By Björn Elberling

Over at Opinio Juris, there is a discussion on an interesting article by Jenia Iontcheva Turner concerning "Defense Perspectives on Law and Politics in International Criminal Trials". Prof. Turner has interviewed several defence attorneys practicing at the ICTY, ICTR and SCSL about their perspectives on several aspects of trials before the ICTR. I confess to only having skimmed the article so far, but I can already say that I found it very interesting. The article is available here, the blog discussion at OJ here, here and here. Anyway – and here comes my awkward attempt at a segue to the main topic of this post – , Prof. Turner reports that while not too many defence attorneys view the Tribunals as "deeply political", that view is more prevalent at the ICTR than at the ICTY. I have to say that a lot of times when researching the jurisprudence of the ad hoc Tribunals, I can understand that defence attorneys at the ICTR would find their work a bit, well, frustrating to say the least. The most recent example that I chanced upon was that of early release. More below the fold. Warning: This is going to be a bit ranty. The basic provisions on early release are pretty much the same at both ad hoc Tribunals – such requests are decided upon by the President upon notice by the state in which the prisoner is serving the sentence that s/he is eligible for early release under that state’s laws (or, in the case of prisoners still detained at the Tribunals’ Detention Unit/Facility, upon request of the prisoners after at least 2/3 of the sentence has been served). Most important for my purposes is Rule 125 RPE-ICTY/Rule 126 RPE-ICTR, which states that "[i]n determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, 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." At both Tribunals, there are Practice Directions to deal with the specifics, the ICTY Directive is available here, the ICTR Directive I couldn’t find on their website. Anyway, a number of prisoners have brought requests for early release, and at the ICTY, quite a few of these have been granted, while at the ICTR, all requests so far have been denied. The ICTR regime is, of course, harsher than the ICTY regime in a lot of ways – provisional release and length of pre-trial detention is an obvious aspect -, and I’m sure that arguments can be made why this difference is at least understandable (the relative gravity of the crimes dealt with, for one thing). But I can’t help but feel that the ICTR judges also have a particularly "unfriendly" way, for lack of a better term, of dealing requests of defendants, which I am sure I would find extremely frustrating were I a defence lawyer there. Consider the case of Vincent Rutaganira, who was released last month after having served his sentence: On 14 March 2005, after a guilty plea based on a plea agreement, Rutaganira was sentenced to six years’ imprisonment for "aiding and abetting extermination as an accomplice by omission" (A peculiar construction to be sure, but that would be for another post). The sentence was to run from the date of his arrest, 4 March 2002. On 5 March 2006, having served 2/3 of his sentence, Rutaganira applied for early release. The President denied his request by decision of 2 June 2006. Fair enough, there is no right to early release after all. However, I would argue that some of the arguments used in denying the request were not very convinving: For one, the President refused to consider factors such as Rutaganira’s voluntary surrender, his guilty plea, his statements of remorse etc., finding that these factors had already been considered by the Trial Chamber in sentencing. A statement which may seem sensible at first glance, but which in my view isn’t: That the ICTY President has routinely taken into account such factors in granting early release probably does not make the ICTR President’s decision wrong, but it is certainly interesting to note. More importantly, however, Rule 126 RPE does state that the President shall consider, inter alia, "any substantial cooperation of the prisoner with the Prosecutor." This is the only mitigating circumstance explicitly laid down in the ICTR Rules of Procedure (see Rule 101 (B) (ii), which explicitly refers to cooperation "before or after conviction"), and given that the list in Rule 126 is not exhaustive, I would argue that the Rule foresees that mitigating circumstances should indeed be considered. This must especially be so given that the Rule also calls for consideration of another factor already considered in sentencing, namely the gravity of the crime, and the President did indeed consider this factor prominently in other decisions on early release. By taking into account the gravity of the crime as a factor against early release, while refusing to take into account cooperative behavior etc. in favor of release, he seems to be having his cake and eating it too. So far, one could call this an unfortunately narrow interpretation of Rule 126. However, a later decision in the same case adds insult to incarceration, basically signalling that defendants might as well not bother with applications for early release: On 22 February 2007, having served about 5 of his 6 years, Rutaganira moved for reconsideration of the earlier decision. The President rendered his decision on 13 February 2008, about three weeks before the date for Rutaganira’s release. Of course, by then he had already pretty much rendered the point of the motion – early release – moot simply by sitting on the motion for a year. The main reason for denying the motion was that there were "no material changes in circumstances" since the original decision of June 2006. Now to me, that statement seems wrong already on the face of it – surely in the context of early release, the fact that a prisoner has served not 66% or 70% (at the time of the original request respectively decision), but 83% or 99% of his sentence (at the time of the motion for reconsideration respectively the decision thereon) must be considered a material change in circumstances, must it not? Also, isn’t the President saying that prisoners are only entitled to one request for early release and that if that request is denied, they will have to serve their entire sentence? That would seem to be against the entire purpose of early release proceedings – the bigger the part of the sentence the prisoners has already served, the more likely that one would find that the purposes of punishment had been fulfilled. This is why the ICTY Practice Direction foresees that where the President denies a request for early release, s/he must also set the date at which a new request may be brought, and in fact, the ICTY President has in at least one case denied an early request for early release, but granted a later request after the defendant had served more of his sentence. (A small caveat here: As the ICTR Practice Directive is not available, I do not know whether it contains a rule similar to that at the ICTY and whether one could say that Rutaganira should have brought a new motion for early release instead of a motion for reconsideration. But even if that is so, denying the motion on such formal grounds would seem a bit petty to me.) To sum up: I’m not trying to say that there are no valid reasons for denying motions for early release at the ICTR, or even that there are no valid arguments for the difference between the ICTY and the ICTR in that regard. What I find problematic is that the arguments brought forward for such decisions, and the general way such questions are dealt with, smack of not taking one’s own legal texts (and one’s duties to the defendant) seriously at all.