Plea Bargaining - a Necessary Tool for the International Criminal Court Prosecutor

By Rauxloh, Regina E. | Judicature, January/February 2011 | Go to article overview

Plea Bargaining - a Necessary Tool for the International Criminal Court Prosecutor


Rauxloh, Regina E., Judicature


Plea bargaining is spreading into an increasing number of countries in spite of criticisms of scholars around the world. The draw of plea bargaining is the notion that with ever-growing crime rates and limited court resources, conducting a full criminal trial for every defendant would be impossible. Practitioners even claim that without plea bargaining the criminal justice system would collapse. However, critics fear that criminals are rewarded for co-operation with the prosecution rather than being punished for their crimes, that victims are shut out from the process, and that defendants are unduly incited to give up basic due process rights.

Plea bargaining has also been applied in a number of international criminal tribunals' where it faced similar criticisms. Due to the very different nature of international criminal law, especially the gravity of crimes, it is often argued that any negotiations with the alleged perpetrators are unacceptable.2 This article discusses whether the International Criminal Court (ICC) should follow the example of other international criminal tribunals and implement a plea bargaining policy.

International crimes are typically committed in the context of armed conflict where the country or region has been completely unsetded. Violence has not just been a single act of deviant behaviour outside the rule of law but has become the rule itself, sanctioned and ordered by those in the most powerful positions in society, whether they are political, military, religious, or economic leaders. In all situations currently before the ICC, the violent conflict between the different groups is still continuing.

Thus the ICC has objectives that go beyond those of domestic criminal justice systems. It aspires to replace impunity with accountability, break the cycle of ethnic violence and retribution, empower victim groups, facilitate reconciliation, and restore the rule of law by bringing the guilty to justice in a fair trial. In addition, the international criminal trial is expected to build an extensive and objective historical record so that repetition of the conflict can be avoided. Furthermore it is hoped that the condemnation of individuals, rather than political, ethnic, or racial groups, opens the way to the reconstruction of a split society. The international criminal process is also expected to promote human rights by developing criminal jurisdiction for human rights violations on the one hand and due process rights of the accused on the other. In the face of these multifaceted functions of the ICC it has to be questioned to what extent plea bargaining can be brought in accordance with the Court's role.

Proportionate sentence

Each of the major international treaties such as the four Geneva Conventions (1949), the 1948 Genocide Convention, and the Torture Convention (1984) require proportionate punishment. The Statute of the ICC (Rome Statute) does not explicitly mention proportionate sentencing but a disproportionate sentence is ground for appeal for both prosecution and defense.3 Moreover, the aspiration to end impunity (as declared in the preamble) also means that any punishment is proportionate to the crime. One of the major criticisms of plea bargaining is that a sentence reduction based on a plea agreement reflects neither the severity of the committed violence or the blameworthiness of the convict.

Obviously it is impossible to find a punishment for a perpetrator of mass atrocities that mirrors the crimes. The question is what criteria should be taken into consideration when finding a sentence that is just. The relevant sentencing factors are set out in Article 78 and Rule 145 of the Rules of Procedure and Evidence for the ICC. Except for the personal circumstances of the defendant, all criteria set out here refer to the commission of the crime itself and not to any post factum behaviour. While most national criminal justice systems acknowledge that acts of reconciliation, co-operation with the authorities, and in particular an admission of guilt are mitigating factors, neither the Rome Statute or the Rules of Procedure and Evidence introduce such a principle. …

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Plea Bargaining - a Necessary Tool for the International Criminal Court Prosecutor
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