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Universiteit van Amsterdam Faculty of Law

Is an Admission of Guilt Compatible with the Aims

of International Criminal Prosecutions?

By

John Flavin

12548421

Master’s Thesis

Supervisor

Pubudu Sachithanandan

Student number: 12548421

Mastertrack: International and Transnational Criminal Law (LLM) 2019-2020 E-mail: johnnyflavin@hotmail.com

Word Count of Thesis (incl. footnotes): 12997 Date of submission:

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Abstract

Upon noting the aims to be pursued by international prosecutions, an analysis of the

legislation of both the International Criminal Court and the Ad Hoc Tribunals is undertaken. A review of the history underlying the relevant legislation follows, in which the tensions between an expedited procedure upon an admission of guilt and the desire to publicly present evidence emerge. Further, the benefit of a sentence discount for such serious crimes creates similar tensions. An exploration of the case law of the Ad Hoc Tribunals and the ICC assists in understanding the possible benefits of an admission of guilt towards satisfying the aims of these prosecutions, as well as how the noted tensions play out in practice. Following this, various opinions on the relationship between admissions of guilt and international prosecutions are considered with the objective of adding some clarity to the original

question. The thesis concludes by finding that, overall, admissions of guilt can be of benefit to international prosecutions, though some aspects of the existing law may reduce the

desirability of admitting guilt.

Acknowledgement

I would like to thank Pubudu Sachithanandan for his attentive and informative supervision which greatly enhanced my research and writing. I also thank the second reader of this thesis for the time they have given to reading it. Furthermore, I would like to thank Dr. Sergey Vasiliev for overseeing the Master’s Thesis module, Prof. Dr. Harmen van der Wilt, Prof. Goran Sluiter, and Dr. Jill Coster van Voorhout for their motivating and inspiring teaching, as well as the many others who contributed to this course.

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The purpose of this thesis is to explore whether admissions of guilt and guilty pleas are reconcilable with the aims of prosecuting international crimes. I will assess this question from the perspective of the guilty plea as a mitigating factor. By assessing the mitigating weight of a guilty plea one is able to gain an insight into the underlying rationales behind international criminal law. An integral consideration will be whether a guilty plea is a mitigating factor in itself or one to be combined with other mitigating factors, specifically remorse. This will turn on the question of whether a guilty plea, when removed from other factors, serves to hamper or advance the aims of the Court.

We must first turn our attention to the generally accepted guiding aims of international prosecutions. From this, the text will then focus on the relevant legislation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). A review of the approach of the Ad Hoc Tribunals and the ICC to guilty pleas and admissions of guilt in their case law will then be undertaken. Attention will then turn to examining the main question of this thesis, before concluding remarks.

Guilty pleas and plea bargaining often appear to be used as interchangeable terms, which adds difficulty to discussing this topic. I will therefore borrow a useful definition from Silvia D’Ascoli:

‘Guilty plea’ is the admission of responsibility by the accused in relation to one or more charges; ‘plea bargaining’ is a formal or informal agreement entered into by the prosecutor and the defence counsel under which, in return for a plea of guilty by the accused, the sentence that would otherwise be imposed is reduced.1

A further point requires clarity at the outset. The Ad Hoc Tribunals feature guilty pleas, whilst the ICC features admissions of guilt. In general discussion, this text tends to adopt the term ‘guilty plea’. It is not intended to refer to the specific guilty plea procedure of the Ad Hoc Tribunals, rather to the feature of the accused admitting guilt in relation to a charge which is a feature shared with the ICC’s admission of guilty. When discussing the specific Tribunals and Courts, the appropriate terms will be used.

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Part I - The Aims of Prosecuting International Crimes

International criminal prosecutions share many aims with domestic criminal trials, these being the goals of retribution, deterrence, and ending impunity, among others. As will be seen from the case law, Courts frequently associate their existence with the pursuit of aims which are more specific to international criminal law. These aims are reconciliation, the restoration and maintenance of peace, and establishing the truth. Although it can be said that all criminal trials seek to establish the truth, it will be seen that international criminal trials concern themselves with a much broader inquiry of the truth.

A reading of the preamble to the Rome Statute gives a sense of the thinking underlying the ICC’s creation. The preamble states, inter alia, the determination of states parties ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.2_{Haveman observes that the ICC puts more emphasis on prevention than its}

predecessors as it looks to crimes yet to be committed, rather than those already committed.3 The preamble also notes the dangers posed by these crimes to the ‘peace, security and well-being of the world’, as well as their concern to the international community as a whole, who must ensure that such crimes do not go unpunished.4

Similar to elements of the Rome Statute Premable, the Ad Hoc Tribunals saw the restoration of peace as one of their important aims.5_{The founding resolutions of both tribunals considered}

that their establishment would further the restoration and maintenance of peace. The United Nations also viewed these Tribunals as a potential for achieving reconciliation.6

The aim of truth-seeking is a continual theme throughout the history of international criminal Tribunals. Antonio Cassese describes how the United States expected the Nuremburg International Military Tribunal to ‘publicly expose, through court proceedings, the evil doings of the Germans so as, among other things, to bring about much soul-searching in the Germans’ and ‘to establish a public record of all the abominations of the Nazis’.7_{These sentiments are}

echoed in the sentencing judgement of the Erdemovic case where one of the duties of the ICTY

2_{Rome Statute of the International Criminal Court, 2011, Preamble, page1.}

3_{Roelf Haveman, ‘Supranational Expectations of a Punitive Approach’ in Roelf Haveman and Olaoluwa} Olusanya (eds), Sentencing and Sanctioning in Supranational Criminal Law (Intersentia, 2006) 147-148. 4_{Rome Statute of the International Criminal Court, 2011, Preamble, page1.}

5_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1, para.79.}

6_{UNSC Res 955 (8 November 1994) U.N. Doc. S/RES/955; UNSC Res 827 (25 May 1993) U.N. Doc.} S/RES/827; UNGA Res 54/119 (22 December 1999) U.N. Doc. A/RES/54/119.

7_{Antonio Cassese, The Oxford Companion to International Criminal Justice (Oxford University Press 2009)} 128.

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was seen to be ‘establishing the truth behind the evils perpetrated in the former Yugoslavia’.8

The Court adds that establishing the truth is a ‘fundamental step on the way to reconciliation’.9

An international trial’s official acknowledgement of injustice can lead to truth-seeking and the prevention of historical revisionism.10 Truth seeking and the recording of history seem to be of importance in particular when dealing with the wider underlying circumstances of a trial. The ICTY made clear attempts in the Krstic case to record the Srebrenica massacre; and the ICTR’s classification of the conflict in Rwandan as a genocide contributed to the record of this period.11 Similarly, many pages of ICTY judgements deal with the underlying causes of the Yugoslav conflict.12 However, the Nuremburg and Tokyo International Military Tribunals refracted the historical record through the politics of the era.13 It has also been noted in the ICTY that it is not for the Tribunal to assume the job of the historian.14 An interesting issue is the potential for the historical record to dwarf the trial of an individual.15 Aims such as reconciliation and peace-building can be advanced by shifting responsibility towards culpable individuals16 and away from general communities, an over-emphasis on the historical record risks overstepping this distinction. It has been noted that the individualisation of criminal responsibility benefits truth-telling and allows perpetrators to understand their role in the overall criminality.17

Retribution is an important component of international criminal justice when taken from the angle of punishing international crimes so as to maintain world order.18_{The ICC understands}

retribution to be an expression of the international community’s condemnation of the crimes, rather than as an expression of revenge.19_{However, whether retributive goals are effectively}

satisfied by international prosecutions is a very different matter. As retribution is driven by the thinking that those who commit crimes must be punished by virtue of having broken a law

8_{Prosecutor v Drazen Erdemovic, Sentencing Judgement, 5}th_{March 1998, IT-96-22-Tbis, para 21.} 9_{ibid, para 21.}

10_{Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (Third Edition, Oxford} University Press 2014) 38.

