Muvunyi Decision (ICTR) on Early Release: A Balancing Act

When Tharcisse Muvunyi's request was granted on 6 March 2012 it was just the third occasion on which a sentence had been commuted in the tribunal's history.  He was sentenced to fifteen years by Trial Chamber III in 2010, a sentence which was upheld by the Appeals Chamber in 2011.  Muvunyi had previously been sentenced to twenty-five years by the tribunal but, following a retrial, just one of his convictions stood.  His sentence was reduced accordingly.  

Under Article 27 of the Statute, the President of the Tribunal may order early release where it is in the “interests of justice" and in accordance with "the general principles of law.”  It is stressed that, because the Tribunal has no means to supervise convicts who are released early, it effectively amounts to “unconditional reduction or commutation of the sentence" (Muvunyi Decision, para. 11).  In determining whether release should be granted, Rule 126 requires the President to consider the gravity of the crimes; treatment of similarly situated prisoners; the prisoner’s demonstration of rehabilitation, and any substantial cooperation with the Prosecution.  An examination of the Muvunyi Decision shows just how spurious those factors really are. 

To begin with, an examination of the gravity of the crimes might make sense in national courts.  But it does not make sense in international criminal courts, which by and large only have jurisdiction over jus cogens crimes.  A jus cogens crime is said to be that which "shocks the conscience of humanity."  When the prohibition against a class of crimes is of such a fundamental and universal character, it is doubtful whether comparing crimes in the class with one another is a legitimate and worthwhile task.  It is also difficult to see how such a comparison can avoid the distasteful conclusion that sometimes, genocide just ain't that bad. In the Muvunyi Decision, the President deals with the issue thus. First, he notes that genocide is, "by definition, the most serious of the crimes under the Statute." He then goes on to observe that most people only get 12-15 years for incitement to genocide, implying that actually it's not really that serious when you get right down to it.  As such, the President held that it was a factor that cut in favour of early release.  Possibly, there are truly exceptional cases in international criminal law which warrant the application of this factor but I wouldn't have thought this was one of them.

Second, substantial cooperation with the Prosecution should never be a factor taken into account when an accused person's liberty is at stake because it infringes on the right to remain silent. Furthermore, giving weight to substantial cooperation with the prosecution at this stage of the proceedings compounds the infringement on the right to remain silent at the sentencing phase, where judges are also allowed to consider substantial cooperation as a mitigating factor.    Where the individual who cooperates reaps the benefits twice, the individual who does not - for whatever reason - suffers the consequence twice.  An innocent suspect (after all, they are all presumed innocent) should not be compelled/incentivised to cooperate.  However, there was no evidence that Muvunyi substantially cooperated, and his sentence was commuted anyway.  What this tells us is far from clear.  

Third, the demonstration of rehabilitation that Muvunyi allegedly showed is frankly insulting.  It was observed that he had been a well-behaved prisoner and, despite the fact that he did not testify in his re-trial (!), he "otherwise behaved in a civilised manner."  I will grant that not all of them behave in a civilised manner. For instance, Vojislav Seselj recently declared: "I am plucking your feathers and your feathers are flying sky high!...I crush you every step of the way.  I am destroying the Hague tribunal as a whole," and so on and so forth.  But Seselj is the exception, not the norm.  The norm is Muvunyi.  I am just not convinced that the cited evidence truly demonstrates rehabilitation.  

Interestingly, the Decision marks yet another departure from the ICTY in sentencing practices. In considering similarly situated prisoners, the President stressed that Muvunyi had in fact served three quarters of his sentence, more than the two third standard for release at the ICTY.  This made his situation similar to the two other cases in which the accused had been released at the ICTR (Decision, para. 12).  With three accused having now been released after the three-quarter mark, and none having been released between the two-third and three-quarter mark, it would appear that three quarters is now an established part of the ICTR jurisprudence on early release.

In the conclusion of the Decision, the President observes that the amount of time Muvunyi had served to date was equal to or exceeded the total sentence of people convicted of similar crimes. A strange observation, perhaps, given that he was one of the three judges on the Retrial panel that handed down the sentence in 2010.  A change of mind, a chance to finally assert his own view, or a mere observation? Like the rest of the Decision, it really isn't clear. 

