Plea Bargaining and International Criminal Justice

Abstract

Over the last two decades, plea bargaining has spread beyond the countries where it originated — the United States and other common law jurisdictions — and has become a global phenomenon. Plea bargaining is spreading rapidly to civil law countries that previously viewed the practice with skepticism. And it has now arrived at international criminal courts.

While domestic plea bargaining is often limited to non-violent crimes, the international courts allow sentence negotiations for even the most heinous offenses, including genocide and crimes against humanity. Its use remains highly controversial, and debates about plea bargaining in international courts continue in court opinions and academic commentary. Is it appropriate to offer sentencing concessions to a defendant who pleads guilty to a heinous crime involving thousands of victims? How can the avoidance of a public trial be reconciled with some of the professed goals of international criminal law, including the goal of creating a more accurate historical record of the atrocities and that of providing victims with a voice in the process? Conversely, given the very limited resources and enforcement powers of international criminal courts, could these courts achieve any of their goals effectively without the use of plea bargaining?

The controversies surrounding plea bargaining at the international level are based in part on the unique features of international criminal justice, especially the horrific nature of the crimes prosecuted and the emphasis on uncovering the truth about these crimes. But the resistance to plea bargaining also stems from the fusion of inquisitorial and adversarial approaches at the international courts. The inquisitorial tradition of full and independent judicial inquiry into the facts of the case, which has influenced the procedures of international courts, helps explain why plea bargaining remains highly contested in that setting.

This article highlights the different approaches to plea bargaining in civil law/inquisitorial and common law/adversarial systems and how the blending of these traditions has influenced plea bargaining at the international criminal courts. It ends with an overview of the debates concerning plea bargaining in international criminal procedure and some recommendations for making the practice more consistent with the goals of international criminal justice.

Keywords: Plea Bargaining, Guilty Pleas, Negotiated Justice, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, Inquisitorial, Adversarial

JEL Classification: K14, K33, K42