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.