The Trials of John Demjanjuk

John (Ivan) Demjanjuk died on 17 March 2012 with his presumption of innocence theoretically intact, because his conviction for his role in the Nazi death camp in Sobibor was still pending on appeal in German courts at the time.  For the last thirty-five years of his life, he was the subject of legal proceedings in the US, Israel, Germany, and Spain, who, in 2011, attempted to obtain jurisdiction over Mr. Demjanjuk for alleged crimes involving Spanish nationals in one the camps, where he was thought to have served as a guard.

A citizen of the US since 1958, Demjanjuk was first deported to stand trial in Israel in 1986.  In 1993, the Israeli Supreme Court later quashed his conviction by the lower court when new evidence came to light that cast substantial doubt on his identity as Ivan the Terrible, last name Marchenko, the notorious gas chamber operator of Treblinka, Poland.  The Defence's case of mistaken identity survived evidence that, on Mr. Demjanjuk's entry papers to the United States, he had listed "Marchenko" as his mother's maiden name.  The Defence explained that Mr. Demjanjuk had forgotten her name, and simply guessed, pointing out that it was actually incorrect anyway (her maiden name was Tabachuk).  Although quashing the conviction for crimes on the indictment, the Supreme Court found that it was established that Demjanjuk participated in the extermination process in respect of other camps including Sobibor, to which the indictment did not extend.  A later attempt to re-open the case was rejected, one of the grounds given being the rule against double jeopardy.

In 2009, Demjanjuk was again deported, this time to face charges in Germany.  He was convicted in 2011, following an eighteen month trial for his role as former prisoner-of-war turned prison guard at the Sobibor death camp on the border of Belarus, Poland and Ukraine.   The Prosecution is said to have presented no evidence on specific crimes; it was enough that he was there, and that he did nothing.  

His death now draws to a close the final chapter of a long and convoluted story in international criminal law that is not just a little bit discomfiting.  The Economist's obituary of Mr. Demjanjuk can be found here. 

One Iranian lawyer's fight to save juveniles from execution - animation

This video from amnesty international on the death penalty in Iran might be preaching to the choir, but it's an utterly engaging way to spend a five minute break:

http://www.guardian.co.uk/world/video/2012/mar/27/lawyer-fight-juveniles-execution-animation

Lubanga Judgment (ICC) on Intermediaries

The Lubanga case concerned the use of child soldiers in the DRC.  What has emerged from the first 200 or so pages of the judgment is a serious - in fact, overwhelming - amount of misconduct by intermediaries employed by the OTP to help run its investigation in the field.  As a result, 6 victims and the father of a victim have had their right to participate in the proceedings revoked.  However surprising that decision was, it paled in comparison to the decision to instruct the OTP to open an investigation into offences against the administration of justice based on the case they had presented.  The Trial Chamber writes:

A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation....The Chamber hereby communicates the information set out above to the OTP [in order that it may prepare charges for offences against the administration of justice] and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of the investigation.

This is surprising, not because it is undeserved but, because quite a lot of Chambers seem not to mind being taken for a ride. International judges have been known to sit through some of the most farcically perjured testimony without batting so much as an eyelid.  Indeed, this Trial Chamber appeared not to mind too much. After all, it sat through evidence that led it to make the following finding:

It was a highly unusual feature of this witness’s evidence that in advance of his meeting with representatives of the OTP in July 2005, he had written the names of some of the main localities he was to mention in his statement on his jeans.  When asked about this, the witness gave a distinctly confused explanation, including that he had done it for the “pleasure of it” before he had met the investigator.

And this one:

Each morning, in meetings at the hotel with the  intermediary prior to the interview, he was given an outline of the  account he was to provide to the investigators. The witness said:

"The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to school and where I had had military training."

P-0015 indicated that [the OTP's intermediary] told him to hide his Hema ethnicity and his identity (he suggested that the name he was told to use was not a Hema or Iturian name), so that any investigation into his past would be very difficult for the prosecution.

And, the Trial Chamber sat through this evidence, from the intermediary who was perhaps the worst offender: 

"From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government [which is responsible for referring Thomas Lubanga's case to the ICC] in my service. However, there were sometimes perhaps circumstances in which I might have worked outside of this capacity, but I always remained loyal to my government."

