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Guilty Pleas inInternational CriminalLawNancy Amoury CombsStanford University PressGUILTY PLEAS IN INTERNATIONAL CRIMINAL LAWS3857.indb iS3857.indb i 10/4/06 6:46:00 AM10/4/06 6:46:00 AMnancy amoury combsGuilty Pleas in International Criminal LawConstructing a Restorative Justice Approach STANFORD UNIVERSITY PRESSStanford, California 2007S3857.indb iiiS3857.indb iii 10/4/06 6:46:01 AM10/4/06 6:46:01 AMStanford University PressStanford, California© by the Board of Trustees of the Leland Stanford Junior University.No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press.Library of Congress Cataloging-in-Publication DataCombs, Nancy Amoury. Guilty pleas in international criminal law : constructing a restorative justice approach / Nancy Amoury Combs. p. cm. Includes bibliographical references and index. -: ---- (cloth : alk. paper) -: ---- (pbk : alk. paper) . Plea bargaining. . International o enses. . International criminal courts—Rules and practice. I. Title..c ′.—dcPrinted in the United States of America on acid-free, archival-quality paperTypeset by G&S Book Services in /. MinionS3857.indb ivS3857.indb iv 10/4/06 6:46:02 AM10/4/06 6:46:02 AMIn memory of my fatherS3857.indb vS3857.indb v 10/4/06 6:46:02 AM10/4/06 6:46:02 AMAcknowledgmentsI am grateful to the many individuals who read and commented on previous dra s, who assisted me in acquiring court documents and other di cult-to-obtain materials, and who were willing to discuss their experiences with guilty-plea processes at the international tribunals. I thank in particular George Aldrich, Stuart Alford, Laurel Baig, François Boudreault, John Braithwaite, Marcel Brus, Douglass Cassel, Bruce Combs, Sylvia de Bertodano, John Dugard, Essa Faal, Alan Gutman, Mark Harmon, Jessica Holmes, Re k Hodzic´, Michael Johnson, Nicholas Koumjian, Máximo Langer, Anne Marie van Luijt, Howard Morrison, Daryl Mundis, John Murphy, Gabrielle Kirk McDonald, Andre Nollkaemper, Mohamed Othman, Kimberly Pronk, Flavio Rose, William Schabas, Nico Schrij-ver, Emir Suljagic´, Brenda Sue  ornton, Igor Timofeyev, David Tolbert, Gregory Townsend, Lars Waldorf, Slobodan Zecevic´, and a host of prosecutors and de-fense counsel who prefer to remain anonymous. I am likewise grateful for the research assistance of Leah Crosby, Kristina Hofmann, Joseph MacAvoy, Jamie Mickelson, John Newton, Tanner Nielson, Brad Russell, and Michael Sweikar.S3857.indb viiS3857.indb vii 10/4/06 6:46:02 AM10/4/06 6:46:02 AMContentsIntroduction 1 1. International Criminal Justice  en and Now:  e Long Road from Impunity to (Some) Accountability 11 2. Financial Realities: Targeting Only the Leaders 27 3. Do the Numbers Count?  e Ends Served by International Criminal Prosecutions in Societies Emerging from Mass Atrocities 45 4. Plea Bargaining at the ICTY 57 5. Plea Bargaining at the ICTR 91 6. Plea Bargaining at the Special Panels in East Timor 114 7. Using Conventional Plea Bargaining to Increase the Number of Criminal Prosecutions for International Crimes 127 8. Plea Bargaining as Restorative Justice: Using Guilty Pleas to Advance Both Criminal Accountability and Reconciliation 136 9. Applying Restorative Principles in the A ermath of Di erent Atrocities: A Contextual Approach 155 10.  e Minimal Role of Restorative Justice in Current International Criminal Prosecutions 188 Conclusion 223Notes 229Bibliography 317Index 357S3857.indb ixS3857.indb ix 10/4/06 6:46:03 AM10/4/06 6:46:03 AMS3857.indb xS3857.indb x 10/4/06 6:46:03 AM10/4/06 6:46:03 AMMrs. Plavsˇic´’s plea of guilty and acceptance of responsibility represent an unprecedented contribution to the establishment of truth and a signi cant e ort toward the establishment of reconciliation.—Prosecutor, International Criminal Tribunal for the former YugoslaviaI am speechless. I cannot talk at all, I am shivering. I am completely shaken.—Bosnian Muslim woman whose husband and children were killed in a Bosnian Serb ethnic-cleansing campaign, upon learning that Plavsˇic´ had received a mere eleven-year prison sentence a er pleading guilty, for her implementation of the ethnic cleansingS3857.indb xiS3857.indb xi 10/4/06 6:46:03 AM10/4/06 6:46:03 AMIntroductionFi y years a er the victorious allies brought Axis war criminals to justice at the Nuremberg and Tokyo tribunals, the United Nations (U.N.) Security Coun-cil established an ad hoc tribunal to prosecute those accused of international crimes in the former Yugoslavia.  e years that had elapsed between the cre-ation of the World War II tribunals and the International Criminal Tribunal for the former Yugoslavia (ICTY) saw thousands of atrocities that resulted in mil-lions of deaths but that were followed by virtually no prosecutions.  us, the establishment of the ICTY, and then a year later, an international tribunal to prosecute those responsible for the slaughter of approximately eight hundred thousand Tutsi in Rwanda (ICTR), was met with great fanfare.  