ICC can use plea bargains to hold Russia accountable for war crimes in Ukraine

Amid calls to hold Russia accountable for alleged war crimes in Ukraine, the chief prosecutor of the International Criminal Court (ICC) announced in May that he had sent a large team of investigators to the country to collect testimonials and evidence. Given the court’s track record, however, it is unclear whether it will be able to hold high-ranking war criminals to account.
In the 20 years since its creation, the ICC has failed to fulfill its mission to help prevent crimes against humanity and end impunity for perpetrators around the world. Since 2002, the ICC has prosecuted only a small fraction of the crimes within its jurisdiction and, perhaps most surprisingly, only convicted 10 people. The low number of prosecutions and convictions is explained by the fact that 123 countries are parties to the court – and that non-member states sometimes invite the court to investigate potential crimes committed on their territory, as the Ukraine following the February 15 Russian arrest. 24 invasion.
For the ICC to revitalize itself and make its mission in Ukraine more effective, it should consider leveraging its most underused legal tool: plea negotiations. To date, the court has accepted only one plea in its 20-year history, despite the court’s founding charter, the Rome Statute, which explicitly allows them.
Amid calls to hold Russia accountable for alleged war crimes in Ukraine, the chief prosecutor of the International Criminal Court (ICC) announced in May that he had sent a large team of investigators to the country to collect testimonials and evidence. Given the court’s track record, however, it is unclear whether it will be able to hold high-ranking war criminals to account.
In the 20 years since its creation, the ICC has failed to fulfill its mission to help prevent crimes against humanity and end impunity for perpetrators around the world. Since 2002, the ICC has prosecuted only a small fraction of the crimes within its jurisdiction and, perhaps most surprisingly, only convicted 10 people. The low number of prosecutions and convictions is explained by the fact that 123 countries are parties to the court – and that non-member states sometimes invite the court to investigate potential crimes committed on their territory, as the Ukraine following the February 15 Russian arrest. 24 invasion.
For the ICC to revitalize itself and make its mission in Ukraine more effective, it should consider leveraging its most underused legal tool: plea negotiations. To date, the court has accepted only one plea in its 20-year history, despite the court’s founding charter, the Rome Statute, which explicitly allows them.
Plea negotiations, which facilitate settlements in which perpetrators receive a lesser sentence for admitting guilt, would help the ICC in two ways: they would allow the court to hold more perpetrators of atrocities accountable and could charged to refrain from committing further crimes.
Trials are expensive, especially before international tribunals, and the ICC’s annual budget of $170 million remains modest compared to the enormity of its mandate. Plea negotiations would allow the court to free up resources to prosecute more bad actors. Pleas are so common in US courts — about 97% of cases in federal court are resolved this way — in part because cash-strapped prosecutors often don’t have the resources to try cases. Trial waivers, or systems that facilitate plea bargaining, have become popular overseas for this reason. They allow a defendant to waive their right to a trial in exchange for a concession from prosecutors. A study looking at 90 countries found that in 1990 only 19 of the countries allowed trial waivers, by 2015 the number had risen to 66. In Georgia, for example, around 13% of cases were resolved through pleas in 2005. 2012, this figure rose to 88%.
Civil liberties groups in the United States have reasonable concerns about plea bargaining. They argue that plea bargaining is often coercive, with prosecutors threatening a “trial penalty” – that is, more serious charges resulting in longer sentences – if the accused does not plead guilty. In this way, plea bargaining has been distorted by overworked and, at times, overzealous prosecutors to coerce low-level offenders or even people innocent of the crimes they are accused of into accepting unduly harsh sentences rather than have their day in court. This pitfall is less relevant to the ICC, however, because the court targets high-level offenders who order and coordinate atrocities rather than rank-and-file soldiers.
In addition to freeing up resources to prosecute more offenders, plea bargaining could also push those indicted by the ICC to improve their behavior. Even though ICC indictees often evade arrest and remain in their leadership roles after the court issues arrest warrants, they want to escape the heavy international travel and economic sanctions that come with the indictments. . The possibility of a negotiated settlement encourages defendants to reduce atrocities, because they know that more brutality will make prosecutors less inclined to negotiate a settlement.