11_{Robert Cryer, Darryl Robinson, and Sergey Vasiliev, An Introduction to International Criminal Law and}

Procedure (4th edn, Cambridge University Press 2019) 39.

12_{Mirjan Damaška, ‘Problematic Features of International Criminal Procedure’ in Antonio Cassese (ed), The}

Oxford Companion to International Criminal Justice (Oxford University Press 2009) 180.

14_{Prosecutor v Miroslav Deronjic, Sentencing Judgement, 30 March 2004, IT-02-61-S, para 135.}

16_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1, para 68.}

17_{Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3}rd_{edn, Oxford University} Press 2014) 39.

18_{Silvia D’Ascoli, Sentencing in International Criminal Law (Hart Publishing 2011) 35.}

19_{Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgement and Sentence, 27 September 2016, ICC-01/12-01/15, para} 67.

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which carries a punishment, it is easy to see how widespread impunity is the natural enemy of retribution. Combs argues that a system that prosecutes only a fraction of wrongdoers makes ‘a mockery of the retributive ideal’.20_{In light of the increasingly victim-focused trend of}

international criminal justice, a lack of prosecutions at the lower levels of offending represents a failing towards the interests of victims who are primarily effected by perpetrators who are ignored in favour of higher level offenders.21

Deterrence is an inherent feature of criminal justice and features frequently in international criminal justice. In the Rome Statute, deterrence can be linked to the quest to end impunity as it gives the Court a mandate to pursue perpetrators of international crimes.22 Cryer et al argues for deterrence, noting the calculating nature of leaders in contrast to the commonly assumed ideological nature of international crimes.23 In the ICTY and ICTR, deterrence has been described as ‘one of their most important ends’24, yet the effectiveness of the Tribunals as a deterrent is called into question by the fact that many of the worst crimes of the Yugoslavian conflict took place after the establishment of the ICTY.25 The ICC has continued to view deterrence as a primary aim and it has been noted that sentences must deter both potential perpetrators from committing similar crimes and those convicted from repeating their offending.26

Substantiating the rights of victims has become a more prominent aim under the ICC, which brings ‘growing access to justice for victims’.27_{Certainly the Rome Statute seems to put much}

emphasis on victim’s rights, given the levels of participation afforded to victims as well as the introduction of a broader reparations system.28_{Whilst there are specific rights given to victims}

in the Rome Statute, the wider victims of a conflict may also have an interest in the truth being established and in reconciliation and peace-building being advanced. Victims’ right have been

20_{Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice}

Approach (Stanford University Press 2007) 46.

21_{ibid 47.}

22_{Rome Statute of the International Criminal Court, 2011, Preamble, page 1.}

Procedure (4th edn, Cambridge University Press 2019) 32-33.

24_{Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice}

Approach (Stanford University Press 2007) 47.

25_{ibid 48.}

27_{Roelof Haveman, ‘Supranational Expectations of a Punitive Approach’ in Roelof Haveman and Olaoluwa} Olusanya (eds), Sentencing and Sanctioning in Supranational Criminal Law (Intersentia 2006) 153. 28_{Rome Statute of the International Criminal Court, 2011, arts 68&75.}

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considered as important features of international criminal trials29_{, though some consider the}

expansion of victims’ procedural rights to be merely symbolic.30

Part II - The Applicable Provisions and Their Drafting History

In order to address the question of whether guilty pleas and admissions of guilt are compatible with the purposes of prosecuting international crimes, one must consider the relevant portions of the Statutes and the Rules of Procedure and Evidence. I will firstly analyse the applicable sections of the Rome Statute of the ICC and Rule 145 of the ICC Rules of Procedure and Evidence (RPE). The ICC provisions have a lengthy history, during which the compatibility of guilty pleas with the prospective Court was considered at various stages. The documents from the formative years of the Rome Statute, as well as the end product, tell us much about the tensions and differing opinions concerning the use of guilty pleas in the Court’s procedure. I will then consider the approach to guilty pleas adopted in the procedure of both the ICTY and the ICTR.

(i) Applicable Provisions of the ICC – The Rome Statute

Despite the lengthy drafting history of the Rome Statute, the framework of the current provisions for an admission of guilt emerged quite early. The relevant provisions of the Rome Statute are Article 64(8)(a) and Article 65. Article 64(8)(a) directs the Trial Chamber, at the commencement of the trial, to afford the accused the opportunity to make an admission of guilt upon hearing and understanding the charges. Article 65 then provides for the procedure to be followed in the event that the accused does admit guilt.31

Following the drafting process back to the 1994 Report of the International Law Commission on the work of its forty-sixth session, guilty pleas are dealt with in article 38(1)(d). Under 1(d), the Chamber shall ‘allow the accused to enter a plea of guilty or not guilty’.32 The commentary accompanying article 38 shows that the drafters considered the various domestic approaches

Procedure (4th edn, Cambridge University Press 2019) 38; Ralph Henham, Punishment and Process in International Criminal Trials (Ashgate 2005) 170-174.

30_{Ralph Henham, Punishment and Process in International Criminal Trials (Ashgate 2005) 73.} 31_{Rome Statute of the International Criminal Court, 2011.}

32_{ILC, ‘Report of the International Law Commission on the Work of its Forty-Sixth Session’, (2 May-22 July} 1994) UN Doc A/49/10, page 54.

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to guilty pleas: ‘In some legal systems a guilty plea substantially shortens the trial, and avoids the need for any evidence to be called on the question of culpability; in others it makes very little difference to the course of the proceedings’. The commentary indicates that at this early stage the drafters were contemplating how best to proceed upon an admission of guilt. It is stated that a guilty plea would not automatically end proceedings, rather that this would be a decision to be made by the Chamber. As will be seen, the Chamber’s discretion on how to proceed after hearing an admission of guilt remains as an important element in the drafting of the prospective statute. It is further stated that a Chamber must, at a minimum, hear an account of the case against the accused but it is advised that in many cases it may be wise to hear the full case. Whilst these measures are included to ensure the guilty plea is found to be reliable and freely entered, it may also indicate that the drafters were contemplating how to avoid evidence being silenced by a guilty plea.33 One can already see the origin of the broad discretion afforded to the Trial Chamber in Article 65 on how to proceed after hearing an admission, particularly in relation to hearing further evidence.34

The 1995 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court35 indicates that some delegations had misgivings over the inclusion of guilty pleas, with several delegations voicing their opinion that the effects of a guilty plea needed clarity in light of the differences between common and civil law. One such view was that plea bargaining was inappropriate given the gravity of the crimes concerned.36

By the time of the 1996 Report of the Preparatory Committee on the Establishment of an International Criminal Court some clarity emerges over the issue. The report notes the view expressed in favour of allowing the accused to plead guilty, which would avoid a lengthy and costly trial and any further suffering of victims and witnesses. It is stated that the Court could consider this plea in mitigation.37 This discretion is affirmed when the report states that a Court would not be bound to accept a plea or a recommendation of leniency.38 This statement is reflected in the final Article 65(5) which states that discussions between the prosecution and defence concerning the modification of charges, the admission of guilt, or the penalty imposed

33_{ibid page 55.}

34_{Rome Statute of the International Criminal Court, 2011, art 65(4).}

35_{Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR, 15}th Session Supplement No. 22 U.N. Doc. A/50/22 (1995).

