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.
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Abstract |
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 Top Abstract 1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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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.
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1. Introduction |
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TopAbstract1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 pursuant to Security Council Res. 808 and 827.1 In the decade since the establishment of the ICTY, 148 persons have been publicly indicted.2 Of these, 50 have been tried, yielding 45 convictions and five acquittals.3
A rich jurisprudence has been developed in the course of these proceedings, carrying international criminal law into a new era from where it stood at the time of Nuremburg and the other tribunals in Japan and Germany following the Second World War. Few of these developments have been as vigorously debated or as closely examined in recent literature as the use of plea agreements in the ICTY setting. Although plea-bargaining is a practice fundamental to the system of criminal justice in common law systems and in an increasing number of civil and ‘mixed’ systems, the application of the plea-agreement process to serious violations of international humanitarian law has attracted concern and criticism.
The first guilty plea before the ICTY was entered by Drazen Erdemovi
on 31 May 1996. Mr Erdemovi pleaded guilty to murder as a crime against humanity. The Chamber sentenced him to 10 years. Following his successful appeal against that sentencing judgment, Erdemovi subsequently changed his plea to one of guilty of murder as a violation of the laws and customs of war, and was sentenced to five years’ imprisonment.4 Because Erdemovi had come forward voluntarily to confess his guilt, the plea process in his case departed to some extent from more traditional plea negotiations between the defence and the prosecution. The first guilty plea resulting from the more conventional plea-bargaining process came about in Simi et al., when Stevan Todorovi and the prosecution negotiated a plea agreement. By December 2001, six accused had either pleaded guilty or negotiated a guilty plea with the prosecution.5 Reflecting the increasing application of plea agreements, Rule 62ter was added to the Tribunal's Rules of Procedure and Evidence (RPE) in December 2001.6 Among other things, Rule 62ter provided that a Chamber ‘shall not be bound’ by a plea agreement and that the Chamber ‘shall require the disclosure of the agreement in open session or, on a showing of good cause, in closed session’.7
Since the adoption of Rule 62ter, an additional 11 persons have pleaded guilty for offences following plea-agreement negotiations. These persons received sentences ranging from five years’ to 27 years’ imprisonment.
These 17 guilty pleas, resulting largely from conventional plea agreements, constitute one-third of accused whose cases have been brought to conclusion at the first instance before the ICTY. The proliferation of plea agreements would suggest that the process has become an inherent part of the criminal justice procedure at the ICTY. Nevertheless, however embedded in Tribunal jurisprudence plea agreements may appear to be, a lively discussion over the use of plea agreements continues. While this is part of the general ongoing assessment of the application of traditional tools of criminal litigation to the Tribunal, it also reflects concern about the obligations stemming from the Tribunal's Chapter VII peace-keeping provenance. The proliferation of plea agreements within the ICTY has provided an opportunity to assess their use and their possible incompatibility with some of the principles and objectives underlying the Tribunal's establishment. This article looks briefly at the factors that prompted the adoption of plea agreements and then reviews their impact on some of the victim-oriented and perpetrator-oriented concerns of the Tribunal.
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2. ICTY Practice and Plea Agreements |
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TopAbstract1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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A. Caseload Volume
The nature and scale of the ICTY's subject matter jurisdiction and its caseload led quite predictably to the consideration and ultimately the use of plea agreements. The wars of the former Yugoslavia's break-up led to the deaths of many tens of thousands of civilians and the forcible displacement of millions. With such a vast crime base, even the most rigorous selection of the ‘most serious’ of cases would significantly burden an entire national judicial system for a lengthy period. For an international tribunal with three courtrooms and a finite life expectancy, the potential caseload demanded the skilful application of procedures that would make the administration of justice more efficient.