We cannot say for sure how the plea bargains would affect the levels of violence committed by the defendants because the ICC has never implemented them. That said, a close look at the first two decades of the ICC suggests that plea bargains could very well steer perpetrators the court indicts away from violence. In the early years of the court, some defendants perceived – wrongly, it turned out – that they could negotiate deals with the court to get relief from the burden of their indictments. Because the defendants believed that an agreement was possible, they often reduced attacks on civilians to increase their chances of reaching such an agreement.
This dynamic was evident between the ICC and Ugandan activist Joseph Kony and his Lord’s Resistance Army lieutenants, who were the court’s first indictees in 2005. Kony has made it clear that he wants a settlement with the ICC. and Kampala. He declared a unilateral ceasefire in his war against the Ugandan government in part to secure such an agreement. If the ICC “wants[s] peace, they will take this case from us,” Kony said in a 2006 interview. “But if they don’t want peace, then they will continue.” In other words, it looked like Kony was open to some sort of deal, maybe even an admission of guilt.
But the ICC did not budge. When it became clear that the ICC was rejecting negotiations, Kony reverted to his heavy-handed tactics. This pattern was replicated in many other conflicts during the court’s early years: defendants could first reduce their violence as they tried to negotiate a deal, the ICC refused, then defendants reverted to their tactics. violent. According to Luis Moreno Ocampo, the ICC’s first chief prosecutor, Bosco Ntaganda, a former rebel commander operating in eastern Democratic Republic of Congo, “knew about the ICC” and “was trying to get support for escape” his indictment.
For Moreno Ocampo, however, negotiations were not an option. “I’m like a train going down the track, and I’m just following the evidence,” he explained. In Moreno Ocampo’s eyes, political settlements were not his job. He said to me one day: “We do justice and let the [United Nations] Security Council conclude political agreements. This settlement avoidance outlasted Moreno Ocampo, whose term ended in 2012 and set the tone for future court proceedings.
It is only in recent years that the ICC appears to have become more familiar with the notion of plea bargaining. In 2020, a review by independent experts called on ICC prosecutors to issue guidelines on when plea bargaining might be acceptable. To the court’s credit, shortly after the review, the ICC prosecutor’s office established a set of guidelines on when and how it would pursue plea deals. The guidelines are not revolutionary in what they say. They discuss general “considerations” that the prosecutor will consider in negotiations with alleged perpetrators. But the fact that the ICC has created and issued guidelines in the first place marks a significant shift, signaling that it may come to scrutinize pleas more than it has in the past.
Despite the court’s softening stance, the plea bargains remain contentious.
Some opponents argue that plea bargains would erode the deterrent effect of the court because the perpetrators will think they can simply bargain for the removal of any charges against them. This is not necessarily true. Criminal deterrence is made up of two elements: the likelihood of punishment and the severity of that punishment. The more probable and severe a sentence, the more it deters crime. But there is an important nuance to this theory: increasing the likelihood of punishment is generally considered by criminologists to be a more effective deterrent than increasing the severity of a punishment. Adopting plea bargaining would reduce severity but increase the likelihood of a sanction at the ICC by freeing up resources to prosecute more perpetrators. And, as Alex Whiting, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia, notes, plea bargains also involve defendants providing detailed admissions of guilt. Such accounts could implicate other perpetrators, further increasing the likelihood of punishment.
Others say that plea bargaining deprives victims of justice. This is a real concern that cannot be dismissed or easily resolved. The ICC’s plea bargain guidelines are correct to point out that “the prosecutor must take into account the interests of the victims, as well as their expressed opinions and concerns”. Putting victims first could mean that prosecutors side with victims if they reject a proposed deal.
Finally, some opponents question whether plea bargaining is appropriate for alleged perpetrators of atrocities that the ICC aims to prosecute. But the ICC’s poor conviction record shows that the choice of court in many cases is often either the absence of justice – due to an inability to prosecute effectively – or the settlement of some degree of justice by the through plea bargaining. Perhaps one day the ICC will be able to arrest, prosecute and convict many perpetrators within its jurisdiction, but for now that remains out of reach.
The ICC is under pressure to demonstrate results, particularly in Ukraine. Court prosecutors can potentially do this with plea agreements. There is no foreseeable scenario in which Russian President Vladimir Putin would be held accountable in court and admit guilt for the crimes committed by his forces. But the prospect of a plea deal could steer indicted military and militia commanders away from carrying out further abuses, potentially mitigating the brutality of Russia’s war in Ukraine.