Nancy Amoury Combs. - Guilty Pleas in International Criminal Law Constructing A Restorative Justice Approach (2006) PDF

Guilty Pleas in
International Criminal
Law
Nancy Amoury Combs
Stanford University Press

GUILT Y PLEA S IN
INTERNATIONAL CRIMINAL L AW
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nancy amoury combs
Guilty Pleas in
International Criminal Law
Constructing a Restorative Justice Approach
S TA NF O RD UNI V E R SI T Y PRE S S
Stanford, California 2007
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Stanford University Press
Stanford, California
©2007 by the Board of Trustees of the
Leland Stanford Junior University.
No part of this book may be reproduced or transmitted in any form

or by any means, electronic or mechanical, including photocopying
and recording, or in any information storage or retrieval system
without the prior written permission of Stanford University Press.
Library of Congress Cataloging-in-Publication Data
Combs, Nancy Amoury.

Guilty pleas in international criminal law : constructing a
restorative justice approach / Nancy Amoury Combs.
p. cm.
Includes bibliographical references and index.
isbn-13: 978-0-8047-5351-7 (cloth : alk. paper)
isbn-13: 978-0-8047-5352-4 (pbk : alk. paper)
1. Plea bargaining. 2. International offenses. 3. International
criminal courts—Rules and practice. I. Title.
kz6316.c66 2007
345′.072—dc22
2006007572
Printed in the United States of America on acid-free, archival-quality

paper
Typeset by G&S Book Services in 10/14.5 Minion
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In memory of my father
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Acknowledgments
I am grateful to the many individuals who read and commented on previous

drafts, who assisted me in acquiring court documents and other difficult-to-
obtain materials, and who were willing to discuss their experiences with guilty-
plea processes at the international tribunals. I thank in particular George Aldrich,
Stuart Alford, Laurel Baig, François Boudreault, John Braithwaite, Marcel Brus,
Douglass Cassel, Bruce Combs, Sylvia de Bertodano, John Dugard, Essa Faal,
Alan Gutman, Mark Harmon, Jessica Holmes, Refi k Hodzić, Michael Johnson,
Nicholas Koumjian, Máximo Langer, Anne Marie van Luijt, Howard Morrison,
Daryl Mundis, John Murphy, Gabrielle Kirk McDonald, Andre Nollkaemper,
Mohamed Othman, Kimberly Pronk, Flavio Rose, William Schabas, Nico Schrij-
ver, Emir Suljagić, Brenda Sue Thornton, Igor Timofeyev, David Tolbert, Gregory
Townsend, Lars Waldorf, Slobodan Zecević, and a host of prosecutors and de-
fense counsel who prefer to remain anonymous. I am likewise grateful for the
research assistance of Leah Crosby, Kristina Hofmann, Joseph MacAvoy, Jamie
Mickelson, John Newton, Tanner Nielson, Brad Russell, and Michael Sweikar.
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Contents
Introduction 1
1. International Criminal Justice Then and Now: The Long Road from
Impunity to (Some) Accountability 11
2. Financial Realities: Targeting Only the Leaders 27
3. Do the Numbers Count? The Ends Served by International
Criminal Prosecutions in Societies Emerging from Mass Atrocities 45
4. Plea Bargaining at the ICTY 57
5. Plea Bargaining at the ICTR 91
6. Plea Bargaining at the Special Panels in East Timor 114
7. Using Conventional Plea Bargaining to Increase the Number of
Criminal Prosecutions for International Crimes 127
8. Plea Bargaining as Restorative Justice: Using Guilty Pleas to Advance
Both Criminal Accountability and Reconciliation 136
9. Applying Restorative Principles in the Aftermath of Different
Atrocities: A Contextual Approach 155
10. The Minimal Role of Restorative Justice in Current International
Criminal Prosecutions 188
Conclusion 223
Notes 229
Bibliography 317
Index 357
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Mrs. Plavšić’s plea of guilty and acceptance of responsibility represent an
unprecedented contribution to the establishment of truth and a significant
effort toward the establishment of reconciliation.
—Prosecutor, International Criminal Tribunal for the former Yugoslavia
I am speechless. I cannot talk at all, I am shivering. I am completely

shaken.
—Bosnian Muslim woman whose husband and children were killed in a
Bosnian Serb ethnic-cleansing campaign, upon learning that Plavšić had
received a mere eleven-year prison sentence after pleading guilty, for her
implementation of the ethnic cleansing
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Introduction
Fift y years after the victorious allies brought Axis war criminals to justice at
the Nuremberg and Tokyo tribunals, the United Nations (U.N.) Security Coun-
cil established an ad hoc tribunal to prosecute those accused of international
crimes in the former Yugoslavia. The years that had elapsed between the cre-
ation of the World War II tribunals and the International Criminal Tribunal for
the former Yugoslavia (ICTY) saw thousands of atrocities that resulted in mil-
lions of deaths but that were followed by virtually no prosecutions. Thus, the
establishment of the ICTY, and then a year later, an international tribunal to
prosecute those responsible for the slaughter of approximately eight hundred
thousand Tutsi in Rwanda (ICTR), was met with great fanfare. The first trial at
the ICTY—the prosecution of a low-level sadist named Duško Tadić—similarly
garnered enormous scholarly and popular interest  and was considered a turning
point in the quest to end the impunity that has so often followed mass atrocities.
The early years of the tribunals were fraught with obstacles, many of them ex-
acerbated by the international community’s failure to provide adequate financial
support to the tribunals. Over the years, the international community came to
better fund the tribunals and better assist their enforcement efforts; conse-
quently, a decade after they were established, the ad hoc tribunals have developed
into functioning criminal justice institutions. The ICTY and ICTR have also
spawned a number of progeny, including the Special Court for Sierra Leone, the
Special Panels in the Dili District Court in Timor-Leste (formerly East Timor),
the Extraordinary Chambers in the courts of Cambodia, and, most importantly, a
permanent International Criminal Court (ICC). Domestic prosecutions of inter-
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2 introduction
national crimes are also on the rise. Both Chile and Argentina have begun to
bring their own offenders to justice after nearly thirty years of impunity, and the
courts of Rwanda, Ethiopia, and the states of the former Yugoslavia are trying
valiantly to prosecute the perpetrators of their more recent conflicts. In many
respects, then, the prospects for bringing international criminals to justice have
never appeared better. Although global politics still act as an impediment to
many prosecutions, the success of the ICTY in particular has created an aware-
ness of the value and feasibility of criminal accountability.
But at what cost comes this accountability? Although the international commu-
nity has of late manifested a firm rhetorical commitment to the cause of criminal
accountability, its financial commitment to that end has been less than steadfast.
Indeed, not long after the international community began providing the ICTY
and ICTR with the financial and enforcement support necessary to fulfi ll their
mandates, the U.N. Security Council, led by the United States, began looking for
ways to curtail the costs of these institutions. Genocide trials are not cheap: the
ICTY and ICTR together employ more than two thousand people and spend more
than $200 million per year to prosecute perhaps a dozen people. Not wishing to
foot this bill indefinitely, the international community began in 2002 to pressure
the tribunals to formulate a completion strategy and to finish their work sooner
rather than later. Succumbing to this pressure, the tribunals have drastically re-
duced the number of investigations they are undertaking; they have made plans to
transfer cases to domestic courts, and they have announced optimistic end-dates.
Learning from its experience with the budgets of the ICTY and ICTR, the inter-
national community, for its part, has imposed tight financial constraints on the
tribunals’ progeny. The U.N. provided the Special Court for Sierra Leone and the
Extraordinary Chambers in the courts of Cambodia, for instance, with only mea-
ger budgets and extremely limited mandates that will allow them to prosecute, at
most, a dozen defendants. The Special Panels in East Timor were able to prosecute
larger numbers of defendants but on a slim $6 million annual budget, which led
to due-process problems. Further, the U.N. stopped funding the Special Panels in
May 2005 before many of the intended prosecutions could be carried out. Simi-
larly, although the Rome Statute, establishing the ICC, imposes no express quan-
titative limitations on ICC prosecutions, even before the court formally began its
work, insiders had acknowledged that financial constraints would restrict it to
prosecuting, at most, six cases per mass atrocity, an estimate that remains accu-
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introduction 3
rate some years later. It is not just international tribunals that must contend with
severely limited budgets. South Africa’s attempt to prosecute apartheid-era crimi-
nals who failed to apply for amnesty foundered for lack of resources, while Chile’s
desire to speed along human-rights cases resulted in a plan to grant immunity
to offenders who divulged information about offenses. And Rwanda’s ambitious
efforts to prosecute every last genocide suspect have been plagued by due-process
violations, most of which result from insufficient resources.
It is perhaps too pessimistic to predict that financial constraints will soon ren-
der trials for international crimes a thing of the past, but unless drastic changes
are made, one can expect international criminal tribunals and their domestic
counterparts to limit their prosecutorial efforts to only a small number of offend-
ers, most likely high-level military and political leaders. Mass atrocities do not
occur spontaneously but typically are the product of widespread planning and a
carefully designed propaganda campaign. The political and military leaders who
orchestrate and foment the violence are generally considered the most culpable
of offenders; thus, a prosecutorial focus on these individuals is appropriate. Trials
of high-level offenders also serve pedagogical and dramaturgical purposes. Mark
Osiel, for instance, contends that such “big trials” have the potential to transform
societies emerging from large-scale violence by engaging fundamental questions
of national identity and collective memory.
Prosecutions of international crimes are also credited with serving a variety
of other significant ends. Some—namely, retribution, deterrence, incapacitation,
and rehabilitation—are penological goals also understood to be served by the
prosecution of domestic crimes. Others satisfy needs specific to societies emerg-
ing from the horror of large-scale atrocities. An analysis of these ends and the
ways in which they are served by the prosecution of international crimes will be
presented in Chapter 3. The analysis reveals that, to the extent these goals are ad-
vanced by prosecutions, they are significantly better advanced when a substantial
number of prosecutions are undertaken. Indeed, many of the ends that prosecu-
tions are expected to serve are apt to be undermined when criminal justice sys-
tems single out only a token few defendants to prosecute.
This book comprehensively examines the ways in which a widespread and sys-
tematic effort to obtain guilty pleas can enhance international criminal account-
ability by increasing the number of prosecutions that feasibly can be undertaken.
Prosecutors in common-law states, such as the United States and the United
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4 introduction
Kingdom, have for decades engaged in aggressive plea bargaining to obtain guilty
pleas as a means of speeding cases through the dockets. Such plea bargaining can
take many forms, but the term most typically refers to the prosecutor’s offer of
some form of sentencing concessions in exchange for the defendant’s guilty plea.
Approximately 90 percent of American cases are now disposed of by means of
guilty pleas. Civil-law states, such as those of Western Europe, have traditionally
been more reluctant to resort to non-trial dispositions, but increasingly burden-
some caseloads have recently motivated some of these states, such as France and
Germany, to make greater use of abbreviated procedures, some of which include
bargaining. The need to dispose of cases expeditiously has also lately led in-
ternational prosecutors to seek guilty pleas from those accused of humankind’s
most heinous offenses. The ICTY and ICTR, for instance, initially shunned plea
bargaining, dismissing it as an unseemly device inconsistent with the tribunals’
mandate to impose appropriately severe punishment for the grave crimes within
its jurisdiction. But the tribunals have recently been forced to embrace the practice
in order to adhere to their completion-date schedules and to gain much-needed
evidence about the crimes of high-level offenders. Indeed, the ICTY convicted
fifteen defendants in 2003—a record number—but eight of those defendants con-
victed themselves by means of a guilty plea. Thus, instead of conducting grand,
widely publicized human-rights trials—moral dramas pitting defendants with
their tales of tragedy against prosecutors seeking to vindicate the dictates of hu-
manity—the ICTY in 2003 disposed of the majority of its cases via an abbreviated
proceeding that followed a series of backroom negotiations centering on which
charges would be withdrawn, what sentences would be recommended, and how
much information defendants would provide.
The tribunals’ embrace of plea bargaining has met with nearly unanimous criti-
cism. Victims have condemned the seemingly lenient sentences that have resulted
from these plea bargains, and even Serbian liberals, who have supported the
ICTY in the past, have denounced the plea bargaining as undermining efforts to
encourage Serbs to take responsibility for the atrocities. These international crit-
ics have plenty of company in the domestic sphere. American scholarly literature
is fi lled with trenchant and persuasive attacks on plea bargaining, and some com-
mentators on the Continent have begun issuing their own vitriol. Most American
critics target the particular problems that result from the way plea bargaining
is practiced in the United States, but at least some of the criticism focuses more
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introduction 5
fundamentally on the undesirability of trading leniency for financial savings; a

trade is at the heart of plea bargaining no matter where or how it is practiced.
Indeed, returning to the international context, if it is inappropriate for the state
of New York to offer a burglar a sentencing discount in exchange for the financial
savings of a guilty plea, how much more inappropriate is it for the international
community to trade leniency for money with a génocidaire?
Analogizing the plea bargaining of international crimes to the plea bargaining
of domestic crimes is problematic, however, because the analogy fails to take ac-
count of the unique difficulties that plague efforts to bring international criminals
to justice. Whereas the prosecution of violent domestic crimes is the norm, the
prosecution of international crimes has been the exception. Uganda’s Idi Amin,
for instance, murdered and expelled many hundreds of thousands of Ugandans
and then spent twenty-five years in luxurious exile in Saudi Arabia. Pol Pot led the
Khmer Rouge in its killing of up to two million Cambodians in the mid-1970s,
yet he died a free man twenty years later. And thus far very few of the Latin Ameri-
can dictators and military commanders at fault in tens of thousands of forced
disappearances and tortures during the 1970s and 1980s have suffered criminal
sanctions. As David Wippman observed, for most international offenders, the
risk of prosecution is “almost the equivalent of losing the war crimes prosecution
lottery.” 
Thus, although plea bargaining is used in relation to both domestic and
international crimes to enable the relevant criminal justice system to process its
cases more efficiently, domestic criminal justice systems are at least founded on
the presumption that violent crime will be investigated and, if appropriate, pros-
ecuted. Indeed, it is this unstated presumption that gives force to the arguments
of plea bargaining’s opponents. Plea bargaining, domestic critics point out, is a
dilution of the full justice that a criminal justice system ought to provide. Insti-
tutions prosecuting international crimes must attend as well to these concerns,
but they take on entirely different contours because the presumption of prose-
cution that is so central to domestic criminal justice systems does not exist for
international crimes. And it is precisely because most international offenders are
not prosecuted that guilty pleas have the potential to play such a valuable role in
efforts to end impunity. Indeed, in a realm in which truth-commission reports
that merely identify perpetrators are lauded as enhancing accountability, plea
bargaining cannot be considered a dilution of full justice, as it is in the domes-
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6 introduction
tic sphere, but rather must be understood as presenting a potent opportunity to

impose justice on those who otherwise would evade it. Guilty pleas, then, have
the potential to broaden substantially the reach of criminal sanctions for interna-
tional crimes, and, for that reason alone, they should be considered a key feature
of any effort to end the impunity that has heretofore been the traditional response
to international crimes.
In addition, and although it may seem counterintuitive, guilty pleas also have
the potential to advance goals served by a variety of nonprosecutorial mechanisms
that have emerged in recent decades to repair the harms wrought by international
crimes. Government-funded reparations schemes seek to provide a minimal level
of financial assistance to victims of large-scale violence. Symbolic reparations,
such as monuments, days of remembrance, and public apologies, serve as offi-
cial recognition of victim injuries and offender culpability. Truth commissions
provide victims with an opportunity to relate their stories to a sympathetic audi-
ence and, in the process, create a historical narrative of the suffering. In general,
these truth-telling and reparatory mechanisms advance goals that criminal trials
either ignore or underemphasize. In this book, I argue that guilty pleas have
the potential not only to enhance criminal accountability but also to advance the
goals traditionally associated with truth-telling and reparatory processes. The
key to this effort lies in incorporating principles drawn from restorative justice
into an international guilty-plea system. “Restorative justice” has emerged in do-
mestic criminal justice systems during the past two decades as an alternative to
the predominantly retributive focus that pervades those systems. Restorative jus-
tice deemphasizes retributive sanctions and places greater weight on “correcting
imbalances, restoring broken relationships—with healing, harmony and recon-
ciliation.”  Restorative-justice programs promote face-to-face contact between
victim, offender, and members of the community, during which “offenders are
urged to account for their behaviour; victims are encouraged to describe the im-
pact which the crime has had upon them materially and psychologically; and all
parties are encouraged to decide upon a mutually agreeable form and amount of
reparation—usually including an apology.” 
Restorative-justice principles have occasionally been invoked in the context
of international crimes, but only in relation to nonprosecutorial mechanisms,
such as truth commissions and reparations schemes. Restorative-justice princi-
ples need not be confined to these spheres, however, and indeed they have a valu-
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introduction 7
able role to play in the prosecution of international crimes. This book constructs
an innovative guilty-plea system, through the incorporation of restorative-justice
principles, that seeks not only to enable the prosecution of a greater proportion
of international offenders but also to advance truth-telling, victim empowerment
and healing, and offender reintegration. This guilty-plea system advances peno-
logical ends while at the same time promoting the individual and societal recon-
ciliation so desperately needed in regions recently riven by violent conflict.
Chapter 1 traces the development of international criminal law and the cre-
ation of international bodies to prosecute violations of that law. Only in the last
century have norms prohibiting widespread violence been codified, and even af-
ter codification, these laws have been more often ignored than enforced. The es-
tablishment of the ICTY in 1993 spawned the creation of a number of other bodies
to prosecute international crimes, however, and effected a sea change in prevail-
ing views about the need for and desirability of criminal accountability. Chapter 1
also traces the emergence of various nonprosecutorial mechanisms, such as truth
commissions and reparations schemes, and details the goals that they are created
to effectuate.
Although theoretically desirable, the prosecution of international crimes gives
rise to substantial practical difficulties, not least of which are financial. Chapter 2
examines the financial constraints impeding the prosecution of international
crimes. It shows in particular that, given the way in which international tribunals
currently operate, they can hope to bring to trial only a miniscule proportion of
international offenders. Domestic prosecutions of international crimes cost less,
but not substantially less, if they adhere to prevailing due-process standards; thus,
they are similarly hampered. Given these financial obstacles, bodies prosecuting
international crimes will focus their prosecutorial efforts on senior political and
military figures who are considered the most responsible for the atrocities. In
many cases, the practical ability to bring these architects of collective violence to
justice does not exist, but even when it does, the question remains whether such
a limited number of prosecutions is sufficient to satisfy even the most minimal
goals that prosecutions of international crimes are designed to serve.
Chapter 3 takes up this theme by exploring the benefits of undertaking a
substantial number of prosecutions. International crimes envisage large-scale
violence that is at times perpetrated by thousands, even tens of thousands, of
offenders. Given the scale of these crimes, resource constraints will prevent the
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8 introduction
prosecution of many offenders no matter what criminal procedures are utilized.

Acknowledging these constraints, Chapter 3 details the purported goals of crimi-
nal prosecutions and examines how these goals are in fact served by prosecutions
and whether they are better served by prosecuting deeper into the offender class—
that is, by prosecuting at least some mid-level and low-level offenders rather than
targeting only the leaders. Chapter 3 concludes that these goals not only are better
advanced by the prosecution of a substantial number of defendants but that they
may be undercut by the selective, token prosecutions that characterize the cur-
rent approach to international criminal justice.
Chapters 4, 5, and 6 examine one method for increasing the numbers of pros-
ecutions that can be undertaken: the use of plea bargaining to obtain guilty pleas.
In particular, these chapters explore in detail the plea bargaining that has taken
place at the ICTY, the ICTR, and the Special Panels, and they examine, among
other things, the nature of the bargaining that has occurred, the rationales used
to justify that bargaining, the effect of bargaining on sentences, the influence
of prosecutorial sentencing recommendations after bargaining, and appeals of
guilty pleas. This discussion reveals that an evolution has occurred in the prac-
tice of plea bargaining: whereas prosecutors made little or no attempt to secure
guilty pleas in the early days of the international tribunals, in more recent times,
prosecutors have actively sought to induce defendants to plead guilty through the
bestowal of more and different kinds of concessions.
Chapter 7 tackles the normative question of whether plea bargaining should be
practiced when prosecuting international crimes. Domestic plea bargaining gives
rise to various distortions and abuses, and the practice is roundly condemned by
victims, civil liberties groups, and scholars. Given the problems associated with
plea bargaining, one might wonder why anyone would advocate exporting the
practice to international tribunals and already troubled domestic criminal justice
systems seeking to prosecute the gravest crimes known to humankind. I provide
a twofold reason in Chapter 7: namely, that the different contexts in which do-
mestic and international crimes are prosecuted, and the different needs those
prosecutions satisfy, render the widely criticized domestic practice of plea bar-
gaining a justifiable—even desirable—choice when the crimes to be prosecuted
are international. Turning first to context, I identify the dramatically different
political environments in which domestic and international crimes are prose-
cuted, and I explore the implications of those differences on the feasibility and
efficacy of prosecutions. Turning next to the needs of societies emerging from
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introduction 9
mass violence, I assert that guilty pleas have the potential to benefit such societies
by conveying a limited form of truth and acknowledgment; although these values
have only minimal import in the context of domestic crimes, they can have pro-
found significance to societies recently torn by large-scale violent conflict.
Chapter 8, then, constructs an innovative guilty-plea system that is designed
not only to make feasible more criminal convictions but also to advance the rec-
onciliatory goals more often associated with truth commissions and reparations
schemes. I begin the chapter by outlining the theoretical components of the guilty-
plea system I envisage. After describing domestic restorative-justice programs
and the empirical research that supports the use of restorative processes, I exam-
ine at the conceptual level the role that restorative-justice principles might play in
the context of international crimes. Next, I flesh out the contours of the proposed
guilty-plea system, describing, in particular, its three key features: truth-telling,
victim participation, and reparatory obligations.
I conclude Chapter 8 by addressing two of the gravest potential impediments
to the success of the guilty-plea system I envisage. First, defendants accused of
international crimes may find the mere act of pleading guilty difficult enough
without being forced to reveal significant additional information; that is, the dis-
closure requirements embodied in a restorative-justice approach may be so oner-
ous that they deter defendants from pleading guilty. I propose a sentencing prac-
tice that rewards defendants who confess before they are implicated in another
offender’s confession as one way of obtaining a substantial number of early guilty
pleas. The second potential obstacle centers on the fact that plea bargaining is apt
to motivate guilty pleas only to the extent that the defendants have reason to fear
prosecution and conviction. The problem in the international context is that con-
ducting a substantial number of prosecutions, when politically feasible, is not fi-
nancially feasible. Indeed, a primary reason that a criminal justice system utilizes
plea bargaining in the first place is because it does not possess the resources nec-
essary to conduct a large number of full-scale trials. But the system must appear
to be willing and able to do just that, or it will not be able to motivate defendants
to plead guilty. Courts prosecuting domestic crimes face this difficulty as well;
thus, I offer strategies drawn from domestic court experience. In addition, I ad-
vocate a forceful beginning to any prosecutorial endeavor. In particular, I suggest
that a criminal justice system prosecuting international crimes use a substantial
proportion of its resources to conduct thorough investigations and to arrest and
detain large numbers of appropriate suspects at the very outset of its work. Doing
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10 introduction
so will create a credible threat of sanctions, particularly if arrests are immediately

followed by trials for lower-level offenders whose cases are relatively quick and
easy to prove.
The guilty-plea model developed in Chapter 8 comprises both restorative and
retributive elements; crafting the optimal balance of these elements in a particular
guilty-plea system will depend on a number of factors specific to the atrocities
in question. These factors include, among others, the victim-perpetrator ratio;
the prior relationship, if any, between victims and perpetrators; the nature of the
crimes; and the amount of information already available about the crimes and
their perpetrators. I explore these and other factors in Chapter 9 by examining
four very different atrocities—in Argentina, Bosnia, Rwanda, and East Timor. In
the first part, I describe the crimes that took place in each of these locations. Ar-
gentine, Rwandan, and East Timorese crimes followed a roughly similar course,
but the atrocities occurring during the Bosnian conflict were sufficiently varied
that I examine three: the siege of Sarajevo, the massacres at Srebrenica, and the
widespread detention of civilians in prison camps. Although every prosecution
would benefit by the inclusion of the three key restorative-justice elements—
truth-telling, victim participation, and reparations—financial realities require
difficult decisions about how and to what extent these restorative elements should
be included. To elucidate the factors relevant to such decisions, in the second part
of Chapter 9, I consider the degree to which these elements would benefit efforts
to prosecute crimes committed in the four locations. Finally, in the third part, I
construct optimal guilty-plea processes for each of these atrocities.
Chapter 10 concludes the book by assessing the efforts to obtain guilty pleas
at the ICTY, the ICTR, and the Special Panels in East Timor against the model
guilty-plea systems previously developed. Finding these efforts lacking, the chap-
ter also evaluates Rwanda’s innovative efforts at participatory justice—its gacaca
courts—and East Timor’s Commission for Reception, Truth, and Reconciliation,
which contained accountability mechanisms resembling East Timor’s traditional
criminal justice processes.
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ch a p t e r on e
International Criminal Justice Then and Now

The Long Road from Impunity to (Some) Accountability
The Norms of Impunity
The mass atrocities that we would now label crimes against humanity have
been committed since the dawn of humankind but have virtually never elicited
criminal sanctions. The mid-nineteenth century saw efforts to articulate and
codify rules governing the conduct of armed conflict, but these early codifica-
tion attempts were aimed at the conduct of states. In response to the horrors of
World War II, however, the victorious allies established international tribunals at
Nuremberg and Tokyo to prosecute the leaders of the defeated Axis powers. The
tribunals had jurisdiction over three crimes: crimes against the peace, war crimes,
and crimes against humanity, and the convictions they imposed on German
and Japanese leaders were considered a watershed in the nascent movement to
hold individuals responsible for mass atrocities. Consequently, efforts were made
to consolidate these advances. The Genocide Convention  was concluded in 1948
to prohibit what has been described as the most heinous international crime, and
the entry into force of four Geneva Conventions in 1950 significantly developed
and clarified the laws of war and effectively criminalized certain conduct com-
mitted during armed conflict. Efforts were made to develop a comprehensive
code of international crimes and to establish a permanent international court in
which to prosecute those crimes, but these became mired in Cold War politics.
The following thirty years did see some codification advances, however, through
the conclusion of human-rights treaties, which clarified and strengthened exist-
ing prohibitions and established new ones. Widely ratified conventions on slav-
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12 international criminal justice
ery, torture, and apartheid, for instance, require states to criminalize these
offenses as part of their domestic criminal law.
Despite these advances in codification, the twentieth century saw countless
international crimes, resulting in tens of millions of deaths, yet virtually no pro-
secutions. Stalin’s purges, for instance, resulted in as many as twenty million
deaths, which have not only gone unpunished, but largely unacknowledged. Idi
Amin’s regime murdered and expelled hundreds of thousands of Ugandans,
yet he died a free man in 2003 after spending twenty-five years in luxurious exile
in Saudi Arabia. Former Ethiopian leader Mengistu Haile Miriam presided over
a “red terror” in which many thousands of political opponents were killed, yet
he lives in high-security comfort in Harare, Zimbabwe. Hissène Habré of Chad,
similarly, is considered responsible for tens of thousands of political murders,
yet he continues to live freely in Senegal after feeble efforts to bring him to trial
collapsed.
That neither these leaders nor their many thousands of accomplices have been
brought to justice should come as no surprise. Mass atrocities are typically per-
petrated by state actors or undertaken with their complicity; thus, no domes-
tic prosecutions will take place while the repressive regime remains in power.
Prosecutions are difficult to initiate even after the old regime gives way because
most transitions do not come about through comprehensive military victories
but through negotiation processes. During such negotiations, the promise of am-
nesty and even continued involvement in the successor government are often
vital components of the transfer of power; that is, they are crucial carrots used
to persuade embattled rulers to relinquish control through a peaceful transition.
Further, the new governments of states that transition to democracy through ne-
gotiated transfers tend to be politically and militarily weak. They are often under
constant surveillance and pressure from military forces, pressure that prevents
them from initiating proactive and controversial measures such as criminal pros-
ecutions. As Carlos Nino put it, politicians in these new governments are “so
content with the respite from direct authoritarianism that they d[o] not risk de-
bilitating confrontations.” 
The wave of democratization that swept the countries of Latin America dur-
ing the past twenty-five years highlights the impunity that is likely to result when
amnesties abound  and repressive elements of the former government remain
entrenched following ostensibly democratic transitions. In Chile, for instance,
Augusto Pinochet and the high command of the Chilean armed forces violently
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international criminal justice 13
deposed Salvador Allende’s democratic government in 1973 and established a

harsh police state characterized by widespread human-rights violations. Fol-
lowing the worst of the abuses, Pinochet granted himself and his government a
blanket amnesty covering all acts committed since the coup that brought him to
power. Although Pinochet later lost the presidency, he nonetheless remained
commander in chief of the army, and, before relinquishing control, he passed
several last-minute laws designed to protect his position, shield the military from
prosecutions, and limit the powers of the new government. Given the circum-
stances of Chile’s transition, criminal prosecutions were never seriously consid-
ered. The most that Pinochet’s successor, Patricio Alywin, had hoped he could ac-
complish was to hold trials that would be followed up with pardons, but Pinochet’s
self-granting amnesty initially was an insuperable obstacle even to that limited
form of accountability. Not only did Pinochet continue to command the army,
but the new government lacked complete control over the Senate because nine
of that body’s thirty-five members were appointed by Pinochet or institutions
that he continued to control pursuant to the Constitution. Further, Alywin could
have little hope that the Supreme Court would invalidate the amnesty law since
Pinochet had appointed almost all of the justices. Alywin did create a truth
commission, but even with respect to this less-threatening form of accountabil-
ity, Alywin’s “tenuous position . . . relative to the Chilean armed forces” prevented
him from framing its mandate in terms antagonistic to the former government.
The tide has recently begun to turn, however. Now, nearly thirty years after many
of the crimes took place, Chilean courts are sidestepping the amnesty and allow-
ing prosecutions against former military officials to go forward.
Guatemala provides a more recent example of a state unable to prosecute its
own international crimes. Succumbing to international pressure, Guatemala
agreed to prosecute gross human-rights violations after its thirty-six-year civil
war left two hundred thousand dead or disappeared and as many as a million and
a half displaced. Five years after the war ended, however, prosecutions have
occurred with respect to only one massacre out of more than 422, and that case
featured only low-level perpetrators. Guatemala’s dismal statistics result largely
from the fact that the government took no significant steps to remove those re-
sponsible for the atrocities from their positions of power. Consequently, inti-
midation and corruption have stalled most of the prosecutions that have been
undertaken, leading to unjustifiable delays, the dismissals of cases, and the disap-
pearance of key evidence.
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By the early 1990s, then, impunity appeared to reign. No international forum

had been created to prosecute international crimes, and states largely ignored
their international obligations to initiate domestic prosecutions of alleged offend-
ers. It was not until the Cold War had ended and the brutal Bosnian war brought
images of starving concentration-camp inmates and tales of systematic rape to
television sets around the world that the international community took the first
steps in fift y years to bring international criminals to justice.
Tentative Steps: Establishing the Ad Hoc Tribunals and Other