Although the ICTY's mandate to pursue the most serious violations reduces the number of individual cases, it has no effect on the scope and magnitude of the leadership cases that fall squarely within its ambit. Allegations of widespread and systematic crimes directed by military or civilian leaders encompass large geographic areas, lengthy time periods and countless victims. There may well be ways to restrict the otherwise daunting scale of such investigations and ensuing trials — and such approaches are a subject of ongoing discussion and debate, both within and outside the ICTY. Nevertheless, trials of significant political and military leaders or lower-level figures charged with responsibility for a significant crime base have been (and are likely to remain in the near future) time-consuming and costly. Plea agreements — a fundamental tool in many domestic jurisdictions to address financial, temporal and staffing constraints — inevitably beckoned as a potential tool for use in ad hoc tribunals facing even greater resource challenges.
B. Complexity of Crimes
In addition to the challenges of sheer scale, the cases before the ICTY also involve the investigation of complex links between perpetrators, elaborate formal chains of command and shadowy parallel chains of command. The complexity of cases before the ICTY is further aggravated by other factors. Unlike the Nuremburg Tribunal and the other tribunals following the Second World War, the Office of the Prosecutor (OTP) at the ICTY did not begin its investigations with a victor's trove of documents. While the OTP has been able to use many tools to gain access to documentary evidence, the process continues to be tortuous — in itself, draining resources and taking time as the OTP seeks to obtain by judicial compulsion and other means the documentary evidence it requires for its cases. Even when the OTP has been successful in compelling document production, the perpetrators of crimes on a vast scale do not always obligingly leave a clear paper trail. Access to witnesses has been similarly limited, for reasons including a continuing climate of intimidation and fear, domestic political hostility to cooperation with the Tribunal, and even bureaucratic obstacles.
For many prosecutors and investigators, such difficulties most closely resemble domestic organized crime investigations, but with significantly heightened complexity. Plea agreements represent a focused response to this challenge. In domestic jurisdictions, they are frequently used as a tool to resolve cases against junior members of criminal organizations in return not only for admissions of their own wrongdoing but also for information — and often, testimony — against more senior offenders.8 The usual difficulties of obtaining such information in domestic jurisdictions are greatly exacerbated in the post-war Balkans, where ethnic loyalties are reinforced by threats of ostracism and physical violence that continue to this day. Plea agreements provide a mechanism for surmounting these obstacles — and ultimately a chance to alter those very aspects of the political and social environment.
In short, the provenance of the ICTY — which in part emphasizes the responsibility of those at the highest levels — pointed prosecutors toward time-tested tools that could pierce the shields that leaders had built around themselves and yield direct evidence against perpetrators at the highest level.
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3. Areas of Concern |
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TopAbstract1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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Despite the utility of plea agreements as efficient litigation tools, the use of plea agreements has effects on both victims and perpetrators that involve the Tribunal's underlying objectives. These include the impact on the historical record, the opportunity for the voice of the victims to be heard, the dismissal of charges, the question of equal treatment for offenders and the reduction of sentences for increased efficiency.
A. Victim-related Concerns
1. Historical Record
The disposition of charges by plea agreement means the elimination of the customarily voluminous trial record. These volumes may represent the most detailed, nuanced and comprehensive account of the historically significant events. In order to assess fully the relative value of plea agreements, it is necessary to consider the impact of plea agreements on the historical record.
It is useful at the outset, however, to put this factor into historical perspective. Although the creation of a reliable record is a valuable by-product of trial, it was not perceived as a primary objective by the creators of the Tribunal. During the discussion on the adoption of the resolution that established the Tribunal,9 only the Venezuelan representative even mentioned the creation of an historical record as one of the purposes of the Tribunal. His comments, moreover, reflected an understanding that the trials themselves would not create the desired record.10 Rather than an end in itself that would produce a compelling and exhaustive record, the trial process was perceived as a vehicle for attaining such objectives as the elimination of impunity and deterrence. Indeed, the creation of a historical record — as a product of the trials conducted at the Tribunal — has even become part of the recent trend of generalized criticism of ICTY trials as being unduly time-consuming.11
The asserted distinction between litigation over an individual's criminal liability in contrast to litigation that simply creates a historical record carries, like any truism, the allure of bright-line clarity. The reality, however, is that in criminal litigation in a post-conflict environment — faced with all the obstacles to documentary and testimonial evidence set out above — almost any essential fact to be proven to establish individual guilt is likely to be laden with historical significance.12
In any case, there is little doubt that a reliable historical record generated in the course of criminal litigation can play a meaningful role in combating revisionism and creating a climate of consensus upon which reconciliation can be built. Diminishing such a record can undermine a post-conflict reconstructive tool. The contrast between the length of the normal trial proceeding and the length of a guilty plea proceeding, however, may misleadingly suggest a greater difference between the two historical records than in fact results.
