Negotiated Justice: A Critical Perspective of Plea Bargaining in International Criminal Courts (original) (raw)
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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.
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.
Law and Economics of Plea-Bargaining
SSRN Electronic Journal, 2000
Although highly criticized by legal scholars, plea-bargaining is probably the most transplanted instrument of criminal procedure. In contrast to most of the legal literature, for the French case (plaider coupable), we are not aware of any empirical assessment. 4 It includes summary procedures for those who do not contest guilt; unconditional and conditional dismissals; confession of guilt to get a reduction in the sentence, warnings and reprimands. 5 Obviously the lack of success depends, in part, of how we define plea-bargaining. If we take a broader definition of plea-bargaining as any form of negotiated sentence that avoids criminal trial, then we might account for half or more of the convictions in many civil law countries.
Plea bargaining as a human rights question
Cogent Social Sciences
The right to a fair hearing is a basic norm in international human rights law, which envisages a fair trial where the accused is presumed innocent until proven guilty. However, contemporary criminal justice accommodates pleas of guilt subject to guilty plea standards under plea bargain agreements, where the accused are assumed to have voluntarily waived full trials, primarily for judicial expediency and efficiency. Human rights law has embraced the legitimacy of plea bargaining, subject to the minimal standards of a voluntary, informed, unequivocal, and factbased plea of guilt, to validate the proceedings as a fair hearing. This article seeks to examine the human rights concern of whether or not a plea bargain entered by an accused is truly voluntary, in light of the larger question of the right to a fair hearing, which right is non-derogable. This article argues that the accused may, in some cases, enter into plea bargaining involuntarily, primarily in pursuit of expedited release or to escape pre-trial indeterminate detention, among other unsurmountable coercive circumstances they might be going through at the time. It recommends a procedural cocktail solution to ensure that plea bargaining operates fairly. These can comprise: statutory timeliness through systemised bargain processes' deadlines; a robust state-funded legal aid; use of non-coercive means during negotiations; judicial oversight and independence; statutory preservation of the accused's rights against self-incrimination, appeal or judicial review to protect due Nakibuule Gladys Kisekka ABOUT THE AUTHOR The author is working on doctoral (LL.D.) research in human rights law, approved by Uganda's
Plea Bargaing in Globalized World
This paper is directed towards exploring the reasons behind increasing adoption of ADR mechanism Plea bargaining worldwide, the advantages it provides along with its inherent fallacies or deficiencies and how the phenomena of globalization has aided in spreading and adoption of the concept of Plea bargaining.
Copping a Plea to Genocide: The Plea Bargaining of International Crimes
University of Pennsylvania Law Review, 2002
[hereinafter 2 ANNOTATED LEADING CASES OF INTERNATIONAL CRIMINAL TRIBUNALS]. 2 The United Nations established the ICTR in order to provide: [A]n international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between