Institutions to Prosecute International Crimes
Bosnia-Herzegovina’s declaration of independence in March 1992 gave rise

to a bloody, three-year war that killed approximately two hundred thousand
people and dislocated more than two million others, virtually all through the
commission of international crimes (see Chapter 9 for more detail on the Bos-
nian war). The culture of impunity that had so characterized the fift y preceding
years seemed initially also to prevail with respect to the Bosnian conflict. Cer-
tainly, the international community had no desire to involve itself militarily in
the war. Although the U.N. and human-rights organizations began to document
the atrocities in 1992 and 1993, the international community made no attempt to
use military might to stop the bloodshed. The Security Council did adopt sev-
eral resolutions and imposed an economic embargo on Serbia, but these had little
practical effect. The Security Council also imposed a no-fly zone over Bosnia
when Bosnian Serb aircraft began to attack civilian targets by air;  but, at the
urging of the United Kingdom and France, the clause providing for enforcement
of the no-fly zone was omitted from the resolution, and, over the next six months,
more than 465 violations of the no-fly zone were documented but ignored.
While the international community was unwilling, until the very end of the
war, to exert the military force necessary to end the atrocities, it did take a path-
breaking step to put an end to the impunity that has typically followed such
crimes. Specifically, in 1993, the Security Council established the ICTY to pros-
ecute those accused of genocide, crimes against humanity, and war crimes in the
former Yugoslavia. And a politically improbable step it was. The Security Council
first adopted Resolution 780, which established a commission of experts to inves-
tigate violations of international humanitarian law. The negotiations leading
to Resolution 780 were acrimonious, and the work of the commission itself was
S3857.indb 14 10/4/06 6:46:07 AM

viewed with much suspicion by those who believed that the commission’s work
would undermine efforts to achieve a political settlement. Indeed, fear that the
commission’s investigations would disrupt the settlement under negotiation led
the Security Council to starve the commission of funding and to terminate it pre-
maturely. The subsequent proposal to create an international tribunal to pros-
ecute those responsible for the atrocities also generated considerable opposition,
with many arguing that the tribunal would obstruct peace negotiations and oth-
ers objecting to its establishment by means of a Security Council resolution. It
was consequently considered to be “[a]gainst great odds” that the Security Coun-
cil did eventually create the ICTY.
The road to the creation of an international tribunal for Rwanda featured sim-
ilar obstacles. In the span of three months, Rwandan Hutu massacred approxi-
mately eight hundred thousand Rwandans, most of whom were Tutsi (see Chap-
ter 9 for more details). The international community made no effort to stop the
killings, even though it has been estimated that as few as a thousand troops could
have brought the violence to an end. Indeed, a U.N. peacekeeping force was
stationed in Rwanda when the killings began, and rather than enlarging it, the
Security Council reduced it from 1,515 troops to 270. The international commu-
nity was likewise reluctant at first to become involved in bringing the perpetra-
tors of the bloodshed to justice. In May 1994, the U.N. Commission on Human
Rights issued a report stating that “the authors of the atrocities . . . cannot escape
personal responsibility for criminal acts carried out, ordered or condoned,”  but
it stopped short of calling for prosecutions before an international tribunal. The
Security Council was equally reluctant to consider establishing an international
tribunal for Rwanda and, indeed, was loathe at the outset even to use the term
“genocide” to describe the massacres for fear of triggering the obligations under
the Genocide Convention. Once additional facts became available, the Security
Council was forced to acknowledge that a genocide was indeed taking place, and,
over the objection of some members, it also felt compelled to establish a commis-
sion of experts, similar to the one it had established for the former Yugoslavia.
Only after several months of inaction, during which the new Tutsi-led Rwandan
government vacillated about whether or not it wanted an international tribunal,
did the Security Council eventually adopt Resolution 955 providing for the cre-
ation of the ICTR.
The creation of the ad hoc tribunals for Rwanda and the former Yugoslavia
helped to restart the on-again, off-again negotiations regarding a permanent
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international criminal court. In July 1998, 120 states voted to adopt the Rome
Statute of the International Criminal Court, and the ICC opened its doors in
July 2002. Likewise, the establishment of the ad hoc tribunals led to the creation
of three hybrid domestic-international tribunals, that is, tribunals that have sig-
nificant international input but that are in one measure or another grafted onto
the judicial structure of the states in question. The U.N. and the government of
Sierra Leone agreed in 2002, for example, to establish a Special Court for Sierra
Leone to prosecute those most responsible for violations of international criminal
law and Sierra Leonean law during Sierra Leone’s brutal civil war. Similarly, mas-
sive violence following East Timor’s secession referendum in 1999 led the U.N. to
establish Special Panels in the Dili District Court to prosecute those responsible.
Finally, Cambodia and the U.N. agreed in 2003 to establish Extraordinary Cham-
bers in the Cambodian judicial system to prosecute leaders of the Khmer Rouge.
The past decade, then, has witnessed a revolution in the then-nearly dead field
of international criminal law. The advances, particularly in attitudes about the
need and desirability of criminal accountability following international crimes,
are nothing less than extraordinary. Criminal accountability is not the only end
worth pursuing, however, and the following section will examine certain non-
prosecutorial mechanisms, such as reparations schemes and truth-telling com-
missions, that can also offer vital benefits to societies emerging from large-scale
violence.
Nonprosecutorial Mechanisms: Reparations Schemes

and Truth-Telling Commissions
In the past few decades, reparatory and truth-telling mechanisms have

emerged as common responses to mass atrocities. Occasionally accompanying
criminal prosecutions but most often serving as alternatives thereto, reparations
schemes and truth commissions seek—in tangible and intangible ways—to assist
victims in moving beyond the violence.
Reparations Schemes
Reparations seek to redress victims’ suffering through such measures as fi-

nancial compensation, restitution, symbolic tributes, and apologies. Although
monetary payments can never truly compensate for the grave harm inflicted by
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an international crime—for the rape, the torture, the disappeared child—many

victims of gross human-rights abuses have suffered financially as well as physi-
cally and emotionally, so compensation, even if only in token form, has tradition-
ally constituted a primary element of many reparations schemes.
History’s most sweeping compensatory effort to date has been Germany’s pay-
ment of tens of billions of dollars for World War II atrocities. Post-Nazi repara-
tions schemes have been smaller in scale; many provided only token sums, and
some distinguished arbitrarily among victim classes. Until recently, Chile’s com-
pensation scheme, for instance, granted pensions, educational benefits, and ex-
emptions from military service to the families of those killed or disappeared, but
it failed to extend compensation to the thousands who were wrongfully detained
and tortured but who survived their ordeals. Argentina’s reparations scheme
cast a broader net, compensating not only for deaths and disappearances but also
for unlawful detentions and torture, but payments had to be stopped in 2002
when the government suspended all payments of interest and principal on its
foreign and domestic debts, leaving recipients feeling revictimized.
The South African Promotion of National Unity and Reconciliation Act
charged the country’s Truth and Reconciliation Commission with recommend-
ing reparations for those who suffered “a gross violation of human rights.” 
Compensation was thereby excluded for the vast majority of black South Africans
who had not been specifically targeted for torture, detention, or the like but who
suffered daily the humiliation and degradation, not to mention the economic
privations, that apartheid imposed on blacks. The government initially rejected
the commission’s recommendation of cash payments and indicated that only
symbolic reparations would be forthcoming. Succumbing to intense political
pressure in April 2003, however, President Thabo Mbeki announced that his gov-
ernment would pay reparations totaling $85 million to the more than nineteen
thousand victims who had testified before the Truth and Reconciliation Com-
mission. The sum promised was less than a quarter of the $360 million that the
commission had recommended, so some victims deemed the amount insulting.
Other states, particularly those in Eastern Europe, have placed restitution at
the center of their reparations schemes. Czechoslovakia, for instance, enacted a
law in 1991 that required the return of property that had been obtained by coer-
cive means. Similarly, the unification treaty unifying East and West Germany
provided for the return of most confiscated properties to the former owners or
their heirs. South Africa likewise enacted the Restitution of Land Rights Act of
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1994, which allowed a Land Claims Court to purchase or expropriate a piece of

property from its current owner in order to restore the property right of a person
wrongfully dispossessed.
Vexing practical problems complicate efforts to provide monetary reparations.
Determining which victims should receive compensation and how to quantify
their injuries are only the most obvious. Questions relating to the quantity of rep-
arations are particularly thorny because states emerging from collective violence
are especially unlikely to possess the financial resources necessary to make even
a credible attempt at compensation. Indeed, establishing reparations schemes in
depressed economies such as South Africa and the Eastern European countries
raises worrisome questions about whether it is appropriate to grant backward-
looking remedies such as financial reparations when doing so may impede the
state’s ability to carry out current, vitally necessary functions. Other value-laden
issues concern whether compensation should be paid in cash or its equivalent or
rather should take the form of services, such as health care, education, or psy-
chological assistance. Should individual need be considered, with more impov-
erished victims receiving greater sums, or should classifications be made solely
on the basis of injury? Difficult questions of intergenerational justice arise as well
when considerable time has elapsed between the injury and the provision of com-
pensation. In particular, when is it just to require those innocent of wrongdoing
to assume the financial burden of past wrongs?  The United States faced such
questions in 1988 when it established a reparations scheme to redress the wrongs
visited upon the Japanese Americans who were interned, more than forty years
before, during World War II. For a wealthy country like the United States, the
scheme was inexpensive, providing only $20,000 for each surviving individual
and totaling an estimated $1.2 billion;  hence, it was relatively uncontroversial.
More recent calls to provide reparations for the injuries inflicted more than one
hundred years ago by slavery and the Jim Crow regime give rise to far more heated
debates both because the reparations envisaged are typically of a grander scale
and because so much time has elapsed that compensation seems less an effort to
remedy specific harms and more an attempt at wealth redistribution. Restitution
may seem on the surface a more straightforward way of redressing past wrongs,
since returning the particular thing wrongfully taken avoids many of the difficult
line-drawing problems associated with compensation schemes; but restitution-
ary measures too can spark controversy, particularly when considerable time has
passed and intervening owners are innocent of wrongdoing or when restitution-
S3857.indb 18 10/4/06 6:46:08 AM

ary schemes, such as those established in Eastern Europe, seek to advance other
goals, such as the transition to a market economy.
The provision of reparations can never wholly repair the lives broken by mass
atrocities; reparations can, however, advance healing and reconciliation in a
variety of ways. The payment of reparations constitutes an acknowledgment of
wrongdoing, which victims may find particularly satisfying if it has been pre-
ceded by years of denial. At the same time that reparations assign blame, at least
in a general sense, they also serve officially to recognize and rehabilitate vic-
tims, many of whom have previously been deemed subversives and enemies of
the state. The provision of reparations further “draw[s] a line on the past,” 
advancing political transitions by creating a sharp distinction between the past
repressive regime that acted outside the law to injure its citizens and the pres-
ent democratic regime that uses legally established methods to compensate those
who have been harmed. Indeed, the provision of reparations gives recognition to
the principle that wrongs must be redressed, a principle that is all but unknown
in states emerging from mass violence. And when reparations schemes require
payments from specific offenders, through restitutionary measures or through
civil actions such as those brought pursuant to the U.S. Alien Tort Claims Act,
they also serve retributive goals. Offenders may be forced to relinquish their ill-
gotten gains and may be publicly shamed even in cases where they manage to
avoid paying the judgments.
Many of these same goals are furthered as well by symbolic reparations, such
as commemorative monuments and days of remembrance, and especially by apol-
ogies. As noted above, a government’s decision to pay monetary reparations itself
is an acknowledgment of wrongdoing; thus, it can be understood to constitute an
implicit apology. Express apologies arguably carry even greater symbolic value
and have in recent years become a popular governmental response to human-
rights violations. U.S. presidents Ronald Reagan and George H. W. Bush, for in-
stance, apologized to the Japanese Americans interned during World War II,
while President Bill Clinton apologized to the survivors of a U.S. Public Health
Service study that withheld proven medical treatment from a group of African
American men with syphilis. Canadian leaders have apologized for the suppres-
sion of the Aboriginal language and culture. British Prime Minister Tony Blair
apologized for his country’s role in the mid-nineteenth-century potato famine
in Ireland, and Pope John Paul II apologized for Catholic atrocities during the
Counter-Reformation. In 1995, Prime Minister Tomiichi Murayama of Japan
S3857.indb 19 10/4/06 6:46:08 AM

offered a general apology for World War II suffering caused by Japan, and, more
recently, Japan offered a specific apology to China after thirty-six Chinese fell sick
following contact with chemical weapons that Japanese soldiers had left in China
at the end of World War II.
The current popularity of apologies stems in part from their inexpensive price
tag. Martha Minow consequently describes as “most troubling” those apologies
“that are purely symbolic, and carry no concrete shifts in resources or practices
to alter the current and future lives of survivors of atrocities.”  Although apolo-
gies linked to tangible efforts to repair the harm are certainly more desirable than
apologies alone, pure symbolism, in and of itself, can have tremendous signifi-
cance, as evidenced by the intense opposition that some apologies generate. Croa-
tian president Stjepan Mesić’s 2003 apology to “all those who have suffered pain
or damage at any time from citizens of Croatia who misused the law or abused
their positions” was sharply criticized by some Croatian politicians, who deemed
the apology “shameful and humiliating for all Croatian citizens.”  Heated de-
bates likewise surround the question of whether the U.S. government should
apologize for its nineteenth-century practice of slavery. In Japan, Prime Minis-
ter Murayama personally apologized to the so-called comfort women, who were
kept in sexual servitude by Japanese soldiers during World War II, but the Japa-
nese government notably did not join in the apology. In establishing a repara-
tions scheme for the comfort women, the Japanese government kept similar dis-
tance. Although the government established an Asian Women’s Fund to provide
payments to comfort women as a means of expressing, among other things, the
“Japanese people’s atonement,” the government refused to fund the payments;
they were instead funded through private donations. Only six of the five hun-
dred intended recipients accepted payments, with most refusing them because
the funds were not provided by the bodies that were actually responsible for the
wrongdoing. Symbolism, in and of itself, clearly matters.
Apologies carry the greatest weight when they are made by the individual
wrongdoers themselves in the context of continued ethnic or political tension.
Witnesses to South Africa’s Truth and Reconciliation Commission hearings have
described the profound transformations that took place when perpetrators of the
most heinous of human-rights abuses apologized to their victims and saw those
apologies accepted. Pumla Gobodo-Madikizela, for instance, observed that af-
ter Eugene de Kock apologized to the widows of policemen whom de Kock had
killed, one widow was “profoundly touched by him” and both “felt that de Kock
S3857.indb 20 10/4/06 6:46:08 AM

had communicated to them something he felt deeply and had acknowledged

their pain.”  In a similar vein, Lyn Graybill describes the son of a murder victim
who embraced the perpetrator, saying: “You murdered our father. But we forgive
you.”  And when Truth and Reconciliation Commission Chairman Archbishop
Desmond Tutu heard General Johan van der Merwe’s apology, he deemed it “an
incredible moment” and instructed those assembled to “keep quiet a bit and put
our heads down for a minute.”  As Elizabeth Kiss put it: “While the amnesty
process did not require perpetrators to apologize for their actions, commission
hearings created an opportunity for repentance and forgiveness. The most ex-
traordinary, and publicly celebrated, moments of those hearings occurred when
individual victims and perpetrators reached out to one another and achieved
some measure of reconciliation.” 
Expert witnesses testifying on behalf of former Bosnian Serb leader Biljana
Plavšić at her ICTY sentencing hearing similarly lauded her apology as especially
significant to efforts to bring peace and stability to the region. Martha Minow
observes particularly in relation to an individual apology that victims are em-
powered: they can “accept, refuse, or ignore the apology,” and in this way, they
“secure a position of strength, respect, and specialness.”  Even official apologies
can resonate with meaning, as occurred when former Chilean president Patricio
Alywin “made an emotional appeal, broadcast on national television, in which he
begged pardon and forgiveness from the families of the victims.” Chilean survi-
vors frequently cite that apology “as a powerful moment after having their claims
brushed aside for so many years.” 
Truth-Telling Commissions
Truth commissions—bodies charged with investigating and publicizing

human-rights offenses—have become perhaps the most popular response to col-
lective violence in recent years. More than thirty truth commissions have been
established during the past few decades. Many of these, particularly the early
ones, were inadequately funded  and subject to political manipulation and
threats of violence. More recent truth commissions have generally been con-
sidered to constitute more-serious attempts to investigate and publicize the truth
about the human-rights abuses under their consideration, although some distor-
tions still occur. For instance, although the Guatemalan Truth Commission was
able to issue a lengthy and hard-hitting report, concluding that the Guatemalan
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government had perpetrated acts of genocide against some Mayan groups, its
work was severely hampered by limited powers, a short period during which to
complete its mandate, and a prohibition against attributing responsibility to indi-
vidual offenders. Commissioner Christian Tomuschat labeled the commission’s
broad mandate combined with its short life span an “almost incomprehensible
contradiction” that Andrew Keller deemed “consistent with the military’s goal of
creating a weak commission.” 
The Commission on the Truth for El Salvador generated considerable atten-
tion largely because the U.N. administered it and appointed internationally re-
spected non-Salvadorans to serve as commissioners. The commission, therefore,
functioned with an independence lacking in many domestically administered
commissions. The most notable feature of the commission’s report was the fact
that it named the names of those the commission determined to be responsible
for the human-rights abuses. The Salvadoran government made strenuous ef-
forts to prevent the identification of offenders, but the commission’s report ex-
plained the commissioners’ view that “the whole truth cannot be told without
naming names. . . . Not to name names would be to reinforce the very impunity to
which the Parties instructed the Commission to put an end.”  One of the most
recent truth commission reports, issued by the Sierra Leone Truth and Reconcili-
ation Commission (Sierra Leone TRC), followed the lead of the Commission on
the Truth for El Salvador and likewise named the names of those bearing respon-
sibility for atrocities, a number of whom had contemporaneously been indicted
by the Special Court for Sierra Leone. The report of the Sierra Leone TRC went
on to lay some measure of blame on the U.N. and the international community,
which it found had “abandoned Sierra Leone in its greatest hour of need.”  The
report made specific findings with respect to youth, children, and women, and it
dispelled some popular beliefs, such as that the desire to exploit diamonds had
caused the conflict. The Sierra Leone TRC also issued the first-ever “Child-
Friendly Version” of its report, which was prepared with the assistance of Sierra
Leonean child victims.
The Truth and Reconciliation Commission (TRC), established in South Af-
rica following the end of apartheid, built on the experience of predecessor com-
missions but also introduced innovative features that have led many commenta-
tors to consider it the most serious attempt to date to investigate and publicize
human-rights offenses. In establishing the TRC, South Africa broke new ground
by granting the commission broad subpoena and search and seizure powers and
by creating a fairly sophisticated witness-protection program that encouraged
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fearful witnesses to come forward. Also exceptional was the public nature of the
South African process. Some of the previous truth commissions had held public
sessions, but the TRC held vastly more, and these proceedings were the subject of
intense media coverage. Indeed, two thousand victims and witnesses appeared in
public proceedings, and as Priscilla Hayner describes it:
[M]ost newspapers ran a number of stories on the commission every day, and radio
and television news often led with a story on the most recent revelations from the com-
mission’s hearings. Four hours of hearings were broadcast live over national radio each
day, and a Truth Commission Special Report television show on Sunday evenings quickly
became the most-watched news show in the country.105
The most revolutionary feature of the South African TRC was its ability to
grant individual amnesties for politically motivated crimes. One of the key de-
mands of the outgoing National Party leadership during the transition negoti-
ations was for an amnesty, and it was widely believed that failing to concede
to this demand would have led to a bloody insurrection. The African National
Congress (ANC), which led South Africa’s liberation movement, held sufficient
power, however, to withstand calls for a blanket amnesty of the sort that General
Pinochet imposed on Chile. Instead, the new South African government offered
amnesty to those suspected of human-rights abuses, but it tied that amnesty to
a truth-telling requirement; specifically, the Promotion of National Unity and
Reconciliation Act gave to the TRC the power to grant individual amnesties for
political crimes, but only to those who provided a complete accounting of their
participation in those crimes.
It became clear early on, particularly in light of the rigorous disclosure re-
quirements imposed on amnesty applicants, that few offenders would apply
for amnesty unless they had reason to fear prosecution. Using the threat of
prosecution as a “stick” to motivate offenders to come forward proved only par-
tially effective because the government was unable to conduct enough successful
prosecutions to make the threat a credible one. As will be described in greater
detail in Chapter 2, the government conducted a few high-profile trials for apart-
heid-related offenses, and these resulted in convictions and lengthy prison sen-
tences, but the trials were protracted and expensive, so very few were undertaken.
Some equally high-profi le trials resulted in acquittals, which led many senior-
level offenders to discount the risk of conviction and consequently to eschew the
amnesty process. Many considered the refusal of high-level political and military
leaders to seek amnesty to be a significant failure for the TRC, but the TRC
S3857.indb 23 10/4/06 6:46:09 AM

did receive more than seven thousand amnesty applications, and, if these ap-
plicants had not come forward, “a lot of truth and lot of reality of that time would
have been lost.” 
Although those amnestied were obviously not subject to criminal sanctions,
the disclosures they were required to make did expose them to the punishment
of public condemnation. For instance, former president P. W. Botha’s “public sup-
port withered” after extensive information came to light of his “knowledge or
approval of a long pattern of state crimes.”  A number of police officers reported
that their marriages failed after they confessed, notorious South African tor-
turer Jeffrey Benzien suffered a nervous breakdown, and other amnestied perpe-
trators were shunned by their families and friends.
In addition to imposing some accountability, the amnesty process also in-
volved and empowered victims by permitting them to cross-examine amnesty
applicants. “Reversing roles, then, torturers and murderers faced interrogation by
their former victims and family members.”  This sort of face-to-face confronta-
tion and engagement, along with many of the TRC’s other innovative features,
were intended to facilitate reconciliation, one of the TRC’s primary goals. Indeed,
the TRC is notable among truth commissions for its focus on reconciliation, on
healing, and on forgiveness. TRC hearings did appear to advance these goals in
certain cases, but other cases featured recalcitrant perpetrators  or victims not
yet ready to forgive.
Truth-telling inquiries serve a variety of aims critical to societies emerging
from collective violence. Truth commissions first and foremost provide an his-
torical account of the period under question. While many of the early truth com-
missions sought little more than to detail the bare facts of the atrocities, more
recent truth commissions have endeavored in addition to elucidate contextual
elements of the violence—the historical underpinnings and the role of various so-
cial and governmental institutions, among other things. Thus, the South African
TRC, for example, held hearings to illuminate the roles of various sectors of civil
society—including business, churches, the media, the medical profession, and
the legal system—in supporting and perpetuating apartheid. Such an historical
account is especially valuable when the crimes themselves have been shrouded
in secrecy. The forced disappearances, so widely perpetrated in Latin American
dictatorships, for instance, were in particular need of elucidation, since victims
were here one minute and gone the next, leaving loved ones with no clue as to
their fate or whereabouts. With respect to such clandestine crimes as these, truth
S3857.indb 24 10/4/06 6:46:09 AM

commissions can provide facts of vital consequence to victims’ families, includ-

ing the location of the body, the manner of death, and the reasons for target-
ing that particular individual. In other cases, truth commissions serve less to
convey knowledge as to officially acknowledge the violence of which everyone
is unofficially aware. Such acknowledgment is critically important to victims,
whose injuries may have been denied or ignored, and it also can help to open the
eyes of bystanders, who turned willfully blind eyes to the violence taking place
around them. Although trials for international crimes are also intended to create
an historical record, many believe that truth commissions more effectively serve
those ends. Martha Minow, for instance, observes that
[t]he task of making a full account of what happened, in light of the evidence obtained,
requires a process of sifting and drafting that usually does not accompany a trial. Put-
ting narratives of distinct events together with the actions of different actors demands
materials and the charge to look across cases and to connect the stories of victims and
offenders. Truth commissions undertake to write the history of what happened as a
central task. For judges at trials, such histories are the by-product of particular moments
of examining and cross-examining witnesses and reviewing evidence about the respon-
sibility of particular individuals.119
Truth commissions are also more victim-centered than criminal prosecutions

and consequently can create a more hospitable space for victims to relate their
experiences. In particular, truth commissions typically allow victim testimony to
proceed in narrative form, without cross-examination. Some experts assert that
allowing trauma victims to tell their stories to sympathetic listeners enhances
their prospects for healing. The long lines of victims seeking to testify before
many truth commissions evidences the value such testimony must hold for those
who offer it. Efforts, like that of South Africa, to encourage perpetrators to ac-
knowledge their offenses in addition enhance the potential for healing and rec-
onciliation between offenders and victims. Many victims say that they cannot
forgive their perpetrators, let alone reconcile with them, until the perpetrators, at
the least, acknowledge their crimes. Offenders’ candid and complete acknowl-
edgments of wrongdoing provide victims with the opportunity to forgive and can
in addition transform the offenders themselves, leading to reconciliation and the
reintegration of the offenders into the community. Truth commissions can facili-
tate no-less-dramatic conversions in passive supporters of the oppressive regime
who, through the victims’ testimonies, must come face-to-face with their own
complicity and shame. During the second week of South African TRC hearings,
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Chairman Archbishop Desmond Tutu read an anonymous letter in Afrikaans

sent to the commission. Translated, it reads:
Then I cry over what has happened, even though I cannot change anything. Then I look
inside myself to understand how it is possible that no one knew, how it is possible that
so few did something about it, how it is possible that often I also just looked on. Then I
wonder how it is possible to live with this inner guilt and shame . . . I don’t know what to
say, I don’t know what to do, I ask you to forgive me for this. . . . It isn’t easy to say this. I
say it with a heart that is broken and tears in my eyes. . . .122
Truth commissions, many contend, advance not only individual healing but
societal healing as well. Indeed, commentators routinely assert that unless a bro-
ken society confronts the horrors of the past, there will be no stable foundation
upon which to build a lasting democracy. Truth commissions can expose the
multiple causes and conditions contributing to the atrocities and thereby provide
the information necessary to inform structural and institutional reforms aimed
at preventing future abuses. To the extent that the “truth” reported by a truth
commission is widely accepted, it can provide the basis on which opposing parties
can govern together without the latent conflicts and resentment that result from
past denials and lies. Even when the “truth” expounded is contested, the very dis-
sension that it creates can prove valuable in exposing subjects that were previously
taboo and encouraging a dialogue between those holding opposing viewpoints.
Truth commissions have been described as principled compromises on the
question of punishment or impunity. As Ruti Teitel put it: “[T]ruth commission[s]
emerged as impunity’s antidote and amnesty’s analogue.”  On this view, truth
commissions serve some of the ends of criminal trials and thus are a better re-
sponse to mass atrocities than no response at all, but they nonetheless stand as
a poor second-best to criminal prosecutions. As the above discussion indicates,
however, more recent experience with truth commissions has shown them to
constitute another, distinctly valuable response to large-scale violence—in many
ways a complement to trials.
This chapter has traced the emergence of various responses to mass atrocities.
Criminal prosecutions stand at the center of these responses and are now typi-
cally thought to constitute the most potent tool in any effort to impose account-
ability after mass violence. Criminal prosecutions are expensive, however, and
the following chapter will show that as costs rise, enthusiasm for imposing crimi-
nal accountability wanes.
S3857.indb 26 10/4/06 6:46:10 AM

ch a p t e r t wo
Financial Realities
Targeting Only the Leaders
The rhetoric surrounding international criminal prosecutions is ambitious and

idealistic. The ICTY, for instance, was established to “put an end” to the crimes
occurring in the former Yugoslavia and to “bring to justice the persons who are
responsible for them,”  while the ICC was created “to put an end to impunity for
the perpetrators of [international] crimes and thus to contribute to the prevention
of such crimes.”  The likelihood that the international tribunals can meet these,
or even less-ambitious goals, is a topic for Chapter 3. This chapter sets the stage for
that discussion by detailing the financial constraints impeding the prosecution
of international crimes. The following sections—which examine the budgetary
difficulties of the ad hoc tribunals, the ICC, the hybrid international-domestic
tribunals, and domestic criminal justice systems—will show that, given the large
number of offenders and the use of criminal procedures that seek to incorpo-
rate due-process guarantees, neither international tribunals nor domestic crimi-
nal justice systems can hope to prosecute more than a very small proportion of
international offenders.
The ICTY and the ICTR
The ICTY and ICTR began their institutional lives inauspiciously. It took more
than a year for the Security Council to agree on a prosecutor for the ICTY, for
instance, and understaffi ng at all levels plagued the ICTR for its first few years.
A full year after it was created, the ICTR employed only five investigators and
S3857.indb 27 10/4/06 6:46:10 AM

28 financial realities
prosecutors, when at least one hundred investigators were needed. Moreover,

by the end of 1996, more than a third of the investigator positions and nearly
half of all professional positions remained vacant. The ICTR’s early years were
also tarnished by allegations of mismanagement and corruption. Finally, and
most importantly, both tribunals were inadequately funded early on. Insufficient
resources impeded the tribunals’ ability to obtain needed staff and equipment, to
conduct investigations, and to protect witnesses and threatened their very sur-
vival at times. One ICTR prosecutor colorfully observed that when she arrived
in Arusha in 1995, she and her twelve office mates “created makeshift desks by
removing doors from their hinges and placing them on crates . . . [and] fought
over garbage cans, which [they] used as chairs. ” 
The tribunals’ funding has increased significantly over the years, and the tri-
bunals have lately been considerably more effective. Their prosecutorial arms is-
sue indictments, indicted people are at least sometimes arrested and transferred
to the tribunals, trials are held largely in accordance with due-process guaran-
tees appearing in human-rights conventions, and defendants are acquitted or
convicted on the basis of reasonably well-established legal principles. That is the
good news. The bad news is the time and money needed to achieve those ends.
Prosecuting international crimes is a time-consuming, costly affair. The average
ICTY and ICTR trial takes seventeen months to complete, costs millions of
dollars, and features several hundred witnesses and exhibits and a transcript
spanning more than ten thousand pages. For instance, the ICTY’s Kordić &
Čerkez trial lasted twenty months and featured 241 witnesses, 4,665 exhibits,
and a transcript of more than 28,000 pages. The Blaškić trial lasted more than
two years and featured 158 witnesses and more than 1,300 exhibits, while the
more recent Brd̄anin case lasted 21 months and featured 221 witnesses and 3,086
exhibits.
Added to the time needed for trials are lengthy pretrial detention periods;
some defendants have been detained for up to four years during pretrial, trial,
and appellate proceedings, leading commentators to question whether the tri-
bunals are complying with expeditious trial requirements. The reasons why
tribunal proceedings take so long and cost so much include the complex nature
of international crimes; the physical distance between the tribunals and the lo-
cations of the crimes; the difficulty and expense involved in locating witnesses,
transferring them to the tribunals, and providing them the necessary protection;
S3857.indb 28 10/4/06 6:46:10 AM

financial realities 29
the delays caused by the need for language translation; the refusal of key states to
provide access to documents and other evidence; and the robust due-process
protections—including the right to appointed counsel—afforded to defendants.
The considerable length and cost of tribunal trials has generated enormous
criticism, and the tribunals have consequently taken steps to expedite proceed-
ings. They asked for and received a pool of ad litem judges to increase their ability
to hear cases, and they have made more efficient use of courtroom space  and
better use of judicial resources. The prosecutor has made efforts to join related
cases. Finally, the tribunals have amended their procedural rules, eliminating
many rules drawn from Anglo-American criminal justice systems and replacing
them with more efficient procedures derived from continental European crimi-
nal justice systems. These efforts to shorten and simplify tribunal proceed-
ings have improved matters, but they have by no means resulted in short, simple
proceedings. Indeed, despite the tribunals’ considerable efforts, their statistics
remain surprisingly bleak: before the ICTY’s spate of guilty pleas in 2003, it had
spent ten years and nearly $650 million  to dispose of eighteen cases. During the
ICTR’s first ten years, it spent more than $800 million  to dispose of nineteen
cases, of which four involved guilty pleas.
The sums required to conduct trials before the ICTY and the ICTR have be-
come so large, in fact, that the international community has lately indicated its
unwillingness to continue providing them. In particular, the Security Council has
pressured the tribunals to formulate a completion strategy that will enable them
to close their doors by 2010, and, although the tribunals may not be able to meet
this target, they are endeavoring to comply. To that end, the tribunals have
adopted a three-pronged approach. First, they have committed to prosecuting
only high-level offenders. As a consequence of this more limited focus, prosecu-
tors drastically reduced the number of investigations they planned to conduct,
and a 2004 amendment to the ICTY’s procedural rules authorizes the judges
themselves to confirm that indictments target only high-level offenders.
Second, the tribunals have attempted to dispose of their cases more efficiently
by using plea bargaining to obtain guilty pleas. As the ICTY prosecutor an-
nounced to the Security Council in 2004: “Great savings of court time have been
achieved by guilty pleas, obtained through the active involvement of my Office.
We remain open to explore with the defense the possibility of accused persons
pleading guilty to all or some of the charges against them.” 
S3857.indb 29 10/4/06 6:46:11 AM

