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

Chapter 9 examined the ways that restorative and retributive elements might optimally coalesce in model guilty-plea systems addressing crimes in Argentina, Bosnia, Rwanda, and East Timor. Actual guilty-plea processes are being used in the prosecutions of crimes that occurred in the latter three locations, and this chapter will evaluate those processes in light of the restorative-justice models just constructed. First, I will consider the extent to which, if any, the guilty-plea processes of the ICTY, the ICTR, and the Special Panels include the three primary restorative-justice features—victim participation, truth-telling, and reparatory measures. I will conclude that restorative-justice elements play only a minimal role in the guilty-plea processes of these institutions. Next, I will explore two innovative local justice mechanisms, in Rwanda and East Timor, that impose accountability on offenders through processes that seek to blend restorative and retributive features.

As Chapter 4 described, the ICTY’s practice of plea bargaining has undergone a marked evolution from a rarely used, somewhat suspect procedural device to a well-accepted case disposition mechanism. Concomitant with that evolution in practice has come an evolution in the rationales used to justify the ICTY’s practice of plea bargaining. In the early days of ICTY plea bargaining, the parties and the Trial Chambers justified the bestowal of sentencing concessions primarily

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