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Should guilty pleas be entertained by the ICC and, more controversially, should they be sought in the first place? Sheryn Omeri looks at the arguments for and against, in the context of an ongoing prosecution for cultural destruction in UNESCO-listed Timbuktu
For the first time in the 14-year history of the International Criminal Court (ICC) a defendant charged with a war crime has indicated his intention to plead guilty.
This development has served to re-focus attention on two related questions which have vexed the ICC for as long as it has been in operation: can it entertain guilty pleas in respect of the most heinous criminal offences known to humanity? If so, should it and – more controversially – should the Office of the Prosecutor (OTP) proactively seek pleas from defendants?
On 1 March, a confirmation of charges hearing was held in the case of Prosecutor v Al Faqi Al Mahdi in accordance with Art 61(7) of the Rome Statute. Pre-Trial Chamber I of the ICC confirmed the charge of intentionally directing attacks against buildings dedicated to religion which are also historic monuments – a war crime with which Al Faqi is the first ever to be charged. It arose from Al Faqi’s alleged involvement in the destruction of 14th century mosques and mausoleums in the UNESCO-listed Timbuktu in 2012, when northern Mali was seized by a coalition comprising secular Tuareg nationalists and a local Islamist organisation with ties to Al Qaeda in the Islamic Maghreb (‘AQMI’ in French).
During the closed session portion of the confirmation hearing, Al Faqi expressed his wish to plead guilty. He said:
‘… having taken legal advice… I was made fully aware of the scope of the charges brought against me. I would like to plead guilty. I have not come under any pressure. I am fully aware of the meaning of pleading guilty and the consequences… I am likely to face. The testimony, the information provided reflect the truth.’
In common law jurisdictions, including our own, the entering of guilty pleas is a reasonably familiar occurrence. It is an accepted basis upon which to dispose of a potentially lengthy trial. But this concept has been slow to develop in international justice which aims to be a hybrid of the common and civil law traditions. The latter tends to view guilty pleas with suspicion and at best to consider them but one piece of evidence to be weighed together with others in the process of determining whether a defendant ought to be convicted. Such suspicion is heightened in the context of international criminal justice which deals only in the most grave variety of criminal offence.
When the idea of permitting the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) to enter into plea negotiations was initially raised, its first President, Italian jurist, Antonio Cassese, positively declared that plea bargaining was inconsistent with the unique purpose and functions of that Tribunal. He said that crimes within the ICTY’s jurisdiction were simply too reprehensible to be bargained over.
After Cassese was replaced by American Judge Gabrielle Kirk MacDonald, the ICTY embraced the practice of plea negotiation. But criticism of such negotiations from a variety of quarters has caused some pause for thought at the ICC. This hesitation is arguably not wholly unjustified. It is fair to say that the acceptance of guilty pleas by the ICC, and the development of a culture within the OTP of proactively seeking them, raise issues which do not exist in the domestic context and merit consideration.
Can guilty pleas be entertained by the ICC?
On its face, the Rome Statute appears to allow for guilty pleas to be entertained by the ICC. Article 64(8)(a) explicitly requires the Trial Chamber to afford the accused, at the commencement of the trial, the opportunity to make an admission of guilt (not strictly to plead guilty) to each of the charges proffered or to plead not guilty. Where admissions of guilt are made, Art 65(2) enables the Trial Chamber to convict the accused provided it is satisfied that his or her admissions are supported by the facts of the case and that all the elements of the relevant crimes are proved. If not so satisfied, the Trial Chamber must direct that the case revert to the normal trial procedure. If the Trial Chamber follows the Art 65(2) procedure, reparations to victims and sentencing proceed as if there had been convictions following a full trial.
While not making detailed provision for the OTP to enter into plea negotiations with an accused, the Rome Statute certainly acknowledges this possibility in Art 65(5) which makes clear that discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed will not be binding on the court.
Should guilty pleas be entertained by the ICC and sought by the OTP?
On the question of whether guilty pleas should be entertained by the ICC, and more controversially, sought by the OTP, vociferous arguments have been made both for and against.
Against
Insufficiency of charges at time of plea negotiations
It is said that entering into plea negotiations shortly after arrest could be seen as preventing justice being done in respect of further crimes, particularly in cases where the warrant of arrest is issued many years before an accused is apprehended and in the meantime he or she has committed further, possibly graver, international crimes.
