THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal    

The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.

Guidelines for Agreements Regarding Admission of Guilt, October 2020, para. 20

Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.

The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts. 

Horse trading: clever, and often difficult, discussions in which people or organizations try to make a business arrangement, and each tries to get something more favourable to them.

When one thinks of plea bargaining, we often have in mind the kind of horse trading that is usually done by prosecutors and defense lawyers across the US: bargaining away charges to reach an agreement to avoid having to go to trial. Generally, it is a win-win situation. The prosecutor disposes of a case without having to go to trial and spend valuable time and resources to achieve an acceptable outcome, while the accused avoids the risk of being convicted to more (and/or more severe) charges and drawing a higher sentence.

Truth be told, the US criminal justice system would be overwhelmed and dysfunctional without plea bargaining. Of course, it is subject to abuses. While visiting the New Orleans criminal court to observe its procedures and trials, I witnessed how prosecutors would offer plea deals at the initial appearance. The public defenders would have this five-to-ten-minute window to discuss the offer and try to convince multiple accused – who were usually being met for the first time – to agree to reduced charges that nonetheless called for a significant sentence (5, 10, or even 15 or more years). Shocking as this absurdity of plea bargaining may be, it was energetically pursued, with the accused often being brow-beaten by their overwhelmed public defender to take the deal on the spot.

To those coming from civil law traditions, plea bargaining seems perverse: how is it possible to bargain away crimes committed and claim that justice was served? A fair question. However, depending on the legal tradition and applicable criminal procedure, justice, for the most part, can be served through plea agreements. Here is why.

In common law systems – or should I say in party-driven adversarial proceedings – the judges are not looking for the objective material truth. It is up to the prosecutor to prove the charges beyond a reasonable doubt – to a near certainty. Since it is a given that no prosecution office can function without having 90-95% or more of its cases getting resolved through plea bargaining, the common practice is to overcharge. Not always, but in general. Because it is relatively easy to get an indictment (a ham sandwich can get indicted, as the saying goes) to facilitate and stimulate a plea bargain, prosecutors will often deliberately overcharge.  Indeed, many U.S. states don’t even utilize indictments, but simply charge by complaint, sometimes followed by probably cause hearings.

Prior to the indictment, prosecutors – to lighten their load and avoid spending resources that may be needed for cases that will go to trial – make plea offers even before there has been an indictment, threatening to go with as high and as many charges (recall the scenes in the film, A Few Good Men). If a plea agreement is not reached, prosecutors will resort to over-indicting to pressurize the accused into pleading to lesser charges to avoid being convicted on the indicted charges and drawing a higher sentence. Notably, when an indictment or a complaint is confirmed (through a preliminary hearing or by a grand jury), many cases may only be 60% fully investigated and nowhere near ready for trial. A plea agreement frees up time and resources to focus on cases that invariably will go to trial.

And if this does not seem strange enough to those unfamiliar with negotiating guilty pleas in the US, there is even the possibility of pleading nolo contendere/no contest (treated as a guilty plea) to charges and agreeing to a particular sentence (e.g., life-in-presentment sentence to avoid risking a death penalty conviction), while steadfastly maintaining innocence to the charges. It is called entering an Alford guilty plea, named after the US Supreme Court case of North Carolina v. Alford.

In civil law systems – or should I say judge-controlled inquisitorial proceedings – the judge is searching to get as close to the truth as possible, which is why the judge controls the questioning of the witnesses. If the prosecutor mischarges the accused based on the facts, judges can recharacterize the facts (a procedure adopted by the ICC Judges through Regulation 55 of the Regulations of the Court).1 Under Regulation 55 of the ICC Regulations of the Court, the Chamber can change the legal characterization of facts “to accord with crimes … or to accord with the form of participation of the accused … without exceeding the facts and circumstances described in the charged and any amendments to the charges.” Regulation 55 only changes the “legal characterization” of the facts, but does not change the statement of facts. For example, in Lubanga, the Trial Chamber recharacterized the conflict in the Democratic Republic of Congo from an international armed conflict to a non-international armed conflict. See Prosecutor v. Lubanga, ICC-01/04-01/06-2205, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court,” 17 December 2009. The objective is to ensure that accused are properly charged based on the facts. Also, depending on whether there is an investigative judge or just a prosecutor responsible for the collection of evidence, by the time the charges are confirmed, it can reasonably be said that the case is virtually ready for trial.

