Should Justice be Bargained

INTRODUCTION

“There is no glory in plea bargaining. In place of a noble clash for truth, plea bargaining gives us a skulking truce……….Plea bargaining maybe………the invading barbarian. But it has won all the same.”

-Prof. George Fisher [1]

International Criminal Law has evolved since the Nuremberg Trials and other tribunals set up in Japan and Germany post the Second World War. The International Criminal Tribunal for the former Yugoslavia (ICTY) and its sister tribunal the International Criminal Tribunal for Rwanda (ICTR) were established with a threefold objective of restoring and maintaining peace, promote reconciliation and organize outreach work. Originally these ad hoc tribunals did not make any provision for ‘guilty pleas’. But with the gradual efflux of time, guilty plea, which is a characteristic feature of the American criminal justice system, got adopted into its functioning. The inclusion of guilty plea as a legal tool and its practice in the two ad hoc Tribunals, which subject the persons to trial for heinous crimes against humanity, has sparked wide spread debate amongst various quarters of society and legal luminaries. Whether the effects of plea agreements on victims as well as the perpetrators will augment or outrage the fulfillment of the ICTY’S and the ICTR’s mandate has drawn lot of favour and criticism both from within and outside the legal fraternity.

When guilty plea first made its entry into the legal system it was characterized by the defendant coming forward to plead guilty without expecting any concessions but yet at the same time accepting the charges of indictment. A plea bargain, which in common parlance is referred to as a ‘plea agreement’, is a deal made between the defendant and the prosecutor whereby the defendant pleads guilty in exchange for a lesser charge or a reduced sentence. Justice systems that use guilty pleas to dispose of the cases usually do so by resorting to the controversial practice of plea bargaining. Plea bargaining is mostly explicit involving either sentence bargaining or charge bargaining or very rarely both. Sentence bargaining refers to the practice wherein the prosecutor will recommend to the court a sentence lighter than the expected and in charge bargaining the prosecution will agree to drop certain charges. [2]

Instances of plea bargaining can be traced back to times immemorial, as early as 1633 to the Roman Inquisition, where Galileo was incarcerated for life and after pleading guilty was let off with a house arrest. Till the 19th century most of the criminal cases were disposed of by jury trial. A plea of nolo contendere in misdemeanor cases allowed the defendant to submit to conviction without admitting to guilt. However nolo contendere pleas were not allowed in serious felony cases. [3] Until the latter half of the 19th century, both in the United States and the United Kingdom, guilty pleas as legal procedural tools were used only rarely and episodically. [4] Plea bargaining emerged as a significant practice after the American Civil war and initially met with strong disapproval. But nevertheless it became a routine method of resolving criminal cases by the end of the nineteenth century and beginning of the twentieth century. Economists attributed its initial success to caseload, whereas social scientists believe that a shift in courtroom dynamics and workgroup interactions achieved plea bargain the status of sentencing tool. In the US during the industrial era with a boom in the personal-injury cases the practice of plea bargaining came as a welcome relief to ease the workload. In the US, guilty pleas are more than often used to resolve financial crimes as well as federal crimes. These guilty pleas expedite the judicial process and helps cut costs, while at the same time safeguards are taken to ensure that the defendant is informed and the guilty plea is voluntary. On one hand this benefits the victims by sparing them from testifying and undergoing the trauma of facing the prospect of extensive cross- examination by astute lawyers. And on the other hand it benefits the society, by giving awareness into and an understanding of how a crime takes place. It provides deep insights into understanding the modus operandi adopted by the offender and therefore provides an invaluable opportunity to take corrective measures of reform to plug the lacunas in the existent system breached by the said offender. This assumes special significance in cases of complex financial scams which have ramifications and investigation may not be able to unveil the entire truth.