But defendants before the ICC are entitled to a reasonably speedy trial in respect of the offences for which they have been arrested. Delay in order to enable further investigations must be balanced against this right.
Interests of victims
Article 43(6) of the Rome Statute makes specific provision for the interests of victims to be considered. If the OTP negotiates and the ICC accepts a guilty plea, this necessarily results in the substantial exclusion of victims from the proceedings. Though Art 65(4)(a) allows for evidence to be called from a number of victims in the course of the procedure following an admission of guilt – in order to ensure a more complete presentation of the facts of the case in the interests of justice, in particular the interests of the victims – this would represent a considerable diminution of the role they ordinarily play in the course of a trial following a plea of not guilty.
However, artificially prolonging a case where there is no dispute as to guilt seems undesirable for all involved. From the perspective of victims, hearing an accused confess his or her crimes may have a significant positive effect. Seeing one’s aggressor swiftly convicted and imprisoned (even for offences against others) may amount to sufficient vindication for many a victim.
In addition, even where the evidence against a particular accused appears strong well before the trial, the current case of Prosecutor v Bemba & Ors concerning offences against the administration of justice during Bemba’s substantive trial demonstrates that anything can happen at trial, including the possible corruption of witnesses and presentation of falsified documentary evidence by an accused. The OTP may not be in a position to discover this in time to prevent the trial (and conviction) from being jeopardised.
Need for a historical record
It may be that the prosecution of a particular defendant, who is receptive to plea negotiations, will be the only prosecution the ICC will be able to mount concerning the activities in a particular country or concerning a particular time in a given country’s history. Acceptance of a guilty plea does not allow for detailed examination of events and the establishment of a complete historical record which would otherwise include a full transcript recording facts, legal argument and a full judgment.
The ICC is yet to grapple with the extent to which it is under an obligation to ensure the creation of such a historical record (the Statute speaks of the Prosecutor’s obligation to ‘establish the truth’, Art 54) and how this obligation is to be balanced against defendants’ right to be tried ‘without undue delay’ (Art 67(1)(a)).
Offending the referring state
Prosecutions before the ICC often result from referrals by states parties to the Rome Statute. In the event of the OTP approaching an accused to negotiate a plea, securing one (perhaps on the basis of an agreement not to lay further charges) and then making favourable submissions at the sentencing stage, the referring state may perceive the ICC’s approach to be insufficiently rigorous. This may, in turn, lead to a deterioration of the ICC’s relationship with the referring state and, possibly, with its ally states parties.
For
Other, important factors militate in favour of the seeking and accepting of guilty pleas by the ICC.
Fairness to accused
It is not unknown for perpetrators of heinous crimes to have themselves been victims of the same or similar crimes. At his first appearance before the ICC current defendant, Dominic Ongwen, explained to the Pre-Trial Chamber that he had been abducted as a young boy and forced to serve in the Lord’s Resistance Army. Where an accused genuinely accepts responsibility and wishes to begin rehabilitation as soon as possible, he or she should be encouraged to do so and a full trial avoided.
Resources
The ICC’s resources are finite. A full-blown trial of an accused necessarily requires the exclusive efforts of a trial team of perhaps six lawyers, together with the equivalent (if not higher) number of investigators and support staff for at least a year, typically longer. If a case can be dealt with by way of a shorter procedure, such resources could be directed toward other cases.
Provision of information by accused
Offences within the jurisdiction of the ICC are unlikely to be committed by one person acting alone. The fact that an accused may be able to provide information in the context of plea negotiations is therefore of particular importance in this setting. Where a given accused’s alleged co-offenders are the subject of more extensive warrants of arrest, this provides a compelling reason for the OTP to offer an accused an incentive to share such important information, including with the court at subsequent trials.
A quick clean win
The ICC’s proceedings are often criticised for being too long and drawn-out. This is not good for victims and is unsatisfying for states parties who have committed themselves (financially as well as ideologically) to ending impunity. The need to render ICC proceedings more expeditious is a good reason to engage in plea negotiations and to accept guilty pleas when they are sought to be entered by defendants.
Now that a guilty plea has been offered up, it will be interesting to see whether the Trial Chamber will make use of the relevant statutory provisions enabling it to accept the plea without a full trial and whether, going forward, the OTP will have the courage to enter into plea negotiations with future defendants.
