Issue # 14: Should the IST engage in plea bargaining?

NO: by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 109 (2006).

"Plea bargaining" -- While no single definition of the term is universally accepted, the practice may encompass negotiation over reduction of sentence, dropping some or all of the charges, or reducing the charges in return for admitting guilt, conceding certain facts, foregoing an appeal, or providing cooperation in another criminal case. It is widely used in common law countries that employ the adversarial system; though far less common, there is a trend toward its increasing use (for less serious crimes) in a number of civil law countries that employ the inquisitorial system; and in 2001, the ad hoc international tribunals, based on a hybrid of the common law and civil law systems, began to experiment with the practice.

At its inception, the Yugoslavia Tribunal (ICTY), the first international criminal Tribunal since World War II, declared that plea bargaining was inconsistent with its unique purpose and functions. The crimes within the Tribunal’s jurisdiction were simply seen as too reprehensible to be bargained over. Its sister ad hoc, the Rwanda Tribunal (ICTR) followed suit, sentencing Jean Kambanda, former prime minister of Rwanda, to life imprisonment despite the fact that he pled guilty to genocide, enabling the Tribunal to forego a lengthy and uncertain trial.

But as the case loads of the ad hoc tribunals expanded exponentially, pressure mounted for them to begin to employ plea bargaining as a means of conserving judicial resources. One of the first international plea bargains occurred in the case of Biljana Plavsic, who had served as deputy to Bosnian Serb leader Radovan Karadzic, and later replaced him as President of the Republika Srpska. Known as the "Serbian Iron Lady," Mrs. Plavsic had been charged with committing genocide. In return for her guilty plea on the lesser charge of persecution (a crime against humanity), the Prosecution agreed to drop the genocide charge and to recommend a relatively light sentence. Though Mrs. Plavsic steadfastly refused to cooperate in any other way with the Tribunal (including turning down a request to testify against former Yugoslav President Slobodan Milosevic), the Trial Chamber sentenced her to all of eleven years imprisonment in a posh Swedish prison -- with full credit for time already served and the possibility of early release for good behavior. The Plavsic plea bargain, which has been harshly criticized by expert commentators, presents several lessons for the Iraqi Special Tribunal:

First, the IST should not let any of the most high ranking and most culpable defendants enter into plea bargains. Leaders charged with genocide or heinous crimes against humanity, for example, should never be offered a plea agreement.

Second, plea bargaining should never be used by the IST solely as a means to conserve judicial resources. Rather, plea agreements should only be offered in return for critical testimony or other significant cooperation.

Third, "charge bargaining" (where the prosecution agrees to drop the most significant charges) should never be used. "Sentence bargaining," in which the defendant pleads guilty to the initial charge in return for a promise of a lenient sentence is preferable because it does not distort the historic record that is being written through the IST.

Finally, if and when a defendant enters into a plea agreement with the IST, he should be required to append a signed document detailing the facts underlying the original charges. Similar to the full admissions that were required as a condition for receiving immunity from prosecution by the South Africa Truth and Reconciliation Commission, this would ensure that the full truth about the perpetrator’s involvement in atrocities is revealed, while at the same time providing a benefit to the defendant in exchange for his admission and guilty plea.


YES: by Paul Williams and Brianne McGonigle

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 111 (2006).

Plea bargaining is when the defense and prosecution engage in discussions surrounding an agreement on the situation of the accused. Usually, the prosecution offers a reduction in a charge, a dismissal of pending charges, and/or a promise to request or recommend a particular sentence. Plea bargaining, a frequent practice in most Common Law traditions but rarely used in Civil Law traditions, has a number of benefits. Plea bargains save time, money and resources. In addition, plea bargains offer much more than simply aiding in the technical process. Some victims have stated that they received more comfort from a guilty plea than had the defendant been found guilty by the court. Remorse, recognition and reconciliation play a major role in the plea bargaining process.

Its benefits aside, a defendant has the right to plead guilty, to give up a public trial and to take responsibility for his or her actions. So long as the process is protected and safe-guarded, judges will still have the ultimate say in whether or not to accept a plea of guilty. In the event that plea bargains become an option at the Iraqi Special Tribunal, they certainly can be useful to the prosecution, but they may also facilitate the process of reconciliation. Moreover, plea bargains have been largely successful at the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and will likely occur at the International Criminal Court (ICC).

Originally, the ICTY and ICTR Statutes did not provide for guilty pleas in the absence of a full trial. Only later, when the Rules for each Tribunal passed, did the Tribunals provide for guilty pleas. At the ICTY, Rule 62 governs guilty pleas; however, there are no formal rules or provisions governing the plea-bargaining process at the ICTY. This is similar for the ICTR. Nonetheless, the practice has emerged in the jurisprudence of the tribunals, resulting in a number of guilty pleas. The plea agreements reached between Prosecution and Defense are not binding on the Judges of the ICTY or ICTR, and in practice the Judges have chosen to both increase and decrease recommended and agreed upon sentences.

The average sentence for defendants pleading guilty before the ICTY is approximately 11 years. In contrast, defendants convicted after completion of a trial at the ICTY are given a sentence on average of 17 years. Thus far, neither Defense nor Prosecution are able to predict with any precision how many years the Judges will decide to give a defendant who has struck a plea agreement with the Prosecution. Instead, both sides can only try to weigh mitigating and aggravating factors. Based on the jurisprudence of the ICTY and ICTR, mitigating factors include at what stage of the process the defendant chose to plead guilty, what remorse was shown by the defendant, and to what extent is the defendant willing to cooperate with the Prosecution. Aggravating factors include the position of the accused when the crimes took place and the gravity of the offences charged. A defendant’s superior position, therefore, acts as an aggravating factor. Because the ICTY and ICTR are struggling to finish all trial chamber cases by 2008, plea bargains aid in the completion strategy.

The Rome Statute for the International Criminal Court provides both that a defendant may enter a guilty plea and that the judges may still order that a trial take place regardless of the plea. Should the Trial Chamber at the ICC decide that the interests of justice or the interests of the victims require a full trial of the accused, regardless of the plea entered, the court may order that that trial continue under the ordinary trial procedures. This could be an option for the Iraqi Special Tribunal.

We do not fully agree that none of the major offenders from Saddam’s regime should be offered a plea bargain. Instead, plea bargains have many benefits, one of which is having those who plead guilty to testify against other high-ranking officials. Often, it is the high-ranking officials who best understand the chains-of-command and the orders given. Prosecutors often have little evidence to work with and the testimony of a colleague who admitted guilt would be significant. Moreover, those who plead guilty will likely still serve large sentences.

Although many argue that the Iraqi justice system is alien to plea bargain, the entire Iraqi Special Tribunal is an alien process to Iraqis. Plea bargains offer many noteworthy benefits to the victims, the court system, and to the defendants that should not be ignored.

Posted @ 12:35 PM | Experts Debate the Issues: The Dujail Trial