36_{ibid page 34.}

37_{Report of the Preparatory Committee on the Establishment of an International Criminal Court, GAOR, 51}st Session Supplement No. 22 (Vol. I), at para 261, U.N. Doc. A/51/22 (1996).

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are not binding upon the Chamber. It also hints to Article 65(4), insofar as the Court is not bound to accept a plea.39_{The report then discusses the opposing view which contended that an}

admission of guilt should be considered as evidence.40 An important point put forward in this view was that a Court should not convict solely on the basis of a guilty plea, given the Chamber’s duty to determine the guilt or innocence of the accused.41 The view in favour of treating guilty pleas simply as evidence draws a specific link to international criminal prosecutions. The report notes that proponents in favour of this view expressed ‘a full trial was necessary given the seriousness of the crimes and the interests of the victims as well as the international community’.42_{This sentence shows that certain delegations considered it}

necessary, in light of the nature of international crimes, that the full body of evidence be presented to the international community. In light of the differences of opinion, the report highlights the need to ‘bridge the gap’.43_{between different legal systems. Reading article 65}

of the Rome Statute in the context of the views expressed in this report, it is clear that the article seeks to balance both viewpoints. The view expressed above, that a full trial was necessary given the crimes involved, may explain why article 65(4) allows a Chamber to hear further evidence or proceed to trial in the interests of justice, despite an admission of guilt being proffered.44

An interesting point raised in the 1996 report is that plea bargaining was seen as inappropriate, given the nature of the crimes, but that ‘guilty pleas were not inseparable from plea bargaining’.45_{As concern was previously raised in 1995 over plea bargaining, this may indicate}

why the Rome Statute, unlike the Ad Hoc Tribunals, does not specifically provide for plea bargaining, and provides that any agreement is non-binding.46

The need for compromise between legal disciplines appears to have been satisfied by the 1996 proposal of Argentina and Canada, which allows for the accused to make an admission of guilt and for the Chamber to convict upon this admission, provided the admission is supported by

39_{Rome Statute of the International Criminal Court, 2011.}

41_ibid. 42_ibid.

43_{ibid, para 263.}

44_{Rome Statute of the International Criminal Court, 2011, art 65(4).}

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the facts of the case.47_{This may ease the above concerns that a guilty plea should not form the}

sole basis for a conviction. It also includes other matters to be considered by the Chamber which now feature in Article 65, such as whether the admission is voluntary and the consequences of it are understood by the accused.48 Finally, where it is in the interests of justice, the Chamber may proceed to hear further evidence or to disregard the plea and proceed to a full trial.49 Thus, Article 65(4), which allows for further evidence to be heard or for a full trial to proceed, emerges at this early stage.50

This submission adopted the term ‘admission of guilt’51_{, instead of ‘a plea of guilty or not}

guilty’ as was included in the draft statute.52_{The end result is a mixture of the common law}

‘plea of guilty’ and the civil law ‘admission of the facts’.53

The ICC procedure is accurately described , in Al Mahdi, as offering the accused simply the ‘opportunity’ to admit guilt54_{, with the determination of the future course of proceedings}

remaining in the hands of the Chamber. This reflects the nature of Article 65, this being the ‘third avenue’55_{between the common law and civil law approach. According to Alphons Orie,}

the crimes under the ICC’s jurisdiction are too serious to allow for the parties to dictate the course of proceedings and, therefore, it is for the Trial Chamber to determine the next step after an admission of guilt has been given.56 Therefore, the ICC procedure may alleviate some of the concerns surrounding plea bargaining for such serious crimes. Orie considers that as ‘It is one of the aims of the ICC to expose to the world community the objectively established truth of the actual commission of crimes’, which is in line with the civil law spirit of enabling the Court to publicly establish the truth. This aim could be frustrated by ‘giving decisive effect’ to

47_{Proposal Submitted by Argentina and Canada for Articles 38, 38bis, 41 and 43, UN Doc. A/AC.249/WP.16;} Preparatory Committee On The Establishment Of An International Criminal Court, GAOR, 51st_Session Supplement No. 22A (Vol. II), at pages 173-174, U.N. Doc. A/51/22 (1996).

48_ibid. 49_ibid.

51_{Proposal Submitted by Argentina and Canada for Articles 38, 38bis, 41 and 43, UN Doc. A/AC.249/WP.16;} Preparatory Committee On The Establishment Of An International Criminal Court, GAOR, 51st_Session Supplement No. 22A (Vol. II), at pages 173-174, U.N. Doc. A/51/22 (1996).

52_{ILC, ‘Report of the International Law Commission on the Work of its Forty-Sixth Session’ (2 May-22 July} 1994) UN Doc A/49/10, page 54.

55_ibid.

56_{Alphons Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the} Establishment of the ICC and in the Proceedings Before the ICC’ in Professor Antonio Cassese, Professor Paola Gaeta, and Mr John R.W.D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002).

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the entering of a plea of guilty 57_{. Another reason for the discretion afforded to the Trial}

Chamber under Article 65 may be the need to ensure that an accused is not convicted on the sole basis of a confession.58 In fact, Article 65(1)(c) requires the Chamber to determine if the facts of the case support the admission.59

(ii) Rule 145

Rule 145 of the ICC’s Rules of Procedure and Evidence concerns the determination of the penalty.60 Part 2(a) lists examples of mitigating factors, though does not mention an admission of guilt.61 Importantly, Rule 145 requires the Court to take into account mitigating factors ‘such as’ the examples given. Furthermore, these mitigating circumstances are to be considered ‘as appropriate’.62_{This indicates that the examples are non-exhaustive and that the Court may}

consider mitigating factors other than those listed. Similarly, the effect of ‘as appropriate’ affords the Court discretion to deal with instances where the level of culpability outweighs any mitigation. This is necessary as part 1(a) of Rule 145 states that the total sentence must reflect the culpability of the convicted person.63 As Rule 145(1)(b) requires that the Chamber balances the mitigating and aggravating factors in sentencing64, it is unusual that admissions of guilt are not mentioned in the examples of mitigating factors. The ICTR’s Kambanda65_{case displayed}

how a Chamber can balance a guilty plea against aggravating circumstances and effectively impose a sentence based on the degree of culpability, as the ICC Rules require. One could, however, argue that an admission of guilt is included in the Rules of Procedure and evidence under the mitigating factor of ‘any cooperation with the court’, included in Rule 145 (2)(a)(ii)’s list.66

(iii) Applicable Legislation of the Ad Hoc Tribunals

The statute of the ICTY references guilty pleas only briefly, with article 20(3) requiring the trial Chamber to ‘instruct the accused to enter a plea’.67 The details of the procedure to be

57_ibid.

