Issues and Controversies Surrounding the Use of Plea Bargaining in International Criminal Tribunals

Doctoral thesis English OPEN
Pal, Shivani

This thesis investigates the ethical issues and controversies that surround the use of plea bargaining in international criminal tribunals. Existing approaches to this subject have a tendency to be overly abstract, resulting in often ideologically deterministic justifications or critiques of plea bargaining in an international context. These approaches also fail to take into account any human dimension that may be involved in these negotiations. This thesis goes some way towards remedying this by making use of extensive in-depth interviews with international trial professionals. The thesis incorporates these interviews into an analysis of plea bargaining through three theoretical models: classic utilitarianism, classical liberal rule of law and legal imperialism. \ud \ud Each of these three models highlights significant issues in relation to the use of plea bargaining in an international context. Whilst they offer both justifications and critiques, revealing a number of gaps and blind spots, elements of each offers something that can assist an understanding of the use of plea bargaining in such a controversial arena as international war crime tribunals. The thesis argues that, when considered together, a holistic approach begins to develop which offers a more nuanced approach to plea bargaining than is currently available. This analysis is assisted and illustrated by interviews with named participants in war crime tribunals. These assist in developing a more unique perspective on plea bargaining by contextualising its theoretical findings by placing them into the tangible and realistic contexts of legal practitioners. \ud \ud The thesis opens with an introduction which sets out its aims and objectives. After which there is a separate chapter that discusses the methodologies used in this thesis. This is then followed by two chapters that outline the role of the international tribunals and introduce the concept and to explain the trajectory of plea bargaining and its use in the global arena. The thesis then moves on to its more substantial chapters which evaluate the this particular legal phenomenon; the third explores the justifications for plea bargaining through the theory of utilitarianism, examining its relevance in light of the interview responses, whilst the fourth is concerned with the objections to plea bargaining that are contained within the concept of the classical rule of law. Here, once more, the interviews undertaken with legal practitioners are used to challenge the theoretical assumptions put forward by such liberal thinking. Building even further on these responses, the fifth chapter argues for a consideration of plea bargaining as a form of legal imperialism. The thesis concludes with a critical reflection that draws on its analysis of the three models to offer some recommendations concerning the future use of plea bargaining within the context of international war crime tribunals.
  • References (11)
    11 references, page 1 of 2

    3.2.1 Efficiency 86 3.2.2 Other Utilitarian Justifications for Plea Bargaining 91 3.2.3 Showing Remorse as a Utilitarian Factor in Plea Bargaining 92 3.2.4 Potential Dangers in Evaluating Remorse 98 3.2.5 Truth Telling and Historical Record 100 3.2.6 Plea Bargaining and 'Agreed' Versions of the 'Truth' 105 3.2.7 Plea Bargaining, Truth, and Reconciliation, within

    Post Conflict Societies 111 3.2.8 Plea Bargaining and Truth and Reconciliation:

    Utilitarianism in action 115 3.2.9 According the Interests of the Victims and Witnesses 118 3.2.10 Integrating Victims into the Plea Bargaining Process 121 3.3 Case Study: Prosecutor v Biljana Plavsic

    (Case No. IT-00-39&40-PT) 125 3.3.1 Utilitarian Justification for the Plea Bargain in Plavsic 127 3.3.2 The 'What If…' Scenarios 131 3.3.3 The Plavsic Case 9 Years On 133 3.4 Conclusion 135 4. Reading Plea Bargaining through the Classical Liberal Concept of the Rule of Law 140 4.1 Defining the Rule of Law 142 4.1.1 Formal Equality

    4.1.2 Presumption of Innocence

    4.1.3 Due Process

    4.1.4 Discretion 4.2 Classical Liberal Rule of Law Objections to Plea Bargaining 4.2.1 Equal Treatment and Plea Bargaining

    4.2.2 Plea Bargaining and Sentencing Equality 4.2.3 Plea Bargaining and Equality before the Law 4.2.4 Plea Bargaining and the Equality of Arms 4.2.5 Plea Bargaining and the Presumption of Innocence 4.2.6 Plea Bargaining and 'Due Process'

    4.2.7 Plea Bargaining and Coercion

    4.2.8 Plea Bargaining and 'Wrongful Convictions' 4.2.9 Plea Bargaining and the Lack of Transparency 4.2.10 Discretion, Uncertainty and Plea Bargaining 4.2.11 Prosecutorial Discretion and Plea Bargaining 4.2.12 Plea Bargaining and Legal Certainty

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