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. Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal “