Plea Bargaining and International Criminal Justice

Plea bargaining has become a global phenomenon after spreading from the United States and other common law jurisdictions where it originated. Many nations’ courts now allow sentence negotiations for even the most heinous offenses. Despite bargaining’s efficiency, these tribunals remain skeptical. Some view concessions to defendants as inappropriate given how heinous their actions were. Others believe bargaining interferes with courts’ truth-seeking function. No bargaining system is perfect. The procedural safeguards in common-law systems inadequately protect fairness and accuracy of pleas, and civil law countries have been even slower to adopt plea bargaining because it is contrary to their inquisitorial tradition. Consequently, international criminal courts—which combine features of both common-law and civil-law systems—adopted a more restrained form of plea bargaining. The defendant admits his guilt and waives his trial rights in exchange for leniency. The courts must ensure the defendant understands the rights he has waived and that he may still receive the maximum penalty available. Nevertheless, guilty pleas demonstrate the legitimacy of international tribunals and their mission to promote peaceful, fair, and efficient conflict resolution.

“[T]he propriety of plea bargaining at international criminal courts continues to be debated and depends greatly on the form that the practice takes. Certain types of plea bargains may interfere with victims’ interests and with the truth-seeking, retributive, and deterrent goals of the courts. Others may advance these goals, or at the very least avoid conflicting with them. To maximize the value of plea bargains, courts must consider their design carefully.” p. 245