The ICTY was established in 1993 in accordance with the Security Council Res.808 and 827. [5] Since its establishment, 168 persons have been indicted, [6] 117 of those have been tried, yielding 45 convictions and 5 acquittals and 20 have pleaded guilty. These constitute one-third of the cases brought to conclusion and suggest that the practice of plea agreements has permeated the criminal justice procedure at the ICTY. The prevalence of plea agreements within the ICTY and ICTR framework has given an opportunity to evaluate their use and incompatibility with the objectives underlined by the tribunals. The Statute of the ICTY does not explicitly provide for guilty pleas and its first President, Antonio Cassese insisted that plea bargains had no place in the tribunal’s proceedings. [7] The first guilty plea was made by Drazen Erdemovic on 31st may 1996 subsequent to which, the ICTY adopted Rule 62bis during its Fourteenth Plenary Session of 20th October and 12th November 1997. In consequence thereof, many more started pleading guilty and Rule 62ter was adopted on 13th December 2001. [8]

The ICTR was established in 1994 by the UN Security Council Res.955 [9] to subject to trial suspected persons behind the Rwandan genocide. In 1995 it was located at Arusha, Tanzania under Res.977. [10] The first trial commenced in 1997. Jean Kambanda, the interim Prime Minister was the first to plead guilty at this tribunal. As part of a guilty plea agreement, this tribunal provided all perpetrators (category 2, 3 and 4- except 1) were entitled to receive a reduced sentence. [11]

This paper is a humble attempt to give a brief sketch of the history of plea bargain, its wide practice in the adversarial systems, its adoption by the ICTY and the ICTR, its impact on victim as well as perpetrator concerns of the tribunals.

………BY THE STUDENT AUTHOR TO ANALYSE THE PRACTISE OF PLEA BARGAINING IN ITS TRUE HISTORICAL PERSPECTIVE WITH A VIEW TO UNDERSTAND BETTER ITS SUBLIME PHILOSOPHY AND OBJECTS. THE AUTHOR WOULD ALSO ENDEAVOUR TO DISCUSS ITS WORKING IN ADVERSERAL CRIMINAL JUSTICE SYSTEMS ACROSS THE GLOBE AND ITS CONTROVERSIAL ADOPTION BY THE ICTY AND ICTR IN THE INTERNATIONAL REALM. THE PAPER WOULD CONCLUDE WITH SOME SUGGESTIONS BY THE AUTHOR IN LIGHT OF THE KEEN ANALYSIS OF THE IMPACT OF THE PRACTICE OF PLEA BARAGAINING ON THE STAKES OF THE PLAYERS VIZ. THE VICTIM, THE PERPETRATOR AND THE CIVILISED SOCIETY.

SCOPE OF STUDY

Owing to the paucity of time and limitation on the number of pages, the researcher would like to limit the scope of research to the system of plea bargaining in the International Tribunals- ICTY and ICTR; the effects of plea bargaining through recent landmark cases that have been decided in the Tribunals; the pros and cons of plea bargaining; a mention of all the countries that have adopted plea bargaining and in what capacity/ to what extent; and whether………..

RESEARCH METHODOLOGY

The researcher wishes to base the research on doctrinal methods. She will primarily rely on various commentaries and books on plea bargaining, especially in the International Tribunals. The researcher will study all available documents, reports, statistical data, scholarly journals and articles by various eminent jurists and advocates. It is in these articles that the researcher will find the direction towards the need and validity of plea bargains.

ICTY CASES

Erdemovic [12]

Erdemovic made efforts on his own free will to contact the tribunal and was immediately charged on two counts. One being crime against humanity and the other a violation of war or custom of war. He provided the prosecution with great deal of info about the massacres in Srebrenica, the Muslim State of Bosnia. And in his first appearance before the Trial Chambers, he pled guilty on the count of crime against humanity. He also testified on behalf of the prosecution on the Karadzic case. [13] He also provided the prosecution with facts about other atrocities, which they were not aware of, thus enabling the Tribunal to initiate further investigations. He repeatedly expressed remorse. The Trial Chamber did not accept his claim of acting under duress because of lack of supportive evidence to that claim but considered his remorse and substantial cooperation to be a mitigating factor [14] and sentenced him to ten years. Erdemovic appealed and the case was sent back to Trial Chamber [15] . At his second appearance, he pled guilty to the second count of war crime charges [16] and stressed that he acted under duress. He presented a plea bargaining agreement of sentence and charge bargaining- stressed on his enormous cooperation, [17] which was free and voluntary without expecting leniency and at personal risk to himself and his family. The second trial, instead of treating his guilty plea as something of an afterthought, considered it a demonstration of honesty and commented on it as a step to encourage other people to come forth and confess and reduced his sentence to five years imprisonment. The Tribunal looked upon it as true remorse and a desire to state the truth and awarded it by sentence education. In his statement of guilt, he stressed his reluctance of the order of killings but later submitted after a threat to his own life.

