Can Plea Bargains Save the ICC?

Amid calls to hold Russia accountable for alleged war crimes perpetrated in Ukraine, the chief prosecutor of the International Criminal Court (ICC) announced in May that he had sent a large team of investigators to the country to gather testimony and evidence. Given the court’s track record, however, it’s unclear whether it will be able to hold any high-ranking war criminals to account.

In the 20 years since its founding, the ICC has fallen short of its mission to help prevent crimes against humanity and end impunity for perpetrators around the world. Since 2002, the ICC has prosecuted only a small fraction of the crimes under its jurisdiction and, perhaps most startlingly, convicted just 10 individuals. The low number of prosecutions and convictions is despite the fact that 123 countries are parties to the court—and that non-member states at times invite the court to investigate potential crimes perpetrated on their territory, as Ukraine did in the wake of Russia’s Feb. 24 invasion.

For the ICC to revitalize itself—and make its mission in Ukraine more effective—it should consider leveraging its most underutilized legal tool: plea bargains. To date, the court has accepted just one plea in its 20-year history, despite the court’s founding charter, the Rome Statute, explicitly authorizing them.

Plea bargains, which facilitate settlements in which perpetrators receive a lesser punishment for admitting guilt, would help the ICC two ways: They would allow the court to hold more perpetrators of atrocities accountable and potentially incentivize those indicted to refrain from committing further crimes.

Trials are expensive, especially in international courts, and the ICC’s $170 million annual budget remains small relative to the enormity of its mandate. Plea bargains would enable the court to free up resources to go after more bad actors. Pleas are so common in U.S. courts—some 97 percent of cases in federal courts are resolved this way—partly because cash-strapped prosecutors often do not have the resources to try cases. Trial waivers, or systems that facilitate plea bargaining, have become popular abroad for this reason. They allow a defendant to forgo their right to a trial in exchange for a concession from prosecutors. One study examining 90 countries found that whereas in 1990 only 19 of the countries allowed trial waivers, by 2015 the number had jumped to 66. In the country of Georgia, for instance, approximately 13 percent of cases were resolved through pleas in 2005. By 2012, that figure rose to 88 percent.

Civil liberties groups in the United States have reasonable concerns about plea bargaining. They argue that plea bargaining is often coercive, with prosecutors threatening a “trial penalty”—that is, more severe charges that carry lengthier sentences—if the accused don’t plead guilty. In this way, plea bargaining has been distorted by some overworked and, at times, overzealous prosecutors to coerce low-level offenders or even people innocent of the crimes they’re accused of into accepting unduly heavy punishments rather than having their day in court. This pitfall is less relevant to the ICC, however, because the court targets high-level offenders who order and coordinate atrocities rather than rank-and-file soldiers.

In addition to freeing up resources to prosecute more offenders, plea bargaining might also push those indicted by the ICC to improve their behavior. Even though ICC indictees often escape apprehension and remain in their leadership roles after the court issues arrest warrants, they want out of the hefty international economic and travel sanctions that accompany indictments. The potential for a negotiated settlement incentivizes indictees to reduce atrocities because they know more brutality will make prosecutors less inclined to negotiate a deal.

We can’t say with certainty how plea bargains would affect levels of violence committed by indictees because the ICC has never implemented them. That said, a careful look at the ICC’s first two decades suggests that plea bargains might very well push perpetrators that the court indicts away from violence. In the court’s early years, some indictees perceived—wrongly, it turned out—that they could negotiate settlements with the court to get relief from the burdens of their indictments. Because the indictees thought a deal was possible, they often reduced attacks against civilians to increase their chances of reaching such an agreement.

This dynamic was evident between the ICC and Ugandan militant Joseph Kony and his Lord’s Resistance Army lieutenants, who were the court’s first indictees in 2005. Kony made it clear that he wanted a settlement with the ICC and Kampala. He declared a unilateral cease-fire in his war against the Ugandan government in part to secure such a deal. If the ICC “want[s] peace, they will take that case from us,” Kony said in a 2006 interview. “But if they do not want peace, then they will continue.” In other words, it looked as if Kony was amenable to some sort of agreement, perhaps even an admission of guilt.

But the ICC would not budge. When it became clear that the ICC rejected negotiations, Kony returned to his brutal tactics. This pattern played out in numerous other conflicts during the court’s early years: Indictees might initially pare back their violence as they tried to negotiate a bargain, the ICC would refuse, and then the indictees would return to their violent tactics. According to Luis Moreno Ocampo, the ICC’s first chief prosecutor, Bosco Ntaganda, a former rebel commander operating in eastern Democratic Republic of the Congo, “knew about the ICC” and was “trying to get support to escape” his indictment.

For Moreno Ocampo, however, negotiations were not an option. “I’m like a train moving down the track, and I just follow the evidence,” he explained. As Moreno Ocampo saw it, political settlements were not his job. He once emphasized to me, “We do justice, and let the [United Nations] Security Council do political agreements.” This shunning of settlements outlasted Moreno Ocampo, whose term ended in 2012 and set the tone for the court’s future proceedings.

Only in the past few years does it appear that the ICC has warmed to the notion of plea bargains. In 2020, a review by independent experts called for ICC prosecutors to release guidelines on when plea bargaining might be acceptable. To the court’s credit, shortly after the review, the ICC prosecutorial office established a set of guidelines on when and how it would pursue plea agreements. The guidelines are not groundbreaking in what they say. They discuss broad “factors for consideration” that the prosecutor will consider in negotiations with alleged perpetrators. But the fact that the ICC created and publicly released guidelines in the first place marks a significant shift, signaling that it might be coming around to considering pleas more than it has in the past.

Despite the softening of the court’s position, plea bargains remain controversial.

Some opponents argue that plea bargains would erode the court’s deterrent effect because perpetrators will believe they can simply negotiate away any charges against them. This is not necessarily true. Criminal deterrence is made up of two components: the probability of punishment and the severity of that punishment. The more probable and severe a punishment is, the more it deters crime. But there is an important nuance to this theory: Increasing the probability of punishment is generally seen by criminologists as a more effective deterrent than ratcheting up the severity of a punishment. Adopting plea bargaining would reduce the severity but increase the probability of punishment at the ICC by freeing up resources to go after more perpetrators. And, as Alex Whiting—a onetime prosecutor for the International Criminal Tribunal for the Former Yugoslavia—notes, plea bargains also involve indictees providing a detailed acknowledgement of guilt. Such accounts could implicate other perpetrators, further increasing punishment probability.

Others say plea bargaining robs victims of justice. This is a real concern that cannot be dismissed or easily resolved. The ICC plea bargaining guidelines are right to emphasize that “the Prosecutor shall take into account the interests of the victims, as well as their expressed views and concerns.” Prioritizing victims might mean that prosecutors side with victims if those victims reject a proposed deal.

Finally, some opponents question whether plea bargaining is appropriate for alleged perpetrators of atrocities that the ICC targets for prosecution. But the ICC’s poor conviction record shows that the choice for the court in many cases is often either no justice—due to an inability to prosecute effectively—or settling for some degree of justice through a plea bargain. Maybe someday the ICC will be able to arrest, prosecute, and convict many of the perpetrators under its jurisdiction, but for now that remains out of reach.

The ICC is under pressure to demonstrate results, especially in Ukraine. The court’s prosecutors can potentially do so with plea agreements. There is no foreseeable scenario in which Russian President Vladimir Putin faces accountability from the court and admits guilt for crimes committed by his forces. But the prospect of a plea agreement might push indicted commanders of military and militia units away from perpetrating further abuses, potentially lessening the brutality of Russia’s war in Ukraine.