58_{Henri D. Bosly, ‘Admission of Guilt Before the ICC and in Continental systems’ (2004) 2 Journal of} International Criminal Justice 1040-1049.

60_{International Criminal Court, Rules of Procedure and Evidence (2}nd_{Edition 2013), Rule 145.} 61_ibid.

62_ibid. 63_ibid. 64_ibid.

65_{The Prosecutor v Jean Kambanda, Judgement and Sentence, 4 September 1998, ICTR 97-23-S, para 62.} 66_{International Criminal Court, Rules of Procedure and Evidence (2}nd_{Edition 2013).}

67_{Updated Statute of The International Criminal Tribunal For The Former Yugoslavia, September 2009, Art} 20(3).

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followed in the event of a guilty plea are found in the Rules of Procedure and Evidence (RPE).68

Rule 62 bis was adopted in November 1997 and allows for the trial Chamber to find an accused guilty and proceed to a pre-sentencing hearing69 (amended to a sentencing hearing in 199870) if the accused pleads guilty. This plea must be voluntary, unequivocal, and supported by a sufficient factual basis.71 The requirement that there be a sufficient factual basis for the crime implies that a conviction cannot be based on a guilty plea alone.72 Two years later the condition that the plea be informed was added.73 In the ICTR, similar provisions first appear in the amended Rules of Procedure and Evidence of the 8 June 1998. Article 62 allows the Trial Chamber to enter a finding of guilt, after the accused pleads guilty, once satisfied that the plea is informed, unequivocal, and made freely and voluntarily. It also must similarly be supported by a factual basis.74

In December 2001, the ICTY introduced a ‘plea agreement procedure’ in rule 62 ter.75 D’Ascoli states that this addition to the rules was ‘in response to what seemed to have become a rather common practice’ of plea-bargaining at the ICTY.76_{Rule 62 bis, adopted by the ICTR}

in 2003, mirrors Rule 62 ter of the ICTY.77 Whilst rule 62 ter provides a basis in the RPE for

the practise of plea-bargaining, it does not allow for an unregulated procedure. Paragraph B of rule 62 ter, states that ‘the Trial Chamber shall not be bound by any agreement specified in paragraph (A)’.78_{As such, despite the addition of a plea-agreement procedure, the Chamber’s}

discretion is maintained through the non-binding nature of the agreement, although agreements are generally accepted by Chambers.79_{Procedurally, the main difference between the Ad Hoc}

Tribunals and the ICC procedure for guilty pleas lies in the lack of discretion for the Chambers of the Ad Hoc Tribunals to proceed with a trial in the interests of justice, despite a guilty plea. One curiosity, however, is that the rules of both Ad Hoc Tribunals state that, once the

68_{Rules of Procedure and Evidence, IT/32/Rev.50, 8 July 2015, Rule 62 bis.} 69_{Rules of Procedure and Evidence, IT/32/Rev. 12, 12 November 1997.} 70_{Rules of Procedure and Evidence, IT/32/Rev. 14 17 December 1998.} 71_{Rules of Procedure and Evidence, IT/32/Rev. 12, 12 November 1997.}

72_{Silvia D’Ascoli, Sentencing in International Criminal Law (Hart Publishing 2011) 179.} 73_{Rules of Procedure and Evidence, IT/32/Rev. 17, 17 November 1999.}

74_{International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, Fifth Plenary Session 1-8 June} 1998.

75_{Rules of Procedure and Evidence, IT/32/Rev. 22, 28 December 2001.}

77_{International Criminal Tribunal for Rwanda, Amendments Adopted at the Thirteenth Plenary 26-27 May} 2003.

78_{Rules of Procedure and Evidence, IT/32/Rev. 22, 28 December 2001.}

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conditions for a guilty plea are satisfied, the Chamber ‘may’ enter a finding of guilt.80_{The use}

of ‘may’ instead of ‘shall’ implies that the Chamber has some discretion as to the finding of guilt, yet the Rules do not provide for anything akin to Article 65(4)(b) of the Rome Statute.

Summary

Viewing the approach to guilty pleas in the ICC and the Ad Hoc Tribunals, we find two quite different approaches. The Ad Hoc Tribunals adopt a procedure with strong common law influences. The ICC, on the other hand, combines aspects of both common and civil law in the ‘admission of guilt’. Whilst there is considerably more commentary and case law concerning guilty pleas in the Ad Hoc Tribunals, it is worth bearing in mind that those who were laying the foundations of the Rome Statute were considering how best to incorporate guilty pleas before the Ad Hoc Tribunals had made amendments to the finer details of guilty pleas in their own procedural rules. The motivations are important to consider as well, the Ad Hoc Tribunals’ amendments were more pressing, given the pressure to fulfil their mandate within the given timeframe.81 The ICC, however, uses a procedure which was created for the Court’s purposes, rather than in response to pressures, and which reflects the concerns raised. As such, whilst the Ad Hoc Tribunals hold a wealth of case law on guilty pleas, the history of the Rome Statute provides a more carefully considered approach as to how to adopt guilty pleas in a way that attempts to satisfy the wishes and concerns of the various delegations. Despite the adoption of a plea bargaining procedure by the Ad Hoc Tribunals which eased the Tribunals’ workloads, it will be seen from the case law that the Judges found guilty pleas to hold many benefits for international criminal justice beyond these procedural benefits. Furthermore, many of the procedural benefits noted in the 1996 report were also noted by judges in the case law. One of the most notable differences lies in the inclusion of Article 65(4)(b) in the Rome Statute. The necessary safeguards to ensure an admission of guilt is genuine and supported by the evidence are already satisfied by the previous sections of the Article. Therefore, it seems that this provision is included as the drafters contemplated that circumstances may arise where an admission of guilt is not compatible with the work of the Court.

80_{Rules of Procedure and Evidence, IT/32/Rev.50, 8 July 2015, Rule 62 bis; ICTR Rules of Procedure and} Evidence, 13 May 2015.

81_{Michael P. Scharf ‘Trading Justice for Efficiency, Plea-Bargaining and International Tribunals’ (2004) 2} Journal of International Criminal Justice 1070-1081; Alan Tieger and Milbert Shin, ‘Plea Agreements in the ICTY Purpose, Effects and Propriety’ (2005) 3 Journal of International Criminal Justice 666-679.

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Part III – The Guilty Plea as a Mitigating Factor in the Case Law of the ICTY & ICTR

In order to expand upon this analysis of guilty pleas, it is necessary to consider the mitigating effect of a guilty plea in the Ad Hoc Tribunals. It is through considering the mitigating effect of a guilty plea that one will see whether it advances the aims of the Tribunals or not. A crucial question is whether a guilty plea is a mitigating factor in itself, as this will allow one to understand its general relationship with international criminal law. In order to address this, I will consider whether a guilty plea is separable from remorse as this factor is frequently seen as a closely related factor in the case law and, as will be seen, at times the benefit of a guilty plea has been dependent upon remorse. Therefore, it is crucial to evaluate if a guilty plea is still viewed as attracting mitigation when separated from remorse. If a guilty plea still holds mitigating value on its own, it will strongly suggest its specific value to international criminal law. Although guilty pleas feature in many cases, I have selected the most pertinent cases to analyse these issues.