Erdemovic was, in his own words, directly responsible for killing seventy people and according to him, under duress. Presuming his remorse for his actions his true, he confessed. By pleading guilty he could secure protection for his family. These are criminals who can kill but dread to be killed. If in reality he felt remorse, he should have accepted his sentence at the first trial. His guilty plea and taking back the charge of crime against humanity and bargaining for a reduced sentence all go to prove that maybe his remorse was not an act of remorse, but was for the courtroom. And the Tribunal had no need to give him a chance to appeal.

Jelisic [18]

Jelisic, a self proclaimed ‘Serbian Adolf’, was the defacto commander of the Luka detention camp and claimed to have killed 150 people on one single day. He was charged with one count of genocide and 39 counts against humanity and violations of law and customs of war. He pled not guilty to genocide but showed willingness to plead guilty to 31 counts of war crimes and crimes against humanity. A plea agreement was prepared where the 31 counts were dropped due to evidential deficiencies but not so as to grant concession. [19] And Jelisic admitted to killing 13 people, inflicting bodily harm to four people and stealing money from detainees and specifically admitting to beating victims before killing. The prosecution sought life imprisonment maintaining that his cooperation had not been substantial and his guilty plea not be considered a mitigating factor [20] and added that he did not evidence remorse and did not spare victims the trauma of testifying by going to trial on genocide count.

The Trial Chamber did not impose a life sentence but sentenced to 40 years. It gave little credit to his plea and said that though he was aware of his incriminating evidence with the prosecution, he demonstrated little or no remorse for the crimes that he committed. The Trial Chamber further noted that his “cold blooded” and “enthusiastic crimes” attested to his contempt for mankind. No plea bargaining took place. The tribunal should not have for any reason given him a scope to plead guilty on any count. So much incriminating evidence in their possession______

Todorovic [21]

Stevan Todorovic was the third defendant to plead guilty at the tribunal. He, along with four others, was indicted for committing atrocities as an act of ethnic cleansing. [22] In April 1992, he was appointed Chief of Police when he took part in the deportation and detention of non-Serb population and engaged in murder, sexual assaults, and beatings. [23] For these offences, Todorovic was charged with crimes against humanity, breaches of Geneva Conventions, and violations of the laws and customs of war on twenty seven counts. [24] Todorovic pled not guilty and readied for trial. Todorovic was captured by four bounty hunters and hit on the head while being transported and handed over to the NATO forces. He first questioned the legality of his arrest and passed a motion, [25] and requested to be provided with documents and witnesses regarding his detention. [26] The Trial Chamber granted Todorovic’s motion and gave him the names of the four persons, copies of correspondence, audio and video tapes and all pre and post operation reports that led to the Appeals Chamber and during that time Todorovic and the prosecution made a plea agreement consequent to which he pled guilty to one count- crime against humanity [27] and promised to testify against his co-defendants and also in other proceedings, [28] and also withdrew his motion. As part of the agreement the prosecution withdrew the remaining twenty six counts [29] and recommended a sentence of fine to twelve years. Both parties agreed not to appeal any sentence imposed within that range and both agreed that if either side failed to fulfill its end of the agreement, the plea pact would not be cancelled and the case to go to trial. [30] The withdrawal of the twenty-six counts made no difference, for the one count to which Todorovic plead guilty encompassed all the offences of the dropped twenty-six counts. The actual concession was the sentence not to exceed twelve years which, had he been to trial, would have ranged from fifteen-twenty five years. The Trial Chamber in spite of its repeated claims that it was not bound by plea agreements sentenced him to ten years imprisonment and stressed the point that but for his timely guilty plea and cooperation with the prosecution [31] his term would have been longer.

Todorovic thus became a first of its kind –

First case of ICTY to explicitly feature plea bargaining

First case to get the blessing of the Trial Chamber for plea bargaining

In justifying the plea bargaining the Trial Chamber noted the logistic and the financial advantages of guilty pleas and also its importance in establishing the truth in connection to the crime. Most importantly, the Trial Chamber lauded Todorovic for his remorse, for at the final hearing he had expressed his “profound repentance and remorse” [32] and rued that circumstances had forced him to commit the crimes and now given a chance he would strive to do his best for a “multi-ethnic Bosnia” and atone for his sins. The Trial Chamber believed his remorse to be sincere and considered it a mitigating factor.