Finally, the tribunals have formulated a controversial plan to refer many of

their cases to domestic courts. The ICTR prosecutor intends to transfer forty-
one cases. By the fall of 2005, the prosecutor had transferred the files of fifteen
suspects to the courts of Rwanda, which are already overwhelmed by their ef-
forts to prosecute many thousands of genocide suspects. Some ICTR defendants
have boycotted their trials to protest the planned transfers, maintaining that they
cannot get fair trials in Rwanda. As for the ICTY, in 2000 its judges considered
transferring cases to courts in the Balkans, but then rejected that option, main-
taining among other things that “the political climate and the issue of the safety
of the witnesses, victims, accused and judges” would make referring cases to Bal-
kan courts impossible in the short term. Subsequent pressure from the Security
Council, however, led the ICTY judges to conclude that referring a substantial
number of its cases to the courts of the states of the former Yugoslavia would be
feasible after all. Consequently, since June 2004, the ICTY prosecutor has sought
to transfer the cases of a number of Croatian defendants to the courts of Croatia,
despite numerous reports that Croatian trials are plagued by ethnic bias. The
Hrastov case provides an apt example: in Hrastov, a Croatian court found the Serb
defendant guilty not only of war crimes but also of a five-hundred-year history
of Serb crimes against Croatia. Such cases are not anomalies. Indeed, the vast
majority of Croatian prosecutions involve Serb defendants accused of commit-
ting war crimes against Croats, and the vast majority of these Serb defendants are
convicted in absentia. By contrast, many of the few Croatian defendants who
are prosecuted are acquitted. Serbian courts arguably suffer from even graver
problems, yet ICTY prosecutors have also sought to transfer cases to Serbian
courts. Serbia has prosecuted only a handful of war crimes cases in the nearly
ten years since the conclusion of the Dayton Accords, and these proceedings have
been characterized by sloppy procedures and witness intimidation. In the trial
of Sasa Cvjetan, for instance, both the presiding judge and a witness who testified
against Cvjetan received numerous death threats. The witness was granted “pro-
tective” measures, but these were carried out by police officers sympathetic to the
defendant and amounted to near solitary confinement in a small apartment. One
human-rights advocate termed the protective measures “mental torture.” 
The inability of the Bosnian criminal justice system to prosecute international
crimes fairly and competently has been too clear to escape notice. “[S]ignificant
structural difficulties” plague the courts of Bosnia and Herzegovina, and these
include the “excessive compartmentalization of the judicial systems of the Fed-
S3857.indb 30 10/4/06 6:46:11 AM

eration and the Republika Srpska,” the lack of cooperation between the two enti-
ties, the political influence brought to bear on judges and prosecutors, the often
“mono-ethnic” composition of the local courts, the difficulty of protecting victims
and witnesses effectively, the court personnel’s lack of training, and the backlog of
cases. To ameliorate some of these difficulties, the ICTY has helped to establish
a special chamber within the State Court of Bosnia and Herzegovina. The special
chamber, which opened its doors in March 2005, has jurisdiction over serious vio-
lations of international humanitarian law and is staffed, at least for the time being,
by international judges and prosecutors. But the chamber has relied for its opera-
tion on foreign donations, and these have diminished sharply of late. The Bosnian
government maintains that it does not have the funds to support the chamber, and
commentators worry that the chamber will soon face a financial crisis.
Also experiencing financial difficulties are the tribunals themselves. During
2004, numerous states failed to make their assessed contributions to the tribu-
nals, causing significant budgetary shortfalls and resulting, among other things,
in a hiring freeze. Indeed, in an October 2004 address, ICTY prosecutor Carla
Del Ponte reported that she had lost nearly 50 percent of her senior legal staff and
more than 40 percent of her senior investigators. The tribunals have observed
that their budget crisis, ironically, is imperiling the completion strategy that, if
adhered to, will ultimately save the international community substantial funds.
But when the tribunals were forced in 2004 to report to the Security Council that,
because of a number of factors outside of their control, they may not finish their
work in accordance with the completion strategy schedule, the Security Coun-
cil cut them no slack and instead issued Resolution 1534, which reaffirmed “in the
strongest terms” the Security Council’s commitment to the timetable articulated
in the completion strategies.
The ICC
The ICC can be expected to fare similarly, if not worse, when it comes to the
time and resources necessary to conduct trials. Indeed, the ICC is apt to suffer
all of the delays and inefficiencies that plague the ad hoc tribunals plus more be-
sides. The ICC’s preeminently inefficient feature is its complementarity regime.
The ad hoc tribunals have primacy over national courts; that is, they have the
authority to order national courts to discontinue proceedings and transfer de-
fendants to the tribunals. The ICC, by contrast, operates under the principle of
S3857.indb 31 10/4/06 6:46:11 AM

complementarity, which means that a case is inadmissible before the ICC when it
is being investigated or prosecuted by a state that has jurisdiction over it, or when
the case has already been investigated and the state has decided not to prosecute.
In such circumstances, the ICC may proceed only when the state is “unwilling
or unable genuinely” to investigate or prosecute. Although it is appropriate for
states to investigate and prosecute international crimes when they are willing and
able to do so because states typically have more resources, better developed crim-
inal justice systems, and a greater ability to gather evidence and arrest suspects,
the complementarity regime established by the Rome Statute creates enormous
practical complications for the efficient processing of ICC cases.
When initiating an investigation, the ICC prosecutor must notify all states
parties and those states that would normally exercise jurisdiction over the crime
involved. States have one month to inform the prosecutor that they are investigat-
ing or have investigated the matter, and they can request the prosecutor to defer
to the state’s investigation. If the state makes such a request, the prosecutor can
apply to the Pretrial Chamber for authorization if the prosecutor wishes to pro-
ceed with the investigation, notwithstanding the state’s request. Either the state
or the prosecutor can appeal the Pretrial Chamber’s decision, but the prosecutor
must suspend the investigation until the court makes its decision. Other par-
ties may also challenge the jurisdiction of the court or the admissibility of the
case, including the defendant and a state from which acceptance of jurisdiction
is required, and each challenge is presumably appealable. These challenges have
the capacity to delay the work of the ICC considerably not only because of their
number but also because the legal questions raised therein are apt to be complex
and difficult to decide. Deciding, for instance, whether a state is “unable to con-
duct a prosecution” may require the court to determine, among other things, the
extent to which a state is exercising effective control over its territory, the exis-
tence of a functioning law enforcement apparatus, and the state’s ability to secure
necessary evidence; that is, complicated, fact-based questions that will often be
colored by political considerations. Proving that a state is “unwilling” to carry
out a prosecution will be no easier. The court may be called upon to determine
whether the proceedings are being undertaken “for the purpose of shielding the
person concerned from criminal responsibility” or are not being conducted in-
dependently or impartially.
Additional inefficiencies will result from the fact that the ICC’s workload will
be inconstant. Unlike the ad hoc tribunals, which were established after the atroc-
S3857.indb 32 10/4/06 6:46:11 AM

ities had already occurred, the ICC’s jurisdiction extends only to crimes occur-
ring after the Rome Statute entered into force. Consequently, the ICC’s caseload is
indeterminate. It is apt to be small at the outset and fluctuate, perhaps consider-
ably, over the years. With an indeterminate and fluctuating caseload, comes an
indeterminate and fluctuating need for staffing. The ICC presidency may propose
increasing or decreasing the number of judges when the workload justifies such
changes, but any increase or decrease must be approved by a two-third’s majority
of states parties. Sadly, the experience of the ad hoc tribunals presages an un-
fortunate lag time between a backlog of cases and the inauguration of new judges
to relieve it. The president of the ICTR, for instance, requested a pool of ad litem
judges on July 9, 2001, but that request was not acted upon until thirteen months
had elapsed. Large institutions typically find reducing staff even more problem-
atic, and proposals to reduce the number of ICC judges are apt to give rise to par-
ticularly sensitive political issues since states may be tempted to oppose the reduc-
tions when they would result in the dismissal of judges who are their nationals.
Levels of nonjudicial staffing are likely to be similarly, if not more, suboptimal
because the different cases may require staff having different expertise. Transla-
tors pose the most obvious example of this problem. The ICTY and the ICTR have
themselves had considerable difficulty keeping up with their need for language
translation, even though the languages in need of translating have been known
from the tribunals’ inceptions. The ICC’s difficulties will be all the greater be-
cause it will have to acquire the services of different sets of translators to work on
cases arising in different parts of the globe. Additionally, the ICC has six official
languages—four more than the ad hoc tribunals—into which all judgments and
decisions resolving fundamental issues must be translated. Field-office staff-
ing will pose another set of problems. The ad hoc tribunals have used field of-
fices located near crime scenes to provide support for crime-scene investigations
and greater access to witnesses, documents, and other evidence. Establishing and
staffing such field offices for ICC cases is apt to prove costly and time-consuming
because they will have to be created, staffed, and dissolved in numerous locations
throughout the world.
The ad hoc tribunals, and especially the ICTY, have experienced considerable
difficulty obtaining state cooperation and enforcement of tribunal orders. The
ICC is apt to suffer even greater problems because its enforcement powers are less
robust than those of the ad hoc tribunals. The Security Council imposed the
ICTY on the former Yugoslavia and consequently was able to include a strongly
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worded provision, stating that states “shall cooperate” with the ICTY in the in-
vestigation and prosecution of defendants and “shall comply without undue delay
with any request for assistance or an order issued by a Trial Chamber” (emphasis
added). Although the powers the ICTY possesses on paper have rarely translated
into full cooperation, the ICC does not even possess such paper powers. Although
article 86 of the Rome Statute does require states to “cooperate fully with the
Court in its investigation and prosecution of crimes within the jurisdiction of the
Court,” the statute also contains a number of loopholes and exceptions that will
allow states easily to avoid cooperation. The most worrying loophole concerns
requests implicating states’ national security interests. States parties to the Rome
Statute need not comply with requests for cooperation when “the request con-
cerns the production of any documents or disclosure of evidence which relates to
its national security.”  That the request need only “relate[]” to national security
to prevent the cooperation obligation from arising shows the potential breadth of
this exception. Some states had sought, in addition, the ability to refuse requests
on the ground that compliance would be prohibited by national law. Such a
broad, potentially devastating, exception was rejected in the end, but the Rome
Statute does permit states to refuse a request to cooperate when complying with it
would violate “an existing fundamental legal principle of general application.” 
The Rome Statute fails also to place on states an unqualified obligation to ar-
rest and surrender defendants. States may, for instance, refuse to surrender a per-
son sought by the ICC when the state is under an existing international obligation
to extradite the person to another state that is not party to the Rome Statute.
The Rome Statute further does not require surrender when the person sought is
being proceeded against or serving a sentence in the requested state for a crime
different from that for which the ICC seeks him or her. A state may also refuse
a request for surrender or other assistance if complying with it would require the
state to act inconsistently with its international law obligations pertaining to dip-
lomatic immunity of a person or property of a third state, or if compliance would
violate an international agreement pursuant to which the requested state requires
the consent of a sending state before surrendering a person of the sending state
to the ICC. It is pursuant to this latter provision that the United States has
sought to conclude agreements with Rome Statute states parties in an effort to
prevent them from transferring American nationals to the ICC. Finally, states
can postpone compliance with a request when its immediate execution would
S3857.indb 34 10/4/06 6:46:12 AM

interfere with an ongoing investigation or prosecution of a case different from

that to which the ICC request relates.
The powers of the ICC are limited in other ways that will also impede the
court’s functioning. For one thing, the ICC appears to possess no power to sub-
poena witnesses. Further, the powers of the ICC’s prosecutor to conduct on-site
investigations without the consent of the state on which the investigation is to take
place are severely circumscribed. The Rome Statute does permit the ICC prosecu-
tor to undertake specific investigatory steps on a state’s territory without having
obtained consent from the state but only if authorized by a Pretrial Chamber,
which can give that authorization only after finding that “the State is clearly un-
able to execute a request for cooperation due to the unavailability of any authority
or any component of its judicial system competent to execute the request” using
the ordinary channels. One commentator deemed the prosecutor’s power one
that “is not practicable and cannot be effectively utilized.”  Finally, even when
cooperation is forthcoming, the Rome Statute’s frequent references to national
procedures are apt to complicate the cooperation process. ICC requests for arrest
and surrender, as well as for other forms of assistance, must be in accordance with
national procedures. The observation of national procedures seems, on the one
hand, a token and harmless nod to state sovereignty, yet it has the potential to in-
crease costs and cause delay, as the ICC will be unable to prepare standard coop-
eration forms but will instead have to research the (perhaps difficult-to-ascertain)
procedures of the numerous states from which it will be seeking assistance.
As noted above, the Rome Statute imposes no express limitations on the num-
ber of cases that the ICC can hear, but even before the court formally began its
work, insiders had acknowledged that financial constraints would restrict the
ICC to prosecuting, at most, six cases per mass atrocity. Similar, if more express,
constraints have been imposed on the hybrid international-domestic tribunals of
Sierra Leone, East Timor, and Cambodia, which are discussed in the following
section.
Hybrid International-Domestic Courts in Sierra Leone,

East Timor, and Cambodia
Sierra Leone’s eleven-year civil war, with its signature amputations, was un-
speakably brutal. The war left as many as two hundred thousand dead, many
S3857.indb 35 10/4/06 6:46:12 AM

at the hands of child soldiers, some of whom were only seven years old when
they were abducted and forced to fight. After the war ended, the government
of Sierra Leone negotiated an agreement with the U.N. secretary-general for the
establishment of an independent Special Court. Although the circumstances
giving rise to the creation of the Special Court strongly resemble those leading to
the establishment of the ad hoc tribunals, the Security Council did not respond
in like fashion but rather endeavored to create something of a tribunal-lite. In
particular, frustration with the high cost and slow pace of the ICTY and ICTR led
the international community to create a “court [that] operates under a tight bud-
get directly controlled by the U.S. and other donor countries, with a three-year
timetable and a limited mission.”  So, unlike the statutes of the ICTY and ICTR,
which give those tribunals “the power to prosecute persons responsible for seri-
ous violations,”  the Security Council insisted on limiting the Special Court’s
jurisdiction only to those “persons who bear the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law” (emphasis
added), a jurisdictional provision that has been interpreted as restricting pros-
ecutions to between twenty and twenty-five individuals. The Security Council
failed to provide adequate financing even for this limited mandate, and, as a con-
sequence, the Special Court indicted only thirteen individuals.
Unlike the ICTY and ICTR, which were established by means of Security
Council resolutions and thus are subsidiary organs of the U.N., the Special Court
is a treaty-based organ and does not receive an assessed share of the U.N. budget.
This fact is not coincidental. Indeed, the Security Council insisted that the Special
Court be financed through voluntary contributions, and it was the ad hoc tri-
bunals’ ever-increasing budgets that led the Security Council to refuse to estab-
lish another subsidiary organ. U.N. Secretary-General Kofi Annan strongly ob-
jected to voluntary funding, maintaining that a special court “based on voluntary
contributions would be neither viable nor sustainable.”  This prediction came
to pass. By 2003, the Special Court faced a financial crisis so severe that its opera-
tion could not be guaranteed beyond the end of the year. An appeal for voluntary
contributions brought in enough funds to see the court through 2003, but in
March 2004, the Special Court faced a $20 million funding shortfall, necessitat-
ing the U.N. secretary-general again to appeal to the Security Council to fund the
court through assessed rather than voluntary contributions. This appeal went
unheeded, and by October 2005, the court was again seeking additional contribu-
tions to allow it to continue its work in 2006. The insecure nature of the court’s
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funding has led court staff to devote extensive time to fund-raising rather than to
court operations, and it has prevented the hiring of necessary staff since funding
for the relevant positions has been uncertain. In August 2004, the Special Court’s
registrar, Robin Vincent, tendered his resignation, a move prompted in large part
by his frustration over the lack of financial support he received.
The Special Court’s funding shortfall bodes especially poorly because the
court’s budget is so spare to begin with. The U.N. secretary-general had originally
estimated a first-year budget of approximately $22 million, which is less than
one-quarter of the ICTY’s and the ICTR’s current budgets. But informal con-
sultations indicated that the U.N. could not hope to secure anywhere near that
amount from voluntary contributions, so a revised budget was prepared granting
the Special Court $16.8 million for its first-year’s costs  and $56 million for its
entire three-year life span. The Special Court currently appears set to continue
its work for longer than three years and to cost more than its original budget,
but critics nonetheless maintain that the meager budget and the speed with which
trials must be conducted threaten to impair important due-process protections in
Special Court proceedings. Budgetary constraints, for instance, have in particu-
lar hampered witness-protection efforts and the ability of defense counsel and
defense investigators to prepare cases for trial.
Similarly, in East Timor, the international community talked the talk of crim-
inal justice but was unwilling to back up that talk with adequate financing. In
August 1999, after a referendum in which 78.5 percent of the East Timorese voted
against remaining within Indonesia, heavily armed groups favoring the Indo-
nesian retention of East Timor conducted a “scorched earth” campaign during
which they “burned and looted entire towns and villages, attacked and killed at
random, and kidnapped nearly 200,000 people to the western half of the island
that was still controlled by Indonesia.”  After sending security forces to halt
the violence, the Security Council adopted Resolution 1272, establishing the U.N.
Transitional Administration in East Timor and empowering it to exercise all leg-
islative and executive authority, including the administration of justice.
Pursuant to that authority, the secretary-general for East Timor created Spe-
cial Panels for Serious Crimes in the Dili District Court to prosecute particularly
serious crimes, including genocide, war crimes, and crimes against humanity.
Although the success of the Special Panels was substantially impeded by Indone-
sia’s refusal to cooperate in surrendering suspects, the Special Panels were able
to prosecute eighty-seven (mostly low-level) defendants and convict eighty-four
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of them before the U.N. stopped funding the panels in May 2005. The legal
provisions under which these crimes were prosecuted as well as the provisions
relating to individual criminal responsibility are nearly identical with those of
the ICC, and the Special Panels’ procedural rules included the full range of due-
process guarantees found in leading human-rights instruments. However, this
“state of the art system for prosecuting international crimes”  was not matched
with the necessary financial support.
At their inceptions, the Special Panels did not possess the resources to employ
secretaries, court reporters, stenographers, or law clerks. The absence of support
staff meant that judges had to answer their own phones and even move their
own furniture, while the absence of court reporters meant that cases were con-
ducted without official transcripts. The Special Panels, further, were so severely
understaffed in interpreters that many hearings had to be postponed, and some
judgments were issued in only one of the panels’ official languages, even though
judges on that very panel were unable to read the judgment. Interpreters were
at times required to work for extensive periods, without breaks, and in some
cases, a substantial number of witnesses spoke languages for which there were no
official interpreters so that translation had to be performed by interpreters work-
ing in the prosecutor’s office  or even, occasionally, the East Timorese judge on
the panel. The dearth of interpreters additionally meant that witness question-
ing at times proceeded through multiple translations; for instance, to enable one
defense counsel to question a witness in the Los Palos case, three interpreters
were required, and from the point at which a question was asked until the coun-
sel received a reply, six interpretations were made. Further, some interpreters
of the less-common East Timorese languages had little experience in transla-
tion; one Bunak translator repeatedly summarized the witnesses’ testimony in
the third person, despite the panels’ repeated requests that he instead translate
the witness’s actual words.
Insufficient resources at the Special Panels also forced prosecutors to charge
most of the early defendants with domestic crimes, such as murder, under the In-
donesian Criminal Code, rather than charging more time-consuming, difficult-
to-prove crimes such as crimes against humanity. Inadequate funding in ad-
dition impaired defendants’ rights to legal representation. The Special Panels
conducted their work on a meager $6.3 million annual budget, and, at the outset,
virtually none of those funds were allocated to defense costs. In addition, in the
Special Panels’ early days, there were less than a dozen public defenders for all of
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the criminal cases in East Timor, both serious crimes proceedings and ordinary
criminal proceedings. As a result, defense attorneys had virtually no ability to
undertake investigations in early cases, and indeed, not a single defense witness
was called to testify in the first fourteen trials at the Special Panels, not even in
the Los Palos case, a massive case charging crimes against humanity against ten
defendants. As one Los Palos defense counsel put it: “We do not have witnesses.
We wish we did.”  He and other defense counsel complained that they lacked
both cars and the time to travel to the districts to interview potential witnesses, as
well as resources to provide witnesses with transport to court and to pay for their
food and lodging while in Dili. In addition, the scarcity of defense counsel led
one to send a standardized letter to investigators authorizing the investigators to
question his clients when he was not present and including a list of rights to be
read to the defendant before the interview.
The Special Panels had difficulty attracting and retaining international judges,
and lack of funding proved a substantial cause. The U.N. envisaged establishing
two Special Panels, but because it was unable to recruit the requisite number of
international judges, only one panel was operational for most of the court’s first
year. As a result, when that panel would, for some reason, refuse to accept a
defendant’s guilty plea, that same panel would conduct the defendant’s trial. In
addition, some trials had to be postponed for lengthy periods of time due to judi-
cial absences. The Lolotoe case, for instance, was adjourned for five full months,
while the defendants remained in pretrial detention, because, in the words of the
chief judge, it proved “impossible . . . to assemble the judges for the continuation
of the trial.”  The inability to attract international judges likewise forced the
Appeals Chamber to stop functioning for eighteen months, preventing numer-
ous defendants from appealing their convictions.
Although some improvements were made, most of these problems remained
throughout the five-year life span of the Special Panels. The panels continued to
struggle in the face of tremendous human and material resource limitations, and
the frequent unavailability of judges and interpreters continued to result in post-
poned trials and excessive pretrial detentions. Plea bargaining became routine at
the Special Panels, a development that I will discuss in more detail in Chapter 6,
but even with the use of that device, the Special Panels were unable to complete
their investigations and prosecutions before U.N. funds ran out in May 2005.
Approximately 1,400 people were killed during the 1999 violence in East Timor,
yet the ninety-five indictments filed before the Special Panels accounted for only
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572 of those murders. Less than a third of the defendants charged in those
indictments were able to be brought before the Special Panels while a signifi-
cant number of crimes were never even investigated, a failure that the U.N.
secretary-general attributed to “the need to comply with the deadlines set by the
Security Council.” 
Efforts to prosecute Khmer Rouge leaders in Cambodia have met with similar
difficulties. During its approximately four years in power during the 1970s, the
Khmer Rouge was responsible for more than two million Cambodian deaths. The
Khmer Rouge summarily executed between one hundred thousand and three
hundred thousand people and relocated millions of city dwellers to the country-
side, which led to the deaths of 1.5 to 2 million people from starvation, disease,
and physical exhaustion. Negotiations between the U.N. and the government of
Cambodia for a tribunal to prosecute Khmer Rouge leaders began in 1997  but
stalled five years later, when the U.N. found itself unable to agree to Cambodia’s
terms. The U.N. believed that the proposed judicial body “would not guarantee
the independence, impartiality and objectivity that a court established with the
support of the United Nations must have.”  Negotiations resumed a year later,
and this time the U.N. capitulated to many of Cambodia’s demands; thus, in
March 2003, the parties signed an agreement to establish Extraordinary Cham-
bers in the Courts of Cambodia. Like the Special Court for Sierra Leone, the
Extraordinary Chambers will conduct its work for a scant three years and is ex-
pected to prosecute only ten or twelve senior Khmer Rouge leaders. The U.N.
has estimated that approximately $57 million will be needed to fund the tribunal
for its three-year existence, and reminiscent of its position on the Special Court
for Sierra Leone, the U.N. General Assembly has again insisted on funding the
Extraordinary Chambers through voluntary rather than assessed contributions.
Although the $57 million three-year budget constitutes a mere fraction of the
sums that the ICTY or the ICTR spend annually, key donors initially refused to
contribute, complaining that the price was too high. The U.S. Senate and House
of Representatives went so far as to introduce bills prohibiting the United States
from providing financial support to the Extraordinary Chambers. Trials were
scheduled to begin in 2007, but by February 2006, the Extraordinary Chambers
still faced a $9.6 million funding shortfall.
The foregoing indicates that to the extent international criminal prosecu-
tions are politically viable, they will be financially viable only if they are limited
to very small numbers. The ICTY and ICTR have had to call off investigations
S3857.indb 40 10/4/06 6:46:14 AM

and make plans to send some of their cases to ill-equipped domestic courts; the
Special Court for Sierra Leone labors under a severely restricted jurisdictional
mandate and does not possess the funds to fulfill even that; the Special Panels in
East Timor closed in May 2005 without completing many of the planned pros-
ecutions; and the ICC has opened its doors with the expectation that it can pros-
ecute no more than six cases per atrocity. Since virtually everyone agrees that,
if prosecutions must be limited, they should target senior political and military
figures, the international prosecution of international crimes currently appears
restricted to the high-level architects of the atrocities, leaving mid-level imple-
menters and low-level executioners free from sanctions.
Domestic Prosecutions
Domestic prosecutions of international crimes offer the potential to prosecute

a greater proportion of offenders because domestic trials are apt to cost less than
their international counterparts. The salaries of court staff and the fees paid to
appointed defense attorneys are generally lower in many of the developing na-
tions in which mass atrocities frequently occur, and travel expenses are insignifi-
cant compared with the costs incurred by the ad hoc tribunals, which are located
far from crime sites. On the other hand, many of the factors that render interna-
tional prosecutions so expensive also increase the costs of domestic prosecutions
of international crimes. International crimes are complex and difficult to prove,
whether prosecuted domestically or internationally. To prosecute murder as a
crime against humanity, for instance, the prosecution must prove not only that the
defendant killed the victim but that the murder took place as part of a widespread
or systematic attack against a civilian population. To prosecute grave breaches of
the 1949 Geneva Conventions, the prosecution must prove that the offenses took
place in the context of an international armed confl ict. Proving these contextual
elements can take days or weeks of court time. Domestic prosecutions can reduce
trial time by charging domestic crimes, such as murder, in lieu of international
crimes, but even trials for domestic crimes can be lengthy and costly when they
involve high-level offenders who did not themselves perpetrate the violence. In
addition, although some domestic prosecutions will not require language transla-
tions, many will. South Africa has eleven official languages;  although English
is the only official language for court proceedings, the fact that many defendants
and witnesses do not speak English means that South African proceedings often
S3857.indb 41 10/4/06 6:46:14 AM

feature multiple language translations. Similarly, because East Timorese de-

fendants and witnesses may speak Tetum, Indonesian, Portuguese, or any one
of a number of local dialects, most of the translation costs required for the cases
being heard by the Special Panels would also be incurred if trials were to proceed
through purely domestic processes. Finally, witnesses who testify in the pros-
ecutions of international crimes are prone to suffer retaliatory violence, regardless
of whether their testimony is heard before an international or domestic court.
The ICTY and ICTR allocate a considerable portion of their budgets to victim
and witness-protection units, and domestic criminal justice systems must also
spend significant funds if they are to provide adequate protection. When one
additionally considers that the criminal justice systems of states emerging from
widespread violence are often in shambles, it becomes clear that even in those rare
cases where political obstacles to domestic prosecutions do not exist, domestic
courts may be wholly ill-equipped to undertake such prosecutions.
Financial constraints have already impeded the few domestic prosecutions of
human-rights violations that have taken place in recent years. South Africa, for
instance, pledged to prosecute offenders who failed to apply for amnesty before
that nation’s Truth and Reconciliation Commission; it did initially attempt pros-
ecutions, but ultimately their costs proved too high. Although South African
prosecutors were able to obtain a conviction against Eugene de Kock for six mur-
ders and eighty-three other crimes, his trial lasted eighteen months, featured
more than one hundred witnesses, and cost South African taxpayers more than
$1.25 million. The trial of former Minister of Defense Magnus Malan and his
sixteen codefendants lasted nine months, cost $2 million, and ended in the ac-
quittal of all of the defendants. In a similar vein, Dr. Wouter Basson was acquit-
ted of charges that he supplied deadly drugs to military agents to enable them to
murder enemies of the government but only after a trial that lasted thirty months
and featured two hundred witnesses and thousands of pages of evidence. The
few other high-profile trials undertaken in South Africa were similarly expensive
and time-consuming. Even the proceedings against former South African
president P. W. Botha for the minor offense of failing to comply with a subpoena
issued by the South African TRC, for instance, lasted nearly nine months. Most
domestic criminal justice systems would have difficulty sustaining the costs
of such prosecutions, and the South African criminal justice system—which
has been so underresourced as to be labeled “virtually dysfunctional” —had
no hope of doing so. Indeed, in the years following the negotiated transfer, the
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South African criminal justice system was unable even to prosecute the vast bulk
of the ordinary crimes occurring on the streets of South Africa. Its deficien-
cies were so severe that many South Africans felt compelled to exercise private
vengeance on those suspected of committing crimes. It is not surprising, then,
given these circumstances, that South Africa failed to conduct large-scale hu-
man-rights prosecutions after the initial, expensive few were completed.
Rwanda’s criminal justice system was in a far graver state of disrepair follow-
ing the shattering violence of 1994; consequently, its early, ambitious attempts to
prosecute the more than one hundred thousand genocide suspects were charac-
terized by widespread due-process violations, largely resulting from lack of fund-
ing. In many cases, defendants were detained for years in overcrowded prisons.
They had no access to legal counsel, and some had never been formally charged
or even verbally informed of their alleged crimes. By 2001, the criminal jus-
tice system’s complete inability to process the genocide cases was apparent and
led to the establishment of informal community tribunals, called gacaca courts
(see Chapter 10).
Insufficient resources have also impeded Ethiopia’s effort to prosecute the
large-scale atrocities committed during the repressive seventeen-year Dergue
regime. During the Dergue rule, tens of thousands of Ethiopians were tortured,
murdered, or disappeared, and the transitional government that assumed power
after the Dergue was overthrown in 1991 promptly arrested approximately two
thousand former government officials. A Special Prosecutor’s Office was created
to handle these prosecutions, but its lack of resources and the inexperience of its
staff have impeded its ability to carry out its work. No defendants were charged
until the end of 1994 —more than three years after their arrests. Nongovern-
mental organizations (NGOs) expressed concern in addition that defendants had
not been provided with adequately resourced defense counsel and that the gov-
ernment had interfered with defense counsel’s access to defendants. Although
prosecutors had amassed a large quantity of physical and testimonial evidence,
its financial inability to conduct appropriately expeditious trials that comport
with due-process guarantees led Human Rights Watch to suggest the use of plea
bargaining to dispose of cases. Prosecutors apparently have not followed that
advice: by 2004 approximately one thousand defendants remained imprisoned
pending trial, and trials continue to date.
In Chile, domestic prosecutions were initially foreclosed by the blanket am-
nesty that General Pinochet granted himself and his underlings. In recent years,
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however, judges have sidestepped the amnesty by holding that “disappearances”

in which the fate of the victim is unknown are ongoing crimes that fall outside
of the time period covered by the amnesty. In consequence, hundreds of for-
mer military officials are now eligible for prosecution, and some have already
been sentenced to terms of imprisonment. Because these trials moved slowly
and featured evidentiary impediments, Chile’s then president Ricardo Lagos pro-
posed a bill in 2003 that would have granted immunity to people who came for-
ward of their own accord to divulge information about the crimes and that would
have granted reduced or commuted sentences to those who provided informa-
tion on the whereabouts or fate of the “disappeared.”  Victims opposed these
measures, and the bill was defeated in March 2005, but many believe that such
accommodations will be necessary if successful prosecutions are to take place.
A final fact bedeviling domestic efforts to prosecute international crimes con-
cerns the large number of offenders who are typically implicated in such crimes.
Because most international crimes are perpetuated by hundreds if not thousands
of individuals, even well-resourced criminal justice systems will rarely have the
means to prosecute every last offender. Lines must be drawn, and those lines, in
many cases, will assign a substantial portion of offenders to the impunity col-
umn. It nonetheless remains vitally important to critically evaluate where those
lines should fall. In a numerical sense, the question may be whether to prosecute
six offenders, sixty, six hundred, or six thousand. In a more analytical sense, the
question may be whether to prosecute only those who masterminded the atroci-
ties and implemented them at the highest levels of authority or whether to extend
prosecutions to those closer to the ground—to local leaders who carried out local
implementation and to at least some low-level offenders who themselves killed,
raped, tortured, and otherwise destroyed lives. The following chapter examines
these questions by exploring the ways in which criminal prosecutions serve or
fail to serve the goals they are intended to advance. The chapter reaches the some-
what self-evident conclusion that more is better when it comes to the prosecu-
tion of international crimes. More interestingly, the chapter explores why more
is better and how conducting only a few, token prosecutions may as easily under-
mine those efforts.
S3857.indb 44 10/4/06 6:46:15 AM

ch a p t e r t h r e e
Do the Numbers Count?

