Plea Bargaining at the ICTY
The international criminal tribunals established in the 1990s were created amidst a heady optimism and no small measure of naiveté. While the mandates of the tribunals’ progeny have been carefully circumscribed from their outsets, the ICTY, ICTR, and Special Panels were not initially so constrained. The statutes of the ICTY and ICTR, for instance, provide, rather vaguely, that those tribunals are to prosecute “persons responsible for serious violations of international humanitarian law,”306 while Regulation 2000/15 of the U.N. Transitional Administration of East Timor (UNTAET), establishing the Special Panels, likewise contained no limiting language.307 Although these bodies investigated and ultimately indicted only a small percentage of the individuals responsible for the relevant crimes, they each did indict more than a handful of suspects.308 Commentators have criticized the seemingly random nature of the indictments, particularly those emanating from the ICTY, which seemed initially to target high-level offenders, low-level offenders, and a host of offenders in between with little apparent scheme or strategy. At the time the indictments were issued, however, the tribunals operated without any express completion date so that the prosecution of a substantial number of indictees of all levels seemed feasible. That perception of feasibility declined in recent years as the U.N. Security Council made plans to stop funding the Special Panels in May 2005 and began seeking the closure of the ICTY and ICTR. As noted in Chapter 2, the advent of these completion dates motivated the tribunals to adopt docket-clearing strategies, one of which has been plea bargaining.