As part of the plea agreement process, Chambers have increasingly required the submission of statements and documents that support both the acknowledgement of guilt by the accused and the indictment to which he pleaded guilty.13 In smaller cases, these submissions may reflect virtually the sum total of witness information on which the prosecution intended to rely. Even in cases dealing with several offences and multiple counts, the prosecution's submission of supportive material is likely to focus on the heart of its case.
Even if the documentation accompanying plea agreements lacks the details of a full trial record, the efficiency of the plea agreement process results in a greater number of completed cases and, therefore, more additions to the historical record. Plea agreements can therefore make up in breadth what they may lack in depth. Guilty pleas in the ICTY have illuminated, among many other significant aspects of the conflict, events at the deadly Su
ica camp in Vlasenica,14 the massacre by the Prijedor police of more than 200 men, many of them debilitated survivors of the Omarska and Keraterm camps,15 and the events around Srebrenica in July 1995. The historical record would be significantly poorer without these cases and is diminished overall when similar cases cannot be addressed.
Perhaps most importantly, plea agreements can generate a contribution to the historical record of inestimable value — the indispensable perspective of the perpetrator. The most haunting questions of all for both victims and historians — why former neighbours destroyed communities that had lived in harmony for decades — can only be answered fully by those who committed the crimes, or were present when objectives were determined and orders given.
Thus, during ‘an unprecedented’16 and ‘compelling courtroom confession’17 at the sentencing hearing following her plea of guilty, the former President of Republika Srpka, Biljana Plavi, not only acknowledged the ‘organized effort to remove Bosnian Muslims and Bosnian Croats from territory claimed by Serbs ... an effort which victimized countless innocent people’,18 but explained that it was driven, at least in part, by Serbian recollections of martyrdom and victimization in the Second World War. Plavi described a ‘blinding fear that led to an obsession’ that Serbs would never again allow themselves to become victims. ‘In this obsession of ours to never again become victims, we had allowed ourselves to become victimizers.’19 While this may not have represented a new insight into the motivation for the crimes,20 it marked the first time that a leader charged with war crimes and crimes against humanity referred to the role still played by the memories of the atrocities of the Second World War as a motivation, albeit not as justification, for the commission of the crimes in which she had been involved.
Such acknowledgements can result in a powerful impact that dramatically advances Chapter VII peace-keeping objectives. The Nikoli case and its companion case of Obrenovi produced a moving editorial by Emir Suljagi, a Bosnian Muslim survivor of Srebrenica, that illustrates such an effect:21
the confessions [of Obrenovic and Nikolic] have brought me a sense of relief I have not known since the fall of Srebrenica in 1995. They have given me the acknowledgement I have been looking for these past eight years. While far from an apology, these admissions are a start. We Bosnian Muslims no longer have to prove we were victims. Our friends and cousins, fathers and brothers were killed — we no longer have to prove they were innocent.These thoughts echoed the testimony of Dr Alexander Boraine during the Plavsi
sentencing hearing. Speaking of the impact that confessions of perpetrators before the South African truth commission had on victims. Dr Boraine emphasized that victims were ‘anxious for information or for knowledge, but ... want[ed] more that that .... [They] wanted acknowledgement that someone was responsible for what happened to [their] loved ones.’22
While being emphatic about the profound impact on Bosnian Muslims, Mr Suljagic suggested that the confessions of Obrenovi and Nikoli were unlikely to transform Bosnian Serb views.23 Although it is unquestionable that the impact of confessions on the two communities will vary, Mr Suljagi may have been too pessimistic in fully discounting the prospective impact of a confession on a perpetrator's community. First, the effect of these proceedings must be gauged over time. It is generally accepted, for example, that the Nuremberg trials had a greater impact on Germans born after the war than on the generation that lived through it. Yet even now, the longstanding wall of denial in Republika Srpska surrounding the crimes committed in and around Srebrenica in July 1995 has begun to crumble in earnest,24 with the public admission from the highest level of authority in Republika Srpka of the crimes and of Bosnian Serb responsibility.25 While strong encouragement from the international community and the High Representative may have struck the final and heaviest blows, the public acknowledgements by Erdemovi, Obrenovi and Nikoli were steps along a path of mounting evidence that made acknowledgement inevitable.
