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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. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)”

EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)

[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. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)”

EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)

1967 Parole Hearings Man: Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. Do you feel you’ve been rehabilitated?

Red: Rehabilitated? Well, now let me see. You know, I don’t have any idea what that means.

1967 Parole Hearings Man: Well, it means that you’re ready to rejoin society…

Red: I know what you think it means, sonny. To me it’s just a made up word. A politician’s word, so young fellas like yourself can wear a suit and a tie, and have a job. What do you really want to know? Am I sorry for what I did?

1967 Parole Hearings Man: Well, are you?

Red: There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I got to live with that. Rehabilitated? It’s just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don’t give a shit.

The Shawshank Redemption (1994)

A sentence imposed by some of the international(ized) criminal tribunals or courts, including the International Residual Mechanism for Criminal Tribunals (IRMCT), rarely reflects the years a convicted person will end up serving, just as eligibility for early release rarely corresponds with early release. Yet convicted persons, confusingly, consider early release upon eligibility as a given – an entitlement, as if it were a right. You cannot blame them. As they see it (as do many of us on the defense), baked into the sentence is the factor of eligibility for early release after serving the mandatory portion of the sentence, which, at the IRMCT, is 2/3 of the sentence imposed.

Early release is neither novel nor unique practice at the IRMCT. First adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) despite the absence of an express statutory provision, it is a time-tested and well-established practice in domestic penal systems. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)”

Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals

EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals, by Craig Etcheson, Columbia University Press, 2020, 488 pages, $65.00

My central thesis in this work is that the law is at base an ideological enterprise, an ideology we can generally label as “legalism.” But – and this is crucial – the law is not a single, unified ideology. Rather, there are several different approaches to the concept of law, and we can see the animating principles underlying those different approaches in the way that war crimes tribunals are negotiated, operated, and concluded. I call these three approaches to law classical legalism, strategic legalism, and instrumental legalism. All three are long-standing, widespread, potent, and enduring. And the outcome of struggles among proponents of these different approaches determine much about how any particular war crimes tribunal ultimately unfolds.

The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) is a complex story, beginning in the late 1970s and early 1980s as the atrocities taking place during the Democratic Kampuchea (DK) regime (1975-1979) became known. A show trial took place in August 1979. Pol Pot and my client, Ieng Sary, were held to account for all that had occurred. After the 1991 Paris Peace Agreement – which led to probably the fairest election in Cambodia’s history in 1993 – bringing to book the leaders of the DK regime and other responsible high-level Khmer Rouge cadre started to gain some momentum. Eventually, on 6 June 2003, an Agreement was hammered out between the Cambodian government, controlled by the Cambodian People’s Party (CPP), and the United Nations (UN).

Getting to this Agreement, what the parties (purportedly) understood to have agreed to, what emerged from this Agreement – i.e., the procedural framework of an international(ized) criminal tribunal or specialized chamber within a national court system, its jurisdictional contours and applicable law, its hybridity of personnel, personality, and their interactions (national and international) in making the ECCC happen, and how it has operated – is what EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals is all about. Continue reading “Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals”

IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder

It’s known that it came in with the group that was present at the trial, because he couldn’t have had it in the prison, which casts suspicion on his defense team, or eventually someone from the Embassy; at any rate, someone who had access to Praljak before he entered the courtroom

Florence Hartmann, Express, 19 April 2019, p. 42

Florence Hartmann is no stranger to controversy, to unethical behavior, to criminal activity. At the apogee of her career at the International Criminal Tribunal for the former Yugoslavia (ICTY), she was the mouthpiece and spinmeister for the Office of the Prosecution (OTP), and in particular, Madam Carla Del Ponte, the then Prosecutor. Much to her surprise (hubris can be blinding) she was prosecuted by the very same office for which she worked. She crossed the line by disclosing classified information. Convicted, Hartmann was sentenced to pay a fine of €7,000.¹ The imposition of that fine, payable in two installments, was affirmed by the Appeals Chamber of the ICTY on 19 July 2011. Hartmann failed to pay the fine, despite several notices from the Registrar. On 16 November 2011, the Appeals Chamber converted the fine to a term of imprisonment of seven (7) days. An inexcusably lenient slap on the wrist for someone who failed to surrender to serve her sentence for over four (4) years. Hartmann was finally arrested on 24 March 2016. She was granted early release on 29 March 2016, having served five (5) days in custody. Ironically, in light of her failure to pay the fine of €7,000, the Registrar found that she was able to remunerate counsel amounting to €59,094.50, and thus was ineligible for legal aid. That decision was affirmed by the President of the Mechanism in the Decision of of 4 July 2016.

One would think that having fallen from grace and having paid for recklessly transgressing, she would be have learned her lesson, she would have learned to tread lightly, she would have learned to stay out of the limelight – which, in no small measure, got her into trouble in the first place. Continue reading “IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder”

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