(i) The Benefits of a Guilty Plea and Its Links to Remorse

In the Plavsic82 case, the Trial Chamber notes the procedural benefits of a guilty plea, which include the time, effort, and resources saved, as well as relieving victims and witnesses from testifying.83_{A Security Council Resolution and a General Assembly Resolution are directly}

quoted by the Chamber when discussing its purpose.84_{These resolutions speak of the ICTY’s}

role in the ‘restoration and maintenance of peace’85_{, and its place in the process of}

‘reconciliation and as a factor contributing to the maintenance of international peace and security’.86_{In light of these statements, the Chamber expresses the contribution of a guilty plea}

to establishing truth and promoting reconciliation.87 The high ranking position held by this perpetrator is noted by the Chamber as adding to the promotion of reconciliation.88

The Chamber draws a close link between remorse and a guilty plea. The section of ‘Mitigating Circumstances’ includes a subsection titled ‘Guilty plea including remorse and reconciliation’.89

82_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1.} 83_{ibid para 66.}

84_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1, para 79.} 85_{UNSC Res 827 (25 May 1993) U.N. Doc.}_S/RES/827.

86_{UNGA Res 54/119 (22 December 1999) U.N. Doc. A/RES/54/119.}

87_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1, para 80.} 88_{ibid paras 73&80.}

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It states that remorse and ‘steps toward reconciliation’ are ‘matters related to a plea of guilt’.90

It similarly considers an expression of remorse by the accused to be ‘part of the mitigating circumstances connected with a guilty plea’.91_{The Chamber not only links the two factors, but}

implies that remorse may be displayed by pleading guilty:

‘Indeed, it may be argued that by her guilty plea, Mrs. Plavsic had already demonstrated remorse’.92

The ICTR cases of Bagaragaza93, Bisengimana94, and Ruggiu95 share similarities with Plavsic. The Trial Chambers in Bagaragaza and Bisengimana similarly held that a guilty plea can assist in reconciliation, the determination of truth, and procedural elements, as well as noting how it may encourage others to come forward. Furthermore, both Chambers follow Plavsic in implying that a guilty plea may be illustrative of remorse as it was held that a guilty plea may have mitigating effects because it shows remorse.96 The Judgement of Ruggiu supports the link between remorse and an admission of guilt, stating that the acknowledgement of the crimes ‘illustrates the beginning of repentance’.97_{The Ruggiu statement is particularly interesting as}

the Chamber sees the acknowledgement of guilt as a step on the path of repentance for the crimes committed. This may be offering the accused some leniency as it can be interpreted as not requiring an expression of remorse, rather that the plea itself represents the beginning of this process. A degree of caution must be adopted, however, given that each of these accused did express remorse. One must wonder whether the Chambers would see a guilty plea as indicating remorse if the accused did not also explicitly state their remorse.

In the Todorovic98 case the Chamber stated that a ‘guilty plea is always important for the

purpose of establishing the truth in relation to a crime’, which assisted the ICTY in its ‘search for the truth’.99_{The Chamber supports Judge Cassese’s opinion in Erdemovic which considers}

guilty pleas as advantageous for avoiding a lengthy trial and the difficulties associated with this.100 The Trial Chamber adds that a guilty plea relieves victims and witnesses of giving

90_{ibid para 70.} 91_{ibid para 73.} 92_ibid.

93_{The Prosecutor v Michel Bagaragaza, Sentencing Judgement, 17 November 2009, ICTR-05-86-S.} 94_{The Prosecutor v Paul Bisengimana, Sentencing Judgement, 13 April 2006, ICTR-00-60-T.} 95_{The Prosecutor v Georges Ruggiu, Judgement and Sentence, 1 June 2000, ICTR-97-32-I.}

96_{The Prosecutor v Michel Bagaragaza, Sentencing Judgement, 17 November 2009, ICTR-05-86-S, para 38;}

The Prosecutor v Paul Bisengimana, Sentencing Judgement, 13 April 2006, ICTR-00-60-T, para 126.

97_{The Prosecutor v Georges Ruggiu, Judgement and Sentence, 1 June 2000, ICTR-97-32-I, para 55.} 98_{Prosecutor v Todorovic, Sentencing Judgement, 31 July 2001, IT-95-9/1-S.}

99_{ibid paras 81-82.} 100_{ibid para 80.}

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evidence, and the accompanying stresses of this.101_{The Chamber considers the guilty plea to}

be reflective of Mr. Todorovic’s expression of remorse.102_{Similar to the above cases, the guilty}

plea in this instance is evidence in support of remorse. Despite this, it appears that the Chamber views remorse as separable from a guilty plea as it deals with both matters separately103 and states: ‘The Trial Chamber considers that a guilty plea should, in principle, give rise to a reduction in the sentence that the accused would otherwise have received’.104_{By saying that}

the Chamber supports a reduced sentence ‘in principle’ for a guilty plea, it may be that the Chamber is alluding to its discretion to decide the mitigating weight of a plea. This leaves open the question whether this weight is determined by other mitigating factors.

The case of Erdemovic105 featured the first guilty plea in the ICTY. When sentencing Mr.

Erdemovic, the Chamber counted his guilty plea as a mitigating factor106, noting how the plea showed honesty, its importance in encouraging other people to come forward, and the time and effort it spared the Chamber.107 The obiter opinion of Judge Cassese in the Appeals Chamber is useful to include as he makes clear links between a guilty plea and the operation of the ICTY. Discussing the benefits of a guilty plea, Judge Cassese notes:

‘It is apparent from the whole spirit of the Statute and the Rules that, by providing for a guilty plea, the draftsmen intended to enable the accused (as well as the Prosecutor) to avoid a possible lengthy trial with all the attendant difficulties’.108

Judge Cassese stresses that the difficulties of a lengthy trial are more notable in international proceedings109_{, due to the expense of proceedings, the difficulties surrounding evidence}

collection, and the task of protecting victims and witnesses. Therefore, a guilty plea contributes to the ‘public advantage’.110

In relation to the accused’s expression of remorse, the Chamber states that earlier evidence supported it as genuine.111 The Chamber also notes, however, that the accused was found to

101_{ibid para 80.} 102_{ibid para 92.} 103_{ibid para 74.} 104_{ibid para 80.}

105_{Prosecutor v Erdemovic, Sentencing Judgement, 5 March 1998, IT-96-22-Tbis.} 106_{ibid page 15.}

107_{ibid, page 16.}

108_{Prosecutor v Erdemovic, Separate and Dissenting Opinion of Judge Cassese, Appeals Chamber, 7 October} 1997, para 8.

109_ibid. 110_ibid.