The ripple-effect of the pleas should also not be underestimated, as the same process of gradual acknowledgement — driven at least in part by the momentum of the plea agreements — has been visible in court. The Defence, as noted in the sentencing judgement in Obrenovi,26 asserted that Obrenovi's decision to plead guilty contributed to the decision of at least one other ‘ranking official’ of the Bosnian Serb community to come forward and speak to the Prosecution about the crimes.27 Further, Serb witnesses at the Blagojevi and Joki trial have acknowledged that thousands of Bosnian Muslims were killed in the days following the fall of Srebrenica. Defence witnesses have testified about their sorrow over the killings and, perhaps more significantly, to the widespread knowledge in the local Bosnian Serb community of those crimes in the days and weeks following the executions. Similarly, during opening remarks, a defence counsel spoke openly of the ‘killing operation’ — a ‘monstrous activity’28 and the ‘course [of events] taken by Muslim prisoners leading to killing fields in Zvornik.’29
Finally, information from perpetrators can also augment the historical record in an indirect way. Such evidence by insiders provides a new benchmark for prosecutors and investigators during the course of further investigative efforts. It produces more penetrating questions by investigators and more admissions by witnesses who may be reluctant to assist proactively but are unwilling to lie. Over time, the strength of the historical record is thereby considerably bolstered.
Considering both the extent and particularly the nature of the record generated, therefore, plea agreements do not represent a reduction of the historical record but a potentially invaluable tool for the creation of a more complete overall accounting.
2. Victims and Survivors have an Opportunity to have their Voices Heard
In a judicial environment that has increasingly come to recognize its responsibility to victims, public trials are often viewed as the opportunity for the ‘voice of the victims’ to be heard. The absence of the trial process may therefore be perceived as muting and disempowering victims, thereby contravening a fundamental Tribunal objective.
It should be observed at the outset that this concern inverts a traditional argument in support of plea agreements — that they obviate the need for victims to submit themselves to potential re-traumatization in court.30 This argument rests upon the premise that courtroom testimony is at least as likely to be painful and traumatic as therapeutic and finds some support in a seminal study of ICTY witnesses by Dr Eric Stover. Stover's study struck a cautionary note about the value to victims of in-court testimony, observing that there is little evidence that victims benefit from the process. He concluded that war crimes tribunals and truth commissions should not be viewed as vehicles for individual or collective healing.31
Psychological restoration for victims is considered dependent upon providing sufficient ‘space for survivors to feel heard and for every detail of the traumatic event to be re-experienced in a safe environment.’32 The evolution of trial presentation in the ICTY, however, has moved the institution farther from a context in which such therapeutic effects from testifying are likely. Increasingly, the Tribunal has adopted procedures for expediting the presentation of evidence that dramatically limit the opportunity for victims to present their full accounts. The presentation of witness testimony in written form through procedures set out in Rule 92bis or Rule 89(F)33 often means that witnesses either do not appear in court at all, or appear only to testify on cross-examination, thereby having the in-court experience of responding to inquiries — and often attacks — only from the defence. Even under the best of circumstances, witness selection is inevitably based upon evidentiary needs. Those who most want to be heard may thus be bypassed, while the most anxious and vulnerable victims may be required to testify.34