The Ends Served by International Criminal Prosecutions
in Societies Emerging from Mass Atrocities
The Nuremberg and Tokyo tribunals were expected to usher in an era of account-
ability for international crimes, but although the fift y years that elapsed after the
creation of those tribunals saw many thousands of international crimes, virtually
no criminal prosecutions took place. The importance of the ICTY’s creation in
1993, then, cannot be overestimated; a veritable revolution in attitudes regarding
the need for criminal accountability following mass atrocities has been wrought
in little more than a decade. However, as Chapter 2 demonstrated, the “criminal
accountability” currently being sought is being sought from only a small pro-
portion of offenders. Prosecutions of international crimes are said to advance
a variety of penological goals, including retribution, deterrence, incapacitation,
and rehabilitation. Prosecutions are further said to promote other ends of value
specifically to societies recently torn by large-scale violence, such as encouraging
acceptance of the rule of law, minimizing the likelihood of collective blame, and
creating an accurate historical record. Whether the prosecution of international
crimes advances any or all of these goals has lately been subject to question, but
assuming for the sake of argument that they do, then the question arises as to
whether these goals are advanced when prosecutions are limited to a small num-
ber of (usually) high-level offenders. The following discussion suggests that, al-
though in many cases the ends served by international prosecutions are nominally
the same as the ends served by the prosecution of domestic crimes, in fact, these
goals take on different contours in the context of large-scale violence—differences
that indicate an especially compelling need for a substantial number of prosecu-
tions. The discussion further reveals that undertaking a substantial number of
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46 do the numbers count?
prosecutions is all the more necessary when attempting to serve purposes spe-
cifically designed to benefit conflict-riven societies. In sum, for prosecutions to
come close to generating the benefits for which they are credited, there must be
an expansion of the selective, token prosecutions that characterize the current
approach to international criminal justice.
Retribution
Retributive theories of justice posit that punishment is a necessary and

appropriate response to wrongdoing, not because the punishment deters future
crimes or leads to any other desirable societal end, but because wrongs must be
denounced and those who perpetrate them punished. Retribution, then, is not
future-oriented but rather focuses on the past and demands that each and every
wrong that deserves punishment receive punishment. It almost goes without
saying, therefore, that since retribution requires that all wrongs be punished, the
greater the percentage of wrongs that are punished, the better retributive goals
are served. The theoretical requirement that punishment attend each and every
wrong routinely gives way, however, to practical realities. No criminal justice
system is able to prosecute all crimes, and criminal justice systems seized with
international crimes are even less equipped than most to approximate compre-
hensiveness. But the fact that universal prosecution is unattainable cannot jus-
tify a prosecutorial scheme that sets out to prosecute only the tiniest propor-
tion of offenders. Such a scheme, indeed, stands as a mockery of the retributive
ideal.
Although certain research suggests that victims are not as retributive as is
popularly believed, victims of international crimes do typically express a de-
sire for some retribution. Sanja Ivković’s study of victim perceptions in the Bal-
kans, for instance, showed that the overwhelming majority of victims surveyed
advocated punishment for those who had committed international crimes on
retributive grounds, that is, because “[e]veryone should pay for the crimes they
have committed.”  The retribution desired by most victims of international
crimes is not focused on the leaders who orchestrated the atrocities but rather is
aimed primarily at the so-called “low-level perpetrators,” those who generate lit-
tle interest at the international tribunals but whom victims perceive to be directly
responsible for bringing life, as they knew it, to an end. While most commen-
tators agree that the senior political and military leaders—those who plan the
atrocities and use hate-based propaganda to incite ordinary, law-abiding people
S3857.indb 46 10/4/06 6:46:15 AM

do the numbers count? 47
to brutalize former friends and neighbors—carry the greatest responsibility for

the crimes, this reality is not the reality most compelling to victims. Although it
is the Slobodan Miloševićs and Charles Taylors of the world who orchestrate the
conflicts, the nightmares of victims are peopled not by leaders such as they but by
the Sierra Leonean rebel who amputated the victim’s arm, or by the Bosnian Serb
prison guard who forced the victim to castrate his own son. When victims desire
personal vengeance, it is these low-level offenders on whom they set their sights.
Although victims’ desires for retribution cannot be given undue weight when
determining the appropriate scope of prosecutions, the current approach to in-
ternational criminal justice threatens to ignore victims’ views entirely. Criminal
prosecutions are optimistically credited with substituting for and thus helping to
prevent vigilantism, but if they are to serve that function, they must run suf-
ficiently broad and deep actually to quell the vengeful inclinations of a substan-
tial number of victims. The need to bring retribution into the individual towns
and villages that have been shattered by violence is especially pressing because
in many cases, after the atrocities cease, victims must continue to coexist in those
same towns and villages with those who inflicted the harms. A man who is forced
to interact with his mother’s rapist at the local market, or his son’s murderer at the
village well, may not be able to suppress his desire for private vengeance. Indeed,
in defending her early attempts to prosecute a range of both high-level and low-
level perpetrators at the ICTY and ICTR, Prosecutor Carla Del Ponte made just
this point, arguing that unless local leaders are also prosecuted, “the ordinary
population will not come to terms with the past, and the process of reconciliation
and building a stable peace will suffer accordingly.” 
Deterrence
Deterring the commission of future crimes is a key justification for the impo-
sition of criminal sanctions for domestic crimes, and supporters of trials for in-
ternational crimes similarly credit those proceedings with helping to deter future
atrocities. The Security Council established the ICTY while the Yugoslavian con-
flict was still underway with the express goal of deterring international crimes,
and both it and the ICTR consider deterrence to be one of their most important
ends. Similarly, the Rome Statute establishing the ICC cites deterrence as a
reason for creating that institution.
Despite the optimistic rhetoric, systems of international criminal justice are
not sufficiently pervasive or mature to act as effective deterrents. The threat of
S3857.indb 47 10/4/06 6:46:16 AM

an ICTY prosecution seemingly deterred none of the major actors in the Yugo-
slavian conflict. The Bosnian war’s single most horrific crime—the execution of
approximately seven thousand men and boys in Srebrenica—occurred in 1995,
two years after the ICTY was created. Three years after that, Slobodan Milošević
launched an expulsion campaign against Kosovar Albanians with full knowledge
that the crimes fell within the ICTY’s jurisdiction. That the existence of interna-
tional tribunals has failed to deter mass atrocities should come as no surprise.
Criminal justice experts assert that deterrence is effected not primarily by the
severity of punishment but by the certainty of punishment. That is, the more
likely offenders consider prosecution to be, the more likely they are to be de-
terred from committing offenses. Since most international offenders know with
near certainty that they will never face prosecution, the trials that do take place
have little, if any, deterrent effect. Although the developments in international
criminal justice over the past ten years have put the architects of mass atrocities
at marginally greater risk, the sad fact remains that most atrocities will go unpun-
ished. The same political and military impediments to prosecutions that resulted
in widespread impunity throughout the years since World War II will continue
to hinder efforts to prosecute human-rights abusers, if perhaps to a slightly lesser
degree. The international community’s recent willingness to send former Libe-
rian president Charles Taylor into comfortable exile despite the fact that the Spe-
cial Court for Sierra Leone had issued a warrant for his arrest only underscores
the fact that in many cases peace continues to be bought at the price of justice.
Because many instances of collective violence will be followed by no prosecu-
tions, it arguably becomes all the more crucial, for deterrence purposes, to prose-
cute well those instances of collective violence that do prove themselves politically
amenable to criminal prosecution. Although the nascent state of international
criminal justice mechanisms renders it unrealistic to expect substantial deter-
rence to result from the prosecution of international crime, prosecuting a signifi-
cant number of low-level and mid-level offenders of one atrocity could have some
deterrent effect on soldiers in neighboring armies who have little personal stake in
the underlying hostilities but great personal stake in avoiding a prison sentence.
Deterrence of mid-level and low-level offenders is furthermore of no small con-
sequence given their vital importance to any plan to conduct widespread human-
rights abuses. For mass atrocities to be carried out, leaders must enlist the ser-
vices of hundreds or thousands—indeed, sometimes tens of thousands—of their
citizens. Rwandan officials required the help of more than one hundred thousand
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Hutu to exterminate approximately eight hundred thousand Tutsi and moderate

Hutu in the spring of 1994. Deterring those on the ground, then, can substantially
reduce the violence. Indeed, John Braithwaite and Brent Fisse have demonstrated
in an analogous setting that the most effective way to deter corporate crime is to
focus deterrence efforts not on the criminal who has the most to gain from the
crime but on “a softer target” who has preventative capabilities. Deterring low-
level offenders is a difficult task because, under the best of circumstances, a sig-
nificant percentage of them will not be prosecuted and because genocidal leaders
make use not only of potent racist propaganda and misinformation to incite their
citizens to violence, but also threats and incentives. But a prosecutorial strat-
egy that targets not only those who masterminded the violence but at least some
of those who carried it out must be considered a vital first step in encouraging
defiance among individuals who might otherwise be inclined to blindly follow
genocidal orders.
Prosecuting low-level defendants might additionally help to deter high-level
architects of violence by making it more likely that these leaders too will be con-
victed. The Nazis left Nuremberg prosecutors a voluminous paper trail, but more
recent génocidaires have learned that relying on oral orders and obscuring the
relevant chains of command prove a safer course. So, prosecutors seeking to im-
plicate Slobodan Milošević in the Bosnian atrocities, for instance, were forced to
gain information from sometimes-hostile insider witnesses. These witnesses
face condemnation and perhaps even violent retaliation for providing the in-
formation prosecutors seek; thus, such witnesses are not apt to make damaging
disclosures unless they face some other threat—such as the threat of prosecu-
tion—through which that information can become a commodity for trade. Tribu-
nals, such as the Special Court for Sierra Leone, which has indicted all of thirteen
people, have little hope of gaining such information because they have no credible
“stick” by which to threaten low-level offenders who are not otherwise inclined
to disclose it.
Incapacitation
The ICTY has stated that imposing long prison sentences on tribunal defen-
dants enables the tribunal “to protect society from the hostile, predatory conduct
of the guilty accused.”  When the tribunals prosecute high-level offenders, how-
ever, it is not only the hostile and predatory conduct of the accused themselves
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that the tribunals incapacitate but, more importantly, the accused’s ability to
incite hostile and predatory conduct in others. Indeed, in candid moments, ICTY
employees acknowledge that a primary function of the tribunal is to get national-
ists such as Slobodan Milošević and Vojislav Šešelj off the street, as it were; that is,
to remove them from the realm of national politics where they would otherwise
continue to sow the seeds of ethnic and religious hatred. In a similar vein, the
arrests of high-level Rwandan officials responsible for the 1994 genocide helped to
prevent further violence by incapacitating their military attacks against Rwanda’s
postgenocide government. And the lengthy failure to arrest former Liberian
president Charles Taylor enabled him to continue to promote violence in Liberia
from his Nigerian exile. While in exile, Taylor reportedly continued to control
the government army, communicating by cell phones with commanders and re-
ceiving ministers.
With respect to domestic crimes, more convictions means better incapaci-
tation because more offenders are incapacitated. However, in the international
sphere, the incapacitation returns of increasing convictions are diminishing be-
cause many perpetrators of international crimes do not need to be incapacitated.
Most low-level perpetrators of international crimes are people who were formerly
law-abiding and who would have remained law-abiding had large-scale ethnic, re-
ligious, or nationalist conflict not intruded into their villages, towns, and lives.
That is, many low-level perpetrators are not violent people, but rather are people
who became violent because of the violence that ripped through their regions.
Without relieving such offenders of responsibility for their crimes, it remains the
case that imprisoning them serves little the end of incapacitation because such
offenders do not need to be removed from society. Once the large-scale contex-
tual violence ceases, so too does their individual violence. The Rwandan genocide
starkly highlights this phenomenon, for there a substantial portion of the previ-
ously law-abiding population picked up machetes and slaughtered their neigh-
bors, daily from dawn till dusk. Spurred on by threats, incentives, and inflamma-
tory radio broadcasts that portrayed Tutsi as “cockroaches” bent on destroying
Hutu, more than one hundred thousand Hutu wielded their machetes and “went
to work,” as the slaughter was euphemistically described, butchering every Tutsi
they could find in an effort to eliminate them from the face of the earth. Im-
prisoning more than one hundred thousand formerly law-abiding Rwandans, as
the Tutsi-led Rwandan government did in the years following the genocide, may
serve some penological goals, but incapacitation is not likely to be one of them.
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The goal of incapacitation can be advanced, however, by increasing the number

of prosecutions targeting mid-level perpetrators—those offenders who held po-
sitions of local or regional leadership—because their status could enable them
to assume greater power in the future and to stoke the passions underlying the
violence. The international criminal bodies, as they are currently operating, have
only limited ability to target these mid-level offenders, even though removing
them from the local political scene by imprisonment could well advance regional
peace and security.
Rehabilitation
A state that seeks to rehabilitate its criminals is a state that seeks to transform
them from people who break the law into people who respect and comply with
the law; that is, the state seeks to bring those who have strayed from legal and
societal norms back into the fold. Rehabilitation plays an entirely different role
in the context of international crimes because international crimes are commit-
ted within a fold that is itself outside the fold. In other words, because societies
riven by violent conflict are typically governed by hate-based norms, the actions
of international offenders often not only fail to breach prevailing moral standards
but in fact exemplify them. Journalist Philip Gourevitch observed, for instance,
that during the Rwandan genocide, “the work of the killers was not regarded as
a crime in Rwanda; it was effectively the law of the land.”  Thus, rehabilitating
international offenders envisages a renunciation not only of their own behavior
but also of the norms of the twisted society from which that behavior sprang.
Rehabilitation has been largely abandoned as a penological goal in the United
States, but when it was in vogue, it centered primarily on providing treatment
to incarcerated offenders in an effort to prevent recidivism. As noted in the dis-
cussion of incapacitation, recidivism is not so pressing a problem in the interna-
tional context. International offenders are not likely to repeat their offenses, with
or without treatment, absent the context of violent conflict in which the original
offenses took place. International offenders are, however, apt to retain the deeply
held racist, nationalistic, or religious views that motivated their offenses, and
these views can not only impede reconciliation but, under certain circumstances,
can precipitate future conflict. How one goes about rehabilitating violent ultrana-
tionalists, for instance, is far beyond the scope of this book. Suffice it to say that
attempting to counteract the hate-based misinformation on which their actions
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are founded and seeking to promote empathy and dialogue between conflicting
groups are efforts that may have a rehabilitory effect both on individual offenders
and on the society as a whole.
Domestic rehabilitation efforts traditionally have taken place while offenders
are incarcerated, so, assuming that the rehabilitation efforts are efficacious,
the more offenders who can be incarcerated, the more rehabilitation that will be
achieved. The approach used for domestic crimes may not succeed when the of-
fenders are guilty of international crimes, however, given the political context in
which international crimes take place. The widespread incarceration of Hutu in
Rwanda, for instance, has likely increased group cohesiveness and ethnic hatred,
as most Hutu view the imprisonment as victor’s justice, rather than the imposition
of the rule of law. Indeed, given the nature of the rehabilitation required in the
context of international crimes, it may be that rehabilitation efforts must begin
earlier, not at incarceration, but during the criminal prosecution itself. If so, the
relevant question may not be how many prosecutions take place, but what kinds
of prosecutions take place. Criminal trials, particularly those conducted pursu-
ant to adversarial procedures, do not typically promote self-reflection, empathy,
or candid dialogue, but rather require litigants to call all doubts in their own
favor in order to present their “best case” to the fact-finder. Adversarial proceed-
ings, thus, do not encourage defendants to engage in honest self-examination,
but rather encourage them to frame their actions in the most defensible light. A
large-scale effort to obtain guilty pleas might, by contrast, encourage the kind of
critical self-evaluation desirable for purposes of rehabilitation.
Whether it will so encourage honest reflection is a far more difficult question
to answer and one that will be taken up in Chapter 7. Many critics of domestic
plea bargaining maintain that trading leniency for self-conviction inspires in de-
fendants not insightful self-awareness but resentful cynicism about the criminal
justice system and a belief that they have “gotten away with something.”  At the
same time, the anguished testimony of some South African amnesty applicants,
who were required to make full and public disclosure of their crimes to receive
amnesty, evidences the transformations that can result from a candid acknowl-
edgment of wrongdoing, even when compulsorily made. In most cases, the rac-
ist or nationalist views that motivated the lower-level offenders to pick up their
weapons against their neighbors were purposely and systematically inculcated by
leaders and mass media. The public renunciation of these views, especially when
proffered to obtain benefits, will not likely carry the same didactic force as the
original hate propaganda, but it can create a space to express differing viewpoints
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and to begin to undermine the demonization of the victim class that precipitated
the conflict.
Goals Specific to Societies Emerging from Large-Scale Violence
In addition to the penological goals described above that are also implicated
in the prosecution of domestic crime, the prosecution of international crime is
said to advance ends particularly valuable to societies that have been ruptured by
widespread violence. Serving these ends, however, typically requires the under-
taking of more than a mere token number of prosecutions.
Prosecutions of international crimes are understood, for instance, to affirm
the rule of law, an affirmation desperately needed in states where governmental
lawlessness has been the norm. However, whether the prosecution of interna-
tional offenders does indeed signify a society’s adherence to (or the international
community’s imposition of) the rule of law depends, at least to some extent, on
how many prosecutions take place. In particular, the decision to prosecute only
a handful of offenders does not manifest an embrace of the rule of law. As Ruti
Teitel put it, “Fundamental to the rule of law is the notion that the law applies with
equal force and obligation to all.”  Legal norms prohibiting violent behavior, for
instance, are norms of universal applicability that should be universally enforced.
Practical impediments preclude the universal enforcement of legal norms, both
in the domestic context, where, for instance, nonviolent property crimes routinely
go uninvestigated and unprosecuted, and in the international context, where the
large number of offenders can quickly overwhelm the capabilities of most crimi-
nal justice systems. A criminal justice system need not prosecute all of the crimes
within its jurisdiction to be perceived as adhering to the rule of law, but under-
taking a mere token number of prosecutions while leaving the vast bulk of offend-
ers unthreatened could do more to undermine acceptance of the rule of law than
to advance it. Citizens accustomed to governmental corruption and lawlessness
are likely to view such token prosecutions as more of the same rather than as a
break with the past. Teitel compares the thousands of World War II prosecu-
tions with the far smaller number of ICTY prosecutions and observes that “the
highly selective prosecutions of the ICTY seem to circumscribe the very rule of
law that they are designed to instantiate. The policy of selective prosecutions thus
underscores the elusive quality of the transformative project of the ICTY, a proj-
ect that gestures toward a liberal rule of law which the project can bring itself at
most merely to symbolize.”  Undertaking token prosecutions in addition raises
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the risk of creating martyrs of the few who are brought to justice. Martha Mi-
now observes that in such situations “[t]he distinction between law and politics
seems all but erased and the truth-seeking process seems subordinated to public
spectacle and symbolic governmental statements—and thus perpetrators begin
to look like victims of the prosecutorial regime.” 
Because prosecutions assign blame to specific offenders, they are said to dimin-
ish the victims’ propensity to blame collectively all those in the offenders’ group.
That is, by individualizing justice, criminal prosecutions enable victims to pin-
point their anger at particular perpetrators and discourage them from demon-
izing entire racial or religious groups. As Martha Minow puts it, a prosecution’s
“emphasis on individual responsibility offers an avenue away from the cycles of
blame that lead to revenge, recrimination, and ethnic and national conflicts.” 
Justice is not likely to be individualized, however, unless a sufficient number
of individuals are in fact brought to justice. A small number of prosecutions—
targeting only those in senior leadership positions—is not apt to serve this goal,
and, in fact, such prosecutions could be seen, counterproductively, as evidencing
the blameworthiness of the entire group. It bears repeating that no matter what
procedures are used, many international offenders will go unprosecuted, so many
victims will be denied the satisfaction of seeing punished the people who directly
caused their injuries. That said, a broader prosecutorial strategy that targets at
least some mid-level government officials and low-level sadists will enhance ef-
forts to direct victims’ wrath at appropriate targets.
Trials also serve a truth-telling function, even if only as a subsidiary aim, and
for this reason, the ad hoc tribunals consider one of their primary purposes to be
the creation of an historical record. The ICTY’s first judgment in the Tadić case,
for instance, contains a lengthy discussion of the historical and contextual ele-
ments framing both the larger conflict that enveloped Bosnia-Herzegovina and
much of the former Yugoslavia, as well as the regional conflict in Opstina Prije-
dor, the scene of Tadić’s crimes. The ICTY’s efforts notwithstanding, it is widely
acknowledged that criminal trials are not the most effective vehicles for the expli-
cation of historical truth. Jurisdictional requirements frequently force prosecu-
tors to focus on certain types of evidence and tell certain aspects of stories that
effectively minimize other equally important aspects. Further, a trial’s focus on
select individuals impedes its ability to elucidate the complex events and relation-
ships that culminate in large-scale violence. Finally, procedural rules designed
to protect defendants’ rights often serve to obscure rather than reveal relevant
S3857.indb 54 10/4/06 6:46:18 AM

facts. What little capacity trials do have to create an accurate and nuanced his-
torical record is further limited when prosecutions are few and target only high-
level defendants. As Mark Osiel observes, “the past can have little relevance to the
present when it is understood as a story about how the evil few led the innocent
many astray.” 
Finally, trials of international crimes pit good against evil in a courtroom mo-
rality play. Indeed, at their most theoretical, trials allow the prosecution and de-
fense to present competing visions of reality, which thereby encourage a candid
dialogue about the conflict, its causes, and its effects. Mark Osiel argues that a
“traumatized society that is deeply divided about its recent past can greatly benefit
from collective representations of that past, created and cultivated by a process of
prosecution and judgment, accompanied by public discussion about the trial and
its result.”  Osiel consequently has developed a provocative theory about the
value of human-rights prosecutions, maintaining that they can be instrumental
in the formation of collective memory and social solidarity. Osiel contends that
trials of large-scale atrocities should be “unabashedly designed as monumental
spectacles,” for when trials are “effective as public spectacle, [they] stimulate dis-
cussion in ways that foster the liberal virtues of toleration, moderation, and civil
respect.”  Osiel believes that the law’s traditional concern with retribution and
deterrence should be deemphasized in the aftermath of large-scale brutality be-
cause in that context, “the need for public reckoning with the question of how
such horrific events could have happened is more important to democratization
than the criminal law’s more traditional objectives.”  According to Osiel, tri-
als of widespread human-rights violations “present moments of transformative
opportunity in the lives of individuals and societies.”  These moments should
be capitalized on in order to inculcate principles of liberal morality. To that end,
Osiel asserts, judges and prosecutors should pay “close[] attention to the ‘poetics’
of legal storytelling, i.e., to the way in which an experience of administrative mas-
sacre can be framed within the conventions of competing theatrical genres.” 
The judicial task should be to “employ the law of evidence, procedure, and pro-
fessional responsibility to recast the courtroom drama in terms of the ‘theater
of ideas,’ where large questions of collective memory and even national identity
are engaged.” 
Osiel’s focus on the way criminal prosecutions are conducted may seem to
have little relevance to the question of how many prosecutions should be under-
taken. The trials Osiel envisages are the monumental ones—the Nuremberg and
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Tokyo trials, the Argentine junta trial, Israel’s trial of Adolf Eichmann. It is these
well-publicized trials of well-known personages that have the greatest capacity to
create collective memory and effect transformative change. Osiel’s insights are
not completely without relevance to my discussion, however, because they can be
applied to efforts designed to increase the number of prosecutions that can be un-
dertaken. Defendants’ guilty pleas can be viewed purely in market terms, as cut-
and-dried exchanges in which defendants agree to self-convict solely to obtain
sentencing concessions. Or that act of pleading guilty can be viewed as a trans-
formative experience in which defendants acknowledge their culpability and re-
nounce their behavior. Chapter 8 will expand on this insight and will contend that
judges and prosecutors who wish to use plea bargaining as a means of increasing
criminal accountability in the international realm will do well to heed Osiel’s ad-
vice to attend to “the ‘poetics’ of legal storytelling,” that is, to construct a guilty-
plea system that self-consciously seeks to advance peace and reconciliation.
Summary
The foregoing discussion reveals that increasing the proportion of inter-

national offenders who are prosecuted better serves most of the goals that
those prosecutions are intended to advance. As importantly, perhaps, the discus-
sion also indicates that undertaking a very small number of prosecutions can
prove counterproductive; that is, it can undermine rather than advance some
of the aims of criminal prosecutions. So far, then, the terrain is not especially
controversial. While human-rights advocates of a few decades ago sought to per-
suade the international community and states to prosecute some international
offenders, with that aim achieved, today’s human-rights advocates should be try-
ing to persuade the powers-that-be to conduct more criminal prosecutions—a
substantial number, not just a token few. That pitch, however, is a hard sell. The
most recently established international tribunals—the Special Court for Sierra
Leone, the Extraordinary Chambers, and the ICC—have targeted only a very
small number of high-level offenders. The ICTY, ICTR, and Special Panels cast
a broader net but have had financial difficulty prosecuting their larger pools of
indictees and have lately resorted to plea bargaining to assist them in carrying
out their prosecutions. The following three chapters describe and analyze the plea
bargaining that has taken place at these institutions as a precursor to evaluating
in Chapter 7 whether efforts to obtain guilty pleas for international crimes are
justified.
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ch a p t e r fou r
Plea Bargaining at the ICTY
The international criminal tribunals established in the 1990s were created amidst
a heady optimism and no small measure of naiveté. While the mandates of the tri-
bunals’ progeny have been carefully circumscribed from their outsets, the ICTY,
ICTR, and Special Panels were not initially so constrained. The statutes of the
ICTY and ICTR, for instance, provide, rather vaguely, that those tribunals are to
prosecute “persons responsible for serious violations of international humanitar-
ian law,”  while Regulation 2000/15 of the U.N. Transitional Administration of
East Timor (UNTAET), establishing the Special Panels, likewise contained no
limiting language. Although these bodies investigated and ultimately indicted
only a small percentage of the individuals responsible for the relevant crimes,
they each did indict more than a handful of suspects. Commentators have
criticized the seemingly random nature of the indictments, particularly those
emanating from the ICTY, which seemed initially to target high-level offenders,
low-level offenders, and a host of offenders in between with little apparent scheme
or strategy. At the time the indictments were issued, however, the tribunals oper-
ated without any express completion date so that the prosecution of a substantial
number of indictees of all levels seemed feasible. That perception of feasibility
declined in recent years as the U.N. Security Council made plans to stop fund-
ing the Special Panels in May 2005 and began seeking the closure of the ICTY
and ICTR. As noted in Chapter 2, the advent of these completion dates moti-
vated the tribunals to adopt docket-clearing strategies, one of which has been plea
bargaining.
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58 plea bargaining at the icty
After a brief description of guilty-plea procedures at the current international

