Journal of International Criminal Justice Advance Access originally published online on May 26, 2005
Journal of International Criminal Justice 2005 3(3):666-679; doi:10.1093/jicj/mqi040
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Plea Agreements in the ICTY
Purpose, Effects and Propriety
* Alan Tieger is a Senior Trial Attorney in the Office of the Prosecutor (OTP), International Criminal Tribunal for the former Yugoslavia (ICTY), [tieger{at}un.org]; Milbert Shin is a Trial Attorney in the OTP, ICTY [shinm{at}un.org]. All views presented in the article are solely those of the authors in their individual capacities and do not represent the views of the United Nations or the Tribunal.
Plea agreements have an impact on a number of issues affecting victims or perpetrators, extending beyond the resource and investigative advantages that prompted the growing use of plea agreements in the International Criminal Tribunal for the former Yugoslavia (ICTY). This article considers whether these effects advance or offend the objectives underlying the establishment of the ICTY. It argues that the plea-agreement process has positive consequences for the creation of a historical record and for providing an opportunity for victims to be heard. It also contends that recent rulings have reduced the possibility that plea agreements might result in unequal treatment of convicted persons or dismissal of critical charges. Finally, the article suggests that the ultimate contribution of plea agreements to the work of the ICTY should be viewed not principally as a saving in resources, but rather as a tool for furthering accountability and justice under the all too real pressures of limited time and resources on the fulfilment of the ICTY's mandate.
1 SC Res. 808, 22 February 1993; SC Res. 827, 25 May 1993.
2 Figures are based on data provided by the Press and Information Section at the Tribunal. The total number of indictments includes those originally issued under seal, but later made public, as well as indictments later withdrawn. The data in this article are as of July 2004.
3 The number of acquittals includes three acquittals by the Appeals Chamber.
4 Under the terms of the new plea agreement, the prosecution had recommended a sentence of seven years.
5 Sentencing Judgement, Dragan Nikoli
(IT-94–2-S), Trial Chamber II, 18 December 2003, 
46 and note 86.
8 As a legal commentator, Jeffrey Toobin, wrote recently, it is a virtually immutable rule in the United States that prosecutions against organized crime leaders, whether drug dealers or corporate executives, are based on the cooperation of the leader's subordinates, whose cooperation is obtained through plea-bargaining; J. Toobin, ‘End Run at Enron’, The New Yorker, 27 October 2003.
9 Resolution 827 discussion by the members of the Security Council on 25 May 1993.
10 He therefore suggested that the Prosecutor could provide such an historical record as a supplemental report; 25 May 1993 Meeting of the Security Council, S/PV. 3217, at 8.
11 See, e.g. R. Zacklin, ‘The Failings of Ad Hoc International Tribunals’, 2 Journal of International Criminal Justice (2004) 541–545.
12 This contrast with the domestic context, where no one would suggest, for example, that the prosecution's attempt to prove that a certain police officer was walking down a street at a particular time constitutes an issue of historical record.
13 See, e.g. Sentencing Judgement, Mrdja (IT-02–59-S), Trial Chamber, 31 March 2004.
16 New Zealand Herald, 22 December 1992.
17 I. Vincent, National Post, 18 December 1992.
18 Ms Plav
i's acknowledgement of the crimes was itself a contribution to the record that made ‘legal history’ (E. Vulliamy, The Observer, 15 December 2002). As noted by former co-chair of the South African Truth and Reconciliation Commission, Alexander Boraine, during the sentencing hearing: ‘... with this act of acceptance of guilt, she assumes responsibility for those horrors that many Serb leaders continue to deny’; Sentencing Hearing, Plavi, 2 October 2002, Transcript, at 592.
19 Plavi, supra note 18, Transcript, at 609.
20 As noted by D. Rieff, ‘[T]he Bosnian Serbs won because they knew how to take old fears and old complaints, repackage them, and cause otherwise decent Serbs, people from a national community with no more of an innate predilection for murder than any other national community, to commit genocide’; D. Rieff, Slaughterhous: Bosnia and the Failure of the West (New York: Simon and Schuster, 1995), 112.
21 Sentencing Judgement, Obrenovi (IT-02–60/2-S), Trial Chamber, 10 December 2003, 112 (quoting from Emir Suljagi, ‘Truth at The Hague’, New York Times, 1 June 2003, submitted by the defence as an exhibit).
22 Sentencing Hearing, Plavi, supra note 18, Transcript, at 598.
23 Obrenovi, supra note 21, 112.
24 Pursuant to an order, dated 7 March 2003, of the Human Rights Chamber of Bosnia and Herzegovina, the Republika Srpska established a commission tasked with inquiry into the events of Srebrenica in July 1995. The failure of this commission to make meaningful progress in its work led to censure, dismissal of officials of the Republika Srpka and other measures taken by the High Representative Paddy Ashdown. See, e.g. ‘High Representative Announces Srebrenica Commission Support Measures’, 16 April 2004, available online at http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content__id=32294 (visited 2 February 2005).
25 On 22 June 2004, Republika Srpka President, Dragan Cavi, said that the 1995 massacre at Srebrenica ‘was a black page in the history of Serb people’. Referring to the most recent report by a government commission on the Srebrenica events (see ‘The Events In And Around Srebrenica Between 10th And 19th July 1995’, Report of the Republika Srpska Commission for Investigation of Events in and around Srebrenica between 10 and 19 July 1995, dated June 2004), Cavi said ‘the contents of the report is a shocking confrontation with the tragic truth about human suffering on a large scale’. He added that ‘Those who committed this crime in the name of the people they belong to ... also committed a crime against their own people ...’. Finally, in a direct message to the Bosnian Muslims, President Cavi said ‘I can’t know if this address will be any consolation to the relatives of the Muslim victims of the crime committed by the Serbs. [But] I understand and share the pain of those who are still searching for their beloved ones’.
27 Obrenovi, supra note 21, 108.
28 Trial, Vidoje Blagojevi and Dragan Joki (IT-02–60-T), Transcript, at 11397.
29 Ibid., Transcript, at 11387.
30 See, e.g. Sentencing Judgement, Stevan Todorovi (IT-95–9/1-S), Trial Chamber, 80 (the Chamber considering it an ‘important factor’ that by pleading guilty, the accused ‘relieves victims and witnesses of the necessity of giving evidence with the attendant stress which this may incur’).
31 E. Stover, The Witnesses, War Crimes and the Promise of Justice in The Hague (Berkeley: Human Rights Center: University of California, Berkeley, 2003), at 2–3.
32 B. Hamber, ‘Do Sleeping Dogs Lie? The Psychological Implications of the Truth and Reconciliation Commission in South Africa’, seminar presented at the Centre for the Study of Violence and Reconciliation, Johannesburg, 26 July 1995, quoted in Stover, supra note 31, at 20.
33 Rule 92bis ICTY RPE provides, inter alia, for the admission into evidence of all or part of a witness's evidence in the form of a written statement where that evidence ‘goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment’. Rule 89(F) ICTY RPE provides that a ‘Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form’.
34 This also does not account for the number of witnesses who are pressed by the OTP to testify and agonize for a long time before declining, thus presumably bearing a contrary sense of shame or failure which compounds their existing burdens.
35 The ICTY Rules of Procedure and Evidence do not provide for sentencing hearings following trial; instead, sentencing issues are incorporated in the trial process.
36 Sentencing Hearing, Milan Babi (IT-03–72-S), Trial Chamber, Transcript, at 88–123.
37 Sentencing Judgement, Mrdja, supra note 13, 38.
38 Sentencing Hearing, Dragan Nikoli (IT-94–2-S), Trial Chamber, Transcript, at 240.
40 As Dr Boraine noted in the Plavi sentencing hearing, ‘it's the same cry that I've heard all over the world in so many different cultures and different languages, and it goes something like this, quite simply, and yet desperately: "I want to know what happened. I want to know why it happened. I want to know where the body is of my loved one. I want to know." ’; Sentencing Hearing, Plavi, supra note 18, Transcript, at 597.
41 Sentencing Hearing, Momir Nikoli; Sentencing Judgement, Momir Nikoli (IT-02–56-I), Trial Chamber I, 2 December 2003, 65.
44 Momir Nikoli, supra note 41, 65.
45 Momir Nikoli, supra note 41, 66.
47 In Sentencing Judgement, Stevan Todorovi (IT-95–9/1-S), Trial Chamber, 31 July 2001, 87 and Sentencing Judgement, Miroslav Deronji (IT-02–61-S), Trial Chamber II, 30 March 2004, 246, 254–255, the trial chambers stressed the unique and important nature of the information provided. See, also, Judgement, Tihomir Blaki (IT-05–14-T), Appeals Chamber, 29 July 2004, 774 and Judgement, Ranko Cesi (IT-95–10/1-S), Trial Chamber I, 11 March 2004, 62, in which the trial chambers held that the quality of the information provided by the accused was considered as factor in evaluating an accused's cooperation.
48 As President of Republika Srpka, Biljana Plavi was credited with a significant contribution to the Dayton Peace Process; Sentencing Judgment, Plavi (IT-00–39&40/1), Trial Chamber III, 27 February 2003, 85–94.
49 See, e.g, Todorovi (IT-95–9/1-S), 80, citing with approval the following remarks by Judge Cassese in Erdemovi: ‘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 the Prosecutor) to avoid a lengthy trial with all the attendant difficulties. These difficulties — it bears stressing — are all the more notable in international proceedings. Here, it often proves extremely arduous and time-consuming to collect evidence. In addition, it is imperative for the relevant officials of an international court to fulfil the essential but laborious task of protecting victims and witnesses. Furthermore, international criminal proceedings are expensive, on account of the need to provide a host of facilities to the various parties concerned (simultaneous interpretation into various languages; provision of transcripts for the proceedings, again in various languages; transportation of victims and witnesses from far-away countries; provision of various forms of assistance to them during trial, etc.). Thus, by pleading guilty, the accused undoubtedly contributes to public advantage.’
50 See, e.g. testimony of Madeleine Albright, in Sentencing Hearing, Plavi, supra note 18, Transcript, at 506–508.
51 Although each convicted perpetrator can therefore expect to receive less than the maximum sentence, fewer perpetrators enjoy de facto impunity, often in the very communities where the crimes took place. As observed by Stover, ‘What the witnesses sought was public acknowledgement in the presence of the accused that what had happened to themselves and their families and communities was wrong. They found it galling that war criminals could enjoy life untroubled by the wreckage they had caused’; Stover, supra note 31, at 2.