Dusco Sikirica, Damir Dosen and Dragen Kolundziga [33]

One of the detentions, the Keraterm camp was kept in such appalling conditions and was so overcrowded that the detainees took turns standing so that some could sit. Most were beaten on arrival and fed on starvation rations. Guards and visitors beat them on their will and killed many of them. The ‘Room Three’ massacre is its most notorious massacre where 150-200 people were locked up in a room and fired upon with machine guns and killing most of them. Sikirica was the camp’s commander and Damir Dosen and Dragen Kolundziga were the camp’s shift leaders. All three were indicted with was against humanity and war crimes. Sikirica was charged with one count of genocide and one count of complicity to commit genocide. All three pleaded not guilty and proceeded to trial. When time came to put up their defenses, Dragen pled guilty and entered into a plea agreement in which he pleaded guilty to one count of persecution as a crime against humanity and dropped four other counts. [34]

Three days later Sikirica and Dosen also entered into plea agreements on the same counts as Dragen. But all three acknowledged different levels of culpability. The prosecution alleged five methods of culpable-

Murder

Torture and beating

Sexual assault and rape

Harassment, humiliation n psychological abuse

Confinement in inhuman conditions [35]

Sikirica admitted to all five counts and also to killing one detainee. Dosen admitted to counts 2, 4, 5 and Dragen to count 5. [36] All three of them acknowledged to beatings and killing that took place at the camp but their pleas made a specific note of their limited powers over their subordinates to prevent them from mistreating and killing the detainees. The plea agreement of Sikirica and Dosen stated that they were not responsible for ensuring quality or moderate standards for the detainees. [37] Dragen’s plea agreement noted certain efforts made by him to access the detainees.[552] There is great similarity between Todorovich and Sikirica plea agreements and sentence proceedings. Both asked for sentence reduction, not to appeal sentence range, expressed remorse that they both were forced into working as executioners and it was not voluntary. Both expressed remorse and promised to work towards reconciliation and harmony, and not speak out against ethnic division. Both made no promise to cooperate with the prosecution. Sikirica, Dosen and Dragen were sentenced to terms of ranges agreed upon n their remorse was treated as mitigating factors. [38]

Most important, the Trial Chamber reiterated the endorsement of guilty plea n expanded upon it. Todorovic had pleaded guilty before the trial began but Sikirica’s was a late guilty plea. The Trial Chamber reiterated that whether the guilty plea is made timely or not, it contributes to one of the fundamental objectives of the Tribunal, i.e. truth finding. No matter what, the late guilty plea will also get some credit, if not full, in a way endorsing reduced sentence in a guilty plea. [39]

The ICTY then added rule 62ter, which legitimizes the practice of Plea bargaining. On December 28, 2001, the ICTY added Rule 62ter, entitled “Plea Agreement Procedure” to its RPE. Rule 62ter(A) provides that if a defendant pleads guilty to one or more counts of the indictment, the Prosecutor may apply to amend the indictment accordingly, submit that a specific sentencing range is appropriate, and/or not oppose a request by the defendant for a particular sentence or sentencing range. Sub- section (B) states, however, that “the Trial Chamber shall not be bound by any agreement specified in paragraph (A).” [40] Rule 62ter identifies the practices that had been taking place and reiterates the Trial Chambers’ ultimate sentencing discretion.

ICTR CASES

The 1994 Rwandan genocide was a massacre of Tutsi of the Hutu when hundreds of thousands in approximately hundred days [41] [568,570] pg. 127

Kambanda [42]