Because judges in civil law systems are, for all intents and purposes, engaged in a truth-seeking process, it is inconceivable for them to countenance the bargaining away of legitimate charges that are seemingly provable to an intimate conviction through the apparently reliable evidence (the judges will have reviewed the case file and have a relative sense on the quality of evidence). Not only is this counterintuitive, but it is also a pervasion of justice. This helps explain why the exclusionary rule as known in common law systems (excluding evidence however good and damning it may be if improperly/unconstitutionally gathered), generally does not apply in civil law systems – save for evidence gathered through means such as torture (the ICC has adopted a similar posture under Article 69(7) of the Rome Statute, see Lubanga Decision on the admission of material from the “bar table”). Why would perfectly good evidence not be considered in getting to the truth simply because a lazy or incompetent or mistaken police officer conducted an unlawful search? Why should the truth, and more importantly the victim(s) suffer for the careless acts of law enforcement? Accept the evidence to get to the truth and punish the authorized officials for their mishaps.

With this backdrop, consider how judges from different legal traditions will consider “plea bargaining” at the international(ized) criminal tribunals and courts where the system is hybrid. While the ICC Prosecutor has the burden of proof, the judges – as part of their duty to search for the truth – may intervene and question witnesses and even request that evidence be admitted and witnesses be heard that no party sought to adduce (see Rome Statute, Arts. 64(6)(b) and (d), 69(3), and Rule 120 of the Rules of Procedure and Evidence). Although I find this mixing a mash-up of prosecutorial burden of proof and judicial truth-seeking quests to be schizophrenic, it is what it is.

Before going any further on the merits of plea agreements, a reality check on the ICC may be useful.

By all accounts the ICC is underperforming. Aside from the rather abysmal state of internal affairs as recently described by the Independent Experts in their Review of the International Criminal Court and the Rome Statute System, for its 22-year existence and the amount of resources thrown at the ICC in general (the defense is appallingly underpaid), it has garnered few convictions. Moreover, the Prosecutor has ventured into situations that were, from the outset, as impractical and they are now proving to be intractable. Valuable resources and time have been squandered. Not that the situations concerning Afghanistan, Palestine, Myanmar, to name but a few, do not merit consideration, but as a nascent institution, should not the Prosecutor be pursuing more manageable and practicable situations (low hanging fruit, as I have put it) before tackling situations that are, realistically, non-starters? Never mind the associated politics, lobbying, and saber-rattling that come with these situations. Perhaps, if and when necessary to pursue such situations, different venues may be more appropriate, such as specialized ad hoc tribunals – though don’t hold your breath for the three major permanent members of UN Security Council (US, Russia, and China) to refrain from exercising their veto prerogative in scuttling accountability efforts when their national interests or those of their friends and client states are in question. This aside, however, the ICC needs some quick, cost-effective, notable success. Here is where plea agreements come in.

Think Sentence Bargaining

When thinking of plea bargaining, one conjures up images of a prosecutor and defense counsel haggling over charges and sentences as if in a bazaar. Not too off the mark. However, considering that the ICC has a hybrid system with judges coming from legal traditions where haggling is an anathema and that ultimately the judges will need to accept or reject the plea agreement, it is better to pursue a sentence bargaining process. In other words, where charges have legitimately been confirmed, and where the evidence to achieve a conviction exists (hardly borne out by the OTP’s track record thus far), the focus should be on the reaching an agreement on an acceptable sentence that is lower than what the charges would warrant if proved at trial and upheld on appeal – not on bargaining away charges. If cooperation is involved (as in testifying in other cases), the reduced sentence should further reflect this assistance. Sentence bargaining dispenses with the dilemma of a judge having to do the kabuki dance required of them in accepting a plea agreement that bargained away alleged crimes committed that facially appear provable.

This sort of sentence bargaining or should I say truth-in-sentencing bargaining, largely depends on prosecutors. It is well accepted that prosecutors at all the international(ized) tribunals and courts are selective in who to charge and for what. It is unfeasible to prosecute everyone or to charge anyone with everything. Understandably, this is disappointing to victims and civil society who expect everyone to be charged for everything. But even with prosecutors being selective, there is a tendency to charge too many accused on too many charges based on flimsy evidence.

A few years back I heard from a well-placed source that when the ICTY was gearing up for its completion strategy, it was recommended to the then ICTY Prosecutor, Carla Del Ponte, that she only proceed on good cases and discard the others or send them back to the national jurisdictions to be dispensed with as seen fit. An assessment of cases revealed that 1/3 were not provable, while another 1/3 were marginally provable, leaving only 1/3 of the cases being solid. Even among the 1/3 good cases, a significant portion of the charges were also iffy and marginally provable. I would venture a wager that the same can be said of the ICC cases – hence the rather unusual number of acquittals.

