Trading on Guilt: The Judicial Logic of Plea Bargains at the ICTY and Its Transplant to Serbia and Bosnia

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Abstract

Plea bargaining is the practice of encouraging defendants to plead guilty to a crime, thus invalidating the need to prove the defendant’s guilt through a criminal trial. The practice is a prominent element of criminal law practice in the United States, and has been applied, in recent years, by international criminal tribunals. At international criminal law, the most developed plea bargaining practice is that of the International Criminal Tribunal for the former Yugoslavia (ICTY); of the 161 indictments before the ICTY, 20 have resulted in pleas of guilt through a type of ‘plea bargaining’ procedure developed by the Tribunal. While in the US prosecutors hedge elevated charges and sentences against the uncertainties of trial to bargain with the defendant for a charge and/or sentence he will accept, the ICTY’s plea bargaining practice modifies elements of US practice. Centrally, while prosecutors at the ICTY can elect which charges to bring (and can drop charges as well), the sentence length awarded the defendant remains entirely the purview of the judges. Thus the straight ‘trade’ element central to US practice – where both parties are imagined to have the benefit of a deal constructed beforehand – is modified at international criminal law, where the uncertainty is borne entirely by the defendant.
Original languageEnglish
Title of host publicationInternational Practices of Criminal Justice : Social and Legal Perspectives
EditorsMikkel Jarle Christensen, Ron Levi
PublisherRoutledge
Publication date2018
Pages131-148
Chapter7
ISBN (Print)9781138688377
ISBN (Electronic)9781315144788
Publication statusPublished - 2018
Externally publishedYes
SeriesGlassHouse Book

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