Contributor Sheryn Omeri is a barrister at Cloisters
Sheryn is an Australian-born Iranian-Kurdish barrister practising at Cloisters. Previously, Sheryn worked as a solicitor-advocate at the Aboriginal Legal Service in Sydney, appearing for Aboriginal Australians before the criminal courts of New South Wales.
This development has served to re-focus attention on two related questions which have vexed the ICC for as long as it has been in operation: can it entertain guilty pleas in respect of the most heinous criminal offences known to humanity? If so, should it and – more controversially – should the Office of the Prosecutor (OTP) proactively seek pleas from defendants?
On 1 March, a confirmation of charges hearing was held in the case of Prosecutor v Al Faqi Al Mahdi in accordance with Art 61(7) of the Rome Statute. Pre-Trial Chamber I of the ICC confirmed the charge of intentionally directing attacks against buildings dedicated to religion which are also historic monuments – a war crime with which Al Faqi is the first ever to be charged. It arose from Al Faqi’s alleged involvement in the destruction of 14th century mosques and mausoleums in the UNESCO-listed Timbuktu in 2012, when northern Mali was seized by a coalition comprising secular Tuareg nationalists and a local Islamist organisation with ties to Al Qaeda in the Islamic Maghreb (‘AQMI’ in French).
During the closed session portion of the confirmation hearing, Al Faqi expressed his wish to plead guilty. He said:
‘… having taken legal advice… I was made fully aware of the scope of the charges brought against me. I would like to plead guilty. I have not come under any pressure. I am fully aware of the meaning of pleading guilty and the consequences… I am likely to face. The testimony, the information provided reflect the truth.’
In common law jurisdictions, including our own, the entering of guilty pleas is a reasonably familiar occurrence. It is an accepted basis upon which to dispose of a potentially lengthy trial. But this concept has been slow to develop in international justice which aims to be a hybrid of the common and civil law traditions. The latter tends to view guilty pleas with suspicion and at best to consider them but one piece of evidence to be weighed together with others in the process of determining whether a defendant ought to be convicted. Such suspicion is heightened in the context of international criminal justice which deals only in the most grave variety of criminal offence.
When the idea of permitting the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) to enter into plea negotiations was initially raised, its first President, Italian jurist, Antonio Cassese, positively declared that plea bargaining was inconsistent with the unique purpose and functions of that Tribunal. He said that crimes within the ICTY’s jurisdiction were simply too reprehensible to be bargained over.
After Cassese was replaced by American Judge Gabrielle Kirk MacDonald, the ICTY embraced the practice of plea negotiation. But criticism of such negotiations from a variety of quarters has caused some pause for thought at the ICC. This hesitation is arguably not wholly unjustified. It is fair to say that the acceptance of guilty pleas by the ICC, and the development of a culture within the OTP of proactively seeking them, raise issues which do not exist in the domestic context and merit consideration.
Can guilty pleas be entertained by the ICC?
On its face, the Rome Statute appears to allow for guilty pleas to be entertained by the ICC. Article 64(8)(a) explicitly requires the Trial Chamber to afford the accused, at the commencement of the trial, the opportunity to make an admission of guilt (not strictly to plead guilty) to each of the charges proffered or to plead not guilty. Where admissions of guilt are made, Art 65(2) enables the Trial Chamber to convict the accused provided it is satisfied that his or her admissions are supported by the facts of the case and that all the elements of the relevant crimes are proved. If not so satisfied, the Trial Chamber must direct that the case revert to the normal trial procedure. If the Trial Chamber follows the Art 65(2) procedure, reparations to victims and sentencing proceed as if there had been convictions following a full trial.
While not making detailed provision for the OTP to enter into plea negotiations with an accused, the Rome Statute certainly acknowledges this possibility in Art 65(5) which makes clear that discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed will not be binding on the court.
Should guilty pleas be entertained by the ICC and sought by the OTP?
On the question of whether guilty pleas should be entertained by the ICC, and more controversially, sought by the OTP, vociferous arguments have been made both for and against.
Against
Insufficiency of charges at time of plea negotiations
It is said that entering into plea negotiations shortly after arrest could be seen as preventing justice being done in respect of further crimes, particularly in cases where the warrant of arrest is issued many years before an accused is apprehended and in the meantime he or she has committed further, possibly graver, international crimes.
But defendants before the ICC are entitled to a reasonably speedy trial in respect of the offences for which they have been arrested. Delay in order to enable further investigations must be balanced against this right.
