The Office of the Prosecutor (OTP) should use plea bargaining or even amnesty to encourage criminal leaders to accept responsibility and remove themselves from active hostilities. It is important to note that this comment is limited to instances of active hostilities and to criminal leaders who maintain a position of power at the time he or she comes before the ICC. If the conflict has been concluded before the criminal leaders are brought before the court, then the court is not deterring future crimes by removing the criminal leaders from the conflict. Therefore, the justification for plea bargaining as preventing future crimes emanating from that conflict is lacking. In instances where the OTP may encourage a criminal leader to lie down his or her weapons and submit to the jurisdiction of the court, plea bargaining is a powerful tool to prevent future crimes.

At present, during active hostilities it is often near impossible for the ICC to gain control over accused criminal violators. Moreover, criminal leaders will continue to fight until they achieve their objectives or are overwhelmed unless offered a tempting alternative such as a plea agreement. The ICC can insert itself into active hostilities which appear to be swaying against criminal violators, in instances where military pressure, fatigue or international pressure has begun to chip away at popular support for criminal leaders. As opposed to waiting for the pressure to oust criminal leaders—who might then be extradited to the ICC for trial—the ICC may seek to remove criminal leaders from the conflict by offering a lesser sentence or, in some cases, even exchanging a guilty plea for amnesty and exile. Plea bargaining may be a tempting alternative to eventual military defeat or ongoing conflict and could offer criminal violators a “dignified” way to end a destructive campaign. Most importantly, plea bargaining offers the chance to end an active conflict sooner and subsequently to save the lives of future victims.

One example where plea bargaining should have been used by the OTP is in the peace negotiations between Joseph Kony and the government of Uganda following decades of heinous crime by the Lord’s Resistance Army (LRA). The government of Uganda had negotiated with the LRA for amnesty and protection from ICC prosecution in exchange for the end of hostilities.5 However, the OTP refused to withdraw warrants for the arrest of LRA leaders including Kony. The Ugandan government is of the belief that this decision harmed efforts at reconciliation with the rebel group.6 Although there is no clear cause and effect, the OTP could have successfully used plea bargaining to encourage an end to this conflict. Even if the OTP offered LRA leaders amnesty, the LRA leaders would be called to answer before a national tribunal in Uganda and the ICC could claim as a victory the prevention of future crimes by the LRA.

Under the Rome Statute which created the ICC and OTP, the OTP has the power to plea bargain with criminal leaders in the interest of justice. During the framing of the Rome Statue which created the ICC, delegates did not come to an agreement about if national amnesty would preclude prosecution before the ICC. The statute, however, contemplates the OTP forgoing prosecution “in the interest of justice” even where the court has jurisdiction.7 The statute does not expressly prohibit the incorporation of amnesties and other agreements to preclude ICC prosecution in the interest of justice. Moreover, The OTP is empowered under Article 53(4) of the Rome Statute to reconsider the decision to prosecute based new facts and information.8 New facts may include the existence of a peace agreement that has been reached conditionally upon the withdrawal of ICC warrants. It would seem to follow that the power to withdraw prosecution entirely would also include the power to narrow prosecution. Therefore, it may be argued that plea bargaining in the interest of justice is similarly permissible.

The barriers to plea bargaining include threatening the credibility of the ICC and embroiling the OTP in political questions such as when to accept or reject a negotiated settlement to bring peace. First, some will argue that plea bargaining will give the impression that the ICC is negotiating with accused criminal leaders and in some cases will result in criminal leaders receiving lesser sentences than mid—and low-level violators. However, the decision between the appearance of steadfastness coupled with continuing conflict against the appearance of pragmatism and an end to conflict must sway in favor of ending conflict and consequently saving lives. The ICC must not become a stumbling block in the peace process. Second, the OTP must engage in the difficult, diplomatic question of when to accept a negotiated settlement for peace. It must be up to the OTP to decide when a settlement appears to serve justice—in such instances, the OTP must be free to accept a settlement to ensure justice when the alternative will neither bring peace or justice.

To prohibit the OTP from plea bargaining to remove criminal leaders would go against the recent tradition of international law and might actually perpetuate mass atrocities. It is important to note that amnesties have ended two-thirds of the wars since 1989; amnesty is a commonly accepted solution in international law.9 Moreover, by denying the OTP the power to plea bargain to end active conflicts would render null any effort to reach peace that included amnesty or negotiated sentencing. Each conflict would have to end with criminal violators either captured and extradited to the Hague or killed.10 Such could cause the ICC to be a barrier to peace—and would therefore violate the ICC’s mandate to seek restorative justice.

II. Restorative Justice

The mandate of the ICC calls for retributive justice against the worst criminal violators. For the purposes of this comment, retributive justice is defined as utilizing proceedings to seek reprisal and express moral outrage at certain conduct.11 The focus of retributive justice is on striking back at the accused through punishment and, in some circumstances, discouraging similar conduct within the community. The mandate of the ICC certainly includes elements of retributive justice; for example, the ICC seeks to end impunity for the worst violators and calls for punishment of crimes which the international community has recognized as especially heinous. The ICC seeks to hold those accountable for outrageous conduct and is empowered to hand down lengthy terms of imprisonment. The mandate of the ICC, however, is unique in that it also seeks to deliver restorative justice to victims of mass atrocities.