Incidentally, this is an intermediary who also lied about his assistant's death,  hand wrote a fake threatening letter for a witness to help him leave Bunia, and he met with witnesses prior to their OTP interviews in order to rehearse their evidence with them, to name but a few of his alleged trespasses against the court. 

The Trial Chamber blames the prosecution's negligence, in failing to verify and scrutinise these parts of its case before presenting it, for the "significant expenditure on the part of the Court." The Prosecution's role is the misconduct is evident from the judgment (though it will be extremely interesting to see what the investigation turns up). However, it is the Trial Chamber's job to ensure the efficient use of time by the parties. It knew before the judgment what the state of affairs was, so why did it wait until then to call a spade a spade, and why did it let the Prosecution take them for this very long and expensive ride in the first place?  

The Duch Case (ECCC): Provisional Detention in Cambodia, not at the ECCC

At the ICTY an accused can usually expect a long period of provisional detention and a short sentence following conviction.  It was thought that the ECCC might be heading the same way when they handed down a sentence of 35 years to Tuol Sleng's commander, Kaing Guek Eav, alias "Duch," in 2010 (see Trial Judgement). This sentence was further diminished by a 5 year deduction that the Trial Chamber awarded in recognition of the unlawfulness of his continued provisional detention by Cambodian military commission (MC) from 1999-2007.  Now, in light of the Supreme Court Chamber's (SCC) judgement, the summary of which was issued on 3 February 2012, it looks like maybe the ECCC is headed in a slightly difference direction.

The Prosecution called Tuol Sleng a "factory of death" and the SCC agreed.  It sentenced Duch to life imprisonment (See Summary of the Judgement) for what it described as being "among the worst in recorded human history."  A bit flowery, perhaps, but it is difficult to argue that a person found guilty of those crimes does not deserve life imprisonment, is it not?

The increase in Duch’s sentence might actually make a practical difference, as he would have been about 87 years old by the time he had finished serving 100% of the 30 years ordered by the Trial Chamber.  Less likely to make a difference to the accused – now that he has been sentenced to life  - is the majority of the SCC determining that, contrary to the Trial Chamber's opinion, Duch was not entitled either to time served on account of being held in military detention from 1999-2007 in violation of Cambodian law, prior to being transferred to ECCC custody, or to the additional 5 year deduction which the Trial Chamber awarded in recognition of the unlawfulness of his MC detention.

The SCC has identified two reasons for the decision to quash both remedies in the summary of its judgement: 

(1) there were no violations attributable to the ECCC, and

(2) there had been no abuse of process.

The dissent, on the other hand, points to four factors in favour of granting Duch a remedy for the unlawful detention imposed on him:

(3) the high integration of the ECCC into the national Cambodian court system;

(4) the existence of a strong nexus between the respective charges before each court;

(5) the extremity of the deprivation of liberty by any standards, and

(6) the court's unique capacity to provide restorative justice

So, what insight do these nicely enumerated factors give us, who has the stronger argument (does the dissent protest too much?) and what is this really about?  Well, the full judgement is not available yet but no matter because, as Stan Starygin indicates, the judgement probably won't help us anyway.  In his blog, ECCC Reparations, Starygin highlights some of the more awkward questions that he believes the SCC will be keen to obscure in the judgement:

"was there a behind-closed-doors agreement between the UN and the RGC to keep Duch and Mok in detention until the creation of the ECCC could be effected, yes or no? Did the UN, in any way, allude to the RGC that it would be a good idea not to let the national courts prosecute Duch and Mok and wait for the ECCC to do so? Yes or no? Did the UN specifically request that Duch and Mok be detained pending the creation of the ECCC? What was the role of the UNHCHR Office in Cambodia in this? What was the role of the UN Legal Counsel's Office in this?"

The questions Starygin raises concern the issue of “nexus” which, as I see it, appears to be the fulcrum of the entire debate.  But is the ECCC really an international court, as Starygin seems to suggest, or is it a domestic court (though it is of course a hybrid court on paper). Thus, are we talking about a nexus between two Cambodian courts, or a nexus between a Cambodian court and a UN court? 

