Old Problems, New Approaches: Plea Negotiations in International Criminal Law – Lessons from Colombia’s Special Jurisdiction for Peace

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Victims are the most affected persons in contexts of mass violence, yet they tend to be the most unheard when international justice arrives. The procedural design of international courts and tribunals, tend to focus their work on the role of prosecutors and the defense, largely ignoring the interests of victims. This has led to criticisms by several stakeholders that argue that victims should be heard in international criminal proceedings not only to improve their legitimacy but as a measure of reparation on its own.

Colombia’s Special Jurisdiction for Peace (JEP, for its acronym in Spanish) gathered global attention for its innovative model of justice with victim’s as the center of their procedure(some thoughts on the JEP can be found here and here). One of the most distinctive characteristics of the JEP is its procedural system based on the exchange of truth and acknowledgment of responsibility for the imposition of special sanctions in the framework of a dialogical procedure involving not only the perpetrators but the victims (see Sandoval, Martínez and Cruz). This model resembles to the institution of plea bargaining, which is used by some international courts and tribunals, albeit with significant differences concerning victims’ rights and participation during the procedure.

Therefore, I offer some thoughts on the design of future institutions that could enhance victims’ participation in negotiated justice proceedings and provide a more comprehensive account of atrocities committed.

Plea Bargaining: Here to Stay

International criminal justice is not unfamiliar with plea bargaining. Despite initial opposition from prominent figures (see Clark, pg. 417), the adversarial nature of the procedure of the ad hoc tribunals and their increasing workload led to the inclusion of provisions allowing for plea bargaining in art. 62 bis and ter of the Rules of Procedure and Evidence (ICTY’s; ICTR’s).

The perceived advantages included saving the scarce resources of international justice, sparing the tribunal from lengthy trials with uncertain outcomes, facilitating collaboration with certain perpetrators possessing information to support trials against individuals ranking higher in the chain of command, and delivering justice for the victims, who would witness the conviction of the perpetrators for the crimes they committed (See ex. Turner).

However, plea bargaining faced criticism from victims and human rights activists, who pointed out the omission of the mention of certain facts in the judicial record or the perception of impunity following the changing of charges. An example of this can be found in the practice of the ICTY. In Plavsić, the former leader of the Serbian Republic of Bosnia and Herzegovina, was convicted after she reached an agreement with the prosecution, which settled to change the legal characterization of charges against her from genocide to crimes against humanity. More strikingly, once sentenced Plavsić retracted the remorse she had expressed as part of her plea deal (See Combs). Additionally, victim participation was largely absent in plea bargaining exercises conducted by ad hoc tribunals, and left victims dissatisfied as their role was typically limited -if any- to that of witnesses, thus stifling their voice, concerns, and interests in the trial. (See ex. McCleerly)

Despite the mixed perceptions of plea bargaining in the ad hoc tribunals, the practice found its way into Article 65(5) of the Rome Statute. Although subject to limitations such as a rigorous process of judicial review, this provision allows the Office of the Prosecutor (OTP) to engage in negotiations regarding admission of guilt with the defense. Importantly, in 2020, the OTP released guidelines on plea negotiations (previously commented here), outlining its approach to such discussions. Provisions on plea bargaining or similar mechanisms have also been included in other international and internationalized courts and tribunals (See ex. Gregoire’s analysis on the KSC).