Interests of victims
Article 43(6) of the Rome Statute makes specific provision for the interests of victims to be considered. If the OTP negotiates and the ICC accepts a guilty plea, this necessarily results in the substantial exclusion of victims from the proceedings. Though Art 65(4)(a) allows for evidence to be called from a number of victims in the course of the procedure following an admission of guilt – in order to ensure a more complete presentation of the facts of the case in the interests of justice, in particular the interests of the victims – this would represent a considerable diminution of the role they ordinarily play in the course of a trial following a plea of not guilty.
However, artificially prolonging a case where there is no dispute as to guilt seems undesirable for all involved. From the perspective of victims, hearing an accused confess his or her crimes may have a significant positive effect. Seeing one’s aggressor swiftly convicted and imprisoned (even for offences against others) may amount to sufficient vindication for many a victim.
In addition, even where the evidence against a particular accused appears strong well before the trial, the current case of Prosecutor v Bemba & Ors concerning offences against the administration of justice during Bemba’s substantive trial demonstrates that anything can happen at trial, including the possible corruption of witnesses and presentation of falsified documentary evidence by an accused. The OTP may not be in a position to discover this in time to prevent the trial (and conviction) from being jeopardised.
Need for a historical record
It may be that the prosecution of a particular defendant, who is receptive to plea negotiations, will be the only prosecution the ICC will be able to mount concerning the activities in a particular country or concerning a particular time in a given country’s history. Acceptance of a guilty plea does not allow for detailed examination of events and the establishment of a complete historical record which would otherwise include a full transcript recording facts, legal argument and a full judgment.
The ICC is yet to grapple with the extent to which it is under an obligation to ensure the creation of such a historical record (the Statute speaks of the Prosecutor’s obligation to ‘establish the truth’, Art 54) and how this obligation is to be balanced against defendants’ right to be tried ‘without undue delay’ (Art 67(1)(a)).
Offending the referring state
Prosecutions before the ICC often result from referrals by states parties to the Rome Statute. In the event of the OTP approaching an accused to negotiate a plea, securing one (perhaps on the basis of an agreement not to lay further charges) and then making favourable submissions at the sentencing stage, the referring state may perceive the ICC’s approach to be insufficiently rigorous. This may, in turn, lead to a deterioration of the ICC’s relationship with the referring state and, possibly, with its ally states parties.
For
Other, important factors militate in favour of the seeking and accepting of guilty pleas by the ICC.
Fairness to accused
It is not unknown for perpetrators of heinous crimes to have themselves been victims of the same or similar crimes. At his first appearance before the ICC current defendant, Dominic Ongwen, explained to the Pre-Trial Chamber that he had been abducted as a young boy and forced to serve in the Lord’s Resistance Army. Where an accused genuinely accepts responsibility and wishes to begin rehabilitation as soon as possible, he or she should be encouraged to do so and a full trial avoided.
Resources
The ICC’s resources are finite. A full-blown trial of an accused necessarily requires the exclusive efforts of a trial team of perhaps six lawyers, together with the equivalent (if not higher) number of investigators and support staff for at least a year, typically longer. If a case can be dealt with by way of a shorter procedure, such resources could be directed toward other cases.
Provision of information by accused
Offences within the jurisdiction of the ICC are unlikely to be committed by one person acting alone. The fact that an accused may be able to provide information in the context of plea negotiations is therefore of particular importance in this setting. Where a given accused’s alleged co-offenders are the subject of more extensive warrants of arrest, this provides a compelling reason for the OTP to offer an accused an incentive to share such important information, including with the court at subsequent trials.
A quick clean win
The ICC’s proceedings are often criticised for being too long and drawn-out. This is not good for victims and is unsatisfying for states parties who have committed themselves (financially as well as ideologically) to ending impunity. The need to render ICC proceedings more expeditious is a good reason to engage in plea negotiations and to accept guilty pleas when they are sought to be entered by defendants.
Now that a guilty plea has been offered up, it will be interesting to see whether the Trial Chamber will make use of the relevant statutory provisions enabling it to accept the plea without a full trial and whether, going forward, the OTP will have the courage to enter into plea negotiations with future defendants.
Contributor Sheryn Omeri is a barrister at Cloisters
Should guilty pleas be entertained by the ICC and, more controversially, should they be sought in the first place? Sheryn Omeri looks at the arguments for and against, in the context of an ongoing prosecution for cultural destruction in UNESCO-listed Timbuktu
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