Written by: Jonathan Choi

The drama of international criminal justice is mostly in the initial conviction and sentencing; few reporters investigate what happens to the convict after she is locked away, and few academics consider why or how she is released.

Yet the story of early release in international criminal law is surprising and hugely important. As I describe at greater length in a paper recently published by the Yale Law Journal,[1] most of the major international tribunals—the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the Mechanism for International Criminal Tribunals (MICT)—have established a strong presumption of early release after a prisoner has served two thirds of her sentence. The point bears repeating: even in the absence of rehabilitation, cooperation with the prosecutor, or any other mitigating circumstance, international tribunals systematically lop off fully a third of every sentence.[2]

Despite the lack of international attention to this issue, regional politicians and victims’ advocates have sharply criticized the two-thirds rule. In March 2012, the Prosecutor General of Rwanda called the ICTR’s release of genocidaire Tharcisse Muvunyi “intolerable” and demanded “a genuine apology” from Muvunyi as a necessary precondition for release.[3] Less than a month later, Rwandan President Paul Kagame attacked the ICTR as “a token meant to blind us and give us the impression that they are doing justice,” concealing the fact that genocidaires are released “shortly after” conviction.[4] Similarly, Croatian President Ivo Josipović has suggested that early release “should be very exceptional” and that he “would never pardon certain crimes, like rape, murder and war crime.”[5]

How did the two-thirds rule come about, and how does it compare with the policies of other international tribunals? Will future courts—like the International Criminal Court (ICC)—also adopt it? Most importantly, is it defensible on theoretical grounds or as a practical necessity?

The answers lie in the unique history of international criminal law. Modern ad hoc tribunals operate under confused premises—in particular, the vagueness of these tribunals’ founding documents and the absence of a consistent arbiter for early release have led to misguided modeling of international early release after domestic parole. Parole programs often use early release as a rehabilitative tool, to reduce prison populations, and to cut costs. But early release by international tribunals is almost always unsupervised, meaning that the tribunals have no way to effectively encourage rehabilitation. Nor do international tribunals need to reduce prison populations or cut costs; because they handle so few prisoners, the vast majority of their budgets go toward administration.[6]

Thus, the concerns that animate parole policy are wholly inapplicable to international criminal law. Worse yet, the two-thirds rule compromises the goals that international tribunals take most seriously. It impedes reconciliation among groups previously in conflict by inflaming old tensions, especially when war criminals triumphantly return home upon release.[7] And it muffles the symbolic value of judgments, insofar as it calls for the release of even the least cooperative and most unrepentant criminals.

In my article, I argue that early release should only be granted based on changed circumstances of the prisoner, like fresh information casting doubt on guilt, cooperation after sentencing, and humanitarian concerns—not factors such as remorse (easily feigned), the probability of recidivism, and the gravity of crimes committed. Above all, I suggest that courts should never grant early release by default. My reforms would make early release more transparent to observers by making it less like parole and more like executive clemency, which it more closely resembles.

So far, criticisms of the two-thirds rule have centered on the ICTR, ICTY, and MICT. The ICC imposed its first sentence on July 10, 2012,[8] and will likely not consider any applications for release for a number of years. The ICC therefore has time to learn from the successes and failures of the ad hoc tribunals, and to craft its procedures accordingly.

 

[1]Jonathan H. Choi, Note, Early Release in International Criminal Law, 123 Yale L.J. 1784 (2014), available at http://www.yalelawjournal.org/note/early-release-in-international-criminal-law.

[2]See, e.g., Prosecutor v. Radić, Case No. IT-98-30/1-ES, Public Redacted Version of 13 February 2012 Decision of the President on Early Release of Mlađo Radić, ¶¶ 1, 3 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 9, 2013), available at http://www.icty.org/x/cases/kvocka/presdec/en/130109.pdf.

[3] James Karuhanga, ICTR Early Releases Raise Eyebrows, New Times, Mar. 10, 2012, available at http://www.newtimes.co.rw/news/index.php?i=14927&a=51185.

[4] See Rwanda Leader Accuses West of Leniency for Genocide Suspects, Agence Fr.-Presse, Apr. 7, 2012, available at http://www.rawstory.com/rs/2012/04/07/rwanda-leader-accuses-west-of-leniency-for-genocide-suspects.

[5] Boris Pavelić, Josipovic [sic] Criticises Early Release of War Criminals, Balkan Insight, Mar. 14, 2012, http://www.balkaninsight.com/en/article/josipovic-criticises-earlier-release-of-war-criminals.

[6] Annual costs for the ad hoc tribunals have regularly run into the hundreds of millions of dollars. David Wippman, The Costs of International Justice, 100 Am. J. Int’l L. 861, 861 (2006). Almost all of this money goes toward trial costs and administrative costs. Id. at 864-78.

[7]See, for example, the case of Biljana Plavšić. Jonathan H. Choi, supra note 1, at 1786-88.

[8] Prosecutor v. Dyilo (Lubanga), Case No. ICC-01/04-01/06, Decision on Sentence Pursuant to Article 76 of the Statute (July 10, 2012), available at http://www.icc-cpi.int/iccdocs/doc/doc1438370.pdf.