tribunals, this chapter will analyze the plea-bargaining and guilty-plea practices
of the ICTY. Then Chapters 5 and 6 will provide a similar analysis regarding these
practices of the ICTR and the Special Panels.
Guilty-Plea Procedures at the International Tribunals
Although it was not expected at their inceptions that the ICTY and ICTR
would heavily utilize plea bargaining, the tribunals’ initial set of procedural rules
did envisage the possibility of a defendant pleading guilty. Consequently, unlike
many continental European criminal justice systems that contain no procedure
for defendants to waive their rights to a trial, Rule 62 of the ICTY’s and ICTR’s
Rules of Evidence and Procedure provides that when defendants are brought to
a Trial Chamber for their initial appearance, the Trial Chamber shall call upon
them “to enter a plea of guilty or not guilty on each count.”  The procedur-
al rules, as initially promulgated, contained no further guidance regarding guilty
pleas, and when the ICTY’s first case involved a defendant who desired to plead
guilty, that lack of guidance proved problematic. Dražen Erdemović was charged
with one count of a crime against humanity, and in the alternative, one count
of a violation of the laws or customs of war. In his initial appearance before the
Trial Chamber, Erdemović pled guilty to the count of a crime against humanity.
The Trial Chamber accepted Erdemović’s guilty plea, dismissed the alternative
war-crimes count, and sentenced him to ten years’ imprisonment. Erdemović
appealed on a number of grounds, and the Appeals Chamber took the opportu-
nity to set forth what it described as the “pre-conditions” that must be satisfied
before a Trial Chamber can accept a guilty plea: that the guilty plea be voluntary,
informed, and unequivocal. These requirements and an additional require-
ment that the plea be supported by a sufficient factual basis were later included
in an amendment to the ICTY’s and ICTR’s procedural rules. In subsequent
amendments to the procedural rules, the ICTY and ICTR each added a provision
governing the conclusion of plea agreements. The rule authorizes prosecutors to
enter into plea agreements wherein the prosecution agrees to amend the indict-
ment, to submit that a specific sentence or sentencing range is appropriate, or to
decline to oppose the defendant’s sentencing request. The rule further provides
that the plea agreement will not be binding on the Trial Chamber but must be
made known to it.
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plea bargaining at the icty 59
The Special Court for Sierra Leone has not yet received any guilty pleas, but
because its procedural rules are identical to those of the ICTR, any guilty pleas it
might receive must also satisfy the conditions described above. As for the Special
Panels in East Timor, its procedural rules governing guilty pleas are nearly identi-
cal to those of the ICC. Like the ICTY and ICTR, the ICC and the Special Panels
require that guilty pleas be informed, voluntary, and supported by the facts of the
case. The rules of the ICC and Special Panels, however, bestow on judges greater
authority over the guilty-plea process. In particular, the rules provide that where
the court is convinced that a more thorough presentation of the facts is required
in the interests of justice, particularly taking account of the interests of victims,
the court can request the prosecutor to present additional evidence, including the
testimony of victims, or it can conduct a full-scale trial. The procedural rules of
the ICC and Special Panels further state that “[a]ny discussions between the Pros-
ecutor and the defence regarding modification of the charges, the admission of
guilt or the penalty to be imposed shall not be binding on the Court.”  At the
time of this writing, the ICC has had no occasion to interpret this rule because it
has obtained custody over only one defendant, and he has not pled guilty. The
Special Panels, by contrast, had frequent recourse to the guilty-plea procedures
during its life span because many East Timorese defendants entered ambigu-
ous guilty pleas that either were not entirely consistent with the charges or that
suggested confusion about the consequences of the guilty pleas. These will be
discussed in Chapter 6; the following section examines the plea-bargaining and
guilty-plea practices that have developed at the ICTY.
Plea Bargaining at the ICTY
Early Guilty Pleas
Although the ICTY’s procedural rules have always envisaged the possibility
of guilty pleas, in its early years the ICTY made no particular effort to encourage
defendants to plead guilty. Indeed, when the tribunal was first established, plea
bargaining was considered a distasteful and unnecessary procedural device. Few
defendants were in the dock at that time, so little pressure existed to expedite
proceedings through the use of bargaining. In addition, the vital task with which
the tribunals had been entrusted—to bring justice to war-torn lands through the
prosecution of those responsible for mass atrocities—seemed too noble to be sul-
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lied by bargaining. For that reason, when the United States proposed a provision
in the tribunal’s procedural rules authorizing the prosecution to grant defendants
full or partial testimonial immunity in exchange for their cooperation, the pro-
posal was rejected. Then-ICTY president Antonio Cassese put it thus: “The per-
sons appearing before us will be charged with genocide, torture, murder, sexual
assault, wanton destruction, persecution and other inhuman acts. After due re-
flection, we have decided that no one should be immune from prosecution for
crimes such as these, no matter how useful their testimony may otherwise be.” 
Whether or not the ICTY now provides testifying defendants full-scale immu-
nity is not currently clear;  what is clear is that the ICTY provides testifying
defendants, and even defendants who have no information about which to testify,
significant sentence reductions for pleading guilty. Nineteen ICTY defendants
pled guilty between 1994 and 2005, with eleven of those defendants tendering
their guilty pleas just since May 2003. During these eleven years and nineteen
guilty pleas, a profound transformation has occurred in the way that guilty pleas
are obtained and rewarded at the ICTY.
The ICTY’s first two guilty pleas were not obtained through plea bargaining
at all. The first ICTY defendant to plead guilty was Dražen Erdemović, a Bosnian
Croat foot soldier who had only reluctantly joined the Bosnian Serb army just
before that army launched the Srebrenica massacres (which are discussed in
Chapter 9). Within the span of a few days in July 1995, Bosnian Serb forces sum-
marily executed more than seven thousand Bosnian Muslim men and boys in
the area of Srebrenica. Erdemović and his fellow soldiers shot and killed approxi-
mately twelve hundred Muslims during a five-hour period, with Erdemović kill-
ing approximately seventy of them. Erdemović stated that he initially refused
to carry out the executions but was threatened with instant death. He was told,
“If you don’t wish to do it, stand in line with the rest of them and give others your
rifle so that they can shoot you.” 
The ICTY had never heard of Dražen Erdemović until Erdemović brought
himself and the massacre in which he participated to the tribunal’s attention.
While in Belgrade, Erdemović made several attempts to contact the tribunal,
mostly through journalists to whom he told his story, and these attempts led
Yugoslav authorities to arrest him. He was subsequently transferred to the tri-
bunal  and, as noted above, he was charged with one count of a crime against
humanity, and in the alternative, one count of a violation of the laws or customs
of war. Immediately upon his arrival at the tribunal, Erdemović provided the pro-
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secution with a great deal of information about the Srebrenica massacres, and,
on his initial appearance before the Trial Chamber, he pled guilty to the count of
a crime against humanity. Erdemović testified on behalf of the prosecution in a
number of cases, and he repeatedly expressed remorse about what had happened
at Srebrenica. As noted above, Erdemović was initially sentenced to ten years’
imprisonment, but the Appeals Chamber vacated his guilty plea, determining that
it was not informed. After Erdemović subsequently expressed his willingness to
plead guilty to the war-crimes charge, he and prosecutors entered into a plea
agreement in which both parties agreed that “seven years’ imprisonment would
be an appropriate sentence in this case.”  Despite the appearance of a bargain,
however, prosecutors repeatedly informed the Trial Chamber that Erdemović
proffered his guilty plea without any offer or expectation of leniency.
The ICTY’s next guilty plea, tendered by Bosnian Serb Goran Jelisić, also was
not brought about through plea bargaining. Jelisić was the de facto commander
of the Luka detention camp, the camp to which Muslim men were transported
and imprisoned following the Serbs’ May 1992 attack on Brčko, in northeastern
Bosnia. Jelisić presented himself to his Muslim detainees and later to the tribunal
as the “Serbian Adolf” and allegedly told the detainees that 70 percent of them
were to be killed and the remaining 30 percent beaten. Jelisić reportedly declared
that he had to execute twenty to thirty people in a morning before being able to
drink his coffee and allegedly kept detainees informed of the running count of
Muslims that he had killed. In an amended indictment, Jelisić was charged
with one count of genocide and thirty-nine counts of crimes against humanity
and violations of the laws or customs of war. Jelisić pled not guilty to the count
of genocide, but, after he indicated his willingness to plead guilty to thirty-one
of the war-crimes and crimes-against-humanity counts, the parties prepared an
“Agreed Factual Basis for the Guilty Pleas to be Entered by Goran Jelisić,” and
the prosecution dropped the eight remaining war-crimes and crimes-against-
humanity counts. In the “Agreed Factual Basis,” Jelisić admitted to killing thir-
teen people, severely beating some of his victims with truncheons and clubs be-
fore killing them. He also admitted to inflicting bodily harm on four people and
stealing money from the Luka camp detainees.
The Trial Chamber held a trial on the genocide count and acquitted Jelisić
after hearing only the prosecution’s submissions. At the presentencing hearing
on the counts to which Jelisić had pled guilty, the prosecution sought a sentence
of life imprisonment, the harshest sentence available at the ICTY. By seeking a
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life sentence for Jelisić, the prosecution patently provided Jelisić nothing for his
guilty plea. Indeed, according to one of Jelisić’s lawyers, Jelisić pled guilty over
his lawyers’ objections on the mistaken belief that his guilty plea would be con-
sidered substantial cooperation with the prosecution. In fact, prosecution law-
yers told Jelisić that they would offer him nothing for his plea, and true to their
word, they sought the harshest available sentence. The prosecution did withdraw
eight of the thirty-nine counts of war crimes and crimes against humanity, but
according to the prosecution it did so as a result of evidentiary deficiencies, not
to grant Jelisić a concession. The Trial Chamber likewise gave Jelisić nothing
for his guilty plea. Although it did not impose on Jelisić a life sentence, it came
close, sentencing him to forty years’ imprisonment for the crimes to which he
had pled guilty. The Trial Chamber asserted that it “considered [Jelisić’s] guilty
plea out of principle,” but it went on to observe that Jelisić was fully aware of pho-
tographs that showed him committing some of the crimes and “demonstrated
no remorse . . . for the crimes he committed.” Accordingly, the Trial Chamber
accorded “only relative weight to his plea.” 
The seventeen guilty pleas that followed Jelisić’s did involve plea bargaining,
but the nature and scope of the bargaining has changed dramatically over the
years. Stevan Todorović’s plea, the first to result from bargaining, seemed in many
respects idiosyncratic. Todorović was allegedly arrested by means of kidnapping
and delivered to NATO forces in Bosnia-Herzegovina (SFOR). He consequently
challenged the legality of his arrest and, in doing so, obtained an order from the
Trial Chamber requiring SFOR and the states participating in SFOR to provide
Todorović with wide-ranging and potentially embarrassing information about his
arrest. NATO and the United States, among other states, vehemently objected
to the order; soon after, the prosecution offered Todorović a sentencing discount
to secure his guilty plea and the withdrawal of his troublesome challenge to his
arrest. After Todorović, the rate of guilty pleas remained slow and relatively stable
until 2003, when eight cases were disposed of by means of guilty pleas, double the
number of trials that took place during that year. That increase resulted from
a variety of factors, but most prominent was the prosecution’s intense need to
adhere to the tribunal’s completion schedule. That need has manifested itself not
only in a greater willingness to plea bargain cases that in past years would have
gone to trial but also in an increase both in the kinds of plea bargaining practiced
and in the value of the concessions bestowed on defendants who plead guilty.
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The Introduction of Charge Bargaining
In the first several ICTY plea bargains, negotiations took place over sentenc-
ing recommendations only. When a prosecutor is engaged in charge bargain-
ing, by contrast, he or she will agree not to charge certain crimes or to dismiss
charges already brought in exchange for the defendant’s guilty plea. Although
some of the plea agreements in the early ICTY cases saw the withdrawal of cer-
tain charges, those withdrawals did not constitute bargaining over charges be-
cause the withdrawn charges were either not supported by sufficient evidence, or
their withdrawal did not affect the factual basis of the conviction or the eventual
sentence imposed. As noted above, the prosecution’s withdrawal of eight charges
in the Jelisić case resulted from evidentiary deficiencies. Prosecutors in Todo-
rović, moreover, withdrew a whopping twenty-six of the twenty-seven original
counts, but the withdrawals did not constitute charge bargaining because the one
count to which Todorović pled guilty was the most serious of the charges, and it
contained the factual allegations appearing in all of the withdrawn charges.
In 2002, however, ICTY prosecutors introduced charge bargaining in the case
of Milan Simić. Simić had been indicted in the same indictment that charged
Stevan Todorović and others with atrocities committed in the area of Bosan-
ski Šamac. After Bosnian Serb forces took over Bosanski Šamac, Simić was ap-
pointed president of the executive board of the Bosanski Šamac Assembly, and
in that position, he apparently implemented the policies and regulations of the
Serb Crisis Staff and War Presidency and was responsible for the governmental
affairs of the municipality. Simić was charged with one count of persecution as
a crime against humanity and two counts of torture as crimes against humanity,
two counts of inhumane treatment as a crime against humanity, and two counts
of cruel treatment as a violation of the laws and customs of war.
The persecution count alleged that Simić participated in a number of persecu-
tory acts including the unlawful detention and confinement of Bosnian Croat
and Bosnian Muslim civilians in inhumane conditions, the torture and beating
of Bosnian Croat and Bosnian Muslim civilians, and the implementation of or-
ders of the Serb Crisis Staff, which infringed on the basic and fundamental rights
of Bosnian Croat and Bosnian Muslim civilians. The counts of torture, inhumane
treatment, and cruel treatment related to beatings that Simić, along with his sub-
ordinates, inflicted on five Bosnian Muslims and Croats. The counts alleged that
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on two occasions, Simić went to the primary school in Bosanski Šamac, which
was serving as a prison camp, and brutally beat five men who were detained
there. About a year after these events, Simić was rendered a paraplegic after
he was shot in an assassination attempt. He not only lost the use of both legs,
he also lost a kidney, leaving him prone to a variety of infections, and he has vir-
tually no use of one arm. Consequently, he cannot move a wheelchair without
assistance, and because he cannot move the upper part of his body while in bed,
he suffers continually from bedsores.
Simić, along with his codefendants, proceeded to trial in September 2001.
Simić’s medical condition complicated the conduct of the trial from the outset.
At first, the Trial Chamber held sessions only in the mornings to accommodate
Simić’s medical needs; later, the tribunal provided a nurse to assist him and a
suitable bed on which he could rest during breaks, and these provisions allowed
the Trial Chamber to sit for an additional hour in the afternoon. Finally, in Feb-
ruary 2002, the tribunal installed a video link and a two-way telephone link be-
tween the ICTY’s detention unit and the courtroom.
Eight months into the trial, in May 2002, Simić pled guilty to two counts of
torture as crimes against humanity. Simić refused to provide the prosecution
with information for use in other cases, and the plea agreement contains a spe-
cific provision prohibiting the prosecution from seeking to produce that agree-
ment into evidence as an exhibit against the remaining defendants in the case.
The counts to which Simić pled guilty related to the beatings of the five men,
and in exchange for Simić’s guilty plea, the prosecution dropped the remaining
five charges. Four of those charges related to inhumane and cruel treatment.
The withdrawal of those charges was of no value to Simić because they related
to the same conduct as that to which he pled guilty, and the crime to which he
pled—torture—is arguably more serious than the crimes that were the subject of
the withdrawn counts. Withdrawing the charges of persecution, by contrast, did
amount to a substantial concession. That charge encompassed conduct for which
Simić did not plead guilty, and the conduct itself was far more serious than the
conduct that Simić admitted. Specifically, in charging Simić with persecution,
the prosecution contended that he participated, in his role as president of the ex-
ecutive board, in the illegal arrests, detentions, and inhumane treatment visited
upon the thousands of Bosnian Muslim and Bosnian Croat citizens of Bosanski
Šamac. In other words, Simić pled guilty to a charge involving five victims while
the prosecution withdrew charges involving thousands of victims. Further, put-
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ting aside the particular facts of this case, the withdrawn crime—persecution
as a crime against humanity—is considered to deserve more severe punishment
than torture or other crimes against humanity because persecution, unlike other
crimes against humanity, requires a showing of discriminatory intent.
At first glance, the prosecution’s willingness to withdraw the persecution
charge against Simić appears inexplicable. Substantial evidence apparently sup-
ported the charge, and Simić’s guilty plea did not save the prosecution substan-
tial resources since Simić’s codefendants continued to contest their guilt at trial.
Simić found himself in a unique and advantageous position, however, as a result
of his medical condition. His medical needs had substantially slowed the trial, so
the prosecution chose to withdraw a provable charge against him as a means of
speeding up the trial. The charge bargaining that took place in Simić, in turn,
affected the resulting sentence bargaining. Both parties agreed to request a sen-
tence of imprisonment of between three and five years. Such a low sentencing
range would have been unthinkable had Simić also pled guilty to the count of
persecution given the grave and far-reaching conduct encompassed in that count.
Perhaps trying to compensate for the considerable charging and sentencing con-
cessions that it had bestowed on Simić, the prosecution submitted a hard-hitting
sentencing brief, which urged the Trial Chamber to find numerous aggravating
factors and no mitigating factors. In particular, the prosecution contended that
Simić’s guilty plea should be given “virtually no weight, if any” because it oc-
curred so late in the proceedings and because Simić’s refusal to cooperate in-
dicated that “Milan Simić has a limited interest in the scope of the truth of the
crimes committed in Bosanski Šamac.”  The prosecution did uphold its end of
the bargain, however, and recommended a five-year sentence, which is precisely
what the Trial Chamber imposed.
Charge bargaining also played a prominent role in the next three guilty pleas,
those of Biljana Plavšić, Momir Nikolić, and Dragan Obrenović, because in all
three cases, prosecutors agreed to withdraw charges of genocide, the gravest of
the crimes within the tribunal’s jurisdiction. Plavšić was copresident of the
Serbian Republic of Bosnia and Herzegovina and had been instrumental in pro-
moting and implementing the Bosnian Serbs’ ethnic-cleansing campaign; Nikolić
and Obrenović were Bosnian Serb military officers who had helped to implement
the mass executions at Srebrenica. The withdrawal of the genocide charges was
particularly valuable to Nikolić and Obrenović because the ICTY had previ-
ously found the Srebrenica killings to have constituted a genocide. In pleading
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guilty, all three defendants admitted to the same conduct that formed the basis
of the withdrawn charges, so the withdrawals did not distort the factual bases for
the convictions as it had in Simić. The withdrawals did, however, have a signifi-
cant effect on sentencing; the only ICTY defendant to be convicted of genocide
at that time, Radislav Krstić, had received a forty-six-year prison sentence,
and virtually all of the ICTR defendants convicted of genocide have received life
sentences. By contrast, after withdrawing the genocide charges against Plavšić,
prosecutors recommended a sentence of between fifteen and twenty-five years’ im-
prisonment, and the Trial Chamber sentenced her to eleven years in prison.
As for Obrenović and Nikolić, the prosecution recommended sentences of be-
tween fifteen and twenty years’ imprisonment, and the Trial Chamber imposed
seventeen- and twenty-seven-year sentences, respectively.
In more recent times, ICTY prosecutors have not engaged in the sort of blatant
charge bargaining featured in Simić, perhaps because ICTY Trial Chambers have
criticized the practice when it results in a distortion of the historical facts. The
Momir Nikolić Trial Chamber, for instance, drew a distinction between the charge
bargaining of domestic crimes and that of international crimes, observing that
“[a]lthough it may seem appropriate to ‘negotiate’ a charge of attempted murder
to a charge of aggravated assault, any ‘negotiations’ on a charge of genocide or
crimes against humanity must be carefully considered and be entered into for
good cause.” The Trial Chamber went on to note that, because the prosecution
has a duty to prepare an indictment only after determining that a prima facie
case exists, “[o]nce a charge of genocide has been confirmed, it should not simply
be bargained away” because when a prosecutor “make[s] a plea agreement such
that the totality of an individuals [sic] criminal conduct is not reflected or the
remaining charges do not sufficiently reflect the gravity of the offences commit-
ted by the accused, questions will inevitably arise as to whether justice is in fact
being done.” 
Charge bargaining that distorts the historical record of the crime is indeed
undesirable, but it is not always easy to determine when such bargaining has oc-
curred. The plea bargain concluded in the Miodrag Jokić case, for instance, ap-
peared to be a factually distortive charge bargain but in fact was not. In 1991, Jokić
was a commander of the Yugoslav Navy, and in that position, he participated in a
military campaign directed at the then-municipality of Dubrovnik, Croatia. The
first amended indictment charged Jokić and his two codefendants, Pavle Strugar
and Vladimir Kovacević, with nine counts of violations of the laws and customs
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of war for the unlawful shelling of the Old Town section of Dubrovnik on De-
cember 6, 1991, as well as for unlawful shelling that occurred in the Old Town
and in other Dubrovnik locations on October 7, 23, and 24, 1991, and November 8
through 13, 1991. The indictment alleged that as a result of this shelling, 42 ci-
vilians were killed, 177 were wounded, and a host of buildings were damaged or
destroyed. Upon Jokić’s guilty plea, prosecutors withdrew all of the charges re-
lating to the shellings that took place in October and November 1991 and fi led a
second amended indictment that contained charges relating only to the shelling of
the Old Town on December 6, 1991. The December 6 shelling was the most dra-
matic of the originally charged offenses. Its target was a UNESCO World Cultural
Heritage site, and the shelling drew sharp condemnation from the international
community. But only 2 of the 42 alleged civilian deaths and 3 of the 177 alleged
civilian injuries occurred on December 6. Given these circumstances, the with-
drawal of the charges relating to the October and November shellings strongly
suggested charge bargaining. An examination of the indictments of Jokić’s for-
mer codefendants, Strugar and Kovacević, however, shows that it was not. On
the same day that the prosecution withdrew the charges against Jokić, it likewise
sought to amend the indictments against Strugar and Kovacević, despite the fact
that neither of these two defendants had pled guilty. Prosecutors apparently
decided to forego those charges because they either lacked sufficient evidence or
decided that their limited resources would be better spent on other cases.
The case of Miroslav Deronjić also gave rise to suspicions of charge bargaining,
but these too may be unfounded. Deronjić, a Bosnian Serb, had been a secondary
school teacher in Srebrenica before turning to politics in 1990. During the war in
Bosnia, Deronjić held a series of political offices in the Serbian Democratic Party
of Bosnia and Herzegovina. For instance, after Bosnian Serb forces took over the
municipality of Bratunac, Deronjić served as the president of three crisis staffs
and as a member of the War Commission of the municipality. Deronjić began
cooperating with the prosecution in 1997, five years before he was indicted,
and during a series of interviews before and after his indictment, Deronjić pro-
vided ICTY prosecutors with substantial information regarding the formulation
and implementation of the Bosnian Serbs’ ethnic-cleansing campaign in Eastern
Bosnia, the arming and assistance provided to Bosnian Serbs by Serbian special
forces and paramilitaries, and the identities of people involved in the Srebren-
ica massacres. In order to induce Deronjić to speak openly, ICTY prosecutors
provided him with a signed “Agreement of the Parties,” in which prosecutors
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promised that nothing Deronjić said would be used against him in ICTY pro-
ceedings. Although the information Deronjić provided during these interviews
persuaded the Trial Chamber’s presiding judge that Deronjić should have been
indicted for crimes relating to the Srebrenica massacres as well as to the overall
ethnic-cleansing campaign in Bratunac municipality, the prosecution declined
to indict him for these crimes and instead indicted him only for ordering an at-
tack on the undefended Muslim town of Glogova. The prosecutor denied that
an indictment against Deronjić regarding the Srebrenica massacres would have
been appropriate. With respect to the prosecution’s failure to indict Deronjić
for his involvement in the larger ethnic-cleansing campaign in Bratunac mu-
nicipality, the prosecutor admitted that the indictment was a “limited” one but
asserted that, because ICTY trials can take more than two years to complete, the
prosecutor had purposely chosen to limit the indictment “for purposes of resolv-
ing this case quickly in order to fulfi ll the mandate of” the tribunal. Apparently
unimpressed with this reasoning, Presiding Judge Wolfgang Schomburg, in his
dissenting opinion, decried what he considered to be selective charging, main-
taining that the prosecution had “arbitrarily present[ed] facts, selected from the
context of a larger criminal plan and, for unknown reasons, limited to one day
and to the village of Glogova only.” 
Judge Schomburg suspected that charge bargaining had also occurred in rela-
tion to the charges involving Deronjić’s participation in the May 1992 attack on
Glogova, but prosecutors and defense counsel vehemently denied it. With re-
spect to the attack on Glogova, prosecutors initially charged Deronjić with six
counts: one count of persecution as a crime against humanity, one count of mur-
der as a crime against humanity, one count of murder as a violation of the laws
and customs of war, and three counts of violations of the laws and customs of war
relating to the destruction of cities, towns, or villages, destruction of institutions
dedicated to religion, and an attack on an undefended village. When Deron-
jić agreed to plead guilty, the prosecution withdrew all of the counts except the
most serious—that of persecution as a crime against humanity—and it withdrew
its allegations that Deronjić was liable under article 7(3) of the statute of the tri-
bunal for superior responsibility. Additionally, the amended indictment fi led in
response to the guilty plea failed to include a number of seemingly trivial factual
assertions that had appeared in the previous indictments. None of these al-
terations seemed noteworthy, but Judge Schomburg identified a factual omission
that troubled him, and he pressed the prosecution on it: the initial indictment
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and the amended indictment charged that Deronjić had been physically present
when one Bosnian Muslim was executed and when the bodies of fi fteen other
Bosnian Muslims were dumped into a river. By contrast, the indictment to which
Deronjić pled guilty omitted this allegation. When Judge Schomburg sought
“clarification” as to Deronjić’s role and intentions regarding the killings by ask-
ing the prosecution whether it possessed supporting material that Deronjić was
in fact present as had been initially alleged, the prosecutor pronounced himself
“quite uncomfortable” with having a public discussion of such a question with
the court. Deronjić’s defense counsel maintained that the defense team had
substantial and compelling evidence that Deronjić was in another location at the
relevant time, and the prosecution withdrew the allegation in acknowledgment
of the strength of this evidence.
A factually distortive charge bargain may also have occurred in the Mrd̄a case,
though again, it is difficult to tell. Certainly, a charge bargain occurred. Darko
Mrd̄a was a member of the Prijedor Police “Intervention Squad.” In August 1992,
Mrd̄a and others followed the orders of their superiors and loaded more than
two hundred non-Serb male prisoners onto two buses. The prisoners were told
that they were going to be exchanged for Serb prisoners. Instead, Mrd̄a and other
members of the Serb forces took the men to a cliff at Koricanske Stijene, forced
them to kneel at the edge of the cliff, and then shot them so that their bodies fell
into the ravine below. All but twelve of the prisoners were killed. Mrd̄a was ini-
tially indicted on three counts: extermination as a crime against humanity, in-
humane acts as a crime against humanity, and murder as a violation of the laws
or customs of war. In exchange for Mrd̄a’s guilty plea, prosecutors withdrew
the most serious charge of extermination, and Mrd̄a pled guilty only to the lesser
charges of murder as a violation of the laws and customs of war and inhumane
acts as a crime against humanity. That withdrawal did not alter the factual basis
for the conviction, but the amended indictment to which Mrd̄a pled guilty also
omitted certain factual allegations that had appeared in the original indictment.
In particular, the initial indictment stated that Mrd̄a “was in command” of the
police unit and that he had ordered the separation and killing of the men. The in-
dictment also asserted that, after forcing prisoners to kneel at the edge of the cliff,
Mrd̄a said, “Here is where we do the exchange, the living for the living and the
dead. . . .” The factual basis to which Mrd̄a attested in support of his guilty plea
does not contain those facts. Mrd̄a specifically said that he had been prepared to
plead guilty sooner, but he could not admit those facts. Interestingly, however,
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and perhaps unbeknownst to Mrd̄a, the facts remain in the amended indictment
to which Mrd̄a pled guilty.
In the rare case, the withdrawal of one charge pursuant to a plea bargain can
pave the way for conviction on a more-serious charge. The early indictments
against Dragan Nikolić, commander of the Sušica camp, for instance, included
a charge that he raped a teenaged girl—Saha Berbić—nearly every night for two
months. During plea negotiations, Nikolić vehemently denied committing the
rapes, and although he expressed a willingness to plead guilty to all of the other
counts in the indictment, he refused to plead guilty to the rape charge. Berbić had
been killed by other individuals upon the closing of the Sušica camp, and pros-
ecutors had no eyewitness to the rapes. Given the evidentiary weakness of the
Berbić rape charge and Nikolić’s protestations of innocence, prosecutors decided
to replace the original rape charge with a charge that Nikolić had facilitated the
rapes of many women and girls detained at Sušica camp by removing them or
allowing them to be removed by camp guards, soldiers, and others for purposes
of rape. The subsequent charge, to which Nikolić readily pled guilty, could well
be considered more grave given Nikolić’s authority over the camp and the large
numbers of victims involved.
The Miroslav Bralo plea agreement gave rise to an even rarer occurrence: there,
prosecutors added a charge and significant facts to the defendant’s indictment
after the defendant indicated a desire to plead guilty. Bralo was a member of the
Jokers, a special-forces unit of the Bosnian Croat Defense Council that attacked
Bosnian Muslim villages in 1993. Prosecutors initially charged Bralo with using
Muslim civilians as “human shields” by forcing them to dig trenches on the front
line, with killing three men near the village of Kratine, and with brutally and
repeatedly raping a Muslim woman in front of other soldiers and thereafter con-
fining her for approximately two months, during which time she was repeatedly
raped by other members of the Jokers.
In anticipation of Bralo’s guilty plea, the prosecution not only failed to with-
draw any charges, it added a charge of persecution as a crime against humanity, a
charge more serious than the charges for which Bralo had initially been indicted.
The prosecution was able to add that charge because Bralo himself revealed that,
in addition to the crimes appearing in the indictment, he also participated in the
ethnic cleansing of the village of Ahmići. In particular, Bralo disclosed that he
burned down houses, destroyed a mosque, and committed or helped to commit
seventeen additional murders. As a result of Bralo’s admissions, the prosecu-
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tion engaged in the opposite of charge bargaining, and—for the first time in ICTY
history—it presented a defendant preparing to plead guilty with an indictment
containing more and more serious charges than that which had initially been
prepared against him.
The Evolution of Sentence Bargaining
Like charge bargaining, sentence bargaining at the ICTY has also undergone
an evolution. In the early days of ICTY plea bargaining, prosecutors offered mod-
est sentencing concessions to defendants pleading guilty, so modest indeed that,
in some cases, it was not clear that there existed any sentencing differential be-
tween conviction after trial and conviction after a guilty plea. The ICTY’s first
plea bargain, in the Todorović case, was something of an exception. There, the
prosecution agreed to recommend a sentence not exceeding twelve years’ im-
prisonment, which was quite lenient compared with similar, contemporaneous
cases. Todorović, who served during the war as police chief of Bosanski Šamac,
pled guilty to persecution as a crime against humanity. He admitted to partici-
pating in the takeover and ethnic cleansing of Bosanski Šamac and Odžak and
the subsequent detention of non-Serbs. He also admitted to personally killing
one man, beating several others, and ordering six men to perform fellatio on one
another. Duško Tadić had received a twenty-year sentence for fairly similar
conduct, and he did not hold a superior position, as did Todorović. However,
as noted above, the concessions the prosecution offered to Todorović appeared to
be driven largely by its desire to rid itself of Todorović’s embarrassing challenge
to the legality of his arrest.
The prosecution’s recommended sentences in the next four guilty-plea cases,
by contrast, did not seem especially lower than the sentences that likely would
have been imposed after trial. As noted above, Milan Simić received a five-year
sentence after pleading guilty to torturing five men. Simić received a tremendous
benefit when the prosecution withdrew the persecution charge against him, but
the sentence he received for the crimes to which he pled guilty did not seem to
be much, if any, reduced. There is no question that Simić and his companions se-
verely mistreated the victims. They beat them with instruments on various parts
of their bodies, including their genitals. They forced one of the victims to pull
down his pants, they threatened to cut off his penis, and they pushed a gun into
his mouth while Simić himself fired gunshots over the victim’s head. As de-
praved as this behavior was, however, it was probably less brutal than the typical
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ICTY crime, and the incidents were isolated ones. Further, one week after these
events took place, Simić returned to the detention center, apologized to the vic-
tims, and took two of them out of the detention center to buy them food and ciga-
rettes and to allow them to change their clothes. Under these circumstances,
a five-year sentence, though lenient, does not appear to reflect a substantial sen-
tence bargain.
The defendants in the Sikirica case pled guilty in September 2001, and they
seemed to garner even less for their guilty pleas. The case centered on the infa-
mous Keraterm detention camp and it featured three defendants: Duško Sikirica,
who was Keraterm’s commander of security, and Damir Došen and Dragan
Kolundžija, who served as shift leaders. Keraterm detainees were kept in appall-
ing conditions and were regularly beaten and killed, by guards and by outsiders
given entry by guards. After the trial was mostly completed, all three defendants
pled guilty to persecution as a crime against humanity, acknowledging varying
levels of culpability. The persecution count alleged persecution by five methods:
(1) murder; (2) torture and beating; (3) sexual assault and rape; (4) harassment, hu-
miliation, and psychological abuse; and (5) confinement in inhumane conditions.
Sikirica acknowledged participating in all of those methods and in particular
admitted to personally killing one detainee; Došen admitted to participating in
the second, fourth, and fift h methods; and Kolundžija admitted only to the fift h
method. All three defendants acknowledged the murders and beatings that
took place at Keraterm and the inhumane conditions prevailing, but the plea
agreements also noted the defendants’ limited responsibilities. Pursuant to the
plea agreement, the prosecution recommended sentences between ten and seven-
teen years’ imprisonment for Sikirica, between five and seven years’ imprisonment
for Došen, and between three and five years’ imprisonment for Kolundžija. The
prosecution recommended the maximum sentence for each defendant. The
Trial Chamber sentenced Sikirica, Došen, and Kolundžija to fifteen, five, and
three years’ imprisonment, respectively.
Since the Sikirica defendants did not plead guilty until the trial was nearly
completed, the prosecution did not gain very much in resource savings by the
guilty pleas. One can therefore presume that the prosecution consequently of-
fered the Sikirica defendants less generous concessions than it would have to de-
fendants who pled guilty before the trial began. That said, the Sikirica bargain
is nonetheless notable in how little it provided the defendants. The ICTY had
earlier sentenced Croatian prison camp commander Zlatko Aleksovski to a two-
and-one-half-year prison sentence after trial, which the Appeals Chamber sub-
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sequently increased to seven years’ imprisonment. The conditions prevailing