Anne Heindel of DC-CAM, in her 2009 amicus brief filed in her personal capacity and arguing for the same side as the dissent, argues that courts are integrated, leading to the conclusion that what we are really talking about is a nexus between two Cambodian courts. She points to ECCC's creation under Cambodian law, pursuant to a framework agreement between the U.N. and Cambodia, to demonstrate that it is highly integrated into the Cambodian court system.  A variety of other aspects of the agreement reinforce this view, the most striking, perhaps, being the fact that under the agreement, if the UN withdraws staff and support from the Court, it may continue to function without the international presence (citing Establishment law, art. 46).  

If the ECCC is an essentially Cambodian court, then, how can there not be a nexus between it and a Cambodian military commission set up to try to the same individuals for the same crimes, and a transfer of the accused from the custody of one to the other? And if there is no nexus between two courts in the same state trying the same individuals for the same crimes, can a detainee be passed from court to court indefinitely without any possible hope of relief, each move perfecting the abuses of the last? 

One assumes then that the majority's position must be that it is an international court, or at least, sufficiently internationalised to avoid forming a nexus with the military commission.  A slightly embarrassing concession perhaps, given that the ECCC purport to be chambers in the courts of Cambodia, but nonetheless.

A ham-fisted attempt to deal with this conundrum was the Trial Chamber's original pronouncement on the issue, back in 2009 .  The Trial Chamber held that, however Duch ended up in the ECCC's custody, it could not have been by virtue of the proceedings at the military commission being in any way continued, because the decision to terminate proceedings in military court was taken nearly a year after he had already been taken into the ECCC's custody (see TC Decision, para. 13).  (Unsurprisingly, the Trial Chamber is also quick to stress the internationalised aspects of the ECCC (see paras. 10-11).)  The Trial Chamber's argument seems to be that the less-than-seamless transition from proceedings in one forum and proceedings in the other (combined with the internationalised nature of the latter) somehow proves that there is no nexus; that the two are separate for the purposes of imputing abuses in one institution to the other.  This is unconvincing. Given the dreadfully slow nature of both Cambodian and international bureaucracies, it is hardly persuasive to point to something that may well have been the result of nothing more than poor book-keeping in order to prove the non-existence of a nexus between the two institutions. 

The significance of the non-existence of a nexus is that it allowed the Trial Chamber to provide a remedy for Duch's unlawful detention without getting its hands dirty.  In the end the Trial Chamber held that, under the circumstances of the charges being broadly similar, the violation of his rights being so serious, and the ECCC being well-positioned to do something about it, they would grant him partial relief, which took the form of a 5 year deduction (see Trial Judgement; TC Decision, paras. 18-21, and 28).  Handily, the Trial Chamber was also able to conclude that although Duch suffered an egregious violation of his rights, it wasn't so bad as to render any subsequent attempts to try him on substantially the same charges an abuse of process.  Phew.  

What happened at the military commission stays at military commission, ish.  It was the Cambodian’s fault, and cannot be imputed to the ECCC, which is an internationalised court, says the Trial Chamber.  Except that the UN then swoops in like a fairy godmother and bestows a five year credit on Duch for no other reason than that it can, essentially.  Bit of an interfering godmother, some might say. 

If the UN is really blameless in all this, then what business is it of theirs really as to what happened at the military commission?  Should international criminal tribunals - which are not supranational courts, and are not really forums for the resolution of human rights claims either - attempt to right all the wrongs that occur under domestic law, as the Trial Chamber opted to do?  Does this add to their legitimacy somehow, or does it only add fuel to the fire of accusations that it is a colonialist-imperialist institution? It will be interesting to see what, if anything, the full SCC judgement will bring to the debate. 

As it happens, my favourite argument in this entire debate appears not to have made it into the SCC judgement at all. It came from the Civil Parties' Group 1 back in 2009, who argued that it would not be in the "interests of the international community" to grant him any form of supplementary compensation for the violation of his rights since he has already admitted to committing crimes (see Group 1 Request to Deny Additional Compensation). This argument delights me because it is, in effect, saying that once the accused has confessed - regardless of the voluntariness of the confession, a factor not referenced at all in their Request -  we can get on with the punishment right away, without further ado.  If that is all that is required before the accused can start serving his sentence, then why bother with court nonsense at all? Why not simply set UN torture camps to extract confessions (since the civil parties are apparently unbothered by the possibility of involuntariness) then lock him up and throw away the key once the job is done? (Dear Alain Werner: I know that's not what you meant).  At least that would be one  - probably just the one - step up from what they did at Tuol Sleng.

