Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach

The Nuremberg and Tokyo tribunals were expected to usher in an era of accountability for international crimes, but although the fifty years that elapsed after the creation of those tribunals saw many thousands of international crimes, virtually no criminal prosecutions took place. The importance of the ICTY’s creation in 1993, then, cannot be overestimated; a veritable revolution in attitudes regarding the need for criminal accountability following mass atrocities has been wrought in little more than a decade. However, as Chapter 2 demonstrated, the “criminal accountability” currently being sought is being sought from only a small proportion of offenders. Prosecutions of international crimes are said to advance a variety of penological goals, including retribution, deterrence, incapacitation, and rehabilitation. Prosecutions are further said to promote other ends of value specifically to societies recently torn by large-scale violence, such as encouraging acceptance of the rule of law, minimizing the likelihood of collective blame, and creating an accurate historical record. Whether the prosecution of international crimes advances any or all of these goals has lately been subject to question, but assuming for the sake of argument that they do, then the question arises as to whether these goals are advanced when prosecutions are limited to a small number of (usually) high-level offenders. The following discussion suggests that, although in many cases the ends served by international prosecutions are nominally the same as the ends served by the prosecution of domestic crimes, in fact, these goals take on different contours in the context of large-scale violence—differences that indicate an especially compelling need for a substantial number of prosecutions. The discussion further reveals that undertaking a substantial number of

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