Plea Bargaining and International Criminal Justice

The University of the Pacific Law Review, Jun 2017

Jenia Iontcheva Turner

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Plea Bargaining and International Criminal Justice

Plea Bargaining and International Criminal Justice Jenia Iontcheva Turner SMU Dedman School of Law International Law Commons Part of the Comparative and Foreign Law Commons; Criminal Law Commons; and the Jenia Iontcheva Turner* TABLE OF CONTENTS I. INTRODUCTION Over the last two decades, plea bargaining has spread beyond the countries where it originated—the United States and other common law jurisdictions—and has become a global phenomenon.1 Plea bargaining is spreading rapidly to civil law countries that previously viewed the practice with skepticism. And it has now arrived at international criminal courts.2 While domestic plea bargaining is often limited to non-violent crimes,3 the international courts allow sentence negotiations for even the most heinous offenses, including genocide and crimes against humanity.4 Its use remains highly controversial, and debates about plea bargaining in international courts continue in court opinions and academic commentary: is it appropriate to offer * Professor of Law, SMU Dedman School of Law. This article is an adapted version of Plea Bargaining, in INTERNATIONAL CRIMINAL PROCEDURE (Fausto Pocar & Linda Carter eds., 2013) . The chapter and article also draw on my previous work in JENIA IONTCHEVA TURNER, PLEA BARGAINING ACROSS BORDERS (2009) and my collaboration with Thomas Weigend on Negotiated Justice, in INTERNATIONAL CRIMINAL PROCEDURE: PRINCIPLES AND RULES (Göran Sluiter et al. eds., 2013) . I thank Linda Carter for inviting me to take part in the Symposium and for her helpful edits on the earlier version of this piece. 1. Jenia Iontcheva Turner, Plea Bargaining, in INTERNATIONAL CRIMINAL PROCEDURE 35 (Fausto Pocar & Linda Carter eds., 2013) . 2. Id. 3. JENIA IONTCHEVA TURNER, PLEA BARGAINING ACROSS BORDERS 28 (2009) (Civil law countries are more likely to limit plea bargaining to non-violent crimes, although a few states in the United States have also imposed such restrictions). 4. Turner, supra note 1, at 35. sentencing concessions to a defendant who pleads guilty to a heinous crime involving thousands of victims? How can the avoidance of a public trial be reconciled with some of the professed goals of international criminal law, including the goal of creating a more accurate historical record of the atrocities and that of providing victims with a voice in the process? Conversely, given the very limited resources and enforcement powers of international criminal courts, could these courts achieve any of their goals effectively without the use of plea bargaining?5 The guilty plea of Biljana Plavšić at the International Criminal Tribunal for the former Yugoslavia (ICTY) illustrates some of the potential pitfalls of plea bargaining in international crimes cases.6 As co-president of the Serbian Republic in Bosnia and Herzegovina, Plavšić assisted in the campaign of ethnic cleansing against Bosnian Muslims and Croats, which resulted in the killing of more than 50,000 non-Serbs and the expulsion of many more.7 She was indicted on two counts of genocide and six counts of crimes against humanity.8 In return for her guilty plea to persecution as a crime against humanity, prosecutors dropped both genocide counts and five of the lesser crimes against humanity counts and recommended a sentence of 15 to 25 years of imprisonment.9 Yet the Trial Chamber sentenced Plavšić to 11 years, noting that her guilty plea made a significant contribution to uncovering the truth about the crimes and promoting reconciliation in the region.10 The court’s leniency enraged Bosnian Muslims,11 and their outrage was reignited when, just before her early release for “good behavior,” Plavšić publicly renounced her admission of guilt and stated that she had pleaded guilty simply to get a break in her sentence.12 Plavšić’s case was by no means the only one in which international prosecutors offered to drop serious charges and recommend a more lenient sentence to obtain a defendant’s guilty plea.13 Nor was it the only one in which defendants offered statements of remorse and the court rewarded them with leniency, but their sincerity and effect on reconciliation remained in question.14 Plavšić’s case was also one of several in which the defendant received significant 5. Id. at 214. 6. Turner, supra note 1, at 35–36. 7. Prosecutor v. Plavšić, Case No. IT-00-39&40/1-S, Sentencing Judgement, ¶ 41 (ICTY Feb. 27, 2003) [hereinafter Plavšić, Sentencing Judgement]. 8. Turner, supra note 1, at 35–36. 9. Plavšić, Sentencing Judgment, supra note 7, at ¶5. 10. Id. at ¶ 73. 11. NANCY AMOURY COMBS, GUILTY PLEAS IN INTERNATIONAL CRIMINAL LAW: CONSTRUCTING A RESTORATIVE JUSTICE APPROACH 74 (2007). 12. Olivera Simic, Bringing “Justice” Home? Bosnians, War Criminals, and the Interaction Between the Cosmopolitan and the Local, 12 GERMAN L.J. 1388, 1400 (2011). 13. COMBS, supra note 11, at 74–76. 14. Id. at 78, 84–85. sentencing or charging reductions even though he or she did not cooperate with (...truncated)


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Jenia Iontcheva Turner. Plea Bargaining and International Criminal Justice, The University of the Pacific Law Review, 2017, Volume 48, Issue 2,