As the years since the atrocities of the 1990s in Rwanda and the former Yugoslavia increase, many of those convicted by the international tribunals serving sentences throughout Europe and Africa have applied for and been granted early release. Government officials and the victims of the conflicts have expressed concern and dismay over these early releases, often questioning the rationale of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) for even considering early release. Yet the tribunals are tasked with ensuring fair and equal treatment of convicted persons, and have consistently upheld the right of convicted persons to seek early release, if specific criteria are satisfied. This right is not consistently available, however, and this inconsistency has the potential to result in unequal sentence enforcement. As with the defense principles of due process and equality of arms prior to conviction, equality in sentence enforcement after conviction must operate free from a desire for retribution and deterrence based solely on the nature of the crime, taking into account the rights of the convicted and his or her ability to rehabilitate. This approach is not always popular, as made clear in the recent statements of Rwanda’s Prosecutor General, Martin Ngoga, who advocated that the ICTR reexamine the concept of allowing early release for convicted genocidaires. In opposing the three early releases granted by the ICTR thus far, Mr. Ngoga questioned the relevance of good conduct in prison after one has committed the crime of genocide. If early releases are to be allowed, he advocates a precursory genuine apology to survivors and the community. Croatia’s president Ivo Josipovic also questioned the appropriateness of early release from the ICTY, advocating a base standard of serving full sentences with rare exception. As provided in the ICTR and ICTY Statutes, when a person convicted by a tribunal requests early release, that tribunal’s President decides on the appropriateness of the release based on recommendations from the state where the sentence is being served, after consultation with the Prosecutor and sentencing Chambers. The Rules of Procedure and Evidence of the ICTR and the ICTY provide factors that, inter alia, the President must take into account in this decision, including the gravity of the person’s crime(s), the treatment of similarly situated prisoners, the person’s demonstrated rehabilitation, and any cooperation with the Prosecutor on other cases. The tribunals also mandate that the convicted party complete two-thirds of his or her sentence before it will consider a petition for early release. Another important prerequisite to any petition for early release is that the state enforcing the person’s sentence must approve a request for early release under its own law. This requirement is laid out in tribunal statutes and in each state’s sentence enforcement agreement (see Albania’s, for example), and is based on the statutory requirement that the enforcing state’s laws govern the sentences of those convicted by a tribunal. The wide variability of these domestic laws presents a significant challenge to equal enforcement of sentences. As observed by Klaus Hoffman, former Legal Officer at the ICTY, two men convicted of the same crime and sentenced to life imprisonment may have drastically different experiences depending on the country where they serve their sentences. One man may secure early release in 15 years, while the other may stay in prison for his entire life.
The potential for unequal sentence enforcement is a negative side effect of state-enforced tribunal sentences, and hints at the benefits of a sentence enforcement standardization effort on the part of the international community. As with so many of the concerns raised in these early years of international criminal jurisprudence, equality of enforcement is a weighty issue for the future credibility of the ICTY and the ICTR, and for the International Criminal Court when the tribunals complete their mandates. Effective standardization would ideally find a delicate three-way balance between promoting effective punishment while equally enforcing sentences, respecting the frustrations of victims at the early release of a perpetrator, and upholding the sovereignty of the state enforcing the sentence.