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

Abstract

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.

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.

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.