in the Keraterm camp concededly were worse than those at the Kaonik prison,
at which Aleksovski was a commander; yet even without a guilty plea, the Trial
Chamber’s initial two-and-one-half-year sentence for Aleksovski was substan-
tially lower than the prosecution’s recommendation for Sikirica. As another ex-
ample, Hazim Delić, deputy commander of the Čelebići prison camp, was con-
victed of brutally murdering two detainees, raping and torturing two more, and
torturing numerous others, some by means of an electric shock device. Delić
received a sentence of twenty years’ imprisonment after trial, which was reduced
on appeal to eighteen years’ imprisonment;  that is, after a full-blown trial,
Delić received a sentence only slightly higher than the prosecution’s maximum
recommendation for Sikirica, for crimes arguably involving greater harm. Simi-
larly, Dragoljub Prcać was an administrative aide at the notorious Omarska camp.
Prcać, like Kolundžija, held a position of authority in a brutal detention center
but was not himself convicted of inflicting any direct harm. Without pleading
guilty, Prcać was sentenced to five years’ imprisonment;  that is, Prcać received
a sentence at the upper end of the prosecution’s sentencing recommendation for
Kolundžija. This similarity in sentences is even more startling because substan-
tial evidence had been produced in the Sikirica trial regarding Kolundžija’s kind-
ness to prisoners and the efforts he had made to assist them.
The ICTY’s sentencing practice following guilty pleas appeared to undergo
a dramatic change with the guilty plea of Biljana Plavšić. As copresident of the
Serbian Republic of Bosnia and Herzegovina, Plavšić played a leading role in
encouraging and implementing the Bosnian Serbs’ ethnic-cleansing campaign,
which resulted in the expulsion of hundreds of thousands of Bosnian Muslims
and Croats. Approximately 850 Muslim- and Croat-occupied villages were de-
stroyed entirely and no longer exist. In many municipalities, virtually all non-
Serbs were killed or forced to flee. Before the war, for instance, approximately
15,000 Muslims and Croats lived in the Foca municipality; 434 remained in 1997.
Similarly, approximately 53,000 non-Serbs resided in the Prijedor municipality
before the war; by 1997, less than 4,000 were left. The indictment against Plavšić
pointed to thirty-seven municipalities in particular, and the evidence showed that,
to encourage non-Serbs to leave, Serbian forces killed approximately 50,000 non-
Serbs and destroyed more than one hundred mosques and Catholic churches.
The factual basis to Plavšić’s guilty plea distinguishes between the roles played
by the various Bosnian Serb leaders in the ethnic cleansing; in particular, it states
that Radovan Karadžić and Momčilo Krajišnik exercised primary control over
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the Bosnian Serb power structures and provided primary direction to municipal
leaders who were charged with implementing the persecutory campaign. Plavšić
played a lesser role, but she did support the government and military in the eth-
nic cleansing by serving as a copresident and by inviting Serbian paramilitaries
to assist in the violence. She also made public pronouncements encouraging the
forcible expulsions on the grounds that certain territories were “Serbian by right”
and that Serbs were in danger of genocide at the hands of Bosnian Muslims and
Croats. Finally, when evidence of the crimes came to light, Plavšić participated
in a cover-up.
Plavšić’s plea deal was unusual in many ways. As noted above, as part of the
plea agreement prosecutors withdrew genocide charges against her, a concession
that appeared on its face to be substantial but that may have been of relatively
little consequence because the only ICTY defendants who thus far have been con-
victed of genocide were those who had been involved in the Srebrenica massacres.
Prosecutors therefore may have perceived little chance of convicting Plavšić of
genocide. Whatever its import, the withdrawal of the genocide charge was ap-
parently the only concession Plavšić received. A provision in her plea agreement
states that “the Prosecutor has made no promises to Biljana Plavšić in order to
induce her to change her plea . . . from not guilty to guilty,”  and her lawyer
publicly stated that “there is no agreement, nor have there been any discussions,
between Mrs. Plavšić and the Office of the Prosecution regarding sentencing.
Mrs. Plavšić understands, as the Agreement itself specifically provides, that she
is subjecting herself to a possible sentence of life imprisonment.” The prosecu-
tion did not recommend a life sentence but instead recommended a sentence of
between fifteen and twenty-five years’ imprisonment, a range that had the po-
tential to effectively constitute a life sentence because Plavšić was seventy-two
years old at the time of sentencing. The Trial Chamber, however, sentenced her
to a mere eleven years in prison. The sentence horrified Bosnian Muslims,
and the ICTY’s president enraged victims further by sending Plavšić to serve her
sentence in Sweden, where she is housed in an apparently luxurious minimum-
security prison featuring sauna, solarium, massage room, horse-riding paddock,
and other amenities.
Nine guilty pleas followed Plavšić’s in quick succession, and many have fea-
tured lenient—some would argue, unseemly—sentence recommendations, parti-
cularly compared with previous ICTY cases, even previous cases involving guilty
pleas. Ranko Češić, for instance, was a member of the Bosnian Serb Police Re-
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serve Unit at the Brčko Police Station, the same camp at which Goran Jelisić
acted as de facto commander. Češić was tasked, among other things, with arrest-
ing specified non-Serbs and bringing them to the police station or to the Luka
detention camp. Češić admitted to personally killing ten people and to forcing
two brothers to perform fellatio on one another;  that is, he admitted to crimes
roughly comparable to the thirteen murders that Jelisić admitted when he pled
guilty. Both men pled guilty, but Jelisić’s plea, coming before the rush to close the
tribunal, gained him nothing. The prosecution recommended a life sentence for
Jelisić, and the Trial Chamber imposed a near equivalent by sentencing him
to forty years in prison. Češić was of a subordinate position to Jelisić, so one
would expect him to receive a lower sentence, but compared with Jelisić, Češić
received an extremely attractive plea deal even taking that fact into account. In
the plea agreement it concluded with Češić, the prosecution promised to recom-
mend a sentence of between thirteen and eighteen years’ imprisonment, and the
Trial Chamber sentenced him to an eighteen-year term.
Other examples of relative leniency abound. The contrast has already been
drawn between the seventeen- and twenty-seven-year sentences that Dragan
Obrenović and Momir Nikolić received, respectively, for their roles in imple-
menting the Srebrenica massacres and the forty-six-year term a Trial Chamber
imposed on Radislav Krstić. Admittedly, Krstić, as deputy commander of the
Drina Corps, should be considered more culpable given his position of greater
responsibility, but the span between a seventeen-year sentence and a forty-six-
year sentence is vast. Similarly, Predrag Banović, a guard at the same Keraterm
camp where Sikirica, Došen, and Kolundžija committed their crimes, pled guilty
in June 2003 to participating in beating five prisoners to death and participating
in twenty-seven other beatings and shootings. Even after a guilty plea, pros-
ecutors recommended a seventeen-year sentence for Sikirica when he commit-
ted only one murder, while they recommended a seven-year sentence for Došen
when he was not personally implicated in any serious violence. Concededly,
Sikirica and Došen held positions of greater responsibility than did Banović,
but all three were relatively low-level offenders, and Banović’s crimes were vastly
more numerous and brutal; thus, one might have expected Banović to receive a
sentence greater than Došen’s and perhaps equal to Sikirica’s, particularly since
those defendants also pled guilty. Instead, in exchange for Banović’s guilty plea,
the prosecution and defense agreed to recommend a mere eight-year term of im-
prisonment for Banović, which the Trial Chamber duly imposed. The relative
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leniency of Banović’s eight-year sentence is further highlighted when it is com-

pared with the twenty-year sentence that the ICTY contemporaneously imposed
after a trial on Mitar Vasiljević, who, like Banović, participated in the killing of
five people.
Prosecutorial sentence recommendations indeed became so lenient during
2003 that some ICTY trial judges led a backlash. As early as the Simić case,
Trial Chambers were indicating some hesitancy about adhering to prosecutorial
sentencing recommendations born out of plea negotiations. In Simić, the Trial
Chamber did sentence the defendant to five years’ imprisonment, a term within
the three-to-five-year sentencing range recommended by the prosecution, but it
made clear in doing so that its decision was based on exceptional circumstances
present in that case. In particular, after observing that Milan Simić was “a senior
public official in Bosanski Šamac and he committed acts of torture in the pri-
mary school while serving as President of the Executive Board of the municipal-
ity,” the Trial Chamber “condemned in the highest degree” Simić’s crimes and
noted that “[u]nder ordinary circumstances a long custodial sentence, even up
to the remainder of his life, would have been appropriate.”  Although the Trial
Chamber did take account of Simić’s guilty plea and the remorse he had showed
victims, it indicated that its decision not to impose a long custodial sentence had a
great deal to do with Simić’s severe medical condition, which it termed an “excep-
tional circumstance.”  The Trial Chamber thus suggested that, absent Simić’s
medical condition, it would have sentenced Simić outside the range to which
Simić and the prosecution had agreed in the plea deal.
In sentencing within the prosecution’s recommended range, the Simić Trial
Chamber followed the practice of Trial Chambers in preceding guilty-plea cases.
In particular, the Trial Chambers imposed sentences in accordance with pros-
ecutorial recommendations in the cases of the first nine defendants to tender
guilty pleas. In December 2003, however, a Trial Chamber in the Momir Nikolić
case rejected the prosecution’s recommendation of a fifteen-to-twenty-year sen-
tence. Nikolić was chief of intelligence and security of the Bratunac Brigade
during the Srebrenica massacres, and he pled guilty to persecution as a crime
against humanity for helping to coordinate and organize the operation in which
Bosnian Muslim women and children were transported to Muslim-held territory,
while Bosnian Muslim men were transported to the various locations at which
they were executed. Some months after the executions, Nikolić also assisted in
the effort to conceal the bodies of the Bosnian Muslim men by exhuming and
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reburying the remains. At the plea hearing, Presiding Judge Liu Daqun ex-
pressed some discomfort with guilty pleas in general, querying the prosecution,
for instance, as to how the defendant could be deprived of such fundamental
rights as the right “not to be compelled to testify against himself or to confess
guilty [sic], the right to be tried without undue delay, [and] the right to testify or
to remain silent at trial.” When the prosecution explained that the waiver of those
rights was part and parcel of a guilty plea, Judge Liu opined that some of those
rights are so fundamental that they might be considered inalienable, even by the
defendant himself.
That same discomfort with guilty pleas was also reflected in the Trial Cham-
ber’s sentencing judgment. There, the Trial Chamber considered the broad ques-
tion of whether plea agreements are appropriate in cases involving serious vio-
lations of international humanitarian law. In addition to the above-mentioned
concerns that the Trial Chamber raised about charge bargaining, it also noted
that guilty pleas eliminate public trials, and these trials, the chamber opined,
give rise to “a more complete and detailed historical record than a guilty plea”
and they permit victims to participate in the criminal process. The Trial Cham-
ber also expressed concern about the inequality inherent in plea bargaining; it
noted in particular that some defendants are offered greater concessions because
they provide important information to the prosecution while other defendants
gain no such benefits because they have no such information to disclose. At the
same time, the Trial Chamber acknowledged the benefits of plea bargaining. It
recognized, for instance, that guilty pleas save resources, help to prevent subse-
quent denial of the crime, and have the potential to enhance peace-building and
reconciliation. The Trial Chamber concluded that guilty pleas made pursuant to
plea agreements may be appropriate in certain instances but must be regarded
with caution and used only when doing so would further the interests of justice.
Apparently deciding that the sentencing range recommended by the prosecu-
tion—fifteen to twenty years’ imprisonment—did not further the interests of jus-
tice, the Trial Chamber sentenced Nikolić to twenty-seven years’ imprisonment.
In imposing this harsher-than-recommended sentence, the chamber emphasized
that Nikolić had played a substantial and enthusiastic role in ensuring the success
of the Srebrenica massacres and that he had been evasive and not entirely forth-
coming when testifying in the trial of his codefendants. As will be discussed
in more detail in Chapter 10, Nikolić initially lied to prosecutors about certain
details of the massacres, a fact noted by the Trial Chamber.
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Eight days later, the same Trial Chamber sentenced Momir Nikolić’s codefen-
dant, Dragan Obrenović, to seventeen years’ imprisonment after his guilty plea,
a term that was well within the prosecution’s fi fteen-to-twenty-year sentence rec-
ommendation. Proponents of tribunal plea bargaining breathed a sigh of relief
and considered Nikolić’s sentence to be an aberration resulting from Nikolić’s lack
of candor. In fact, although both the Obrenović and Momir Nikolić cases involved
the Srebrenica massacres, the defendants’ involvement in those massacres differed
markedly, and the Trial Chamber’s imposition of a longer-than-recommended
sentence on Nikolić did not constitute an aberration but rather reflected the
chamber’s willingness to consider all of the circumstances of each case and to
consider—independently of the prosecution’s recommendation—what sentence
those circumstances justify. The Obrenović Trial Chamber apparently concluded
that the prosecution’s recommendation reflected an appropriate sentence.
Obrenović was a major in the Bosnian Serb Army, and at the time of the Sre-
brenica massacres, he held the position of chief of staff and deputy commander
at the Zvornik Brigade. A few weeks after Momir Nikolić pled guilty, Obrenović
followed suit, also pleading guilty to persecution as a crime against humanity.
Obrenović was not himself present during the Srebrenica executions; rather, at
the time they took place, Obrenović was leading soldiers in heavy fighting at the
front line. Obrenović was, however, aware of the plan to execute the Bosnian
Muslims, and he released a few soldiers under his command to help organize and
implement the killings.
The Trial Chamber commented that, had there been no aggravating or miti-
gating circumstances to consider, Obrenović’s sentence should fall in the range
of twenty to forty years’ imprisonment. The chamber did, however, identify
numerous mitigating circumstances, including most importantly Obrenović’s
guilty plea, his remorse about the crimes, and his cooperation with the prosecu-
tion. Indeed, the Trial Chamber’s overall view of Obrenović seemed to dif-
fer considerably from its view of his codefendant Momir Nikolić. Whereas the
Trial Chamber called into question Nikolić’s honesty and candor, it specifically
observed that during Obrenović’s testimony in the Blagojević case, “Obrenovic
answered each question as clearly and precisely as he could, regardless of whether
it was asked by the Prosecution, defense counsel or the Trial Chamber.”  In ad-
dition, whereas the Trial Chamber observed that Nikolić’s involvement with the
Srebrenica massacres was enthusiastic and proactive, it characterized Obrenović’s
involvement as composed primarily of his failure to stop the executions. The
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Trial Chamber further lauded Obrenović’s decision to plead guilty, finding that it
reflected his “unreserved acceptance of his individual criminal responsibility.” 
Finally, the Trial Chamber concluded that Obrenović took important steps to-
ward his rehabilitation that should mitigate his sentence. In particular, the
chamber pointed to the fact that Obrenović cooperated with ICTY prosecutors
before his indictment; he agreed to answer questions, and he allowed prosecutors
to search the premises of the Zvornik Brigade, knowing that the search would
likely yield information that would incriminate him. Obrenović went so far as to
offer to surrender should an indictment be issued against him.
The Trial Chamber’s sentencing of Obrenović to a prison term within the
prosecution’s recommended range placed the Obrenović case squarely among
all of the ICTY’s previous guilty-plea cases except that of Momir Nikolić. Eight
days after the Obrenović judgment was issued, however, a different ICTY Trial
Chamber spurned the prosecution’s recommendations, this time in the case of
Dragan Nikolić (no relation to Momir). In addition to serving as commander of
the brutal Sušica detention center, where murders, beatings, and rapes occurred
daily, Dragan Nikolić admitted to beating nine men to death, torturing five more,
and facilitating countless rapes. Nikolić’s crimes were particularly depraved:
Nikolić would
brutally and sadistically beat the detainees. He would kick and punch detainees and
use weapons such as iron bars, axe handles, rifle butts, metal “knuckles,” truncheons,
rubber tubing with lead inside, lengths of wood and wooden bats to beat the detain-
ees. . . . When detainees who were being beaten begged to be shot, [Nikolić] would
reply: “A bullet is too expensive to be spent on a Muslim.” 
After engaging in months of vigorous bargaining with the defense, the pros-
ecution eventually agreed to recommend a fifteen-year sentence for Nikolić, but
the Trial Chamber sentenced him to twenty-three years’ imprisonment, a term
more than 50 percent longer than the sentence for which Nikolić had bargained.
The Trial Chamber did not seek to justify its decision to impose a longer-than-
recommended sentence on Nikolić by blaming the defendant’s evasiveness or by
identifying any other post-crime behavior or characteristic, as the Momir Nikolić
Trial Chamber had done. Instead, the Dragan Nikolić Trial Chamber simply ex-
pressed its view that a fifteen-year sentence is too short for the crimes Nikolić
committed. Before deciding on a sentence, the chamber had commissioned the
Max Planck Institute to submit an expert report detailing various countries’ sen-
tencing laws as applied to cases of serious, violent crimes disposed of via guilty
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pleas. The report indicated that the sentencing laws of most countries provide that
a single act of murder can be punished by either life imprisonment or the death
penalty. Given the extreme depravity of Nikolić’s crimes, the Trial Chamber
unhesitatingly asserted that, considering only the gravity of the crime and the ag-
gravating circumstances, “no other punishment could be imposed” upon Nikolić
except a life sentence. The Trial Chamber went on, then, to consider a number
of mitigating factors, including Nikolić’s guilty plea; in doing so, it observed that
the Max Planck report found that in all of the major legal systems of the world,
guilty pleas or confessions serve to reduce a defendant’s sentence. The existence
of these mitigating factors, however, did not convince the Trial Chamber that
Nikolić’s sentence should be reduced to fifteen years’ imprisonment, as recom-
mended by the prosecution. It held instead that the “brutality, the number of
crimes committed and the underlying intention to humiliate and degrade would
render a sentence such as [the prosecution] recommended unjust.” Rather, the
chamber concluded that it was “not only reasonable and responsible, but also nec-
essary in the interests of the victims, their relatives and the international commu-
nity, to impose a higher sentence than the one recommended by the Parties.” 
ICTY Trial Chambers sentenced within the prosecution’s recommended
ranges in the next four cases to be disposed of by guilty pleas, all of which were
handed down in March 2004. The crimes of Ranko Češić, Darko Mrd̄a, Miodrag
Jokić, and Miroslav Deronjić have all been described above. In its plea agreement
with Češić, the prosecution agreed to recommend a sentence of between thirteen
and eighteen years’ imprisonment, and, rather than making a specific recom-
mendation, the prosecution simply advised the Trial Chamber to impose a sen-
tence that fell somewhere within that range. The chamber sentenced Češić to
eighteen years’ imprisonment. In Mrd̄a’s plea agreement, both parties agreed to
recommend a sentence of between fifteen and twenty years’ imprisonment, and
the Trial Chamber sentenced Mrd̄a to a term of seventeen years. Jokić’s plea
agreement required the prosecution to recommend a sentence of ten years’ im-
prisonment, and it permitted Jokić to seek a shorter sentence. He sought a two-
year term, and the Trial Chamber sentenced him to seven years in prison.
Prosecutors recommended a ten-year sentence for Deronjić, which the Trial
Chamber duly imposed, but it did so over the vehement dissent of the presid-
ing judge, Wolfgang Schomburg. Judge Schomburg concluded that Deronjić de-
served a sentence of no less than twenty years’ imprisonment, reasoning that even
when one considered only the “fragments of facts” presented by the prosecution,
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they showed that Deronjić was a high-ranking perpetrator who had committed
“heinous and long planned crimes” which “do not allow for a sentence of only
ten years, which may possibly even be a de facto deprivation of liberty of only six
years and eight months, taking into account the possibility of an early release.” 
Judge Schomburg concluded that a sentence of less than twenty years’ imprison-
ment “could be seen as an incentive for politicians, who might in [the] future find
themselves in a similar situation as Miroslav Deronjić was as of December 1991,
to act in the same manner.” Such a politician, according to Judge Schomburg,
“would believe that he/she could buy him/herself more or less free by admitting
some guilt and giving some information to the then competent prosecutor.” 
After adhering to prosecutorial sentencing recommendations in the four cases
handed down in March 2004, a Trial Chamber in the Milan Babić case once again
rejected the sentence to which the parties had agreed. Milan Babić, a Croatian
Serb and a dentist by profession, became a prominent political figure in the Ser-
bian Democratic Party in Croatia during the early 1990s. Based in Knin, an in-
dustrial town in the region of Krajina, Babić held a series of high-level positions,
serving as president of the Municipal Assembly of Knin, president of the Serbian
National Council, and president of the Temporary Executive Council of the “Ser-
bian Autonomous District,” among other positions. After Croatia declared its
intention to secede from the Federal Republic of Yugoslavia, Babić became con-
cerned about the discrimination that Croatian Serbs might suffer in a new Croa-
tian state, so he advocated the creation of an independent Serbian state in Kra-
jina, and, to advance this goal, he sought the help of Slobodan Milošević.
As an initial matter, Babić apparently sought to obtain autonomy for Croa-
tian Serbs through peaceful means, but there developed a “parallel structure”
of authority whose members answered directly to Milošević and who chose to
use violence to obtain that goal. In particular, beginning in the summer of 1991,
Serbian Croat forces, under the direction of the parallel structure and assisted by
the Yugoslav Army, launched an ethnic-cleansing campaign designed to forcibly
remove Croat and other non-Serb populations from the region. This campaign
resulted in the deaths of more than 230 Croats, the illegal incarceration of several
hundred Croats and other non-Serbs, and untold property damage. Babić ap-
parently had no effective control over this parallel structure, and he apparently
was not the architect of the ethnic-cleansing campaign; nonetheless, he cooper-
ated with this structure by providing material, logistical, and political support
for the military takeover of the territories in Krajina and by making ethnically
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biased and inflammatory speeches that frightened Croatian Serbs and helped to
convince them that they would be safe only in a state of their own.
Babić voluntarily brought himself before the prosecution in the fall of 2001
after his name appeared in an indictment against Milošević. Babić subsequently
engaged in extensive interviews with the prosecution and eventually provided de-
tailed and useful testimony in the Milošević case. His testimony was so useful,
indeed, that many commentators were surprised when ICTY prosecutors chose
to indict Babić in November 2003. That indictment charged Babić with one
count of persecution as a crime against humanity and four counts of violations
of the laws and customs of war, and it alleged that he committed these crimes
through his participation in a joint criminal enterprise or, alternatively, as an
aider and abettor. Two months later, Babić agreed to plead guilty to aiding and
abetting the one count of persecutions, but when presented with a plea agreement
in which Babić admitted that crime, the Trial Chamber expressed concern that
Babić may have understated his actual criminal liability by admitting only to
aiding and abetting the crimes; as a consequence, the parties subsequently pre-
sented to the chamber a revised plea agreement in which Babić’s participation in
the crime was characterized as coperpetratorship. The plea agreement required
prosecutors to withdraw the less-serious charges of violations of the laws and
customs of war, and it required prosecutors to recommend a sentence of no more
than eleven years’ imprisonment.
The “Factual Statement” appended to Babić’s plea agreement was unusual.
Prior ICTY factual statements were composed of admissions inculpating the de-
fendant; Babić’s factual statement contained some of those, but it also contained
numerous assertions that functioned to minimize his role in the crimes and his
ultimate culpability. The “Factual Statement,” for instance, reported that Babić’s
crimes were driven by his fear that Croatian Serbs would suffer discrimination at
the hands of the Croats, and it legitimized that fear by asserting that Babić had
fallen prey to a “media campaign directed by Belgrade that portrayed the Serbs in
Croatia as being threatened with genocide by the Croat majority.”  The “Factual
Statement” also emphasized that Babić did not share the goals of those in the par-
allel structure who sought to obtain autonomy for Croatian Serbs through force,
and it asserted that several of Babić’s decisions or appointments were made “un-
der pressure from Milošević” or only to “ratif[y] a decision made in Belgrade.” 
The Trial Chamber did not consider these assertions persuasive. Finding that
Babić’s participation in the joint criminal enterprise was substantial, the cham-
ber concluded that “Babić’s role . . . was [not] as limited as the parties claim it was”
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and that he himself may not have recognized “the full significance of the role he
played in Croatia in that period.”  The Trial Chamber was also not convinced
of the appropriateness of the prosecution’s sentencing recommendation. As noted
above, prosecutors had agreed in Babić’s plea agreement to seek a sentence of
no longer than eleven years’ imprisonment. In previous guilty-plea cases, pros-
ecutors had sought the longest sentence permissible under the plea agreement.
In Babić, by contrast, prosecutors advocated a sentence of “below 11 years.” The
prosecutor emphasized: “I stress here the word ‘below.’ ”  The Trial Chamber
declined to comply, however, and sentenced Babić to thirteen years’ imprison-
ment, concluding that a sentence of eleven years “would not do justice.” 
Almost certainly as a consequence of the Trial Chambers’ imposition of
longer-than-agreed-to sentences in Dragan Nikolić, Momir Nikolić, and Babić,
more than a year-and-a-half elapsed after Babić’s guilty plea before another ICTY
defendant elected to plead guilty. By the time that Miroslav Bralo and Ivica Rajić
tendered their guilty pleas in the summer and fall of 2005, however, prosecutors
had another weapon in their bargaining arsenal—the threat to transfer a case to
the courts of Bosnia.
ICTY prosecutors had indicted Miroslav Bralo in 1995, but they kept the in-
dictment under seal. Two years later, while unaware of the indictment, Bralo
attempted to surrender to U.N. peacekeepers. He told them that he had killed at
Ahmići and could no longer live with his conscience, and he provided them
with a bundle of documents of interest to ICTY prosecutors. The peacekeepers
declined to arrest Bralo, however, because his name did not appear on their list
of indicted people. Bralo subsequently surrendered to the Bosnian Croat army
and was held under house arrest for two years until he was able to escape. In Oc-
tober 2004, the ICTY unsealed Bralo’s indictment, and he immediately surren-
dered to the tribunal. Eight months after that, Bralo pled guilty  and issued
a public apology for his crimes. He also provided prosecutors with a statement
in addition to the factual basis of his guilty plea that revealed facts incriminat-
ing Bosnian Croat general Tihomir Blaškić and other Bosnian Croat officials.
Bralo additionally helped mine-clearing officials in identifying areas containing
mines, and he assisted in efforts to locate and exhume the bodies of victims of
the ethnic cleansing at Ahmići. As a result of the information Bralo provided,
Bosnia’s Federal Commission of Missing Persons was able to exhume the remains
of numerous victims.
Bralo’s plea agreement states that “no promises or inducements have been
made by the Prosecutor to induce Miroslav Bralo to enter this Agreement.” 
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This provision is reminiscent of the Plavšić plea agreement, which similarly pro-
vided that “the Prosecutor has made no promises to Biljana Plavšić in order to in-
duce her to change her plea . . . from not guilty to guilty.”  It is true that Plavšić
prosecutors had not committed to a particular sentencing recommendation, but
they had agreed to withdraw charges of genocide against Plavšić, a withdrawal
that might have had a considerable effect on sentencing. By contrast, as noted in
the discussion on charge bargaining, Bralo pled guilty to more crimes than those
for which he was initially charged. In addition, his plea agreement, like Plavšić’s,
contains no promises regarding sentence recommendations. As Bralo’s defense
counsel put it: “The passage which is sometimes included in such plea agreements
marked ‘Consideration’ has been excised altogether because there is none. The
Prosecution has made no promise to the Defendant.” 
That the prosecution indeed had made no promises to Bralo became abun-
dantly clear once the prosecution announced its sentence recommendation for
Bralo. Although the norm at the ICTY is for the Trial Chambers to impose a sen-
tence from which a defendant might be granted early release in accordance with
the laws of the state of imprisonment, Bralo prosecutors asked the Trial Chamber
to order that Bralo serve “a minimum term of 25 years.”  Since ICTY defendants
typically serve their terms in states that release criminal defendants once they
have served one-half to two-thirds of their sentences, Bralo prosecutors were ef-
fectively recommending that the ICTY sentence Bralo to a forty- or fi ft y-year
term of imprisonment, which is a particularly harsh sentence given Bralo’s low-
level status. Bralo prosecutors, in addition, took a narrow view of his efforts to
cooperate with the prosecution. As noted above, Bralo provided the prosecution
with a supplemental statement and documents that the prosecution has used in
other ICTY cases. Bralo has also offered to be deposed under oath, but he
was not willing to meet privately with the prosecution because he feared that his
family would suffer retaliation. In the prosecution’s view, Bralo’s assistance
did not rise to the level of substantial cooperation, which, pursuant to Rule 101
of the ICTY’s Rules of Evidence and Procedure, would be a mitigating factor in
sentencing. The Trial Chamber agreed with the prosecution that Bralo did not
substantially cooperate, but it did deem his cooperation “moderate” and gave
him some credit for it. The Trial Chamber also rejected the prosecution’s re-
quest to impose a mandatory minimum term on Bralo. Rather, it imposed a
sentence of twenty years’ imprisonment after determining that a sentence of at
least twenty-five years would have been warranted absent Bralo’s guilty plea, his
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remorse, his voluntary surrender, and the other mitigating circumstances that
the Trial Chamber took into account.
The Bralo case is in many ways reminiscent of Erdemović. Both Bralo and Er-
demović were low-level offenders, and both pled guilty without receiving any con-
crete sentencing concessions from the prosecution. In addition, both defendants
attempted to surrender to authorities, claiming to have incriminating information
about more senior offenders. But while Erdemović succeeded in expeditiously pre-
senting himself before the ICTY, providing the prosecution with vital information
about the Srebrenica massacres and testifying in numerous cases, Bralo did not.
And that difference might account for the very different treatment that the two
defendants received from the prosecution. In addition, although Bralo, like Erde-
mović, did not receive any concrete sentencing concessions from the prosecution
in exchange for his guilty plea, Bralo’s guilty plea did garner him a benefit that was
not available at the time that Erdemović pled guilty. As a result of Bralo’s low-level
status, his case was considered a likely candidate for transfer to the Special War
Crimes Court in Sarajevo. Many ICTY defendants have vehemently opposed the
transfer of their cases to Bosnia, and by pleading guilty, Bralo eliminated the
possibility of a Bosnian prosecution. Even if Bralo’s guilty plea was motivated by
a desire to avoid transfer to Bosnia, his plea provides an outstanding example of
the kinds of elements that a guilty-plea process should include. In Chapter 8, I ar-
gue that guilty pleas that incorporate such restorative-justice principles as truth-
telling, apologies, and reparations can enhance peace-building and reconciliation
following large-scale violent conflict. Bralo’s guilty plea includes these features
and consequently was enthusiastically welcomed by victims.
Ivica Rajić tendered the next and most recent ICTY guilty plea, and he pres-
ents the more typical case of a defendant seeking concrete advantage in exchange
for his self-conviction. Rajić was a commander in the Bosnian Croat army. In Oc-
tober 1993, he ordered his subordinates, who he knew had previously committed
atrocities against Bosnian Muslims, to attack the Bosnian Muslim town of Stupni
Do and to arrest and detain military-aged men in the town of Vareš. The forces
under Rajić’s command destroyed Stupni Do: they killed at least thirty-seven
villagers, sexually assaulted numerous women, and razed the village. In Vareš,
Rajić’s forces apprehended more than 250 Muslim men, ill-treated them, and de-
tained them in deplorable conditions. Rajić eluded an ICTY arrest warrant for
more than eight years, and when he was finally apprehended in June 2003, he pled
not guilty to all the charges against him. A little more than two years later, in
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July 2005, prosecutors fi led a motion to have Rajić’s case transferred to the Bos-
nian courts, a motion that Rajić firmly opposed. Two months later, Rajić agreed
to plead guilty to four of the ten counts against him. After doing so, however,
Rajić repeatedly tried to minimize his responsibility for the crimes and distance
himself from his own admissions, a topic that will be taken up in Chapter 10.
Although prosecutors withdrew six counts, Rajić obtained no benefit from the
withdrawals because the withdrawn crimes were no more serious than the crimes
to which Rajić pled guilty, and the facts contained in the withdrawn charges were
also contained in the charges to which Rajić pled guilty. As for sentencing conces-
sions, prosecutors agreed to recommend a sentence of between twelve and fi fteen
years’ imprisonment, a recommendation that appears moderately discounted
in light of ICTY precedents. Perhaps the most important benefit Rajić obtained
by pleading guilty, however, was the resolution of his case by the ICTY and not
the courts of Bosnia. Although upon judicial questioning, both Rajić and the
prosecution denied that Rajić’s guilty plea was motivated by a desire to avoid a
transfer to the Bosnian courts, the timing of the plea gave rise to doubts. As the
date for the ICTY’s closure draws nearer, it may be that the prosecution’s threat
to seek transfer of a case to a judicial system believed to be more harsh than the
ICTY represents its most potent bargaining tool in the guilty-plea process.
Appeals in ICTY Guilty-Plea Cases
The first two ICTY defendants to plead guilty appealed after their convictions.
While Erdemović’s appeal, as discussed above, raised interesting legal issues
about the nature of guilty pleas and led the Appeals Chamber to vacate his guilty
plea and remit the case to the Trial Chamber, the second appeal—brought by
Goran Jelisić—merely challenged his sentence, a challenge that failed, even though
the Appeals Chamber agreed with Jelisić that the Trial Chamber had erroneously
convicted him of killing fourteen people when, in fact, he had pled guilty to kill-
ing only thirteen. In an effort to prevent guilty-plea defendants from launch-
ing similar time-consuming appeals to their sentences, ICTY prosecutors began
including in subsequent plea agreements a provision preventing either party
from appealing a sentence, if the sentence falls within the range of sentences
that the parties agreed upon in the plea agreement. Consequently, no appeals
were brought in Todorović, Simić, and Obrenović. The plea agreements of Momir
Nikolić and Dragan Nikolić likewise prevented them from appealing if they were
sentenced in accordance with the prosecution’s recommendation, but since they
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were not, those defendants could and did appeal. In recent times, defendants have
been less amenable to waiving their right to appeal; consequently, no appeal pro-
hibition was included in the plea agreements of Banović, Mrd̄a, Rajić, Deron-
jić, Babić, and Jokić, and the latter three defendants did fi le appeals following
their sentencing. As a consequence, the Appeals Chamber of late has been well-
occupied with appeals to sentences in guilty-plea cases.
Given the similarity of the Trial Chambers’ sentencing analysis in guilty-plea
cases, it should come as no surprise that there also exists a similarity in the de-
fendants’ challenges to these sentences. In particular, guilty-plea defendants have
typically claimed that the Trial Chambers inappropriately assessed aggravating
and mitigating circumstances. With respect to the former, Deronjić, for instance,
asserted that the factors that the Trial Chamber considered to be aggravating were
already subsumed in the offense to which he pled guilty, while Babić argued
that the Trial Chamber erred in considering his leadership position as an aggra-
vating factor. Dragan Nikolić, for his part, maintained that the Trial Chamber
erred by holding that Nikolić enjoyed his criminal acts and that the beatings he
administered had had “ ‘all the making of de facto attempted murder.’”  When
it has come to challenging the Trial Chambers’ assessment of mitigating factors,
some defendants have claimed that the chambers did not pay due attention to the
value of their guilty pleas, their personal or family circumstances, or their
remorse. Given that the Trial Chambers possess tremendous discretion in sen-
tencing, these challenges were unlikely to succeed under any circumstances, and
in some cases, the defendants’ allegations were directly contradicted by the clear
text of the Trial Chambers’ judgment.
The guilty-plea defendants who have lately appealed their sentences have also
asserted—in so many words—that they did not get the benefit of their plea bar-
gain. Consequently, in addition to the specific challenges regarding aggravating
and mitigating circumstances, most recent appeals have also featured the allega-
tion, phrased in a variety of ways, that the Trial Chamber’s view of the defendant’s
overall culpability inappropriately diverged from that which formed the basis of
the plea agreement. In some cases, the divergence has related only to technical
legal issues. In Jokić, for instance, both the prosecutor and defense asserted on
appeal that the Trial Chamber had erred in finding Jokić partially liable pursuant
to article 7(1) of the ICTY statute and partially liable under article 7(3) of the stat-
ute, which provides for superior responsibility. More frequently, however, the
divergence relates more fundamentally to an assessment of the gravity of the
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crime and the defendant’s role in that crime. In Babić, for instance, the defense
and prosecution had agreed that, although Babić held the highest political office
in the region, his role in and control over the ethnic-cleansing campaign was very
limited. On the basis of the facts to which Babić pled guilty, however, the Trial
Chamber disagreed with the parties’ characterization and found that Babić’s par-
ticipation in the joint criminal enterprise was “substantial.”  Babić appealed
and unsurprisingly maintained that the chamber had abused its discretion by
failing to give sufficient weight to the facts agreed upon in the plea agreement.
Deronjić likewise appealed in part on the basis that the Trial Chamber had “ex-
panded, amended and modified the facts contained in the second amended in-
dictment and the factual basis.”  He further maintained, in another ground of
appeal, that the Trial Chamber “insinuate[d] his criminal responsibility for addi-
tional crimes not covered by the Second Amended Indictment,” which, he main-
tained, constituted an “attempt to picture him as a vicious man.”  Deronjić’s
defense counsel indicated that Deronjić was very upset by the chamber’s conclu-
sions. According to defense counsel, Deronjić had admitted many inculpatory
facts from his first interviews with prosecutors and was willing to acknowledge
fully the crimes that he committed. But he was not willing to accept inappropri-
ate responsibility, which he felt that the Trial Chamber had imposed on him.
Because the Trial Chambers possess tremendous sentencing discretion, the de-
fendants have little about which they can legitimately complain, so their grounds
of appeal have a nitpicky flavor to them. As noted above, Deronjić asserted that the
Trial Chamber reached conclusions not specifically contained in the “plea agree-
ment package.” That assertion is certainly weighty, but in attempting to support it,
Deronjić raised a host of alleged factual mistakes, the bulk of which, even if they
were mistakes, were exceedingly trivial in the grand scheme of Deronjić’s overall
culpability. For instance, although Deronjić admitted to participating in the dis-
arming of the population of the municipality of Bratunac as a whole, he argued
that the Trial Chamber erred in finding that he had “joined the mission” to disarm
the population of the specific village of Glogova, which is part of the municipal-
ity of Bratunac. In another similarly trivial-seeming allegation, Deronjić claimed
that, because the Trial Chamber mentioned the Muslims of Glogova who were put
on buses and transported to Muslim-held territory, the chamber “insinuate[d]”
that Deronjić was criminally responsible for the fate of those Muslims.
Jokić’s grounds for appeal read similarly. Although the Trial Chamber sen-
tenced him to seven years’ imprisonment, which is three years less than the
maximum ten-year term the prosecution could recommend, Jokić nonetheless
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appealed, maintaining, among other things, that the chamber had abused its dis-
cretion and caused a miscarriage of justice by failing to hold that Jokić’s health
and family circumstances—the fact that his daughter is ill and unable to care
for herself—was an exceptional circumstance. Babić, for his part, went so far
as to seek to invalidate his guilty plea on the ground that the Trial Chamber had
coerced him into pleading guilty as a coperpetrator by declining to accept his
guilty plea as an aider or abettor. On its face, the claim appears weighty, but not
only did the evidence conclusively show the voluntariness of Babić’s plea, but his
own counsel conceded on appeal that it is “very difficult to discern the difference”
between liability as an aider and abettor and the liability to which Babić in fact
pled guilty. As will be discussed in more detail in Chapter 10, allegations such
as these reduce the reconciliatory impact of guilty pleas and cast doubt on the
remorseful sentiments that ICTY defendants now routinely express.
The prosecution has supported many of the defendants’ grounds for appeal.
The Dragan Nikolić prosecution and defense were in accord, for instance, in as-
serting that when a Trial Chamber declines to follow a joint sentencing recom-
mendation, it is obliged to provide a substantial explanation as to the basis for
the departure. Likewise, the Momir Nikolić prosecution and defense agreed
that a mistranslation of defense counsel remarks could have prejudiced the Trial
Chamber against Nikolić, and they agreed that the Trial Chamber had erred in
its evaluation of Nikolić’s testimony against other defendants. And the Babić
prosecution supported defense allegations that the Trial Chamber had erred in
failing to consider as mitigating circumstances Babić’s good conduct before and
after the crime and in concluding that Babić had played a more substantial role in
the joint criminal enterprise than the parties had asserted. Indeed, in the Babić
appeal, the prosecution joined with the defendant to seek the less-than-eleven-
year sentence that the prosecution had originally urged upon the Trial Cham-
ber. By contrast, in Jokić, although the prosecution agreed with the defense
that the Trial Chamber had erred in its conclusions regarding the basis of Jokić’s
conviction, the prosecution asserted that the error had no material effect on sen-
tencing. Presumably, the primary difference between the two cases is that the
Babić Trial Chamber imposed a harsher-than-recommended sentence on Babić,
whereas the Jokić Trial Chamber sentenced in accordance with the prosecution’s
recommendations. Even if the prosecution is not in fact displeased with a harsher-
than-recommended sentence in a given case, its interest lies in convincing the
Trial Chamber to sentence in accordance with the prosecution’s recommenda-
tions because it is only through the chambers’ adherence to the prosecution’s rec-
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ommendations that the promise of a particular recommendation will persuade

