Gravity of the crime and early release: A comparative study of early release practices in international tribunals

Abstract

The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the ad hoc tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite per se or indirectly integrated into a wider prognosis of the risk of recidivism.