Ending justice early in The Hague : legitimacy concerns over the unconditional early release of perpetrators convicted by the International Criminal Tribunal for the Former Yugoslavia

Many scholars and observers who watched the International Criminal Tribunal for the Former Yugoslavia (ICTY) dispensing punishment for perpetrators of atrocity crimes decried what they saw as the handing down of lenient sentences for some of the most grave crimes under international law. A significant body of literature has challenged the legitimacy of the Tribunal’s exercise of power in relation to this aspect of its operations. Yet, far less scrutiny has occurred in relation to another aspect of the Tribunal’s operations: the premature termination of these widely perceived lenient sentences, whereby perpetrators escape one-third of their punishment. The majority of the perpetrators convicted of atrocity crimes (54 of the 90 sentenced) were granted Unconditional Early Release (UER) by the President of the Tribunal and were thus “free as a bird” upon release. In contrast to the widespread national practice in relation to perpetrators of serious crimes released early on probation, on parole or on conditional release, perpetrators of atrocity crimes were often treated more generously, as they were released unconditionally. They were free to return to the crime scene and meet their victims, free to be greeted as heroes by welcoming crowds of supporters. These scenarios prima facie were an injustice to victims and potentially had societal consequences as perpetrators returned to Bosnia and Herzegovina (BiH), an ethnically-divided, post-conflict country and said they would be “happy to do it all again”. This thesis seeks to understand the causes and consequences of UER. It did so through a legitimacy framing – examining the extent to which this practice was perceived as legitimate by various groups of stakeholders and determining whether it had an overall impact on the legitimacy of the Tribunal. It has done so primarily through a legal empirical analysis of the Tribunal Presidents’ early release decisions, and through 69 semi-structured interviews with inside stakeholders from the Tribunal, outside stakeholders in BiH, and one other international judge. On this basis, the thesis concludes that the Tribunal’s grant of UER lacks both in terms of normative and sociological legitimacy. Nevertheless, despite this legitimacy deficit, UER has not delegitimised the Tribunal overall, rather, it has left a “blackspot” on its legacy. This thesis explains why.