defendants to plead guilty.
If the ICTY Trial Chambers have failed to pay due attention to that reality,
the Appeals Chamber has not. Whereas the Appeals Chamber has dismissed the
appeals of those guilty-plea defendants who were sentenced to terms within the
ranges appearing in their plea agreements, it has seen fit to reduce the sentences of
two of the three guilty-plea defendants who were sentenced to terms outside of the
agreed-upon ranges. In Momir Nikolić, the Appeals Chamber reduced Nikolić’s
sentence by a sizable seven years after finding that the Trial Chamber had erred
in double counting Nikolić’s role in the atrocities, had failed adequately to sup-
port its assessment of Nikolić’s cooperation with the prosecution, and may have
been influenced by a mistranslation of defense counsel’s remarks. In reducing
Nikolić’s sentence from twenty-seven to twenty years’ imprisonment, the Appeals
Chamber bestowed on him a sentence within the range for which he had bar-
gained. The only error that the Appeals Chamber was able to identify in the Dra-
gan Nikolić case was that, in sentencing Nikolić to a term eight years longer than
the term jointly recommended by the prosecution and defense, the Trial Chamber
had attached too much weight to the possibility of Nikolić’s early release. The
Appeals Chamber reduced Nikolić’s sentence by only three years for that error,
but even that reduction seemed questionable, as pointed out by Judge Mohamed
Shahabuddeen in dissent. By sentencing outside the agreed-upon ranges in the
Momir Nikolić, Dragan Nikolić, and Babić cases, ICTY Trial Chambers discour-
aged subsequent defendants from pleading guilty. The Appeals Chamber’s subse-
quent sentence reductions in two of those cases ameliorated the influence of the
Trial Chambers’ decisions and helped to pave the way for future guilty pleas.
Other Aspects of the Evolution of ICTY Plea Bargaining
The ICTY’s practice of plea bargaining has also evolved in other ways. For
one thing, in recent times, the prosecution has required most defendants to co-
operate with the prosecution by providing information and testifying in appro-
priate cases. Recent guilty-plea defendants have also made a point of expressing
remorse when it has come time for sentencing. Finally, an evolution has occurred
in the rationales the ICTY invokes to justify its practice of plea bargaining. All
of these developments will be discussed in detail in Chapter 10, which will assess
how the ICTY’s recent practice of plea bargaining measures up to the restorative-
justice guilty-plea system that I will develop in Chapters 8 and 9.
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chapter five
Plea Bargaining at the ICTR
The ICTY and the ICTR each began its institutional life with a defendant who
pled guilty, and the tribunals’ subsequent practice of plea bargaining has also
followed a roughly similar path. Both tribunals obtained their early guilty pleas
without the promise of sentencing concessions and under somewhat idiosyn-
cratic circumstances. However, because both tribunals have labored of late under
intense Security Council pressure to complete their work, they have begun to
use plea bargaining in a deliberate and systematic way to encourage defendants
to plead guilty. As Chapter 4 recounts, the ICTY has had considerable success in
this endeavor, disposing of the cases of nineteen defendants by means of guilty
pleas. The ICTR was slower to get started. During its first nine years of operation,
it received only three guilty pleas. However, during the eighteen months between
December 2004 and May 2006, ICTR prosecutors persuaded three more defen-
dants to plead guilty and persuaded two high-level offenders to provide incrimi-
nating evidence against their former accomplices. To obtain the evidence and
the guilty pleas, prosecutors had to offer defendants substantial sentencing and
charging concessions. The concessions were so substantial, in fact, that they have
sparked something of a backlash. Trial chambers have refused to enforce some of
the terms of these deals, and the Rwandan government has harshly condemned
them. The ICTR is learning, as the ICTY did before it, that aggressive efforts to
obtain incriminating information and guilty pleas are likely to provoke both ju-
dicial resistance and vociferous criticism.
A discussion of the three early ICTR guilty pleas is next, and it is followed
by an examination of the ICTR’s more recent and aggressive efforts to obtain
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92 plea bargaining at the ictr
guilty pleas and incriminating evidence. The chapter concludes with an analysis
of ICTR plea bargaining, past and present.
Early ICTR Guilty Pleas: Few Incentives
The first three ICTR guilty pleas were tendered by the highest-ranking politi-
cal official in Rwanda, a low-level killer who surrendered himself to the ICTR and
never would have been indicted otherwise, and an idealistic Belgian journalist
who had emigrated to Rwanda just a few months before the genocide. In other
words, the first three guilty-plea cases at the ICTR featured defendants in idio-
syncratic circumstances that were unlikely to be replicated. In those early days,
ICTR prosecutors, like their ICTY counterparts, did little to encourage defen-
dants to plead guilty.
The Kambanda Case
The ICTR obtained its first guilty plea from Jean Kambanda, who had been the
prime minister of the interim government that presided over Rwanda during the
1994 genocide. Kambanda was not one of the architects of the genocide, but he
admitted to actively implementing it by, among other things, distributing weap-
ons and ammunition, setting up roadblocks to capture Tutsi, and using media
broadcasts to incite and encourage the massacres. In July 1997, Kambanda was
arrested in Kenya. He engaged in interviews with the prosecution before a law-
yer had been appointed for him, and he reportedly left these interviews believ-
ing that he would receive a sentence of no more than three years’ imprisonment if
he pled guilty. Kambanda entered into a plea agreement with the prosecution
in April 1998, pleading guilty to genocide and crimes against humanity. If he had
received any sentencing promises, however, they did not make their way into
his plea agreement. Indeed, the agreement expressly stated that the parties had
made “no agreements, understandings or promises” with respect to Kambanda’s
sentence.
Even if no promises had been made to Kambanda, it is customary for prose-
cutors to recommend a discounted sentence following a guilty plea. Kambanda’s
guilty plea might have been expected to earn him especially significant conces-
sions as a result of his high-level position. In Plavšić, for instance, the ICTY em-
phasized that Plavšić’s former position as copresident of the Serbian Republic of
Bosnia and Herzegovina enhanced the reconciliatory and truth-telling value of
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plea bargaining at the ictr 93
her guilty plea. Further, Kambanda tendered his guilty plea before the comple-
tion of any ICTR trials; thus, his guilty plea, coming so early in the life of the
tribunal, had the potential to set a powerful example for other defendants to fol-
low. Finally, Kambanda provided prosecutors with a treasure trove of valuable
information, including ninety hours of recorded testimony for use in subsequent
trials of senior political and military leaders. The prosecution described this
information as “invaluable,”  and Kambanda promised to testify for the pros-
ecution at those trials. Such cooperation is also ordinarily rewarded with a
sentence reduction.
Despite these considerations, the prosecution asked the Trial Chamber to im-
pose a life sentence on Kambanda —the harshest sentence the ICTR can im-
pose. Unfortunately for Kambanda, the very same factors that could be marshaled
to justify a significantly reduced sentence for Kambanda likely persuaded pros-
ecutors to recommend a term of life imprisonment. Kambanda was the second
highest-ranking political authority in Rwanda during the genocide, and although
his high-level status rendered his guilty plea all the more significant, that same
status made him seem especially deserving of a life sentence. That perception car-
ried all the more significance because Kambanda was convicted at the very outset
of the ICTR, so the disposition of his case garnered particularly intense publicity.
The prosecution did try to ameliorate the effect of its harsh sentencing recom-
mendation by suggesting that any future application for pardon or commuta-
tion of sentence “be considered favorably on the basis of past, current and future
significant cooperation extended to the prosecution,”  but further it was not
willing to go. The Trial Chamber acceded to the prosecution’s recommendation
and sentenced Kambanda to life imprisonment. Although the Trial Chamber
acknowledged that Kambanda’s guilty plea constituted a mitigating factor, it con-
cluded that the aggravating circumstances surrounding his crimes “negate[d] the
mitigating circumstances.” 
Outraged, Kambanda ceased cooperating with the prosecution, and he ap-
pealed, seeking to quash his guilty plea and proceed to trial. Kambanda main-
tained, among other things, that he had not received competent legal advice and
that he had been inappropriately detained in isolation in a safe house five hun-
dred kilometers from the detention facility where the other ICTR defendants
were held. The Appeals Chamber rejected his appeal, and Kambanda was
sent to Mali to serve his sentence. Negotiations between the prosecution and
Kambanda about the location of Kambanda’s detention and about his request for
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a sentence revision resumed in 2004 when the prosecution again sought to obtain
Kambanda’s testimony in upcoming cases, but as of this writing no agreement
has been reached.
The Serushago Case
When Omar Serushago pled guilty to genocide and crimes against humanity
in December 1998, he became only the third defendant to be convicted by the
ICTR and the second to be convicted by means of a guilty plea. Serushago en-
tered his guilty plea three months after Kambanda received his life sentence, but
Serushago’s decision to plead guilty was made long before the decision in Kam-
banda was handed down. The genocide was implemented largely at the hands
of a militia called Interahamwe, and Serushago commanded a small group of
this militia. Serushago supervised a roadblock at which Tutsi were detained and
killed, and he admitted to personally killing four people. While living in Nai-
robi in April 1997, Serushago approached ICTR prosecutors and provided them
with information that led, among other things, to the arrest of several high-rank-
ing ICTR defendants, including Kambanda and Georges Ruggiu, who will be
discussed next. More than a year later, in July 1998, Serushago voluntarily sur-
rendered to the ICTR even though he had not been indicted by the tribunal.
Once Serushago arrived in Arusha, prosecutors hurriedly prepared a five-
count indictment, charging him with one count of genocide and four counts of
murder, extermination, torture, and rape as crimes against humanity. At his
first appearance, Serushago pled guilty to four of the five counts, and prosecu-
tors withdrew the rape count. The withdrawal of the rape count was somewhat
curious: given Serushago’s provision of information and his voluntary surren-
der without an indictment, it must have been clear to prosecutors that Serush-
ago intended to plead guilty once an indictment was prepared. Under these cir-
cumstances, one might have expected the parties to consult about the charges
to which Serushago would be willing to plead guilty before the indictment was
issued. However, the parties apparently did not. Indeed, once indicted, Serushago
vehemently objected to the rape charge, and his counsel was apparently so con-
vinced that Serushago would be acquitted of rape that he threatened to proceed
to trial on the rape charge after pleading guilty to the other charges. Prosecutors
maintain that they included the rape charge because they initially believed it to
be supported by sufficient evidence, but they subsequently determined that it was
not, so they withdrew the count. In subsequent testimony in the “Media Trial,”
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however, Serushago indicated that he and another Rwandan offender “were incit-
ing the killing of the Tutsis and their rape.” 
Serushago, like Kambanda, received no written promises regarding the pros-
ecution’s sentence recommendation; indeed, with regard to sentencing, Serush-
ago’s plea agreement provides only that it “is at the entire discretion of the Trial
Chamber.”  When the time came to recommend a sentence, however, the pros-
ecution did provide Serushago some consideration for his plea. Because Serush-
ago was a low-level defendant whose case had not generated significant publicity,
prosecutors—and the Trial Chamber for that matter—likely felt more able than
in Kambanda to discount Serushago’s sentence without concern that that dis-
count would give rise to disastrous publicity. The prosecution accordingly praised
Serushago’s substantial cooperation and recommended a sentence of not less
than twenty-five years’ imprisonment. At the time the prosecution made that
recommendation, it had made sentencing recommendations in three previous
cases, and in all three cases, it had recommended life sentences, which the Trial
Chambers then imposed. In every subsequent case that has gone to trial, the
prosecution has likewise recommended a life sentence. Thus, the prosecution’s
twenty-five-year sentence recommendation in Serushago seems clearly to reflect a
discount for his guilty plea and cooperation, as does the fifteen-year sentence that
the Trial Chamber in fact imposed. Indeed, although four other ICTR defen-
dants have now received more lenient sentences than Serushago, three of them also
pled guilty. In sentencing Serushago, the Trial Chamber had little to say about
Serushago’s guilty plea, although it duly noted the plea as a mitigating factor.
The Ruggiu Case
Belgian defendant Georges Ruggiu is the only non-Rwandan to be indicted by

the ICTR. Ruggiu had developed an interest in Rwanda and its politics in the
early 1990s when he became friends with Rwandan students who were his neigh-
bors in Belgium. He subsequently participated in Belgian political debates re-
garding Rwanda and met with Rwandan president Juvénal Habyarimana several
times. Ruggiu became radically opposed to the Rwandan Patriotic Front (RPF),
which had been engaged in an armed conflict with the Hutu-led Rwandan gov-
ernment. In late 1993, Ruggiu moved to Rwanda apparently to marry  and to
work as a journalist and broadcaster for the Radio Television Libre des Mille Col-
lines (RTLM). During the spring of 1994, RTLM broadcasts, including those of
Ruggiu, incited the population to kill Tutsi. ICTR prosecutors indicted Ruggiu
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on six counts: conspiracy to commit genocide, direct and public incitement to

commit genocide, complicity in genocide, and murder, persecution, and exter-
mination as crimes against humanity.
A year after the genocide, Ruggiu wrote a book in which he proclaimed his
innocence and asserted that RTLM broadcasts were intended to mobilize Rwan-
dans against the RPF, not against Tutsi civilians. Not surprisingly, then, after
he was arrested, Ruggiu pled not guilty, and he subsequently contended that he
remained convinced of his innocence until one of his codefendants made a public
speech to the other ICTR detainees, informing them that the Rwandan violence
had in fact been a planned genocide. Ruggiu reported that this news greatly dis-
tressed him and motivated him to engage in interviews with the prosecution.
He then reported undertaking a process of serious reflection after which he rec-
ognized his moral responsibility to tell the truth and to plead guilty. Nearly
three years after he was arrested, then, in May 2000, Ruggiu pled guilty to direct
and public incitement to commit genocide and persecution as a crime against
humanity.
During plea negotiations, Ruggiu’s lawyers made efforts to wring from pros-
ecutors firmer sentencing guarantees than they had provided Kambanda and
Serushago. These efforts appeared to fail: Ruggiu’s plea agreement, like Kam-
banda’s and Serushago’s, contained no promises regarding the prosecution’s
sentencing recommendation. At the same time, the recommendation that the
prosecution did submit to the Trial Chamber clearly reflected a discount as a
result of Ruggiu’s guilty plea. In particular, the prosecutor asked the Trial Cham-
ber to impose a twenty-year prison sentence on Ruggiu, which is the shortest
sentence ICTR prosecutors had theretofore ever recommended. In doing so, the
prosecutor expressly stated that she would have recommended a life sentence had
Ruggiu proceeded to trial.
Ruggiu’s Trial Chamber was likewise willing to reward Ruggiu for his self-
conviction. Recall that the Kambanda Trial Chamber sentenced Kambanda to
the harshest sentence available to it. The Serushago Trial Chamber did appear to
discount Serushago’s sentence as a result of his guilty plea, but the chamber did
not discuss in any detail the mitigating role that Serushago’s guilty plea played in
his sentence. The Ruggiu Trial Chamber, by contrast, expressly extolled the value
of guilty pleas and commended those who chose to tender them. The chamber
lauded Ruggiu’s guilty plea for “spar[ing] the Tribunal a lengthy investigation
and trial” and for reflecting Ruggiu’s “acknowledgement of his mistakes,” which,
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according to the Trial Chamber, constituted “a healthy application of reason and

sentiment.” Most importantly, the chamber announced to other defendants that
“some form of consideration” would be shown to defendants who plead guilty “in
order to encourage other suspects and perpetrators of crimes to come forward.” 
The Trial Chamber then sentenced Ruggiu to twelve years’ imprisonment, a sen-
tence that was subsequently blessed by the prosecution. Although the government
of Rwanda sharply criticized Ruggiu’s sentence, the ICTR’s chief of prosecutions
described it as “a good gesture for other accused who would also wish to plead
guilty and accept responsibility for their crimes.”  The blessing given to guilty
pleas did not, however, motivate a spate of defendants to confess their crimes. In
fact, after Ruggiu, no ICTR defendant tendered a guilty plea for four-and-one-
half years until Vincent Rutaganira pled guilty in December 2004.
Recent ICTR Guilty Pleas and Other Negotiations: The Introduction

of Aggressive Charge Bargaining and Sentencing Bargaining
By November 2005, after approximately ten years in existence, the ICTR had
disposed of the cases of twenty-six defendants, four of whom had pled guilty.
Only three years remained, then, before the tribunal was required to complete
its trials. The trials of twenty-six other defendants were ongoing at that time,
and seventeen defendants were awaiting trial. Nineteen additional defendants
remained at large. Some of these cases were slated for transfer to domestic courts,
but most were to remain at the ICTR. Given the tribunal’s pace during its first
ten years, the prospect that it could wrap up its trials by the end of 2008 looked
dim indeed.
Aware of these realities, ICTR prosecutors have, for several years now, offered
defendants substantial sentencing concessions to persuade them to plead guilty.
But these efforts largely failed. As just noted, four-and-a-half years passed after
Ruggiu’s guilty plea, during which time no ICTR defendant was willing to plead
guilty. In another work, I explored the reasons why ICTR defendants refused to
tender guilty pleas. In particular, I determined that while most ICTR defendants
would be happy enough to receive a sentence discount, they were not willing to
plead guilty to genocide to get it. By and large, ICTR defendants deny that the
Rwandan violence constituted a genocide. In their view, the violence took place
in the context of the long-running war between the government of Rwanda and
Ugandan Tutsi rebel forces. Although they acknowledge that atrocities were
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perpetrated against the Tutsi in Rwanda, they consider those atrocities the ex-
cesses of a legitimate and spontaneous national defense effort, not the elements
of genocide.
That the massacres in Rwanda did in fact constitute a genocide is a well-
established fact in the international community. In addition, all of the ICTR de-
fendants who have been convicted after trial have been convicted of genocide.
Not surprisingly, then, for most of the ICTR’s existence, prosecutors have been
unwilling to withdraw genocide charges in order to procure guilty pleas. With
the trial-completion deadline fast approaching, however, prosecutors have lately
been forced to do just that. Indeed, in order to obtain guilty pleas in recent cases,
prosecutors have not only withdrawn genocide charges but they have radically
revised the factual bases for the convictions. Prosecutors have additionally of-
fered other substantial benefits to defendants who would provide incriminating
evidence against high-level offenders. Negotiating with ICTR prosecutors has
proved a risky business, however. One ICTR defendant turned up dead following
his provision of evidence to the prosecution, and two others saw their agreements
with the prosecution unravel at the hands of Trial Chambers. A discussion of the
ICTR’s newfound willingness to bargain over anything and everything follows.
The Rutaganira Case
Vincent Rutaganira was a low-level government official, who served as con-

seiller of the Mubuga sector from 1980 to 1994. The prosecutor’s charges against
him concerned a massacre of Tutsi that took place at the church in Mubuga.
During three days in April 1994, between four thousand and five thousand Tutsi
who had sought refuge in the church were butchered. The indictment against Ru-
taganira charged that he and two others had ordered the attack on the church and
had personally participated in the killings. On the basis of these allegations, the
indictment charged Rutaganira with six counts: genocide, extermination as a
crime against humanity, murder as a crime against humanity, inhumane acts as
a crime against humanity, a violation of article 3 common to the Geneva Conven-
tions, and a violation of Additional Protocol II to the 1949 Geneva Conventions.
Rutaganira fled Rwanda after the massacres and was still at large at the time
the prosecutor issued the indictment against him in 1996. In February 2002, Ru-
taganira voluntarily surrendered to the tribunal, and by the time he pled guilty,
eight-and-one-half years after his indictment, the prosecution was prepared to
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take a very different view of the crimes he had committed. In particular, in his
plea agreement, Rutaganira admitted only to omissions; that is, he denied order-
ing the attack on the church and participating in the attack, the charges that had
formed the basis for his indictment. Rather, he admitted only that he was aware
that Tutsi civilians had gathered in the church, that assailants were gathering
near the church before the attack took place, and that “despite the fact that he was
conseiller of Mubuga secteur he failed to protect the Tutsi who had sought refuge”
in the church. As part of the plea agreement, Rutaganira pled guilty to only one
count: aiding and abetting extermination as a crime against humanity on the ba-
sis of his omissions. Pursuant to the plea agreement, the prosecution did not seek
merely to withdraw the remaining counts of genocide, crimes against humanity,
and war crimes, but rather asked the court to acquit Rutaganira of those counts
because, the prosecution maintained, there did not exist sufficient evidence to
convict him. As for Rutaganira’s sentence, the prosecution agreed in the plea
agreement to recommend a term of between six and eight years’ imprisonment
and further agreed to recommend that Rutaganira serve his sentence either in a
European country or in the kingdom of Swaziland. Finally, the plea agreement
made clear that Rutaganira would not cooperate with the prosecution.
Rutaganira represents the first case of obvious sentence bargaining at the
ICTR since it is the first case in which the prosecution was willing to commit
to recommending a specific range of sentences in exchange for the defendant’s
guilty plea. Rutaganira appears to represent the first ICTR charge bargain, but
in this case, appearances are probably deceiving. Although there is no ques-
tion that Rutaganira admitted to facts substantially less serious than those that
formed the basis of his indictment, it appears that the prosecution was willing to
accept Rutaganira’s meager admissions because it truly did not have the evidence
to prove the original charges at trial. The prosecution said as much during Ruta-
ganira’s sentencing hearing, admitting that its “chance[] of success in proving all
the charges against him was . . . extremely low” because the prosecutor was “not
in possession of any evidence . . . which indicates that Mr. Rutaganira himself was
implicated in the planning of the said attack, . . . nor does [the Prosecutor] possess
any evidence . . . indicating that Mr. Rutaganira’s role in the said attack at Mubuga
church was premeditated.” 
The evidence and testimony at Rutaganira’s sentencing hearing supported the
prosecution’s representations. Witnesses testified, for instance, that Rutaganira
and his wife had hidden two Tutsi girls and a Tutsi woman in their home during
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the massacres, despite the fact that the Rutaganiras themselves would have been
killed had their assistance to the three Tutsi become known. Another Tutsi
witness testified that Rutaganira had saved her life by telling assailants that she
was a Hutu, while others testified that Rutaganira had been on very good terms
with Tutsi before the killings, acting as a godfather to a number of Tutsi children
and asking Tutsi to be godparents to some of his children. Finally, Mrs. Ru-
taganira returned to the same town in Rwanda in which the Mubuga church
massacres took place, and she was appointed deputy mayor for Women’s Devel-
opment. That she holds a political position in Rwanda’s current Tutsi-led govern-
ment provides further support for the prosecution’s assertions that no compelling
evidence exists linking Rutaganira with the planning or execution of the killings
at the Mubuga church.
Thus, the dramatic difference between the factual basis of Rutaganira’s indict-
ment and the factual basis of his guilty plea appears to have resulted from eviden-
tiary insufficiencies rather than from charge bargaining. Rutaganira’s plea deal
might nonetheless be considered a charge bargain, however, because the prosecu-
tion asked the Trial Chamber to acquit Rutaganira of the remaining charges of
crimes against humanity and war crimes for lack of evidence. Extermination
as a crime against humanity—the crime to which Rutaganira pled guilty—is a
more-serious crime than murder as a crime against humanity because extermi-
nation requires proof of “an element of mass destruction which is not required for
murder.”  Therefore, if the prosecution possessed sufficient evidence to convict
Rutaganira of aiding and abetting extermination as a crime against humanity,
that evidence must have been sufficient to convict him of aiding and abetting in
murder and inhumane acts as crimes against humanity. It is not surprising that
the prosecution would desire to eliminate those charges once Rutaganira pled
guilty to extermination: all of the counts related to the same conduct that formed
the basis for the extermination charge, and, in those circumstances, prosecutors
commonly withdraw counts that are less serious than the counts to which the
defendant pleads guilty. The distinctive feature of Rutaganira, however, is that the
prosecution did not seek merely to withdraw the less-serious counts but rather to
have the Trial Chamber acquit Rutaganira of those counts on the basis of insuf-
ficient evidence. That request is implausible on its face, given Rutaganira’s guilty
plea to the more-serious crime of extermination.
Implausible or not, the request was of vital significance to Rutaganira be-
cause the government of Rwanda has attempted to prosecute ICTR defendants
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for crimes for which they have not been tried at the ICTR. For instance, in
the Bagambiki et al. case, ICTR prosecutors declined to charge Bagambiki with
rape even though it possessed evidence of his involvement in rape and sexual
violence. After the ICTR acquitted Bagambiki of the charges that had been
brought against him, the government of Rwanda sought his arrest so that it
could try him for rape. Rutaganira thus desired an acquittal on the remaining
charges of crimes against humanity and war crimes as a means of preventing a
subsequent Rwandan prosecution.
The Rutaganira Trial Chamber acceded to the prosecution’s request and ac-
quitted Rutaganira of the charges to which he did not plead guilty, holding that
where the prosecutor admits that he has no proof supporting his indictment, and
no other evidence exists in the record to establish the defendant’s responsibil-
ity, then the Trial Chamber may determine that there exists no legal grounds
for finding the defendant guilty. In sentencing Rutaganira, the Trial Chamber
took into account various mitigating factors, including his guilty plea, his volun-
tary surrender, the assistance he gave to some victims, his expression of remorse,
and the fact that he did not actively participate in the killings. The Trial Chamber
sentenced Rutaganira to six years’ imprisonment, the shortest sentence there-
tofore imposed by the ICTR.
The Bisengimana Case
Paul Bisengimana provided the ICTR with its next guilty plea, and the first at
the ICTR to be obtained through the aggressive use of charge bargaining. Bisen-
gimana was bourgmestre of Gikoro commune, where on April 13, 1994, more than
one thousand Tutsi were massacred in the Musha church. The prosecution’s ini-
tial indictment against Bisengimana charged him with thirteen counts of geno-
cide, crimes against humanity, and war crimes  for having helped to plan and
implement the massacres at the Musha church and in Gikoro commune generally.
The indictment portrayed Bisengimana as an active and enthusiastic participant
in planning and executing the genocide. In particular, the indictment alleged
that Bisengimana armed and trained Interahamwe militia during the months
preceding the genocide and that he encouraged and ordered Hutu to rape and kill
Tutsi once the genocide had begun. The indictment also charged Bisengimana
with personally raping and killing Tutsi. As for the Musha church massacre,
the indictment charged Bisengimana with transporting arms and men to the
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church, with personally participating in the killings, and with directing burials
in mass graves.
In September 2005, the prosecution moved to amend Bisengimana’s indict-
ment. The amended indictment, which charges Bisengimana with five counts of
genocide and crimes against humanity, omits some of the allegations that had
appeared in the initial indictment, but it retains many others and adds new al-
legations besides. The amended indictment, like the original indictment, paints
Bisengimana as actively organizing and participating in the massacres. For in-
stance, the amended indictment charged him with “spearheading a campaign of
the destruction of Tutsi homes and the killing of Tutsi civilians” in the Gikoro
commune  by, among other things, “launch[ing] an attack on Tutsi civilians
taking refuge in [the] Musha church.”  The amended indictment asserts that,
during the attack, Bisengimana cut off the arms of a Tutsi man named Rusan-
ganwa, after which Rusanganwa bled to death. Among other new allegations,
the amended indictment also charged Bisengimana with launching an attack on
the Tutsi civilians seeking refuge at the Ruhanga Protestant church and school,
a massacre that had not been mentioned in the initial indictment. In both
Bisengimana’s initial and amended indictments, he is alleged to have committed
many of his crimes with Laurent Semanza, formerly the bourgmestre of Bikumbi
commune. The ICTR convicted Semanza of genocide in 2003, and during his
trial, witnesses testified as to Bisengimana’s involvement in some of the incidents
described in Bisengimana’s indictments.
In October 2005, a month after the prosecution amended its indictment
against Bisengimana, the parties entered into a plea agreement in which Bisengi-
mana agreed to plead guilty to aiding and abetting two of the five charges in his
amended indictment: murder and extermination as crimes against humanity.
In exchange for Bisengimina’s guilty plea, the prosecution agreed to withdraw and
seek his acquittal on the charges of genocide, complicity in genocide, and rape
as a crime against humanity, and it agreed to recommend a sentence of between
twelve and fourteen years’ imprisonment. Finally, the prosecution promised to
support Bisengimana’s request to serve his sentence in a European country.
The facts contained in Bisengimana’s plea agreement bear little resemblance to
the facts alleged in the amended indictment fi led only a month before the conclu-
sion of the plea agreement. Whereas both the initial and amended indictments
portray Bisengimana as actively planning and executing the raping and killing
sprees, the plea agreement depicts him only as a passive observer. No longer is
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Bisengimana arming and training Interahamwe militia; in the plea agreement, he

