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2 J. Int'l Crim. Just. 1070 (2004)
Trading Justice for Efficiency - Plea-Bargaining and International Tribunals

handle is hein.journals/jicj2 and id is 1084 raw text is: Trading Justice for Efficiency Plea-Bargaining and International Tribunals Michael P. Scharf* Abstract After initially rejecting plea bargaining as incompatible with their unique mandate, the ad hoc International Criminal Tribunals are increasingly using plea bargaining as a means to manage their expanding caseloads. At first they employed only 'sentence bargaining,' but recently, in PlavWi , the International Criminal Tribunal for the Former Yugoslavia permitted 'charge bargaining'- agreeing to drop the charge of genocide and to issue a relatively lenient sentence in return for the defendant's guilty plea on one count of persecution, a crime against humanity. This article examines the costs and benefits of the use of charge bargaining by international tribunals. First, it shows that charge bargaining may violate the spirit, though not the letter, of the international duty to prosecute and issue proportionate sentences for certain international crimes. Next, it reveals that charge bargaining is not a functional necessity for the international tribunals. Finally, it demonstrates that charge bargaining distorts the historic record generated by the Tribunal. Nonetheless it concludes that charge bargaining is likely here to stay and offers recommendations for making charge bargaining more compatible with the unique functions of international justice. 1. Introduction 'Plea-bargaining' - while no single definition of the term is universally accepted, the practice may encompass negotiation over reduction of sentence, dropping some or all of the charges or reducing the charges in return for admitting guilt, conceding certain facts, foregoing an appeal or providing cooperation in another criminal case It is widely used in common-law countries that employ the adversarial system; though far less common, there is a trend toward its increasing use (for less serious crimes) in a * Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law. During the first Bush and Clinton Administrations, Professor Scharf served as Attorney Adviser for Law Enforcement and Intelligence, and Attorney Adviser for United Nations Affairs. 1 M.M. Feeley, 'Perspectives on Plea Bargaining', 13 Law and Society Review, 199 at 199-200 (1979). ........................................................................................................ Journal of International Criminal Justice 2 (2004), 1070-1081 Journal of International criminal Justice 2, 4 C Oxford University Press, 2004. All rights reserved

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