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have an ‘ambivalent feeling about his guilt’.112_{The Chamber provides a quote from the medical}

report:

He knew he killed innocent civilians, but he had no choice himself. There were other people who ordered him to shoot people. In a legal sense he doesn’t feel guilty of the crimes he is accused of.113

It must be borne in mind that the Erdemovic case is unusual due to the fact that the accused was ordered to commit the crimes against his will.114 The Chamber speaks of the post-traumatic stress suffered by the accused and his regret over events.115 Despite this, the evidence of the Medical Commission raises some doubt as to the accused’s feelings of guilt, yet the Chamber does not appear to diminish the mitigating weight of the plea and draws a distinction between regret and a sense of legal guilt.

(ii) Remorse and Guilty Pleas in Isolation

There is a small body of case law in which guilty pleas or remorse feature independent of one another. These cases offer an extremely useful analysis of how the Ad Hoc Tribunals view both of these factors in isolation.

Although the Jelisic116_{case featured an expression of remorse, the Trial Chamber was not}

convinced of its sincerity.117_{Following this finding, the Trial Chamber states: ‘although the}

Trial Chamber considered the accused’s guilty plea out of principle, it must point out that the accused demonstrated no remorse before it for the crimes he committed’.118_{Given the lack of}

remorse shown, the trial Chamber only afforded ‘relative weight’119 to the plea. The result of the sentencing was a term of imprisonment of 40 years, rather than the life sentence sought , which suggests the guilty plea counted for extremely little.120 On appeal, the defence argued that the Trial Chamber failed to give the defendant any credit for the guilty plea, for which he is entitled under the jurisprudence of the ICTY and ICTR.121 The Defence also argued that ‘a

112_{ibid page 16.} 113_ibid. 114_ibid. 115_ibid.

116_{The Prosecutor v Jelisic, Sentencing Judgement, 14 December 1999, IT-95-10-T.} 117_{ibid para 127.}

118_ibid. 119_ibid.

120_{ibid paras 119&139.}

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plea of guilty in most jurisdictions in the world attracts a reduction in sentence’.122

Unfortunately the Appeals Chamber does not directly confront these arguments. The Appeals Chamber held that ‘The Statute and Rules leave it open to the Trial Chamber to consider the mitigating effect of a guilty plea on the basis that the mitigating weight to be attached to the plea lies in the discretion of the Trial Chamber’.123_{By stating that the mitigating effect is based}

on the fact that the weight to be attached lies within the discretion of the Chamber, it seems that the Appeals Chamber is limiting the Trial Chamber’s discretion to deciding only the weight of the plea. This would mean that the guilty plea is a mitigating factor and the Trial Chamber cannot decide otherwise, rather the Trial Chamber can only decide upon its weight. The Trial Chamber could, however, attach no weight to the plea, which it appears occurred in this case. An interesting feature of the Jelisic Trial Judgement is that the Trial Chamber considers several mitigating factors apart from the guilty plea124, yet diminishes the impact of these factors.125 Some possible mitigating circumstances are dismissed by the trial Chamber due to the gravity, nature and character of the crimes.126 Other mitigating factors similarly fail to amount to any significant weight, for other reasons, or for reasons not made clear by the Chamber.127 This is evidenced by the Chamber failing to mention any definite mitigation arising out of the factors considered. As such, it seems the Chamber was reluctant to attach weight to any mitigating factors. This being said, the Chamber provided much clearer reasons for attaching little, if any weight, to the guilty plea. The Chamber specifically links the guilty plea’s failure to attract significance to the lack of remorse, rather than to factors such as the gravity and nature of the crimes.

In the case of Kambanda in the ICTR, the accused similarly failed to benefit from any mitigation, yet, the reasoning differs significantly. Both the Prosecution and the Defence urged the Trial Chamber to consider the accused’s guilty plea as a ‘signal of his remorse’.128

Following this the Chamber accepts that most national jurisdictions count admissions of guilt as being appropriate considerations in mitigation.129 With regard to remorse, the Chamber states that ‘remorse is not the only reasonable inference that can be drawn from a guilty plea’.130

122_{ibid para 119.} 123_{ibid para 121.}

124_{The Prosecutor v Jelisic, Sentencing Judgement, 14 December 1999, IT-95-10-T, paras 124-125.} 125_{ibid paras 124-125.}

126_{ibid paras 126-128.} 127_{ibid paras 124-125.}

128_{The Prosecutor v Jean Kambanda, Judgement and Sentence, 4 September 1998, ICTR 97-23-S, para 52.} 129_{ibid para 52.}

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This indicates that remorse may be inferred from a guilty plea, which would offer further support to the position taken by many Chambers.131_{It notes that ‘Jean Kambanda has offered}

no explanation for his voluntary participation in the genocide; nor has he expressed contrition, regret or sympathy for the victims in Rwanda, even when given the opportunity to do so by the Chamber’.132

The Chamber in this case does not attach weight to Mr. Kambanda’s mitigating circumstances, holding that they are negated by the aggravating circumstances.133 In Jelisic the gravity defeated certain mitigating factors, whilst remorse was the relevant factor for diminishing his guilty plea, here it is the aggravating circumstances and the gravity of the crime134 which defeat all mitigating factors. As such, the guilty plea does not appear to be defeated by Mr. Kambanda’s lack of regret, rather it is the gravity of the offence, the premeditation and intent, and the abuse of his population’s trust which negated Mr. Kambanda’s mitigation, including the guilty plea. This Judgement was upheld on appeal. The Appeal Chamber held that the mitigation was properly considered and the discretion of the Chamber was properly applied in deciding the weight of this, it added that the sentence should reflect the ‘inherent gravity’ of the criminal conduct135 which cannot be diminished by mitigating circumstances.136 Both of the Appeal Judgements of Jelisic and Kambanda held that it is within the Chamber’s discretion to determine the weight of mitigating factors.137

The final case to consider is that of Blaskic. The Blaskic Judgement138_{and Appeal}139_{offer a}

different perspective as the accused pleaded not guilty to his charges, yet expressed remorse.140 The Trial Chamber states that remorse is to be analysed with reference to the statements of the accused, but also in light of his behaviour, including guilty plea.141 This statement once again suggests an evidentiary link between remorse and guilty pleas. The Trial Chamber takes a clear stance on the status of a guilty plea in mitigation, stating: ‘A guilty plea, where entered, may in itself constitute a factor substantially mitigating the sentence’.142_{The appeal judgement}

131_{ibid para 51.} 132_ibid. 133_{ibid para 62.} 134_{ibid para 61.}

135_{The Prosecutor v Jean Kambanda, Judgement, 19 October 2000, ICTR 97-23-A, para 125.} 136_{ibid paras 56-58.}

137_{The Prosecutor v Jean Kambanda, Judgement, 19 October 2000, ICTR 97-23-A, para 124; The Prosecutor v}

Jelisic, Appeal Judgement, 5 July 2001, IT-95-10-A, para 122-123.

138_{The Prosecutor v. Tihomir Blaskic, Judgement, IT-95-14-T, 3 March 2000.} 139_{The Prosecutor v. Tihomir Blaskic, Judgement, IT-95-14-A, 29 July 2004.}

140_{The Prosecutor v. Tihomir Blaskic, Judgement, IT-95-14-T, 3 March 2000 paras 18&775.} 141_{ibid para 775.}

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stated that a guilty plea may be considered as a mitigating factor.143_{The Appeal Chamber}

overturned the Trial Chamber’s finding that the remorse of the accused was not sincere and held that the remorse expressed constituted a mitigating factor.144 The Appeal Chamber is therefore of the position that remorse can exist independently of a guilty plea, whilst the Trial Chamber stated that a guilty plea is a mitigating factor in itself.