Rasic Case (ICTY): Contemptible Contempt

Contempt of court is a unique crime at the ICTY; it is the only one not contained in the statute.  Penalties range from the monetary (EUR 7,000 in the case of Florence Hartmann, before it was converted into a sentence of 7 days imprisonment for failure to pay) to seven years imprisonment.  The latter is a heftier sentence than has been meted out in some of the Tribunal's sentences for war crimes.  That contempt of court can be regarded as more serious than war crimes must surely come as a surprise to some people.  

In practice, sentences have hovered around the three month mark.  Jelena Rasic was an outlier at 12 months imprisonment.  However, she has served only about 78 days, the remainder of her sentence having been suspended on the condition that she is not convicted of any other crimes in the next two years.  In arriving at this decision, the Trial Chamber took into account the impact of quasi-solitary confinement (as a result of being the only female in the detention unit) on her unstated health condition, the fact that this was her first prison sentence, and her relatively young age. 

Jelena Rasic was born on 19 April 1983.  She was twenty-five years old when the relevant events occurred.  Her indictment for contempt centered on the procurement of false statements for use in the Lukic defence case while employed as the team's case manager.  She had no legal or investigative training.  Without ever having met Ms. Rasic and having no first-hand knowledge of the case, I could not possibly begin to fathom whether she "knowingly and willfully" interfered with the administration of justice."  But I can say this, from experience: when working on a multi-million dollar war crimes case, with multiple accused, at an international tribunal, being broadcast to the world on a daily basis, nobody leaves a twenty-five year old woman in charge.  

The Chamber partly recognised this, commenting that:

"it is obvious that another or others connected to the Lukic and Lukic case in some way were responsible for recruiting her to commit these offences. In this respect, the Chamber has considered the personal circumstances of  Jelena Rasic, including that she was relatively young at the time of the crimes and that she was inexperienced in the role of investigator in which she was put by the Milan Lukic Defence, even though she was  employed  as case manager."

Unfortunately, the reality is that there are some case managers  - male and female - who know very little about the law or legal ethics.  It is not for stupidity or laziness, but for a complete lack of legal education or support structures that this situation arises.  If case managers are lucky enough to get trained in at all, it is too often by someone who isn't up to the task.  In most circumstances case managers have zero job security.  A typical workday entails horrifying amounts of time spent updating excel spreadsheets, as well as photocopying, tabbing, proofing and pdf-ing.  Some of those people might pick up a few bits and pieces of law along the way, but after a thirteen hour day, seven day week of typical case management, most non-lawyer case managers won't have a lot of time left over for the study of law. 

The witness whose testimony Rasic is said to have bought was not a stranger to the ICTY.  The OTP apparently had several statements from him in which he indicated that he would cooperate in exchange for money.  In this case, it appears that the OTP refused to play ball.  But sometimes Prosecution witnesses do receive a benefit that is somehow connected to their evidence in a case, such as relocation, visas, permits, support for asylum applications; things that make life for people from a post-conflict region a bit easier.  And in spite of frequent and vigorous protestations from the Defence to the contrary, there is nothing improper about the assistance provided to witnesses in the majority of cases.  There are, however, the exceptional cases where the witness's pre-relocation statements contradict each other or aren't corroborated by any other evidence in the case, but assistance is granted anyway, paving the way for the witness's testimony.    No such cases have ever lead to contempt charges nor would they in all likelihood.

There can be no question that the conduct to which Ms. Rasic pleaded guilty must be addressed.  It is contemptuous not just of the Court, but of the parties, the victims, and the other accused who play by the rules day in and day out. Whether Defence or Prosecution, no one should be allowed to interference with the administration of justice. But it must at the same time be observed that the practice of the Tribunal is much greyer than we might like to think.  And I would respectfully suggest that the power to deprive individuals of their liberty, conferred on the Tribunal by the Security Council under Chapter VII of the Charter of the United Nations, was not intended to reach individuals such as Ms. Rasic.  This cannot have been the best way to deal with an extremely unfortunate situation.