The Rwandan government, through the Commission Against the Genocide (CNLG), and associations of survivors of the genocide, through their umbrella organization IBUKA, have consistently expressed their disapproval of the conduct of Judge Theodor Meron, the current President of the United Nations International Residual Mechanism for Criminal Tribunals (MICT), whom they accuse of being lenient towards the perpetrators of the genocide against the Tutsi.
In the CNLG’s Press Release of December 20, 2016, entitled ‘[s]ome Grave Mistakes committed by Judge Theodor Meron and the Residual Mechanism on cases related to the Genocide against the Tutsi that he was entrusted to handle by the United Nations’, the mistakes listed include (i) the early release of the planners of the genocide, (ii) lack of interest in tracking genocide fugitives, and (iii) inadequate supervision of cases transferred to the French jurisdiction.
The recurrent accusation is that Judge Meron has made it a strategy to release all genocide convicts before their completion of sentences.
Early release, they argue, demean the Genocide against Tutsi, and gives room to impunity that was part of the genocide ideology, given the fact that the 1994 genocide against the Tutsi was a climax of several earlier killings of Tutsi that were never punished.
The issue of early release is controversial at the two ad hoc tribunals (ICTY and ICTR), especially because of the current established standard at MICT that presumes an automatic eligibility of every prisoner that has served two thirds of his/her sentence to benefit an early release.
The reasons given in disagreement with that position include the failure to acknowledge the serious nature of crimes those convicts were found guilty of, the short imprisonment sentences they were given at Trial/Appeal, and the absence of victims’ interests/views in the process.
The early release at the MICT is governed by Article 26 of the UNSC Resolution 1966(2010) establishing the MICT (Statute), and Rule 151 of the MICT Rules of Procedure and Evidence (RPE).
Article 26 of the Statute states that: ‘If, pursuant to the applicable law of the State in which the person convicted by the ICTY, the ICTR, or the Mechanism is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the Mechanism accordingly.’
The same Article entrusts the powers of pardon or commutation of sentence, or early release with the President of the MICT, who takes the decision on the basis of the “undefined” interests of justice and principles of law.
Rule 151 of the RPE sets out four reasons to consider before taking a decision, ‘inter alia the gravity of crime the prisoner was convicted, the similarly-situated prisoners, the prisoner’s demonstrated rehabilitation, as well as any substantial cooperation with the prosecutor.’
Although not listed, health conditions of a prisoner is a well-known reason for early release – humanitarian grounds.
However, if you systematically consider these four reasons, it becomes abundantly clear that they are all in favour of early release because no prisoner will ever fail to fulfil them, and this is how: First, the gravity of crime, it is important to remember that the prisoners referred to here have been convicted of war crimes, crimes against humanity and genocide, all these are serious crimes – the atrocious nature of these crimes qualifies them to be considered grave.
Therefore, stating ‘the gravity of the crimes’ is in this case simply redundant, and this was acknowledged in the decision concerning the early release of Rugambarara that ‘since the gravity of crimes was already assessed when determining sentence, it does not per se bar a person from early release, if otherwise appropriate.’
Second, the similarly-situated prisoners is a no reason at all. The fact that there are some prisoners who have benefited an early release is a requirement that is automatically fulfilled.
Third, the prisoner’s demonstrated rehabilitation, these conditions relates to the prisoner’s conduct in prison and ability to resettle, not necessarily back to the country of the crimes situation but where he or she wishes to stay.
For example, in the case of Bisengimana, the President considered the fact that his family regularly visited him in prison, that he was involved in different activities of prison, and that he intended to start a business in Mali.
Fourth, any substantial cooperation with the prosecutor, because of the principle of non-self-incrimination, this is also a not so strict requirement because whatever the cooperation a prisoner or accused person might have refused to provide to the prosecution can be easily interpreted as aimed at preservation of that principle of criminal law.
Therefore, based on the above, we are likely to live with this “ugly truth”, where whoever that was sentenced to less than life in prison, will serve not more than two thirds, and sooner than later, they will all be free.
This trend can only be reversed if the current policy of presumption of automatic early release is changed into an exception, however, this is unlikely to happen because of the fact that criminal procedure gives priority to the lenient interpretation of law in favour of the accused.
Based on the interests of justice, the MICT should have taken a principle that given the serious nature of crimes these prisoners were convicted of, early release would be given on exceptional grounds such as humanitarian, but this is now an afterthought suggestion because it seems like a principle has already been established.
The process of early release is basically between the host State (where the prisoner is serving sentence), the MICT President (who can consult with other judges but their views are not binding), the prisoner and prosecutor.
The procedure does not require the views of the State where the crimes were committed, unless the President so wishes.
The MICT Statute puts a lot of powers in the hands of one person, the President, to decide on all decisions of the former two sister tribunals.
This is very dangerous, if he turns out to be a rouge judge (with vested interests), whatever damage he might cause cannot be remedied because his decisions are final – cannot be appealed.
This is the ugly side of international criminal justice that we need to contend with, it does not give adequate voice to the concerned people.
This is a missed opportunity for the MICT to contribute to reconciliation, and make an impact to the affected communities.
The MICT could have used the early release to encourage prisoners to reconcile with victims, and this would require them to produce evidence of such efforts, and denounce engaging in activities that would re-traumatise the victims such as genocide denial.