Plea Bargaining at the ICTY and ICC

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I recently returned from a trip to The Hague, where I met with officials from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). As you might expect, plea bargaining was one of the significant topics of my discussions. In fact, I even had the opportunity to present some of my research research regarding plea bargaining to members of the ICTY.

Based on my discussions, it appears that the ICTY has fully embraced the concept of plea bargaining, even though the concept is prohibited by many of the jurisdictions from which its judges, prosecutors, and defense counsel originate. Why is this the case? For much the same reason it has dominated the American criminal justice system for decades - it saves resources and allows prosecutors the flexibility to reward those who would cooperate against higher level defendants.

In comparison, those at the ICC seemed less convinced that plea bargaining would be an often utilized tool in their arsenal. The reason for this reluctance, however, had less to do with an objection to the system itself and more to do with the unique mission of the Court. While the ICTY has indicted over 160 defendants during its existence, the ICC is still in its infancy. Further, the ICC seeks only to indict a handful of defendants in each case it investigates. According to those at the Court, because so few defendants are indicted with regard to each case, it seems unlikely any would be offered leniency in return for a plea of guilty. Should the ICC begin to indict more defendants in each case, however, the pressure to maximize resources and use lower level defendants to testify against higher level defendants might lead it down the same path as the ICTY.

It is interesting to see that despite a general discomfort with plea bargaining in many countries around the world, the international criminal law community has embraced the advantages of the system and has begun to make it a standard tool for utilization in international criminal tribunals.

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