The ICC Prosecutor Releases Guidelines for Agreements Regarding Admission of Guilt

On 12 November 2020, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its Guidelines for Agreements Regarding Admission of Guilt (the Guidelines). The document represents the most recent mile on a long and bumpy road headed towards the consolidation of negotiated justice in International Criminal Law.

Since plea bargaining anywhere (but especially at the international fora) remains highly controversial, the Guidelines are a welcomed framework for plea negotiations and a useful specification of Article 65(5) of the Rome Statute, the provision dealing with these negotiations before the ICC. The Guidelines are rooted in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) when dealing with guilty pleas. Moreover, in order to curb undue expectations, the Guidelines reiterate Article 65(5) of the Statute, which provides that any plea agreement is binding exclusively on the accused and the OTP. Such agreements do not bind any other organ of the ICC, especially the Trial and Appeals Chambers, or any national or international jurisdiction unless that organ or jurisdiction is a party to the deal (para. 13).

The document contains a broad set of relevant factors that the OTP should consider in deciding whether and how to engage in plea negotiations with the accused. These factors include consistency with the Rome Statute (para. 18); the need for deference to the confirmed charges to avoid excessively distortive bargains and the withdrawal of charges referring to under-prosecuted crimes (para. 20); the significance of obtaining detailed and thorough statements of corroborating facts (para. 23); respect for the interests of victims and witnesses (paras. 25-26); the timeliness of the admissions of guilt (para. 27); among others. Despite presenting an extensive list of factors, the Guidelines still leave significant margin of discretion to the OTP, correctly allowing evaluations on a case-by-case basis.

This post will examine five legal issues raised by the Guidelines: (i) the OTP’s ability to fulfill the plea agreements; (ii) the impact of States’ stance on plea negotiations; (iii) the role of victims in plea bargaining; (iv) the possibility of plea agreements covering reparations; and (v) the Al Mahdi case’s legacy.

Promises Made, Promises (Un)Kept

The establishment of a culture of negotiated justice at the ICC depends on a simple factor: the OTP’s lasting ability to keep its end of the bargain. If the Trial or Appeals Chambers repeatedly refuse to implement the Prosecution’s recommendations as agreed upon in the plea deals, the prosecutors’ authority and credibility to conduct these negotiations and to make reliable promises to the accused could be seriously undermined. This is a particularly sensitive issue at the ICC due to allegations of lack of trust and collegiality between the OTP and the Court’s judiciary. Additionally, as plea agreements do not bind the Chambers, the judges are free to refuse to enforce them.

As indicated by Nancy Combs, the ICTY and the ICTR can offer relevant guidance in this regard. In the early 2000s, their common OTP initiated a policy of notable leniency in plea negotiations with the aim of convincing more defendants to plead guilty. This was a consequence of the urgent need to tackle the tribunals’ voluminous caseload and to fulfill pressing (and eventually revised) deadlines imposed by the United Nations Security Council. The blatant leniency in the resulting charge and sentence bargains triggered a defensive reaction by the Trial Chambers.

In the first seven guilty-plea cases at the ICTY (Erdemović, Jelisić, Todorović, Sikirica et al., Simić, Plavšić, and Banović), the assigned Trial Chamber always sentenced in accordance with the Prosecution’s recommendation. This pattern changed in the Momir Nikolić case, in December 2003, when the judges for the first time refused to uphold a sentence recommendation from the OTP. Following a plea agreement, the Prosecution recommended a sentence of fifteen to twenty years’ imprisonment but the Trial Chamber sentenced Nikolić to twenty seven years, under the argument that the proposed sentence did not “adequately [reflect] the totality of the criminal conduct for which Momir Nikolić ha[d] been convicted” (para. 180). Nevertheless, the Appeals Chamber later reduced his sentence to twenty years.

After the Momir Nikolić case, the attitude of the ICTY Trial Chambers towards the OTP’s sentence recommendations in guilty-plea cases varied. The Trial Chambers adhered to the OTP’s suggestions in the Obrenović, Češić, Mrđa, Jokić, Deronjić, Bralo, Rajić, and Zelenović cases but imposed longer-than-agreed sentences in the Dragan Nikolić and Babić cases.

The ICTR defendants, on the other hand, were more reluctant to admit their guilt in comparison to their counterparts at the ICTY. Only nine defendants pleaded guilty in Arusha, which is less than half the number in the ICTY (twenty in total). This could be explained by the ICTR defendants’ firm conviction that no genocide occurred in Rwanda and their organization in a cohesive and hierarchically-arranged community in the Tribunal’s detention facility. Accordingly, the OTP had to turn to comparatively more generous offers and more aggressive charge bargaining. As a result of the Prosecution’s substantial concessions, the ICTR Trial Chambers repeatedly rejected the outcomes of some negotiations, as occurred in the Nzabirinda, Rugambarara, and Bagaragaza cases.

The judicial backlash and the defendants’ consequent lack of confidence that the Trial Chambers would enforce the plea agreements contributed to the disappearance of plea negotiations in both ad hoc tribunals. After 2007 and 2009, no defendant before the ICTY and ICTR, respectively, pleaded guilty.

These tribunals’ experience with plea bargaining leaves an important lesson, i.e., the OTP cannot promise what it cannot deliver. Prosecutors and the accused cannot expect the Trial Chambers to enforce uncorroborated charge bargains or legally baseless recommendations. The OTP should always navigate between Scylla and Charybdis: propose sufficiently favorable bargains to lure defendants to the negotiation table but refrain from reaching too lenient deals to avoid backlash from judges.

