Early release in international criminal law.

• Author: Choi, Jonathan H.

NOTE CONTENTS INTRODUCTION I. CURRENT DOCTRINE A. Sentencing at the ICTs B. The Statutes and the Four Factors C. Confusion over Parole and Clemency D. Looking Forward: The International Criminal Court and Other Tribunals II. A theory of early release in international law A. The Goals of International Criminal Law B. Relevant Factors 1. Cooperation After Sentencing 2. Humanitarian Concerns C. Irrelevant Factors 1. Rehabilitation: Remorse, Recidivism, Good Behavior, and Reintegration 2. Social Instability 3. Gravity of Crimes D. Summary III. OBJECTIONS A. Expressive Law B. Incomplete Information IV. IMPLICATIONS CONCLUSION INTRODUCTION

On October 27, 2009, Biljana Plavsic finally returned home to Belgrade. (1) It was a sunny autumn afternoon, and the locals treated her to a triumphal reception as she traveled from the airport to her apartment. Plavsic wore a bright smile and a fur coat; she received hugs and kisses from passers-by along the way, escorted by the Bosnian Serb Prime Minister himself. (2) She had spent the last six years in a Swedish prison. (3)

In 2000, Plavsic was indicted by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) for genocide, crimes against humanity, violations of the laws and customs of war, and grave breaches of the Geneva Conventions. (4) The Prosecutor alleged that Plavsic had masterminded a policy of racial extermination and persecution as a member of the three-person Presidency of Bosnia and Herzegovina. (5) She had enthusiastically endorsed ethnic cleansing of Muslims and Croats, and achieved global notoriety after a 1992 photograph showed her greeting fellow war criminal Zeljko Raznatovic with a kiss over the dead body of a Muslim civilian. (6)

Plavsic garnered further fame by surrendering to the Tribunal shortly after her indictment (7) and pleading guilty in 2002. Plavsic vowed: 'The knowledge that I am responsible for such human suffering and for soiling the character of my people will always be with me." (8) In exchange, the Prosecutor agreed to drop all charges except persecution (9) (a crime against humanity (10)), and Plavsic received a sentence of eleven years. (11)

However, in a January 2009 interview with Sweden's Vi Magazine, Plavsic withdrew her confession and her apology. She described them as pieces of political opportunism intended solely to reduce her sentence, claiming, I sacrificed myself. I have done nothing wrong. I pleaded guilty to crimes against humanity so I could bargain for the other charges." (12)

Plavsic gave the interview in an apparent fit of pique after the Swedish authorities rejected her initial application for a pardon in December 2008. (13) In the same interview, she took potshots at the Swedish Ministry of Justice, complaining that "[n]one of the other prisoners have read a single book," and that "[y]our country has nothing to be proud of." (14) Plavsic had seemingly resigned herself to her scheduled release date in 2012--commentators noted that her evident lack of rehabilitation had hurt her chances for early release, perhaps fatally. (15)

But the President of the ICTY disagreed. In the decision approving Plavsic's early release, President Patrick Robinson contended that she had exhibited "substantial evidence of rehabilitation" (16) based in part on her "good behavior during the course of her incarceration." (17) He also noted her cooperation with the Prosecutor (18) and, perhaps most importantly, the fact that she had already served two thirds of her sentence, the customary proportion entitling her to early release. (19)

Although Plavsic was only one of many criminals to be released early by the ICTY, victims groups and prominent politicians were particularly vehement about her case. Representatives of an association of Muslim and Croat camp victims complained that the decision had "nothing to do with justice"--that the ICTY had failed to think about the blood of so many of our children, whom we are still digging out of mass graves." (20) Zeljko Komsic, one of the three members of the Bosnian Presidency, cancelled a trip to Sweden, and a group of inmates at a Bosnian prison sewed their lips shut in protest. (21)

Plavsic's case starkly illustrates the controversy surrounding the ICTY's early release policies. Its liberality was not a one-off-if anything, the Tribunal has since become even more generous. As Part I explains, convicts before the ICTY, International Criminal Tribunal for Rwanda (ICTR), and Mechanism for International Criminal Tribunals (MICT) now presumptively need only serve two thirds of their sentences.

How did this presumption 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?

To answer these questions, this Note explains the origin of the two-thirds standard and articulates a theory of early release adapted specifically to international law. Part I explores current early release doctrine and concludes that the ad hoc tribunals operate under confused premises--specifically, that 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. It describes how the ICTY has promulgated an influential presumption of release at two thirds of sentence that has been mimicked by the other ad hoc tribunals, and which may soon be adopted by the ICC as well.

Part II articulates an alternative theory of early release. It begins by contrasting the goals of international and domestic criminal law. International criminal law attempts to condemn serious crimes and reconcile past enemies, while domestic law achieves reconciliation only incidentally. On the other hand, domestic policymakers aim to minimize costs and prevent recidivism, which are secondary issues for international tribunals. Widely differing objectives imply that international judges should be cautious about borrowing domestic legal practices wholesale. I argue that such borrowing has backfired in this case: automatic early release dilutes condemnation and enrages victims because of its opacity and because commutation has traditionally been associated with mitigated guilt, as I discuss below. (22)

This discussion lays the foundation for my alternative approach to early release, which emphasizes changed circumstances of the prisoner. Part II separates relevant factors - fresh information casting doubt on guilt, cooperation after sentencing, and humanitarian concerns--and irrelevant factors, such as remorse (easily feigned, as in Plavsic's case), the probability of recidivism, and the gravity of crimes committed. Above all, I suggest that courts should never grant early release by default.

This is not to say that international tribunals are too lenient or too strict in general--there is a larger debate on sentencing length in international criminal law on which I remain neutral. (23) Instead, I contend that the special outrage surrounding Plavsic's case reflects more than the usual agitation for harsher sentences. It suggests something particularly inflammatory about releasing her early, absent any real remorse or changed circumstances and based on the attitudes of a single judge. If Plavsic deserved to be released after seven years even in the absence of changed circumstances, then her original sentence ought to have been seven years. I argue that present early release doctrine does not serve the principles of international law regardless of one's underlying normative position on the appropriate length of initial sentences.

My argument fills an important gap in the literature. Academics have written little about early release in international law, largely due to the lack of jurisprudence on the subject. Early release following the Nuremberg and Tokyo Trials was almost entirely motivated by sui generis concerns of politics and fairness rather than lasting doctrinal commitments, (24) and the ICTY and ICTR only commuted their first sentences in 2001 (25) and 2011, (26) respectively. A project such as this one has therefore only become viable within the past decade.

Despite the lack of scholarly attention, politicians and commentators have vigorously criticized the ad hoc tribunals for their exercise of early release powers. Complaints have grown louder as the tribunals have grown more generous in recent years. 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. (27) 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. (28) Similarly, Croatian President Ivo Josipovic has suggested that early release "should be very exceptional" and that he "would never pardon certain crimes, like rape, murder and war crime." (29)

So far, such criticisms have centered on the ICTR, ICTY, and MICT (collectively, the International Criminal Tribunals (ICTs)). The International Criminal Court (ICC) imposed its first sentence on July 10, 2012, (30) and will likely not consider any applications for release for a number of years. The ICC has time to learn from the successes and failures of the ad hoc tribunals, and to craft its procedures accordingly.

The topic of early release is therefore ripe for consideration on three counts: the conspicuous absence of substantive analysis so far, mounting criticism by politicians and commentators, and the unique inflection point between the closing of the ad hoc tribunals and the opening of the ICC.

1. CURRENT DOCTRINE

   As the Introduction notes, modern...