Yesterday, I argued that plea agreements have the potential to bring enormous benefits to the ICC. That leads to a second question: If plea agreements are a good idea, how could the Prosecution encourage their acceptance? The short answer is that the Prosecution must develop a credible and predictable policy surrounding plea agreements and communicate it clearly to the judges and the defense. The policy should allow discretion for each individual case but provide guidelines that will be applied in all cases. It will be important for Prosecution to be proactive in this regard because the early plea cases will shape the practice of the Court for the future. Both the ICTY and ICTR saw a rise in the use of guilty pleas only to see the number drop off dramatically, in part because the judges at those tribunals refused in several high-profile cases to sentence the accused in accordance with the Prosecution’s recommendations. Unsurprisingly, without some assurance that they would get the sentences they bargained for, defendants stopped being interested in pleading guilty. If the Prosecution can develop a coherent and defensible policy regarding plea agreements, it will minimize (though not eliminate) the risk that the judges will refuse to implement them.
So what might be some essential components of a credible and predictable policy? The law regarding guilty pleas is set out in Article 65 of the Rome Statute, which permits the judges to accept a guilty plea if the accused is aware of all of his or her rights, has consulted with counsel, and the plea is supported by the facts. The provision also allows, but does not require, the judges to insist on some presentation of the evidence “[w]here the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice.” Critically, Article 65 also provides that the judges are not bound by any agreements between the Prosecution and the defense. It is precisely because the judges are not bound that the Prosecution must develop a policy and practice that the judges will be generally persuaded to accept and follow.
Such a policy might include the following. First, while plea agreements might generally be a good idea, there may be cases where they would be inappropriate. The Prosecution should make it clear that in cases involving the most responsible or particularly notorious perpetrators, there may be no plea agreement that captures the severity and range of the accused’s criminality. Therefore, the Prosecution will not necessarily enter into a plea agreement with just any accused. Second, the Prosecution should insist on an agreement that captures the essential criminality of the accused and is supported by the facts. The Prosecution may agree to drop charges if key charges remain or if the dropped charges are more weakly supported by the evidence. Third, the Prosecution should decide if there are any types of charges that it would ordinarily not agree to drop as long as they are fully supported by the evidence. Fourth, the Prosecution has to be prepared to recommend a discount in sentence that results in a sentence that is both credible and provides an incentive to plead guilty. An accused facing a sentence of thirty years will not plead guilty to a twenty-five-year sentence, but at the same time the judges will not accept a five-year sentence. The Prosecution should set forth the factors that it will consider in reaching its recommendation that seeks to achieve both of these goals. Fifth, the Prosecution should insist on cooperation unless there are compelling reasons not to. An accused should ordinarily receive a significant discount in sentence only if he or she is willing to provide truthful information to the Court. Sixth, the Prosecution should insist on a procedure whereby the agreement is revoked, and the discount reconsidered, if the accused fails to adhere to an agreement to provide truthful information to the Court. Seventh, the Prosecution should adopt a procedure of consulting with the victims and their representatives and other interested parties before reaching an agreement. At the same time, the Prosecution should not necessarily be bound by the views of any other party or group. Eighth, and finally, the Prosecution should be as transparent as possible with respect to each case and explain to the extent it can the factors leading it to reach an agreement or recommendation.
These are just some first ideas. There might be others to consider and include, and again it is important to emphasize that the policy would not be mathematical and rigid but would instead outline a coherent approach and set of guidelines to consider in each case. In addition, the policy should encourage plea agreements and not impose so many restrictions or limitations so as to make them impossible.
If the Prosecution formulates such a policy and adopts a consistent approach to all plea agreements, it will enhance the credibility of these agreements and increase the likelihood of their acceptance by the defense, the victims, the public, and the judges. This way, the Prosecution may be able to develop, over time, a practice surrounding guilty pleas. With the possibility of an Ongwen plea on the horizon, the Prosecution should be considering such a policy already today.
Photo: Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), briefs the Security Council at its meeting on the situation in Darfur, 12 December 2014 (UN Media/Yubi Hoffmann)