The sentencing hearings that accompany plea agreements (and that do not exist in the context of trials)35 frequently offer more benign platforms for the voice of the victims. Because they are testifying about admitted events, victims are generally not cross-examined or challenged, and since the thrust of the hearing is upon the gravity of the crimes and the consequences to the victims, victims may be accorded more time to tell their stories in full detail. Although the strictures of trial may discourage the use of summary witnesses who describe only the effect of crimes on victims, sentencing hearings have welcomed such testimony. Examples include the summary testimony in Babi of a psychiatrist who specialized in the treatment of victims36 or the testimony of a victims’ representative in Mrdja, who presented the videotaped ceremony of the first group visit by family members to the massacre site.37
Finally, sentencing hearings following plea agreements can present opportunities for victims to be heard directly in ways that trials do not afford. In Nikoli, the prosecution of the commander of Suica camp in Vlasenica, the mother of two young men last seen at the camp was called by the prosecution to testify at the sentencing hearing. At the conclusion of her testimony, she pleaded to the accused for information about her sons: ‘I would just like to ask Dragan to tell me where they are, in which mass grave, so that their mother could give them a dignified funeral.’38 Astoundingly, after a brief break and consultation with his attorneys, Nikoli responded directly to the tormented witness. He remembered her sons, he told her, recalling that they had been among the doomed final contingent of prisoners taken from the camp and ‘liquidated’ at a particular site. He explained that ‘one of her sons was wearing a denim jacket and trousers. And should there be an exhumation, perhaps he could be recognized by his clothes’.39 It is difficult to imagine a more direct and powerful example of a victim actually being heard.40
Finding the right balance between the right of the accused, the exigencies of trial and the obligations due to the victims will remain a sensitive task for courts. In light of these sometimes competing demands, the plea-agreement process may frequently represent a more satisfactory vehicle for expression of the victims’ perspective.
B. Perpetrator-related Concerns
1. Charge Bargaining/Withdrawal of Charges
Plea agreements commonly entail agreed limitations on sentence and charges. Yet the Tribunal's mandate is the prosecution of serious violations of international humanitarian law. Do plea agreements that result in the dismissal of some charges against the accused run foul of the Tribunal's objective to prosecute serious violations of international humanitarian law?
In the Nikoli case, the Trial Chamber observed that the significant nature of genocide or crimes against humanity required that a plea reflect not merely an agreement between the parties, but, instead, the actual conduct of the accused and the crime committed.41 This requirement, however, was not viewed as a prohibition against dismissing charges of genocide or crimes against humanity as part of a plea agreement. (In the Nikoli case itself, the charge of genocide against Nikoli was withdrawn pursuant to the plea agreement.) Instead, the Chamber urged the Prosecutor to exercise ‘extreme caution’ when deciding which charge most adequately reflected the underlying conduct of the accused.42 Such an approach, the Chamber noted, would address the risk of public suspicion or concern that justice had not been done. Although the Chamber's remarks were expressed in terms of the Prosecutor's responsibility, they implicitly articulated a standard for review of applications to amend the indictment,43 and thereby announced the determination of trial chambers to ensure that plea agreements reflected sufficiently ‘the gravity of the offences committed by the accused’.44
The existence of such a standard, if widely understood to be a part of the process, can play an important role in ensuring public confidence in the process. An express or even implicit determination by the Chamber that the guilty plea is consistent with the facts and evidence can reduce public misapprehension that convenience has trumped justice. Such an effort would also be advanced by a wider understanding of the ‘umbrella’ charge of persecutions, which often incorporates the full range of facts underlying the indictment, including subordinate charges such as wilful killing, which may have been dropped.