Summary

There are several results to be drawn from this analysis of case law. Firstly there appears to be quite a strong consensus on the benefits of guilty pleas. The procedural benefits of the time and expense spared, and the avoidance of the possible stress and trauma victims and witnesses may be exposed to in presenting evidence, are cited in multiple judgements. Factors which are related to the broader aims of the Tribunals are cited often, such as the contribution of a guilty plea to reconciliation, establishing truth, and peace-building. As can be seen, some Chambers specifically link these benefits with the aims of each Tribunal. Judge Cassese highlighted the added importance of a guilty plea to easing procedural difficulties in international criminal procedure.

Turning to the relationship between guilty pleas and remorse, there are several observations to be made. Firstly, many cases suggest that remorse may be drawn from a guilty plea. Ruggiu adds the perspective of a guilty plea being the first step towards repentance, whilst Erdemovic suggests that some doubts over the expression of remorse may not be to the detriment of the accused. Secondly, there are cases which specifically separate remorse and guilty pleas as distinct factors, such as Blaskic. Several other cases separate these factors is more subtle ways, such as considering each separately. Nonetheless, the case law suggests that the Ad Hoc Chambers have considered both factors to be closely related. A final point is to be made from the Kambanda, Blaskic, and Jelisic cases. Both Kambanda and Blaskic place the gravity or magnitude of the crime and the aggravating factors as more important for determining the weight of a guilty plea than the presence of remorse. Jelisic, however, attaches much significance to remorse in determining the weight of a guilty plea. As the case law suggests that remorse and a guilty plea are separate mitigating factors, though nonetheless linked, the

Jelisic judgement becomes quite problematic. Unlike in Kambanda, where the mitigating effect

of the guilty plea was negated by the aggravating circumstances, the benefit of a plea in Jelisic

143_{The Prosecutor v. Tihomir Blaskic, Judgement, IT-95-14-A, 29 July 2004 para 696.} 144_{ibid para 705.}

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was essentially cancelled by the absence of another mitigating factor. The issue is that in the

Blaskic Judgement the Appeals Chamber held that a guilty plea may be a mitigating

circumstance but the absence of a guilty plea cannot be an aggravating circumstance.145 It follows, therefore, from Blaskic that the absence of any mitigating factor should not be treated as an aggravating circumstance. It can be argued that the Chamber in Jelisic did effectively treat the absence of remorse as an aggravating circumstance which negated the guilty plea. This point is dealt with by the Trial Chamber in Stakic, which states that ‘the Trial Chamber does not accept that the absence of a potential mitigating factor such as remorse can ever serve as an aggravating factor’.146

Part IV - Admissions of Guilt in the ICC – The Al Mahdi Judgement

To date only one case has come before the ICC in which the accused has made an admission of guilt, the case of Al Mahdi.147 In this section I will discuss this case and, in particular, the findings of the Trial Chamber in relation to the admission of guilt as a mitigating factor and the weight to be afforded to this at sentencing. I will consider some of the sources which the Chamber used in support of its findings. This discussion will allow us, firstly, to gain an understanding of the ICC’s view of the compatibility of admission of guilt with international crimes and, secondly, to compare these views to those of the preceding Ad Hoc Tribunals. When noting the benefits of a guilty plea, many of the same procedural benefits arise as in the Ad Hoc Tribunals, these being the possibility to expedite proceedings, save resources, and spare victims the possible trauma of giving evidence and being subject to cross-examination.148

The Chamber counts the time and resources saved as amongst the most important benefits, as these can be used elsewhere to advance international justice.149

The Chamber proceeds to consider the particular guilty plea in this case. The early stage at which Mr. Al Mahdi accepted responsibility for his actions and the detailed account of his actions which assisted in establishing the facts of the case are mentioned by the Trial Chamber.150 Whilst a provision of a detailed account may not necessarily occur in every

145_{Prosecutor v Tihomir Blaskic, Judgement, 29 July 2004, IT-95-14-A, para 687.} 146_{Prosecutor v. Milomir Stakic, Judgement, 31 July 2003, IT-97-24-T, para 919.}

147_{Prosecutor v. Ahmad Al Faqi Al Mahdi, judgement and sentence, ICC-01/12-01/15, 27 September 2016.} 148_{ibid para 100.}

149_{ibid para 28.} 150_{ibid paras 98&99.}

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admission of guilt, the element of assuming responsibility emerges as a feature which appears to be important to the Chamber.151

In keeping with the Ad Hoc Tribunals, the Trial Chamber also considers a guilty plea as beneficial for advancing peace and reconciliation: ‘this admission may also further peace and reconciliation in Northern Mali by alleviating the victims’ moral suffering through acknowledgement of the significance of the destruction’.152

This focus on victims is important, given the substantial attention paid to victims in the Rome Statute. Furthermore, the Chamber’s shift from the practical benefits of an admission to the implications it may hold for the future of an area of conflict is significant as it reflects the thinking revealed in the case law of the Ad Hoc Tribunals.

The Chamber notes the admission’s ‘deterrent effect on others tempted to commit similar acts in Mali and elsewhere’.153_{There are similarities here with the Ad Hoc Tribunals, where guilty}

pleas were considered to encourage others to come forward.154

It is, however, in the opening sentence of paragraph 100 where the Chamber makes its strongest statement on the significance to be attached to an admission of guilty. The Chamber makes a surprisingly definitive statement:

‘The Chamber considers that an admission of guilt is undoubtedly a mitigating circumstance and gives it substantial weight’.155

At first blush the matter seems settled and the question of whether an admission of guilt is a mitigating factor in ICC sentencing answered, at least by this Chamber. If one is to analyse the supporting sources for this statement, which are cited after the Chamber states that an admission is ‘undoubtedly a mitigating circumstance’, the grounding of this statement appears to be uncertain. Firstly, the Chamber cites excerpts from both the Prosecution and Defence Sentencing Observations156, which provide a good grounding for its statement. The Prosecution relies on Trial Chamber II’s statement in the Decision on Sentence for the Katanga case, where

151_{ibid paras 98-100.} 152_{ibid para 100.} 153_{ibid para 100.}

154_{The Prosecutor v Jean Kambanda, Judgement and Sentence, 4 September 1998,}_{ICTR 97-23-S, para 53; The}

Prosecutor v Paul Bisengimana, Sentencing Judgement, 13 April 2006, ICTR-00-60-T para 139.

155_{Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgement and Sentence, 27 September 2016, ICC-01/12-01/15,} para 100.

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the Chamber stated that mitigating factors to be considered included ‘sincere remorse or a guilty plea’.157

The Prosecution brief also relies on the sentencing judgement of Jokic where the Chamber observed that a guilty plea may:

demonstrate repentance, honesty, and readiness to take responsibility; help establish the truth; contribute to peace and reconciliation; set an example to other persons guilty of committing crimes; relieve witnesses from giving evidence in Court; and save the Tribunal’s time and resources.158

This extract from Jokic includes many of the features of an admission of guilt already considered by the Chamber in Al Mahdi to be beneficial.