The JEP Dialogic Procedure as a type of Plea Bargaining

The procedural system of the JEP can be summarized in two main routes for the alleged perpetrators of international crimes: (i) those appearing before the Panel for the Acknowledgment of Truth and Responsibility (hereinafter ‘Panel’) can contribute to the truth-building process conducted by the JEP, engaging in a dialogical process involving victims, civil society, and state actors such as the Attorney General. This process culminates in a resolution containing the alleged offenses committed by the defendant, who may accept responsibility for these acts, thereby being subject to a special sanction ; or (ii) the defendant can opt to abstain from participating in the truth-building process or refuse to accept responsibility for the alleged acts, in which case they will face a full criminal trial with potential sanctions lasting up to 20 years in prison. (see Comisión Colombiana de Juristas, pg. 91 and following)

The design of the JEP involves trading truth and acknowledgment of criminal responsibility in exchange for lenient sentencing in the form of a special sanction, while no acknowledgment of the facts or the individual responsibility will result on the perpetrator’s trial and possible criminal conviction, as commonly understood. This model not only mirrors previous transitional justice exercises in Colombia, such as the 2005 Justice and Peace Act (On Justice and Peace, see Gomez Pardo), but also aligns with the nature and purposes of plea bargaining.

However, a significant difference in the approach taken by the JEP is the emphasis on encouraging victims to actively participate in the truth-building process and acknowledgment of criminal responsibility, making them fundamental actors in the proceedings. First, victims organizations are encouraged to present reports on the violation of rights that they suffered and these reports are taken into account when the Panel decides on the conducts committed by the alleged perpetrator; second, victims have the opportunity to participate in open hearings together with the perpetrator in which a dialogical re-construction of truth is sought, this truth will be preserved in the record of the proceedings; and, third, victims who can demonstrate prima facie that they suffered harm as a result of the crimes investigated by the JEP have a right to participate in proceedings, which allows them, inter alia, to file applications for reconsideration or appeals against some decisions and judgments  whenever their interests are affected by the JEP (see Ley 1922 de 2018, in Spanish).

The procedural system of the JEP, with its focus on victims’ representation and participation during the proceedings, addresses many concerns regarding the practice of negotiated justice: first, it allows victims to express their concerns in two phases of the proceedings, both during the truth reconstruction carried out by the perpetrator and during the consideration and imposition of the special sanctions by the JEP; second, victims themselves participate in constructing the official record of atrocities by engaging in dialogic hearings with the perpetrators; and third, acknowledgment of responsibility by the perpetrator must be full, unconditional, and sincere, thereby enhancing the legitimacy of the JEP as the institution responsible for determining wrongdoing and imposing sanctions in accordance with existing national and international criminal law.

The Colombian Model: New Approach for Existing Challenges

Colombia’s model of justice offers fresh perspectives on ongoing discussions regarding the functioning of existing international criminal tribunals and the design of future courts addressing mass violence from Ukraine to Palestine, Sudan, or Haiti. A system of international criminal justice based on truth exchange and recognition of responsibility for lenient sentencing, with emphasis on victim participation, could be replicated not only in future international(-ized) tribunals but also in the practices of the existing international criminal tribunals.

For example, the ICC’s normative framework allows the participation of victims in plea negotiations in future proceedings, enabling the Office of the Prosecutor (OTP) to preserve some of its scarce resources already strained by existing and new investigations while serving the interests of justice and the victims, thereby enhancing the ICC’s role as an effective institution combatting impunity for international crime.

The JEP’s model of justice not only addresses the legitimate concerns of victims regarding the legitimacy of plea-bargaining procedures but also offers opportunities, from a policy perspective, for designing new tribunals. It presents the chance to provide more favorable terms for perpetrators who have not been militarily defeated in contexts of peace processes where the establishment of a tribunal to judge the conducts committed in the conflict is under discussion without dissatisfaction the interests of justice and victims as these crimes will not be left in impunity, and a greater understanding of the mass violence will be achieved, thus enhancing deterrence and non-repetition.

As international lawyers we must recognize the significance of procedural justice as it serves as the vehicle for addressing the needs of the interested parties in international criminal trials. Procedural law is substantive law, as every procedural decision, no matter how insignificant it may seem, can have a significant impact on the fundamental rights of the subjects. Although Colombia’s JEP having less than five years of existence (out of its maximum fifteen years of existence), its institutional design and functioning are applying an innovative paradigm for international criminal law and transitional justice, bridging gaps between these seemingly contradictory fields.

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