States’ Stance on Plea Negotiations

States’ support or opposition to plea bargaining, especially the State of the situation, is an important factor that the Guidelines overlooked. The 2017 report “The Disappearing Trial”, issued by the non-governmental organization Fair Trials, reveals that, despite the skyrocket increase in the use of plea negotiations worldwide in the past decades, in some States this practice failed to gain support. Thus, even though it can be misleading to accuse international charge bargaining of distorting the historical record, States where such negotiations are not prevalent could see lenient plea agreements at the ICC with condemning eyes.

This skepticism could turn into reluctance to cooperate and into politically motivated misconstructions or attacks on the Court’s activities. As the cooperation of key individual States could be vital to the Prosecution’s success in some cases, the OTP should anticipate the political costs of striking a bargain with the accused. There could be cases in which a plea agreement would be a deal-breaker for some governments. Although not directly related to plea negotiations, the episodes of lack of cooperation by Rwanda with the ICTR due to some decisions by the Tribunal that displeased the Rwandese government is indicative of the seriousness of this concern (see here and here).

Victims’ Role in Plea Negotiations

Unlike the ICTY and the ICTR, victims are entitled to participate in proceedings before the ICC. This gives rise to questions about the victims’ role in plea negotiations at the Court. Victim participation in plea bargains is not a novel issue and has been raised in domestic jurisdictions as well (see for example here, here, and here). However, the ICC’s governing law is silent on this matter.

The Guidelines do not entitle the Legal Representatives of Victims to participate in the consultations with the defendant or to veto plea bargains. Rather, the OTP negotiates alone on behalf of the victims and should consult with their Representatives as suitable. The relevant paragraph reads as follow:

In reaching an admission of guilt agreement, the Prosecutor shall take into account the interests of the victims, as well as their expressed views and concerns. Further, the Prosecutor should consult, to the extent feasible, with their legal representatives (para. 26).

This appears to be the most balanced and appropriate approach, especially because the mandatory and active participation of Representatives of Victims in plea negotiations would have numerous practical difficulties. Yet, victims can participate in hearings concerning plea agreements, in which they can express their views on the appropriateness of the agreed-upon terms and convince the Trial Chambers to reject the deals if necessary. In addition, as indicated in para. 25 of the Guidelines, the OTP should prioritize admissions of guilt that are more valuable to victims, especially those that are accompanied by a thorough statement of facts and an expression of remorse, and that would spare vulnerable witnesses from the burden of testifying in court.

Plea Bargains over Reparations

Another issue pertinent to the ICC is the possibility of plea negotiations covering reparations. The Rome Statute does not address this question and the Guidelines only state that plea agreements “may also […] explain the subsequent reparations proceedings pursuant to article 75” (para. 11).

There are relevant arguments pointing to the inappropriateness of plea bargains over reparations. The parties in the proceedings under Article 75 of the Statute are only the Defense and the Legal Representative of Victims. The OTP itself acknowledged it is not a party at this procedural stage and recognized “the primary role of the Legal Representative of Victims in reparations proceedings” (para. 2). Hence, it is unwarranted that bargains reached between the Defense and the Prosecution, without the Legal Representative of Victims’ direct participation, have a bearing on the scope of reparations. Since the OTP’s role ends at the determination of the defendant’s culpability and sentence, its competence to bargain with the Defense should be limited exclusively to matters surrounding these aspects and not include reparations. However, as reparations orders are intrinsically connected to the defendant’s liability, plea negotiations will naturally have an indirect impact on these orders. 

The Al Mahdi Case’s Legacy

The Guidelines were issued four years after the conviction of Ahmad Al Faqi Al Mahdi, the first and so far only ICC defendant who pleaded guilty. Following the terms of his plea agreement, he admitted his involvement in the destruction of mausoleums in Timbuktu, which amounted to the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Rome Statute.

The Al Mahdi case was a good precedent for the long-term establishment of a culture of negotiated justice at the ICC, since both the OTP and the judges praised the defendant’s admission of guilt and cooperation with the Court. Most importantly, the Trial Chamber sentenced Al Mahdi to nine years of imprisonment, an amount compatible with the OTP’s recommendation of nine to eleven years.

One could reasonably expect that the OTP’s and the Trial Chamber’s encouraging position would motivate other defendants to confess, creating a steady stream of guilty pleas at the ICC. However, four years in, Al Mahdi continues to be the sole ICC defendant who acknowledged his crimes. This could be explained by the comparatively low number of accused before the ICC: while in 1995 alone the ICTY indicted 61 people, the ICC has had 45 accused since its creation in 2002. Perhaps plea bargaining also lacks momentum due to the ongoing wave of criticism to the Court. Or maybe it is simply too soon for great expectations. In light of this background, one can only wonder whether the Guidelines will persuade more defendants to admit their guilt in exchange for certain bargained benefits and, more immediately, whether the new Prosecutor who will replace Bensouda in June 2021 will encourage plea negotiations at the Court.

Conclusion

The unambiguous support to plea negotiations in the Al Mahdi case is now reinforced in the Guidelines. The document may even contain an implicit hope on the OTP’s part to establish a culture of negotiated justice at the ICC. In fact, the inclusion of Article 65(5) in the Rome Statute and the adoption of the Guidelines in itself disclose that the era of plea bargaining as an extraordinary and urgent measure (as it was in the ICTY and ICTR) is gone. Nevertheless, it remains to be seen whether this practice will rise from the ICC’s legal documents and successfully consolidate itself as a regular procedural tool at the Court. The challenges to the OTP in this regard are nothing less than enormous, but different from their peers in the ad hoc tribunals, the ICC’s prosecutors have the golden opportunity to build a culture of negotiated justice following a well-planned and long-term strategy aimed at improving the administration of justice by the Court.