By now 45% of all international convicts have been released, while a majority of these (84%) has been granted early release by the ICTY and ICTR. As of July 2013 the SCSL had not granted any early release yet. Similar to the regulation of conditions of imprisonment, domestic laws of individual enforcement countries govern the eligibility of international convicts for early release. In practice domestic laws regarding early release are divergent. For example in France, Finland or Italy convicts are eligible for early release after serving 1/2 of their sentence. In Belgium, Denmark, Sweden, Italy or Norway the necessary period is 2/3 of the sentence. Spain generally requires convicts to serve 3/4 of an imposed sentence. In Mali or Benin the domestic laws do not regulate any specific conditions in this respect. The final decision whether a person is to be released, however, lies with the Presidents of the tribunals.
As of 16 July 2013, 54 individuals applied for early release and early release was granted by the tribunals to 47 individuals. Although the reasons for granting or rejecting an early release application vary across cases, it seems that the decisive factor for granting early release is whether a defendant already served two-thirds of his/her sentence. It has become standard practice of the President to consider international prisoners eligible for early release after they have served two-thirds of their sentence.In practice, this means that majority of international convicts is actually serving much lower sentences than the sentences handed out by international judges at the end of a trial. Sentencing at the international tribunals is often criticized for its leniency and the practice of releasing almost all the international prisoners after serving 2/3 of their sentences might add additional fuel for the critical voices.
Theoretically the President is asked to consider also other factors when deciding on early release, such as gravity of crimes, rehabilitation of a prisoner or his/her cooperation with the tribunal. Often these factors, however, seem to be only pro forma mentioned by the President in early release decisions. No critical assessment of any of them seems to take place. For example, a lack of rehabilitation has hardly ever blocked an early release of an international prisoner. The tribunals’ Presidents consider these individuals rehabilitated from international crimes since they behaved well, attended work activities or language courses in the respective prisons and some of them eventually expressed remorse for their crimes. On the face of it, this high success rate in rehabilitating international prisoners can be considered a demonstration of a successful correctional policy. In how many national jurisdictions does it happen that almost all offenders of serious (conventional) crimes qualify for early release? At the same time, exactly this high ‘success rate’ begs a number of questions. Are offenders of international crimes really so well behaved and really so easy to rehabilitate as these data suggest? If so, how could that be explained? Perhaps by the nature of the crimes they committed or the nature of their personalities? Or could it be explained by completely other factors? The President of the tribunals is highly dependent on information provided by the authorities of the enforcing states when deciding on early release. Could it be that these enforcement states are somehow more lenient in their assessment of these international prisoners’ behavior and levels of rehabilitation compared to serious offenders who are to reintegrate in their own societies?