new date upon which the convicted person will become eligible to apply for early release, unless this is specified in the domestic law of the State where the convicted person serves his or her sentence. The President’s decision is not subject to appeal.
Execution The Registrar is further responsible for communicating with the relevant authorities of the State about the immediate execution of the President’s decision.
Recalibrating the Practice Direction In September 2009, the then-ICTY President Patrick Robinson revised the Practice Direction on early release. The revised 2009 Practice Direction allowed the convicted person to make a direct petition for an early release “if he believes that he is eligible therefor” and provided that the above procedure “applied mutatis mutandis to any such petition.” The 2009 Practice Direction also included the provisions of Rule 125 as an Annex.
The next revision, also by President Robinson, came a year later, in September 2010, adding an additional step in the procedure in case of a direct petition. Specifically, the revised 2010 Practice Direction provided that “the Tribunal shall request, through appropriate State or federal authorities, the enforcing State to inform it whether the convicted person is eligible for pardon, commutation of sentence, or early release under the domestic law of the enforcing State.” The rest of the text remained unchanged. The ICTR’s Practice Direction was not revised, though its jurisprudence tracks the ICTY’s.
The IRMCT Statute, adopted in 2010, similarly does not include the term “early release.” Article 26 of the IRMCT Statute speaks of “pardon and commutation of sentences,” mirroring the language of the ICTY/ICTR Statutes. However, the IRMCT RPE added the term “early release” in Rule 151, which, save for this express reference, mirrors the language and factors in ICTY/ICTR Rules 125/126.
In July 2012, the IRMCT President Theodor Meron issued a Practice Direction that would apply to the convicted persons at the ICTY, ICTR, and IRMCT. The introduction of this Practice Direction refers to the previous ICTY/ICTR practice directions, and the relevant IRMCT statutory provisions and Rules, providing that when the State, “by reason of its own domestic law or for any other reason, disagree[s] with or [is] unable to accept the President’s decision not to allow early release, the President, in consultation with the Registrar, may decide to withdraw the convicted person and transfer him or her to a different State to serve the remainder of his or her sentence.”
Other than some slight language edits (such as replacing “Tribunal” with “Mechanism” and deleting “having consulted with the Bureau” from the introduction, since there is no Bureau at the IRMCT), the July 2012 revised IRMCT Practice Direction mirrors the ICTY’s revised 2010 Practice Direction.
Six years later, in May 2018, IRMCT President Meron revised the IRMCT Practice Direction, elaborating on the consultation process that: “if none of the Judges who imposed the sentence are the Judges of the Mechanism, the President shall consult with at least two other Judges. The Judges concerned shall be given a specified period of time to survey the material provided, following which appropriate consultation shall be undertaken.”
Just weeks after taking office, in February 2019, newly elected President of the IRMCT, Carmel Agius, revised the Practice Direction, adding that “[i]n the event that the President invites submissions from a third party… such submissions shall not exceed 3,000 words unless the President provides otherwise.”
He again revised the Practice Direction in May 2020 (applicable up to date), complementing the provisions on eligibility for early release: “[A] convicted person serving a sentence under the supervision of the Mechanism will generally be eligible to be considered for early release only upon having served two-thirds of his or her sentence as imposed by the ICTR, the ICTY, or the Mechanism.”
The latest Practice Direction also contains a list of documents the President may require the Registry to collect, such as:
(a) Any reports and observations from the appropriate authorities in the enforcement State as to the behaviour of the convicted person during his or her period of incarceration and the general conditions under which he or she was imprisoned;
(b) Any psychiatric or psychological evaluations prepared on the mental condition of the convicted person, including in relation to any risks posed by release, as well as any remarks of the convicted person regarding the crimes for which he or she was convicted and the victims of these crimes;
(c) Any medical reports on the physical condition of the convicted person, including whether the convicted person is capable of serving his or her sentence in the enforcement State;
(d) Information on where the convicted person intends to live if released early;
(e) A detailed report from the Office of the Prosecutor (“Prosecution”) on any co-operation of the convicted person with the Prosecution of the ICTR, the ICTY, or the Mechanism and the significance thereof, as well as any other comments or information that the Prosecution considers of relevance for the determination of the Application; and
(f) Any other information that the President considers relevant.
The convicted person also gets extra time to examine the gathered information and make his or her submissions (14 days as opposed to 10 days).
The latest revision also provides that the IRMCT President has the authority to order conditions in deciding on early release: “[e]arly release may be granted subject to conditions.” It also adds that the President’s decision should be made “on the basis of the interests of justice and the general principles of law.”
An old provision that the President’s decision must be made at least seven days prior to the convicted person becoming eligible for release was amended, making it inexact as to when the decision would be forthcoming:
The decision of the President shall be rendered as expeditiously as possible. In cases of extreme urgency, the President may dispense with the procedural steps set forth in this Practice Direction to the extent required to meet the urgency, accelerate the consultation with other Judges, and if necessary issue a decision with reasons to follow.
“Eligibility for early release upon having served two-thirds of the sentence is essentially a pre-condition.”1 Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 18 September 2020, para. 25. The Presidents of the ad hoc tribunals and IRMCT were given the discretion to grant early release, having considered the totality of the circumstances of the case, in particular, among other things, the factors listed in ICTY/ICTR/IRMCT Rules 125/126/151:
(a) the gravity of the crimes;
(b) the treatment of Similarly-Situated Prisoners;
(c) the demonstration of rehabilitation; and
(d) the substantial cooperation with the Prosecution.
With this historical evolution of the practice directions on early release, let’s turn to some of the cases and see how the various Presidents have applied them. This should give us a more complete picture in settling the question whether President Agius is departing from his predecessors and impermissibly deviating from the IRMCT Practice Direction.
|↑1||Prosecutor v. Semanza, MICT-13-26-ES.2, Decision on Laurent Semanza’s Application for Early Release, 18 September 2020, para. 25.|