e  rst trial at the ICTY—the prosecution of a low-level sadist named Dusˇko Tadic´—similarly garnered enormous scholarly and popular interest and was considered a turning point in the quest to end the impunity that has so o en followed mass atrocities. e early years of the tribunals were fraught with obstacles, many of them ex-acerbated by the international community’s failure to provide adequate  nancial support to the tribunals. Over the years, the international community came to better fund the tribunals and better assist their enforcement e orts; conse-quently, a decade a er they were established, the ad hoc tribunals have developed into functioning criminal justice institutions.  e ICTY and ICTR have also spawned a number of progeny, including the Special Court for Sierra Leone, the Special Panels in the Dili District Court in Timor-Leste (formerly East Timor), the Extraordinary Chambers in the courts of Cambodia, and, most importantly, a permanent International Criminal Court (ICC). Domestic prosecutions of inter-S3857.indb 1S3857.indb 1 10/4/06 6:46:03 AM10/4/06 6:46:03 AM[...]... plea bargaining no matter where or how it is practiced Indeed, returning to the international context, if it is inappropriate for the state of New York to offer a burglar a sentencing discount in exchange for the financial savings of a guilty plea, how much more inappropriate is it for the international community to trade leniency for money with a génocidaire? Analogizing the plea bargaining of international. .. then, has witnessed a revolution in the then-nearly dead field of international criminal law The advances, particularly in attitudes about the need and desirability of criminal accountability following international crimes, are nothing less than extraordinary Criminal accountability is not the only end worth pursuing, however, and the following section will examine certain nonprosecutorial mechanisms,... slav- S3857.indb 11 10/4/06 6:46:06 AM 12 international criminal justice ery, torture, and apartheid, for instance, require states to criminalize these offenses as part of their domestic criminal law Despite these advances in codification, the twentieth century saw countless international crimes, resulting in tens of millions of deaths, yet virtually no prosecutions Stalin’s purges, for instance,... Resolution 955 providing for the creation of the ICTR. The creation of the ad hoc tribunals for Rwanda and the former Yugoslavia helped to restart the on-again, off-again negotiations regarding a permanent S3857.indb 15 10/4/06 6:46:07 AM 16 international criminal justice international criminal court In July 1998, 120 states voted to adopt the Rome Statute of the International Criminal Court, and... increasing the numbers of prosecutions that can be undertaken: the use of plea bargaining to obtain guilty pleas In particular, these chapters explore in detail the plea bargaining that has taken place at the ICTY, the ICTR, and the Special Panels, and they examine, among other things, the nature of the bargaining that has occurred, the rationales used to justify that bargaining, the effect of bargaining... the influence of prosecutorial sentencing recommendations after bargaining, and appeals of guilty pleas This discussion reveals that an evolution has occurred in the practice of plea bargaining: whereas prosecutors made little or no attempt to secure guilty pleas in the early days of the international tribunals, in more recent times, prosecutors have actively sought to induce defendants to plead guilty. .. desirable, the prosecution of international crimes gives rise to substantial practical difficulties, not least of which are financial Chapter 2 examines the financial constraints impeding the prosecution of international crimes It shows in particular that, given the way in which international tribunals currently operate, they can hope to bring to trial only a miniscule proportion of international offenders... of prosecutions are undertaken Indeed, many of the ends that prosecutions are expected to serve are apt to be undermined when criminal justice systems single out only a token few defendants to prosecute This book comprehensively examines the ways in which a widespread and systematic effort to obtain guilty pleas can enhance international criminal accountability by increasing the number of prosecutions... to enhance criminal accountability but also to advance the goals traditionally associated with truth-telling and reparatory processes The key to this effort lies in incorporating principles drawn from restorative justice into an international guilty- plea system “Restorative justice” has emerged in domestic criminal justice systems during the past two decades as an alternative to the predominantly retributive... Prosecutors in common -law states, such as the United States and the United S3857.indb 3 10/4/06 6:46:04 AM 4 introduction Kingdom, have for decades engaged in aggressive plea bargaining to obtain guilty pleas as a means of speeding cases through the dockets. Such plea bargaining can take many forms, but the term most typically refers to the prosecutor’s offer of some form of sentencing concessions in exchange . Guilty Pleas in International Criminal Law Nancy Amoury CombsStanford University Press GUILTY PLEAS IN INTERNATIONAL CRIMINAL LAW S3857.indb iS3857.indb. Press.Library of Congress Cataloging -in- Publication DataCombs, Nancy Amoury. Guilty pleas in international criminal law : constructing a restorative justice
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