(a) Equality before the court
The Nikoli Chamber also addressed a concern that plea agreements may offend the principle that all accused are entitled to equal treatment before the law.45 Accused who have information of significant evidentiary value because they were involved in the most serious crimes, the Chamber noted, may receive more generous terms than others who lack such information because they were less involved. Although the contribution to the evidentiary record can, in fact, distinguish one accused from another, the Chamber's observation arguably reflected a view that this distinction falls outside the scope of appropriate sentencing considerations, unlike factors such as the gravity of the offence or remorse.
Despite its articulation of concern, the Nikoli Chamber did not categorically reject consideration of evidential weight. Instead, the Chamber expressed its concern by noting the possibility that the Prosecutor ‘may make the terms of such a plea agreement quite generous’.46 The extent of the benefit received by the accused would not be relevant if equal treatment was offended any time that a plea took into account the quality of the potential evidentiary information. This is consistent with the Tribunal's jurisprudence, which has recognized that the quality of the information provided by an accused is a factor that may be considered in assessing sentence.47 Consideration of the nature and import of the information provided by the accused, it should further be noted, is not the only post-crime conduct that has been assessed in terms of its value.48
Indeed, in light of the post-conflict environment, the concept of equal treatment itself almost invariably requires some acknowledgement of the quantity and quality of the information involved. It is substantially easier for an accused with little or no information to cooperate fully than it is for someone whose full cooperation implicates others or shatters the myth that crimes did not occur. It is therefore difficult, if not impossible, to separate the quality of the contribution from the difficulties of providing it and inequitable to treat identically those who face differing burdens when they cooperate.
In expressing its view that neither the parties nor the court should accord disproportional weight to the evidentiary value of the information provided by the accused, the Nikoli Chamber steered a middle ground between a blanket prohibition on considering the value of the accused's information and permitting such value to become a paramount consideration. Although future cases will determine precisely where the boundaries fall, their existence is intended to ensure that plea agreements remain consistent with the Tribunal's underlying values.
(b) Reduced sentences for savings of time and resources
From the time of their introduction in the ICTY, guilty pleas have resulted in reduced sentences, based in part on their reduction of the Tribunal's workload.49 Plea agreements, however, arose in national jurisdictions as a mechanism for dealing with domestic crimes. The grave nature and magnitude of the crimes in the ICTY raise the question whether the dispensation of justice in such cases can be compromised for savings in time and resources.
On its face, a determination to resist any compromise to justice in such serious cases is a noble and unassailable position. The gravity of the crimes addressed by the ICTY and the human suffering caused by the crimes demand the fullest possible accountability. Unfortunately, there is no way to separate accountability from logistics; the quality of justice has always been forged within and dependent upon a context of resource and time limitations. Indeed, while there were a variety of obstacles that faced the Tribunal at its inception which made questionable the prospect of successfully bringing perpetrators to account,50 the dominant challenges to the Tribunal's fulfilment of its mandate at this point are time and resources. The Tribunal has a steadily decreasing budget and rapidly waning time within which to prosecute the persons responsible for serious violations of international humanitarian law. The calculus is simple and stark: the more time the ICTY devotes to a single perpetrator, the less time it has to investigate and prosecute others. The implementation of plea agreements is a resolution of this dilemma in favour of broader accountability.51
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4. Concluding Remarks |
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TopAbstract1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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Beyond the advantages that inspired their adoption, the utility and propriety of plea agreements in the context of the ICTY must be gauged in light of their various consequences. This article has considered several of the victim and perpetrator-related effects of plea agreements and found that the impact of plea agreements in these areas supports their continued use. Plea agreements can advance the historical record and afford victims an appropriate forum for their voices to be heard. Although an unbridled use of plea agreements could result in an unequal treatment of perpetrators or inappropriate withdrawal of charges, the court has enunciated boundaries to safeguard against that risk. Overall, plea agreements can serve as a powerful vehicle for addressing the tension between accountability and resource limitations, and help to ensure that the objectives of international humanitarian law are fulfilled.
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Notes |
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TopAbstract1. IntroductionNotes2. ICTY Practice and...3. Areas of Concern4. Concluding Remarks |
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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 Plavi'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.
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