In any event, the new Prosecutor who is soon to take the OTP helm should examine every ongoing case and situation and, where appropriate, drop or cut the charges, so anything going forward on his watch meets the high threshold for yielding convictions, which, persuasively, should also make plea offers more alluring. Anything the Prosecutor inherits he will own. Failure to carefully reevaluate the ongoing cases, investigations, and preliminary examinations and take tough decision to cut and drop charges (with transparent explanations, of course) that will yield little or no profit while consuming hard-earned ASP taxpayer funding, risks exacerbating the OTP’s pitiable legacy.

When to negotiate

The Guidelines recommend that any plea agreements be pursued after the charges have been confirmed (para. 20). This may sound reasonable, but I would not make it a hard and fast rule. Once charges are confirmed, as noted earlier, civil law judges will be hard pressed to look the other way in accepting reduced or fewer charges warranted by the factual claims of the case. It is one thing to reduce or dismiss charges for want of evidence and an anticipated inability to meet the burden of proof, which, presumably, unavoidably, or unexpectedly came to light based on newly discovered evidence or upon further reflection. It is another thing to jettison for prosecutorial convenience credible charges borne out by the evidence.

The better practice is to charge judiciously to start with – only submit charges for confirmation that the Prosecutor is virtually certain will yield guilty verdicts. Although no guarantee, judicious charging practices should lead to more focused and less cumbersome pre-trial and trial proceedings. It also means that because of the targeted nature of the charging document, there is no appreciable room to willy-nilly drop charges as part of a plea agreement. The benefit for the accused in receiving a lenient sentence is accrued by accepting responsibility prior to being adjudicated guilty, and prior to putting the ICC through the expense of a trial.

But there is no reason why the negotiations for a plea agreement cannot begin as early as when the OTP targets a suspect to be charged. It will be a rare occasion, but possibilities can be envisaged where prior to seeking the confirmation of charges, a suspect can be approached by the Prosecutor. Since the Prosecutor is the exclusive captain of the prosecutorial vessel, nothing should preclude him from approaching a suspect to see whether there may be an interest in reaching an accommodation. If so, the Prosecutor can limit the charges to be confirmed, and depending on the circumstances (e.g., cooperation and testifying for the prosecution), a sentence can be agreed upon to be recommended to the Chamber for its consideration.

What kind of sentence – fixed-term, maximum-minimum range, or open

In national jurisdictions where plea agreements are common, the judges know the prosecutors and defense lawyers. Also, because of the volume of sentences based on plea agreements, the maximum and minimum sentences imposed provide a basic benchmark that informs what judges will generally find as an appropriate sentence for the charges plead based on the operative facts, with mitigation and aggravation circumstances to be considered. Because of tradition, practice, and familiarity of the parties, judges tend to give wide latitude, and although having the ultimate authority, will invariably give deference to the parties by accepting the recommended sentence – even when the parties have agreed to a non-negotiable fixed-term sentence.

This practice, however, is lacking at the ICC. Moreover, judges from civil law systems and unfamiliar (and uncomfortable) with the practice of plea agreements are less amenable to being delivered a fixed-term take it or leave it sentencing proposition. It also poses a practical problem. What if the agreed sentence is rejected? Once the Chamber hears the offer of proof by the accused where guilt is admitted based on a factual predicate that established the elements of the crimes charged – an essential part of accepting a change-of-plea based on an agreement – appearing before the same Chamber (even if the judges are “professional”) and contesting the very same facts admitted to get a lenient sentence and advocating for a not guilty verdict after acknowledging guilt, becomes a virtual charade. Even under the best circumstances, the optics are wrong – justice will not have been seen (nor perceived by the accused) to have been done. There is a way to get around this by transferring the case to another Chamber, but that too is a mere fig leaf, a pretense. In common law systems it works because even if a judge rejects the plea agreement and the case proceeds to trial, the fact finders are the jurors who are totally immune from knowing what, if anything, was admitted during a collapsed change-of-plea hearing.

A rejected fix-term sentence plea agreement need not necessarily result in a trial. It just means that the accused is subject to open sentencing. Although the sentence can be appealed, the risk of uncertainty in drawing an excessive sentence usually results in the accused risking his or her chances by opting for a trial. The better practice is for the Prosecutor to adopt a policy of offering a sentence range that would allow the Chamber to impose a sentence within the minimum and maximum. Normally, in national jurisdictions, part of the plea agreement is that the accused waives his or her right to an appeal of the sentence where a plea is entered, and sentence imposed is within the range. In other words, by agreeing that the Prosecutor can ask for say a maximum sentence of 20 years, the accused is acknowledging that despite any mitigating factors (or any aggravating ones), his or her conduct, based on the admitted facts in entering a guilty plea, warrant up to 20 years. Thus, a 19.5-year sentence is not only within the agreed range, but also reflects the agreement that the facts warrant such a sentence. Similarly, were the Chamber to impose the minimum agreed as part of the range, the Prosecutor would be precluded from appealing. If the Chamber wished to go outside the range – either below or above – then either party could appeal.

