REVISITING THE LEGAL BASIS OF CHARGE BARGAINING IN THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (original) (raw)
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This essay expounds on the advantages and disadvantages of plea bargaining in war crimes trials, notably in the context of BiH War Crimes Chamber. The ruling about Dušan Fuštar will be taken as a case in point for essentially two merits: first, it illustrates the difference existing between "charges" bargaining and "sentence" bargaining. In so doing, I will illustrate why an agreement on the scope of the sentence should be preferred to one involving dropping charges. Secondly, I will assess the rationale behind the court's mitigating of the sentence and thereby will draw some final remarks as to the most apt way to deal with plea agreements in the context relevant to this study.
2024
The International Criminal Tribunal for Rwanda (ICTR) adopted the practice of plea bargaining to prosecute alleged perpetrators of the Rwandan genocide. The ICTR Trial Chamber had admitted guilty pleas of 10 alleged perpetrators and had decided on their charge/sentence accordingly. However, an inflection point was created with the decision of the ICTR in Kambanda , a one that indicated not only that a head of the government might also be denuded of immunity but also how the impugned practice supposedly violated the procedural due process rights of the accused. Specially referring to the judgment of the ICTR in Kambanda, the paper provides a comparative portrayal of the cases wherein the ICTR had decided matters based on the admission of guilty pleas and the subsequent reduction in the sentence or the number of charges (counts). The main argument of the paper is that the decision of the Trial Chamber not to grant any remedy to Kambanda despite pleading guilty was seemingly erroneous. The paper uses analytical and descriptive approaches to connect frameworks and facts demarcating the practice of plea bargaining in ICTR.
The article begins with the historical review of different attitudes toward bargained justice in countries belonging to the Continental European tradition, and those belonging to the tradition deriving from England. The last century has led to the rapprochement of these attitudes, but residual differences remain, and the author focuses on the most prominent among them. He then discusses arguments in favour and against negotiated outcomes of criminal cases, irrespective of the form of these negotiations. He concludes that the only persuasive arguments in favour of the practice are those of practical necessity – the over-burdening of courts, and evidentiary difficulties in piercing the veil of organized crime. Leaving the context of national systems, the author then examines those special features of international crimes, and the context in which they occur, that have a bearing on the desirability of bargaining with the accused. He argues that these special features reinforce the view that the practice can persuasively be justified only on the ground of practical utility. There follows a brief review of bargaining as practiced by ICTY, a court with a limited lifespan , and bargaining as structured under the ICC normative scheme. The last section of the article is devoted to the question of which model of bargaining is better suited to the environment of international criminal proceedings – the continental one of in-court confession, or the Anglo-American one of guilty pleas. Whatever model seems most appropriate, the author concludes, it would be desirable to hold as many trials as possible, and take recourse to bargaining only when absolutely necessary.
WHY SHOULD THE INTERNATIONAL CRIMINAL COURT ADOPT PLEA BARGAINING
Since its establishment in 2002, the International Criminal Court (ICC) has faced many obstacles in bringing the instigators and perpetrators of crimes to justice. Many solutions have been offered on solving these difficulties which are mainly legal, procedural and economical. One suggestion which has been made is the issue of plea bargaining. This procedure, which is controversial both in national and international level, has already been applied by other international criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR). However, there is a danger that the misuse of plea bargaining by these international tribunals plants since of doubt on lawyers' minds. In this article, the author discusses the possibility of the ICC adopting plea bargaining system and its proceedings. In this regard, it will also consider the pros and cons of adopting a plea bargaining system in achieving justice for the victims of the world's most heinous atrocities.
As the International Criminal Tribunal for the former Yugoslavia (ICTY) proceeds through its ninth and most visible year of existence, it is now possible to look back at its work to date and begin to assess its potential legacy. The record is mixed. On the one hand, the ICTY's achievements have exceeded the boldest hopes of its creators. However, in several important respects, it has failed to make a difference in the region itself. With the arrest of former Yugoslav President Slobodan Milosevic and his subsequent transfer for trial to The Hague by the Serbian authorities, the ICTY suddenly achieved a level of credibility previously unforeseen. In a few short months, Milosevic went from the pinnacle of power in Serbia and the leading role in the unfolding tragedy in the former Yugoslavia to that of the accused in the dock, from regional kingpin to a solitary accused, facing the most serious criminal charges under international law.