The ICC has notable unique features which demonstrate that its mandate includes not only retributive justice, but also restorative justice. Restorative justice is defined as utilizing proceedings to enable victims to return to life as it was before a crime.12 The focus of restorative justice therefore is on reconciliation between the victim and the accused and restitution for injuries which the victim has suffered. The mandate of the ICC encourages restorative justice through various mechanisms; for example, the ICC allows for those convicted to be held liable for reparations, compensation and rehabilitation for victims of mass atrocities.13 Moreover, the court seeks reconciliation between victims and the accused through victim participation in proceedings. The ICC is asked to enable victims and the accused to return to a productive life and rebuild their community. Therefore, the mandate of the ICC calls for both retributive and restorative justice.

The Office of the Prosecutor (OTP) should seek to deliver restorative justice to victims of crime through plea bargaining when it is unlikely that the court will be able to deliver retributive justice. As seen in the example of Uganda above, the refusal of the OTP to accept negotiated peace including amnesty for criminal leaders may have caused the peace agreement to fail. In such instances, the choice is not between justice or peace, but between continued conflict or peace. The ICC had little leverage to threaten the arrest of Joseph Kony, yet the OTP would not allow the criminal leaders of the LRA to negotiate for amnesty. Even today, Kony remains at large and the government of Uganda seeks to combat the Lord’s Resistance Army. Only in instances of peace can the ICC offer restorative justice—it is impossible for victims of crime to return to normal life while conflict is ongoing.14 A choice by the OTP which continues conflict cannot be deemed a choice in favor of justice. Rather the OTP must seek to offer restorative justice to victims by allowing for negotiated settlements, and even amnesty, when the alternative is a continuation of conflict and likely additional crimes.

Restorative justice has been preferred by national governments and in some instances may be seen as equivalent to retributive justice. It is hard to argue against those who seek retributive justice against accused criminal leaders for heinous crimes. However, in Uganda the national government sought to offer amnesty to criminal violators because peace and reconciliation were seen as the only hope for justice after decades of crime.15 Some might argue that there can be no justice until criminal violators are brought before a tribunal and sentenced to lengthy terms in prison. However, such retributive justice is often not available and the OTP must show deference to national calculations of justice. A pragmatic decision that creates peace and honors the findings of victims of crime is superior to a principled decision which may continue conflict and create future victims of crime.

Plea bargaining is superior to an offer of simple amnesty. Plea bargaining demonstrates that criminal violators cannot bargain to completely escape punishment and requires an acceptance of guilt by criminal violators. By removing criminal leaders from an active conflict, the OTP offers restorative justice enabling victims to move forward with rebuilding their lives. Even if sentences are short, the ICC allows for restorative justice by removing criminal leaders; not one criminal leader has returned to power after being brought before an international tribunal.16 By bringing criminal leaders before the ICC, the court ensures that victims can return to the task of rebuilding without the fear of criminal leaders returning to spark conflict again. However, in certain circumstances, even negotiated amnesty which brings with it restorative justice is preferable to continued conflict.

In regards to active conflict, the ICC may simply not be the forum through which victims might pursue retributive justice. While the ICC has yet to sentence a convicted criminal leader, other similar criminal tribunals in the former Yugoslavia and Rwanda have meted out seemingly light sentences given the gravity of crimes before the courts. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have handed down a thirteen year sentence for the crimes of torture, cruel treatment of detainees and personally participating in the murders of nine detainees; an eight year sentence for attacks on civilians; and a fifteen year sentences for crimes of genocide and extermination.17 While it is unclear what sentencing guidelines will be implemented by the ICC, similar criminal tribunals appear to have favored restorative justice as opposed to retributive justice at sentencing. Lastly, the prospect of spending life in prison may cause rebel leaders to simply fight to the death in effect causing even greater harm. In such instances, retributive justice will come at such a cost that victims and the OTP should prefer negotiated peace to prevent future crimes and to begin the process of restoring the community.

Conclusion

Plea bargaining can be effectively used to remove criminal leaders from an active conflict by offering a tempting alternative to continued violence or the prospect of a life-long prison sentence. The OTP is empowered to honor plea agreements between criminal violators and national governments or to negotiate a plea agreement with criminal leaders. Plea bargaining to end an active conflict serves both the interest of crime prevention and restorative justice in that ending conflict prevents future crimes emanating from the conflict and brings victims back to a position where they can begin to rebuild. While a plea agreement may not satisfy the desire for retributive justice, the OTP must prioritize preventing future crimes emanating from a conflict and the possibility of restorative justice over the costly alternative of continued violence.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 32 (2009). ↩

2. 2.

   It is not my purpose to address these arguments in this comment, rather I lay out these assumptions to contrast them with the assumptions required to accept peacemaking through plea bargaining as crime prevention. ↩

3. 3.

   Payam Arkhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 11 (2001). ↩

4. 4.

   Id. at 7. ↩

5. 5.

   Manisuli Ssenyonjo, Accountability for Non-State Actors in Uganda for War Crimes and Humanitarian Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 422 (2005). ↩

6. 6.

   Id. at 422. ↩

7. 7.

   Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 617 (2007). ↩

8. 8.

   Ssenyonjo, supra note 5, at 428. ↩

9. 9.

   Kimberly Hanlon, Peace or Justice: Now That Peace is Being Negotiated in Uganda, Will the ICC Still Pursue Justice?, 14 Tulsa J. Comp. & Int’l L. 295, 333 (2007). ↩

10. 10.

    Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions, 119 Yale L.J. 1703, 1708 (2010). ↩

11. 11.

    Linda Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 266 (2008). ↩

12. 12.

    Id. at 275. ↩

13. 13.

    Id. ↩

14. 14.

    Ssenyonjo, supra note 5, at 428. ↩

15. 15.

    Keller, supra note 11, at 270. ↩

16. 16.

    Alexander, supra note 1, at 23. ↩

17. 17.

    Id. ↩