Uncertainty arises when, after citing both parties’ sentencing observations, the Chamber’s footnote states that ‘The fact that an admission of guilt constitutes a mitigating circumstance is well-established in the case law of other international tribunals’.159 The Chamber supports this with two examples, the Jokic and the Babic judgments.

The Chamber only refers to one paragraph of the Jokic sentence, which states that a certain factor is to be considered as a mitigating circumstance.160_{The issue, however, is that this factor}

is the cooperation with the prosecutor, whereby the accused provided information pursuant to a plea agreement. As such, the cited paragraph is referring to the cooperation being a mitigating factor, whereas the guilty plea is dealt with earlier in Jokic161_{. The Chamber then cites several}

paragraphs from Babic, the first three paragraphs deal once more with cooperation, as the accused provided information, whilst the final two paragraphs consider the danger posed to the family of the accused due to the provision of information.162

Summary

The Al Mahdi judgement draws very clear parallels to the reasoning of the Ad Hoc Tribunals. The Trial Chamber considers an admission of guilt to hold procedural benefits similar to those considered by the Ad Hoc Tribunals, as well as advancing peace and reconciliation. Whilst the

157_{The Prosecutor v Germain Katanga, Decision on Sentence, 23 May 2014, ICC-01/04-01/07.} 158_{The Prosecutor v Miodrag Jokic, Sentencing Judgement, 18 March 2004, IT-01-42/1-S, para 76.}

159_{Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgement and Sentence, 27 September 2016, ICC-01/12-01/15,} page 44.

160_{The Prosecutor v Miodrag Jokic, Sentencing Judgement, 18 March 2004, IT-01-42/1-S, para 96.} 161_{The Prosecutor v Miodrag Jokic, Sentencing Judgement, 18 March 2004, IT-01-42/1-S, paras 74-78.} 162_{Prosecutor v Milan Babic, Sentencing Judgement, 29 June 2004, IT-03-72-S, paras 73-75.}

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Ad Hoc Tribunals frequently mention the guilty plea’s contribution to establishing the truth, the Al Mahdi Chamber only briefly deals with this when it states that the account provided by the accused helped in establishing the facts.

The Al Mahdi sentencing judgement is notable for the firm stance taken in relation to the mitigating effect of an admission of guilt, however, one cannot ignore the serious questions raised by the sources the Chamber relies on. Unfortunately it is unclear why the Chamber supported its conclusions with sections of the Jokic and Babic judgements which deal with the provision of information to the prosecution and not with sections relevant to guilty pleas. This raises the question whether the Chamber views admissions of guilt as akin to providing information to, and cooperating with, the prosecutor. This situation becomes even less clear when, in the Al Mahdi sentencing judgement, the Chamber specifically separates guilty pleas and cooperation into distinct categories163.

Part V – Is an Admission of Guilt Compatible with the Purposes of Prosecution?

Having considered the applicable legislation and the relevant case law, it is now possible to fully consider the question of whether a guilty plea or an admission of guilt is compatible with the purposes of prosecution. I will also consider the opinions of commentators in this section. Whilst this question is one which cannot be definitively answered, as differences in opinion will no doubt remain, it is possible to construct a clearer image of how guilty pleas and admissions of guilt may benefit or hamper the aims of international criminal prosecutions.

(i) Establishing Truth

Establishing the truth of the charged conduct emerges as an important feature of international criminal trials. Some commentators speak of the “historical record” as opposed to the establishment of truth and it is worth noting that whilst the aim of establishing a historical record has been seen as a useful by-product of international trials, it was not a primary aim.164 As the analysis of the case law revealed, many Chambers of the Ad Hoc Tribunals considered the establishment of the truth to be an important aim of their Tribunals and found a guilty plea to be of use in pursuing this aim. Establishing truth and accurately recording history have been

163_{Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgement and Sentence, 27 September 2016, ICC-01/12-01/15,} pages 44&45.

164_{Alan Tieger and Milbert Shin, ‘Plea Agreements in the ICTY Purpose, Effects and Propriety’ (2005) 3} Journal of International Criminal Justice 666-679.

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seen to be more difficult in areas such as Rwanda and Yugoslavia where the crimes committed were often supported by propaganda.165_{International trials may therefore remove the}

misinformation spread by leaders and guard against historical revisionism.166 A guilty plea may assist this process as in cases such as Plavsic an admission from a high ranking leader deals a powerful blow to historical revisionism.167 A guilty plea also reduces the possibly endless debate over the correctness of a Court’s ruling in the case of a defendant who maintains their innocence.168 Although it has been noted that criminal law does not aspire to comprehend the source of criminality169, this cannot be said of the international Courts. Guilty pleas allow for the voice of the perpetrator to be heard170 and for the policy171 underlying crimes to come to light. This can allow for many questions to be answered regarding the motives behind the acts and could contribute to future peace building. The acknowledgements contained in these pleas have been noted as assisting the Chapter VII peace-keeping objectives of the ICTY.172

There is, however, concern that guilty pleas may have the opposite effect as they create the risk of conduct being ignored. Plea agreements can involve serious charges being dropped and therefore some have noted the danger of this being interpreted as a recognition that those particular crimes did not occur.173 Henham expresses concern at the ‘distorting’ effect of such plea agreements, which damages the public denunciation of international crimes by disproportionate sentences.174_{Cases used to illustrate these views include Nikolic}175_and

Plavsic176_{, both of whom entered plea agreements which removed charges of genocide. It}

appears here that the real criticism is of charge bargaining, not guilty pleas. It is therefore crucial to maintain a distinction between guilty pleas, plea agreements, and charge bargaining. This view is shared by Scharf who favours sentence bargaining over charge bargaining as the

165_{Michael P. Scharf ‘Trading Justice for Efficiency, Plea-Bargaining and International Tribunals’ (2004) 2} Journal of International Criminal Justice 1070-1081.

166_ibid.

167_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1, para 68.}

168_{Michael P. Scharf ‘Trading Justice for Efficiency, Plea-Bargaining and International Tribunals’ (2004) 2} Journal of International Criminal Justice 1070-1081.

169_{Mark Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ (2000) 2 Human Rights Quarterly} 118-147.

170_{Alan Tieger and Milbert Shin, ‘Plea Agreements in the ICTY Purpose, Effects and Propriety’ (2005) 3} Journal of International Criminal Justice 666-679.

171_{Prosecutor v Miroslav Deronjic, Sentencing Judgement, 30 March 2004, IT-02-61-S, para 240.} 172_{Alan Tieger and Milbert Shin, ‘Plea Agreements in the ICTY Purpose, Effects and Propriety’ (2005) 3} Journal of International Criminal Justice 666-679.

173_{Ralph Henham, Punishment and Process in International Criminal Trials (Ashgate 2005) 117.} 174_{ibid p117-118.}

175_{Prosecutor v Momir Nikolic, Sentencing Judgement, 2 December 2003, IT-02-60/1-S.} 176_{Prosecutor v Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39 & 40/1.}

-

Is an Admission of Guilt Compatible with the Aims

of International Criminal Prosecutions?

John Flavin

Master’s Thesis

Pubudu Sachithanandan

Table of Contents