Negotiating the agreement

At the ICTY, it was common for the prosecutors to show up with a list of facts for the accused to accept. For instance, the accused were pressured to accept the existence of a joint criminal enterprise, or that there was genocidal intent, that certain events occurred as described in the indictment – even if the facts were wanting – and/or to testify against other accused in ways that would fill in the factual gaps of the case. Knowing what the prosecutors were after, and having access to the disclosure material, some accused were all too happy to serve up what the prosecutors were seeking from them to get a favorable sentence recommendation. Sometimes the negotiations would take days where an offer of proof and a statement would be crafted based on these discussions and where the accused might have been shown documents previously unknown, or through leading questions, had their memories enhanced and tainted. Ultimately, a narrative constructed by the prosecutors would emerge, with there being no record of the discussions, no notes disclosed (claimed as work-product), and no way of knowing to what extent the source of evidence – the accused’s memory – had been affected, altered, manipulated.

For the most part, the practices at the ICTY were discreditable. The prosecutors, however, were not entirely at fault. Far too may defense counsel who participated in plea bargaining were unfamiliar with the mechanics and pitfalls of plea bargaining. And far too many accused were all too ready to say whatever was asked of them or to point fingers at other accused to secure a get-out-of-prison card. Defense counsel that got it right tended to approach the plea agreement dance methodically and purposefully. Essentially, rather than negotiating on the facts and agreeing to facts based on the prosecutors’ spin, defense counsel would draft an offer of proof – a set of facts that the accused would be admitting, which, for the most part, were supported by documentary evidence. The offer of proof was narrow in scope, covering all essential facts necessary to establish the elements of the crimes and as relevant modes of liability. These defense counsel purposefully stayed away from having the accused broadly accept facts or a narrative or parts of the historical aspects of the indictment that were beyond the ken of the accused or beyond the essence of establishing the elements of the crimes charged. They also avoided having the accused engaged in speculating, drawing inferences from circumstances, or discussing matters not directly related to the charges.

Parting Thoughts – Guidance on the Guidelines

The Guidelines are an improved first step. But unless the Prosecutor takes a more robust posture in pursuing plea agreements, every case with confirmed charges will be headed to trial, draining valuable ICC time and resources. Time, as I’ve previously noted, is running out for the ICC to get its act together. To this end, the Prosecutor has much to offer, and, I dare say, achieving more results as efficiently and cost-effectively as possible through plea agreements, are low hanging fruit ripe for plucking. In parting, I offer some modest guidance on the Guidelines.

  1. The Prosecutor should be judicious in charging. While there may be a pull from civil society and victims’ groups to charge deep and wide, charge only what is virtually provable, and select as few charges as possible that adequately represent the overall conduct of an accused. The objective should be to get convictions that are relatively easily attainable within a reasonable time frame and with the most efficient use of resources.
  1. The Prosecutor should engage in plea negotiations as early as practicable. This could be before the confirmation of charges or immediately thereafter. There may be some logistical obstacles, such as providing access to disclosure material, but there may be instances where even without making a full disclosure, discussions can be held.
  1. The Prosecutor should focus plea agreements mainly on sentencing – assuming the charges are airtight and provable. If, however, as is the norm, the charges are not as provable as they may appear (think of all the acquittals in the short history of the ICC), then as part of the negotiating process, the Prosecutor should, discard all charges that are marginally provable (likely to result in acquittals at trial) with an explanation as to why, originally, it appeared that these charges were provable and why on reflection they should in the interest of justice be dropped (putting someone through the trial meatgrinder in hopes of a conviction is not in the interests of justice).
  1. The Prosecutor should adopt a protocol on how plea negotiations should be conducted so there is uniformity.
  1. The Prosecutor should insist on fair, accurate, and complete offers of proof that accused are prepared to accept and acknowledge in open court under oath when pleading guilty, and were the case to go to trial, would establish guilt beyond a reasonable doubt.
  1. The Prosecutor should insist on sentencing ranges as opposed to a fixed – take it or leave it – sentence to avoid boxing the Chamber into a position where it is more likely to reject the agreement. One sweetener for the Chamber is to include a waiver of appeal by both parties if the Chamber imposes a sentence within the range.
  1. The Prosecutor should consult with the victims for any input but should guard against the siren call of civil society by pursing plea agreements based on his independent authority and judgment.
  1. The Prosecutor should consider joint training with List Counsel on plea agreements. The Guidelines could serve as the point of departure from which to draft training material and arrange presentations. And it would not be a bad idea to invite judges and members of civil society to attend.

Footnotes[+]

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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