John Kambanda, the Prime Minister of the interim government of Rwanda, was arrested in Kenya along with other members of the interim government. He was charged with six counts of genocide n crimes against humanity. [43] Soon after his arrest he began cooperating with prosecution with the intent of pleading guilty. He provided the Office of the Prosecutor (OTP) with massive recorded testimony against political and military leaders subsequently. The prosecution later describes kambanda’s cooperation as “invaluable” [44] but by thus doing, he placed his family at risk and hence managed to secure protection as well as relocation to a diff country. He pleaded guilty and in his plea agreement, accepted to all counts of charges. In which he admitted to the widespread systematic attack to exterminate the Tutsi. He also acknowledged his absolute authority over the government and the military. He also admitted to the planning and execution of the massacres as well as distributing arms and ammunition and using the media to incite and abet the massacres. [45] He also agreed to testify in subsequent cases. But he did not make any agreements with regard to sentence or any statements expressing remorse. Therefore at the time of sentencing, the prosecution sought life imprisonment- the maximum penalty of the Tribunal. At the same time, providing that should the accused decide to appeal for sentence in future, then it should be favorably considered with a view to his past and future cooperation to the prosecution. [46] It should be noted here that all who plead guilty and made plea pacts by offering cooperation in the form of testifying against other criminals___________________ were compensated for by procuring protection for their families. Whether he was not aware of the importance of making a sentence of remorse to be a mitigating factor is not known, but its absence in his guilty plea_______________. But it appears like the Tribunal was falling on its knees to somehow mitigate his sentence by considering his admit of guilt itself as a mitigating factor but neglected it in contrast to his crimes and sentenced him to life. [47]

Soon after the sentencing, he appealed and stopped cooperating. He then revoked his guilty plea and proceeded to trial ascertaining at his appeal that his guilty plea was forced n fabricated. [48] [586]. But the appeal chamber held the Trial Chamber’s conviction.

It is very ironic to note that these executioners of such massive massacres have a chicken’s heart where the safety and life of their dear ones are concerned. They do not hesitate for a moment to carry out such atrocities on the masses but want the best of protection for their families. Is it because their victims are not high profile but are destitute? Or do they believe that their voice is too weak to be heard in protest for demand of justice or is there hatred of mankind so powerful that they do not hesitate to wipe out generations of people?

Serushago [49]

Omar Serushago voluntarily surrendered himself in Ivory Coast even before an indictment. He had been cooperating before his surrender and played a vital role in a secret operation code named ‘NAKI’, which led to the arrest of several high level offenders including Kambanda and Georges Ruggiu. Post surrender, he was indicted on five counts and pled guilty to four counts- to genocide, crimes against humanity, murder and torture. Apart from admitting to all his crimes in his guilty plea, he implicated nearly 29 individuals and attested to numerous facts relevant to further prosecutions. He also promised to testify in future trials. [50] [611] In his plea agreement, he left his sentencing to the discretion of the trial chamber but asked for protection for himself and his family. [51] [613.614]. the Office of the Prosecutor ensured the protection of his wife and children. On the day of his sentencing, he also tearfully pled for forgiveness. [52] [619]. He was sentenced to 15 years imprisonment and became the first ICTR defendant to receive a sentence less than life imprisonment. [53] [622]. He appealed on the grounds that the Trial Chamber had failed to give weight to the mitigating factors but it was rejected. But unlike Kambanda, he stuck to his side of the bargain. He did everything he agreed to in exchange of the safety of his family.

Ruggiu [54]

Georges Ruggiu, a Belgian, came into Rwandan politics through some Rwandan students who were his neighbors [55] [628] so much so that he became a key player in major political debates, and meeting with President Habyarimana several times. He also became opposed to the Rwandan Patriotic Fund (RPF) and in 1993, moved to Rwanda to become the broadcaster of a government radio station used to incite ethnic tension and killings. In 1997, he was arrested in Kenya on one count of public incitement to commit genocide and one count of crime against humanity. Initially, he pled not guilty and slowly changed his stance and started cooperating with the prosecution. In 2000, he changed his plea to guilty and entered into an agreement in which he accepted to the crimes of inciting and abetting killings and attested to a list of facts relevant to the prosecutions of high ranking officials Nahimana and Barayagwiza. [56] [638]. Here again in his plea bargain, he did not ask for sentence reduction but ensured the safety of his family in Belgium.

By this time, ICTY’s and ICTY’s view of guilty plea had evolved. The first to plead guilty in ICTR did not get any sentence concession. The second to plead guilty got a lenient sentence without explicitly bargaining for it. By this time the Tribunals had started openly lauding the benefits that the guilty plea offered. Like speedy expediting saved on resources and facilitated the administration, lenient sentencing encouraged other perpetrators of crime to come forward and confess. [57] [644]. Like others before him, Ruggiu begged for forgiveness. The tribunals thought that acknowledging the crimes and asking for forgiveness were signs of repentance and by themselves were great mitigating factors. Taking into account his cooperation and remorse, the tribunal sentenced him to twelve years imprisonment. He did not appeal and became the first ICTR defendant who failed to t