is merely “aware that weapons such as guns and grenades were distributed to In-
terahamwe militia . . . at the Musha church by members of the Rwandan army.” 
No longer is Bisengimana launching attacks and participating in massacres. In
his plea agreement, Bisengimana admits only to being “present” during the attack
on the Musha church. As for the attack on the Ruhanga church, the plea agree-
ment does not even acknowledge Bisengimana’s presence there. He admits only
that he “he took no active steps to protect the Tutsi refugees.”  Bisengimana
likewise admits only that he was present at the murder of Rusanganwa, not that
he himself hacked off the man’s limbs. Under the plea agreement, Bisengima-
na’s criminal liability stems not from his commission of any criminal acts, then,
but from his failure to prevent and punish those acts. Bisengimana acknowledges
in the plea agreement that, as bourgmestre of Gikoro, he was responsible for en-
forcing local laws and for ensuring peace, public order, and the safety of people
and property. He admits that by virtue of his position, he had a duty to pre-
vent the murders or punish their perpetrators and that he failed to do so. He
also acknowledges that his presence at the massacre sites “had an encouraging
effect on the perpetrators and [gave] them the impression that he endorsed the
killing[s].” 
The Bisengimana case appears to constitute the ICTR’s first factually distortive
charge bargain. As just noted, the facts appearing in Bisengimana’s indictment
differ dramatically from the facts appearing in his plea agreement. Whereas in
the indictment, Bisengimana planned massacres, trained and armed militias, and
himself raped and murdered, in the plea agreement, his involvement was limited
to that of a passive observer whose position obligated him merely to prevent the
crimes. The facts in Rutaganira likewise changed markedly between the indict-
ment and the plea agreement, but in Rutaganira, the prosecution stated outright
that it lacked the evidence to prove the facts and charges that were subsequently
withdrawn, and this assertion was supported by the evidence that was presented
at Rutaganira’s sentencing hearing. Charles Adeogun-Phillips was the lead pros-
ecutor in both Bisengimana and Rutaganira, but in Bisengimana, Adeogun-
Phillips was far less forthcoming about the evidence that the prosecution did or
did not possess. At one point during the sentencing hearing, Adeogun-Phillips
indicated that he lacked evidence to prove the three charges on which he sought
Bisengimana’s acquittal;  however, at other points, he appeared to acknowledge
that the request for acquittal was a consequence of the plea negotiations.
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Presumably, Adeogun-Phillips was unwilling to assert clearly and forthrightly

that the prosecution lacked sufficient evidence to convict Bisengimana because
such a claim would be difficult to sustain. For one thing, more than five years
after issuing the initial indictment and just a month before entering into the plea
agreement, the prosecution fi led an amended indictment that contained detailed
allegations of Bisengimana’s eager participation in the massacres. If the prosecu-
tion did not have evidence to support these allegations, then one has to ask why it
amended the indictment to include them. Second and more importantly, a spate
of witnesses in the Semanza trial testified not only as to Bisengimana’s presence
during the massacres but also as to his active involvement, and that testimony
directly supports many of the allegations appearing in Bisengimana’s indictment.
Semanza witness VC, for instance, testified that Bisengimana introduced Se-
manza at a February 2004 meeting as an “important personality” to whose mes-
sage the audience should listen carefully. According to VC, Semanza then told the
audience that the Tutsi of the region would be killed and thrown into nearby lakes
so that they would return to their ancestors in Ethiopia. Semanza witness VF
testified that Bisengimana and police came to her hill and shot at her and other
Tutsi on the morning of April 10, 1994. Witness VA testified to overhearing a
conversation between Bisengimana and Semanza during which Semanza sug-
gested burning down the Musha church to kill the refugees inside. According to
witness VA, Bisengimana expressed reluctance to destroy the church because he
had been baptized and married there, so he proposed starving to death the Tutsi
refugees instead. Witness VA also testified that she saw Bisengimana hack off
Rusanganwa’s arm and leg.
The Semanza Trial Chamber was persuaded by much of this testimony. It
found, for instance, that Bisengimana, Semanza, and others went to the Musha
church on April 8 or 9, 1994, in order to assess the situation shortly after the refu-
gees began arriving there. The Trial Chamber further accepted the testimony of
witnesses who claimed to have seen Semanza and Bisengimana gathering local In-
terahamwe militia in preparation for the attack on the Musha church. The Trial
Chamber further found that Semanza, “Bisengimana and others . . . returned to
the church with Interahamwe, soldiers, and gendarmes on 13 April 1994 around
midmorning. These assailants proceeded to attack the refugees in the church
with gunfire and grenades.”  During the trial, Semanza’s defense counsel tried
to portray Bisengimana as the person primarily responsible for the genocide in
Gikoro, and the Trial Chamber seemed receptive to such an argument: after
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surveying the evidence, it found that “the Prosecutor did not introduce sufficient
evidence to prove that [Semanza] worked in close cooperation with Bisengimana
to organize the massacre at Musha church,”  thus suggesting that it was Bisen-
gimana who had organized the massacre there.
The Semanza testimony and findings along with the prosecution’s issuance of
the amended indictment render implausible any suggestion that the prosecution
agreed to withdraw charges in Bisengimana because it lacked evidence to prove
those charges. This fact did not go unnoticed by the Bisengimana Trial Chamber.
Indeed, the charge bargain in Bisengimana was so blatant that it seemed to pro-
voke in the Trial Chamber hostility toward Bisengimana’s plea deal in its entirety.
The Trial Chamber reportedly refused the parties’ numerous requests to discuss
the provisions of the plea agreement prior to its conclusion. And once the plea
agreement was concluded, the Trial Chamber refused to accept Bisengimana’s
guilty plea, holding that the factual discrepancies between the amended indict-
ment and the plea agreement had “an impact on the equivocal or unequivocal
nature of the plea.” 
In response to the Trial Chamber’s rejection of the guilty plea, the prosecution
again amended the indictment, this time deleting the allegations of Bisengimana’s
active participation in the bloodshed. This amended indictment contained the
same five counts as its predecessor: genocide; complicity in genocide; and mur-
der, extermination, and rape as crimes against humanity. At a December hear-
ing, Bisengimana pled guilty to aiding and abetting murder and extermination
as crimes against humanity and not guilty to the two counts of genocide and the
count of rape as a crime against humanity. As he had done in Rutaganira,
the Bisengimana prosecutor asked the Trial Chamber to acquit Bisengimana
of the genocide and rape charges, but this Trial Chamber refused. Although it
granted the prosecution’s request to withdraw the charges, it rejected the request
for an acquittal, holding that “there isn’t adequate reason to justify acquittal.” 
That decision, though sound as a legal matter, is highly worrisome for Bisengi-
mana given Rwanda’s efforts to prosecute ICTR defendants such as Emmanuel
Bagambiki. The Trial Chamber’s refusal to acquit Bisengimana leaves him vul-
nerable to a Rwandan prosecution.
Not only was the Trial Chamber unwilling to accede to the prosecution’s charg-
ing requests, it also rejected its sentencing recommendation. As noted above,
Bisengimana’s plea agreement permitted the parties to recommend sentences of
between twelve and fourteen years’ imprisonment, and the prosecution sought
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a fourteen-year term. Noting Bisengimana’s official position and the fact that
more than one thousand people were killed in his presence at the Musha church,
the Trial Chamber chose to sentence outside of the parties’ agreement and im-
posed on Bisengimana a fifteen-year term of imprisonment. Given the Trial
Chamber’s evident hostility to Bisengimana’s plea agreement, neither the prose-
cutor nor the defense counsel was surprised by the Trial Chamber’s imposition of
a harsher-than-agreed-upon sentence, but both parties decried it, maintaining
that it will discourage other ICTR defendants from pleading guilty. The gov-
ernment of Rwanda, for its part, expressed satisfaction with Bisengimana’s sen-
tence but condemned the ICTR for withdrawing the genocide charges.
However disappointed the parties might have been about the Trial Cham-
ber’s refusal to sentence within the agreed-upon range, the fact remains that
Bisengimana’s charge bargain garnered for him a significant sentence reduction.
Semanza received a twenty-five-year sentence, and other ICTR defendants
convicted of similar crimes received sentences of equal or greater length. For
instance, the ICTR’s first defendant, Jean-Paul Akayesu, was, like Bisengimana, a
bourgmestre, and he too was charged with encouraging and participating in
massacres of Tutsi. Akayesu in fact appears a more sympathetic figure than
Bisengimana because considerable evidence was presented at his trial suggesting
that before April 18, 1994, he attempted to prevent the killings in his commune.
The evidence indicated that Akayesu began participating in the genocide after
that date only because the Interahamwe threatened him with death if he failed
to do so. For his involvement in the killings in Taba commune, Akayesu was
convicted of one count of genocide, one count of direct and public incitement
to genocide, and seven counts of crimes against humanity;  he was sentenced
to life imprisonment. Compared with Akayesu, then, Bisengimana’s longer-
than-recommended sentence was short indeed.
The Serugendo Case
During the spring of 2006, prosecutors and defense counsel in the Serugendo
case observed with concern Trial Chamber II’s resistance to the Bisengimana plea
bargain. Serugendo was indicted in July 2005 on five counts: genocide, conspir-
acy to commit genocide, complicity in genocide, direct and public incitement to
genocide, and persecution as a crime against humanity. The indictment alleged
that Serugendo was a founding member of both the Interahamwe militia and
the RTLM radio station, whose broadcasts incited the killing of Tutsi. According
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to the indictment, Serugendo, along with others, organized rallies and political
meetings designed to indoctrinate and incite Interahamwe to kill Tutsi. The
indictment further charged Serugendo with traveling through the streets of Ki-
gali during the genocide, ordering Interahamwe to kill Tutsi and praising the
killers for their “good work.”  As for RTLM, Serugendo was a member of its
steering committee and served as its technical chief. The indictment alleged
that Serugendo was aware of and encouraged RTLM’s genocidal broadcasts, and
that as a result of his position at the radio station, he exercised authority over its
employees. Serugendo was arrested in September 2005 and pled not guilty to
the five charges in his indictment.
By the spring of 2006, rumors were circulating that the prosecution was en-
gaged in plea negotiations with Serugendo, but little was known of them. Indeed,
Serugendo appeared at a closed hearing on March 15, 2006, that was not even
listed on the tribunal’s calendar. At some point during the spring, Serugendo
and the prosecution apparently concluded a plea agreement, but the existence
of that agreement was not disclosed until the day before Serugendo’s sentencing
hearing. As part of the plea agreement, Serugendo agreed to plead guilty to two
of the five counts against him: direct and public incitement to commit genocide
and persecution as a crime against humanity. He also agreed to cooperate with
the prosecution, and his cooperation reportedly “fi lls 200 pages.”  Prosecutors
dropped the remaining three charges and agreed to recommend a sentence of
between six and ten years’ imprisonment.
Serugendo had recently been diagnosed with a terminal illness, and, at his sen-
tencing hearing, held on June 1, 2006, he was not able to stand without assistance
or to read his statement of remorse. Consequently, during his sentencing hearing,
prosecutors accepted the possibility of a sentence of less than six years’ imprison-
ment or even of a transfer to a hospital prison ward in Europe. As a result of
Serugendo’s deteriorating health, the Trial Chamber issued an oral judgment the
very next day, sentencing him to six years’ imprisonment. In reaching its sen-
tence, the Trial Chamber took account of various mitigating circumstances, in-
cluding Serugendo’s guilty plea, his remorse, his substantial cooperation with the
prosecution, and his poor health. As of this writing (only a week after the judg-
ment was announced), the ICTR has not made available Serugendo’s plea agree-
ment, the transcripts of his hearings, or the Trial Chamber’s judgment. What is
clear even without any documents is that Serugendo received substantial conces-
sions for his guilty plea. If his actions during the genocide in any way resembled
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those charged against him in his indictment, he could have expected to receive a
lengthy sentence, perhaps life imprisonment, following a trial.
Negotiations for Information
ICTR prosecutors have lately been negotiating not only to obtain guilty pleas
but also to obtain incriminating evidence against high-level offenders. Two ICTR
defendants, Michel Bagaragaza and Juvénal Uwilingiyimana, were members of
the so-called akazu, the inner circle surrounding former Rwandan president
Habyarimana’s family. Members of the akazu are believed to have organized the
genocide; thus, Bagaragaza and Uwilingiyimana were believed to have informa-
tion of tremendous value to ICTR prosecutors. In exchange for this insider
evidence, the prosecution apparently promised to shield Bagaragaza and Uwil-
ingiyimana from ICTR prosecutions. The two men took the bargain, but as mat-
ters currently stand, neither man got what he was hoping for.
The Bagaragaza Case. Michel Bagaragaza was the former head of Rwanda’s pow-
erful tea industry and a close friend of former President Habyarimana. In an
indictment confirmed in July 2005, prosecutors charged Bagaragaza with three
counts: genocide, conspiracy to commit genocide, and complicity in genocide.
The indictment alleged that Bagaragaza helped to plan the extermination of the
Tutsi and that he helped to implement that plan by making speeches inciting oth-
ers to genocide, by making financial contributions to the Interahamwe, and by or-
dering his tea factory employees to provide Interahamwe members with fuel and
transportation to massacre sites. Bagaragaza voluntarily surrendered to the
ICTR in August 2005, but before doing so, he entered into an agreement with the
prosecution in which he promised to provide an extensive statement that would
incriminate himself and other members of the akazu. In exchange, the prosecu-
tion promised to seek the transfer of Bagaragaza’s case to a national court.
After Bagaragaza’s surrender, he was immediately sent to the ICTY’s detention
facilities in The Hague because his cooperation with the prosecution made it too
dangerous to detain him with the other ICTR defendants in Arusha. His family
was sent to the United States.
In February 2006, prosecutors requested that the Trial Chamber transfer Bag-
aragaza’s case to the courts of Norway. Because Norwegian courts do not have
jurisdiction over genocide, Bagaragaza was to be prosecuted there on charges
of domestic homicide, for which the maximum sentence is twenty-one years.
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As noted in Chapter 2, the ICTY and ICTR added provisions to their procedural
rules that permit them to transfer cases to national jurisdictions. Such trans-
fers were considered necessary to enable the tribunals to complete their work on
schedule. The Bagaragaza prosecutors further observed that a trial in Norway
would help to educate people about the Rwandan genocide and to prevent similar
tragedies in the future. Although prosecutors did not say so, one has to assume
that the lenient maximum sentence that Norwegian courts could have imposed
on Bagaragaza and Norway’s practice of releasing prisoners after they have served
only half of their sentences  also made Norway a particularly attractive trial
location for prosecutors seeking to induce Bagaragaza to provide them with in-
formation. Most Rwandan defendants convicted by the ICTR have been sent to
serve their sentences in Mali, where amenities are few and defendants have no
guarantee of early release.
Norway, indeed, was such an attractive trial location that the government of
Rwanda vehemently opposed Bagaragaza’s transfer there. Rwanda argued that
the maximum prison sentence to which Bagaragaza would be subject in Norway
was patently inadequate, and it sought transfer of the case to its own courts.
Rwanda requested leave to appear before the Trial Chamber to present its com-
plaints officially, but the Trial Chamber denied Rwanda’s request because it
had not been made in a timely fashion. However, the Trial Chamber denied the
prosecution’s request for transfer, even without the benefit of Rwanda’s official in-
put because Norwegian courts do not have jurisdiction over the crimes for which
Bagaragaza was charged. Under the circumstances, the Trial Chamber held,
“Bagaragaza’s alleged criminal acts cannot be given their full legal qualifica-
tion.”  The Trial Chamber’s decision places Bagaragaza and the prosecution
in a difficult position. Bagaragaza has already upheld his end of the bargain; he
has provided incriminating evidence to the prosecution and he has testified in a
recent trial. The ball is now in the prosecution’s court to find a trial location that
is both desirable to Bagaragaza and acceptable to the Trial Chamber.
The Uwilingiyimana Case. In his interviews with the prosecution, Bagaragaza

implicated other members of the akazu, one of whom was Juvénal Uwilingiy-
imana, a former minister of commerce and director of Rwanda’s Office of Tour-
ism and National Parks during the genocide. Prosecutors issued a sealed indict-
ment against Uwilingiyimana in June 2005, charging him with helping to plan
and implement the genocide by allowing militia members to train in Rwanda’s
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dense forests and by ordering executions at roadblocks once the genocide had
begun. The ICTR issued an arrest warrant against Uwilingiyimana in August
of that year. Uwilingiyimana reportedly had valuable information implicating
other members of the akazu, so when he indicated a willingness to reveal that
information, prosecutors agreed to hold the arrest warrant in abeyance.
Prosecutors interviewed Uwilingiyimana in Lille, France, throughout the fall
of 2005. On November 21, 2005, Uwilingiyimana failed to arrive for a sched-
uled meeting with prosecutors, and his family reported him missing soon there-
after. On November 28, a letter allegedly written by Uwilingiyimana was posted
to the Internet. The letter accused ICTR prosecutors and investigators of threat-
ening him with bodily harm if he failed to cooperate and of pressuring him to
lie about his former associates in order to confirm the prosecutors’ allegations.
ICTR prosecutors denied that the letter was authentic, but Uwilingiyimana’s fam-
ily insisted that it was. In response to the letter and Uwilingiyimana’s failure to
appear for his interview, ICTR prosecutors unsealed the indictment against him
and made public Uwilingiyimana’s written agreement to cooperate. In the latter
document, Uwilingiyimana stated that he had “not been pressurized” and had
not received any threats or promises from the ICTR to induce him to collaborate
with them.
On December 17, 2005, Uwilingiyimana’s badly decomposed body was found
in a Belgian canal. Tests conducted by Belgian authorities were inconclusive as
to the cause of his death.
A Summary of the ICTR’s Practice of Plea Bargaining:

Troubling Success in the Midst of Troublesome Challenges
The ICTR’s practice of plea bargaining has undergone a dramatic evolution

in recent times. In the early days, ICTR prosecutors did not practice plea bar-
gaining—or they at least did not admit to practicing it—as a means of motivat-
ing defendants to plead guilty. Kambanda reportedly believed that he had been
promised a sentence discount in exchange for his guilty plea, but no such promise
appeared in his plea agreement, and prosecutors instead asked the Trial Cham-
ber to impose on Kambanda the harshest available sentence. Prosecutors simi-
larly declined to make Serushago any written promises regarding his sentence.
In the end, the prosecution did appear to discount the sentence it recommended
for Serushago on the basis of his guilty plea, and the Trial Chamber likewise saw
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fit to impose on him a relatively lenient sentence. Both the prosecution and the
Trial Chamber acknowledged that guilty pleas are considered mitigating factors
in sentencing, but that was the extent of the discussion.
By the time Ruggiu decided to plead guilty, ICTR prosecutors were still un-
willing to commit to recommending a specific sentence or range of sentences;
however, they were willing to publicly acknowledge that the sentence they had
chosen to recommend for Ruggiu had been discounted as a result of his guilty
plea. Had Ruggiu been convicted at trial, the prosecution would have recom-
mended a life sentence, the prosecutor announced. Instead, she recommended a
twenty-year sentence. The Ruggiu Trial Chamber likewise was willing expressly
to acknowledge that it had discounted Ruggiu’s sentence in consequence of his
guilty plea, and it went further by generally praising the benefits brought about
through guilty pleas and by announcing its willingness to reward them. That is,
the Trial Chamber advised defendants who were considering guilty pleas that the
Trial Chambers would reduce their sentences, regardless of whether or not they
had received any specific promises from the prosecution.
In the years following Ruggiu’s April 2000 guilty plea, prosecutors reportedly
made substantial efforts to induce ICTR defendants to plead guilty. Prosecutors
expressed their willingness to bargain not only over the sentence recommenda-
tions but additionally over the location of the defendant’s detention after convic-
tion. Ruggiu, Rutaganira, and Bisengimana all benefited from this latter sort
of bargaining as prosecutors supported their requests to serve their sentences in
Europe.
The offer of substantial sentencing discounts and attractive detention loca-
tions was nevertheless insufficient to motivate ICTR defendants to plead guilty.
Rather, as explored elsewhere, it was the withdrawal of genocide charges that
ICTR defendants most desired. Until very recently, however, that sort of charge
bargaining was the one form of bargaining in which ICTR prosecutors were un-
willing to engage. And I for one expected it to stay that way. In the manuscript
that I submitted to my editor in December 2005, I wrote:
The nature of Rwandan violence effectively prevents prosecutors from engaging in

charge bargaining. The Rwandan massacres are well-accepted to have constituted
a genocide; ICTR judgments, the judgments of other courts, and virtually all com-
mentators have labeled the massacres a genocide. Under these circumstances, ICTR
prosecutors have little ability to withdraw genocide charges without infuriating the
current government of Rwanda and generating scathing publicity.
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The plea bargains concluded during the winter and spring of 2006 proved
my prediction wrong, but while the ICTR’s willingness to engage in charge bar-
gaining contravened my expectations, the reaction to that charge bargaining did
not. As I predicted, Rwanda has harshly condemned the ICTR’s current will-
ingness to withdraw charges of genocide, and that in itself is worrisome for the
ICTR because the ICTR’s ability to conduct its trials depends a great deal on its
willingness to placate Rwanda. Rwanda has flexed its figurative muscles effec-
tively on a number of occasions. In 1999, for instance, when the ICTR Appeals
Chamber dismissed with prejudice the indictment of Jean-Bosco Barayagwiza
and ordered him released after determining that his rights had been violated,
Rwanda sharply denounced the decision and suspended all dealings with the
ICTR, going so far as to refuse to issue a visa to the tribunal’s chief prosecu-
tor, Carla del Ponte. Relations normalized after the Appeals Chamber recon-
sidered its decision and reinstated Barayagwiza’s indictment, but a new crisis
erupted when del Ponte announced that her office would begin investigating the
war crimes and crimes against humanity allegedly committed by soldiers of the
current Rwandan government. Rwanda retaliated by preventing ICTR witnesses
from traveling to Arusha, and trials stalled. Del Ponte acknowledged Rwanda’s
power when she observed, “If I don’t get cooperation from Rwanda, . . . I can first
open the door at the detention center and set them all free and then second I can
close the door to my office because without them I cannot do anything at all.” 
Del Ponte felt that power firsthand when she was relieved of her post, largely as a
result of Rwanda’s efforts to oust her.
A desire to placate Rwanda may have underlay the Trial Chambers’ refus-
als to enforce prosecutorial promises in Bisengimana and Bagaragaza, but what-
ever the chambers’ motivations, their actions place the prosecution in a diffi-
cult bind. Required to complete its trials in an impossibly short time frame, the
prosecution has understandably turned to plea bargaining. Efforts to procure
guilty pleas with the same sort of concessions that motivated ICTY defendants to
plead guilty failed, however, so ICTR prosecutors understandably turned to more
aggressive—and distortive—forms of bargaining. The concessions offered as a re-
sult of this bargaining have proved appealing to ICTR defendants, but that appeal
will be short-lived if the Trial Chambers refuse to convey them. Bisengimana pled
guilty expecting that his sentence would not exceed fourteen years’ imprison-
ment. Instead, he received a fifteen-year term and faces the possibility of a Rwan-
dan prosecution if he lives beyond his ICTR sentence. Bagaragaza provided pros-
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ecutors with information expecting that he would be tried in a European court

that features lenient sentences, comfortable prison conditions, and generous
parole practices. It is too soon to know what treatment Bagaragaza will eventu-
ally receive, but the Trial Chamber’s unwillingness to transfer his case to Nor-
way casts a cloud over prosecutorial efforts to conclude similar agreements with
other defendants. ICTY defendants abruptly stopped pleading guilty once the
Trial Chambers began sentencing outside of the recommended range, and there
is reason to believe that ICTR defendants will be similarly deterred.
Indeed, ICTR defendants may need particular assurance that their conces-
sions will be forthcoming given the danger facing defendants who plead guilty or
provide evidence to the prosecution. As noted above, Kambanda complained on
appeal about his detention in a safe house five hundred kilometers from the U.N.
detention facility in Arusha, but he was detained there largely because detention
with the other ICTR defendants was deemed too dangerous for a defendant who
was cooperating with the prosecution. Similarly, once Ruggiu began cooperat-
ing with the prosecution, other ICTR defendants started threatening him, so he
had to be moved to a different wing of the detention facility. And Bagaragaza
never even got to Arusha. He was taken directly to detention facilities in The
Hague following his voluntary surrender. Kambanda, Serushago, and Ruggiu
also insisted that the prosecution provide protection—including the possibility
of relocation—to their families, and Serushago repeatedly asked for security
for himself when he appeared in court. The sad fate of Juvénal Uwilingiyimana
suggests that the fears of these ICTR defendants are justified, but for the prosecu-
tion, they make concluding a plea agreement even more difficult.
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ch a p t e r si x
Plea Bargaining at the Special Panels in East Timor
In 2001 the United Nations established Special Panels for Serious Crimes to
prosecute crimes relating to East Timor’s 1999 vote of independence from Indo-
nesia. From their inception to their closure in 2005, the panels convicted eighty-
four defendants, and as time went on, an increasingly large proportion of those
convictions came about by means of guilty pleas. After an overview of criminal
prosecutions at the Special Panels and an overview of the panels’ early guilty-plea
cases, this chapter will trace the evolution that has occurred in plea bargaining
over the panels’ life span.
Overview of Criminal Prosecutions and Early Guilty Pleas
Following the violence that engulfed East Timor in the fall of 1999, the U.N.
established the U.N. Transitional Administration in East Timor (UNTAET) as
a peacekeeping mission to administer East Timor until its independence was
viable. As part of its administration, UNTAET established Special Panels for
Serious Crimes, granting them jurisdiction to prosecute those accused of geno-
cide, war crimes, and crimes against humanity, along with certain violent domes-
tic crimes, such as murder, sexual offenses, and torture. The prosecutorial arm
of the Special Panels, known as the Serious Crimes Unit, issued its first indict-
ments in 2000, and virtually all of its early indictments charged domestic crimes,
under the Indonesian Criminal Code, rather than international crimes. Subse-
quent indictments charged crimes against humanity, and by the time of its closure
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the ictr and special panels 115
in May 2005, the Serious Crimes Unit had indicted 391 individuals. The Special
Panels tried eighty-seven of these defendants, acquitting three and convicting
eighty-four of at least some of the charges leveled against them. Virtually all
of the defendants convicted were low-level Timorese militia members—typically
illiterate farmers. A majority of the remaining indictees—and all of the high-
level indictees—live in Indonesia, which refused to surrender them. Thus, the
Special Panels obtained custody over only low-level offenders.
Upon apprehension, virtually all Special Panels defendants immediately ad-
mitted to participating in the crime for which they were charged, but virtually all
of them also maintained that they did so because they were forced, or at least or-
dered, by a militia leader or an Indonesian military official. The Special Panels’
first case is prototypical: the defendant, João Fernandes, pled guilty to murder,
admitting that he killed a village chief but asserting that he did so on the or-
ders of a militia commander and the Indonesian military. The panel accepted
Fernandes’s guilty plea and sentenced him to twelve years’ imprisonment. Fer-
nandes appealed and showed his and his defense counsel’s unfamiliarity with
the consequences of guilty pleas by claiming, among other things, that he should
not have been convicted because one of the proven facts of his conviction was
that he had acted under orders, so that the killing did not result from his deliber-
ate and premeditated action. The appeals court affirmed the conviction, holding
that the fact that the defendant acted under someone else’s orders did not ex-
clude his own criminal responsibility. In a separate opinion, however, appeals
court judge Egonda-Ntende called the Special Panels’ guilty-plea procedure into
serious question. In particular, Judge Egonda-Ntende maintained that the pre-
siding judge had failed to ensure that Fernandes understood the consequences
of his guilty plea. The presiding judge had merely asked Fernandes, an illiterate
farmer, if he understood the consequences of the plea, and the judge was satisfied
when Fernandes responded, “yes, I am aware.” In Judge Egonda-Ntende’s view,
merely repeating the words of the statute was insufficient; rather, the presiding
judge should have asked Fernandes a series of questions, the responses to which
would have revealed whether Fernandes did or did not actually understand the
consequences of the plea. Judge Egonda-Ntende was also critical of the presid-
ing judge’s attempt to ensure that Fernandes’s plea was voluntary and informed.
Judge Egonda-Ntende maintained, for instance, that the presiding judge’s ques-
tions relating to the voluntariness of the plea “could have been better framed,”
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116 the ictr and special panels
and he criticized the fact that the presiding judge referred to witness statements
and original testimony of witnesses interchangeably.
Following Fernandes, and perhaps as a result of Judge Egonda-Ntende’s guid-
ance, the Special Panels appeared to treat defendant admissions more cautiously.
After conducting an almost incomprehensible plea colloquy with defendant João
da Costa in the Los Palos case, the panel declined to accept his guilty plea. Indeed,
ten cases of individual defendants and one case of multiple defendants followed
Fernandes, and all of these featured defendants who admitted to participating
in the crimes for which they were charged but who also claimed to have done
so under orders or as a result of duress. In all but one of these cases, the Special
Panels declined to treat such admissions as guilty pleas, instead fi nding, for in-
stance, that “there was no admission of guilt in the Defendant’s statement . . .
because the Defendant did not agree totally with the charges put forward by the
Public Prosecutor.”  This caution proved advisable, particularly given the con-
fusion exhibited by many defense counsel and defendants regarding the distinc-
tion between duress, which the Special Panels treat as a defense, and superior
orders, which can constitute only a mitigating factor in sentencing. Indeed, in
the Gaspar Leki case, the defendant pled guilty to murder because he shot and
killed a man who had been hiding in the bushes. The panel initially accepted the
guilty plea, and only as a result of further questioning did it learn that, although
the defendant had been ordered to shoot anything that moved, he believed that
he was shooting a wild pig in the bush. Since the element of deliberate intent to
commit murder was called into question, the panel reversed its decision to ac-
cept the guilty plea and proceeded to trial. That few of these early cases were
resolved by guilty pleas was of comparatively little financial import because these
early Special Panels’ trials took very little time; they sometimes lasted only one
day or consumed two or three sessions at the longest. Thus, guilty pleas would
have resulted in only minimal time and resource savings.
Subsequent trials took considerably longer, however. For one thing, prosecu-
tors began bringing charges of crimes against humanity, rather than the easier-
to-prove domestic crimes. In addition, some of the Special Panels’ later indict-
ments featured allegations of command responsibility, the proof of which requires
additional witness testimony, and they featured multiple defendants, each of
whom might be charged with a number of crimes taking place in more than one
location. Thus, in later cases, prosecutors tried more crimes; had more theories
of liability to prove in each case; and, because the crimes charged were crimes
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against humanity, had to prove not only the defendant’s commission of the un-
derlying offense, say murder or imprisonment, but also that the offense took place
in the context of a widespread or systematic attack directed against a civilian
population. Proving the contextual elements of crimes against humanity took
less time at the Special Panels than at other international criminal tribunals,
largely because Special Panels’ judges were willing to substantially rely on media
and NGO reports to conclude that the events of 1999 were part of a widespread
and systematic attack on a civilian population. Indeed, in the Special Panels’
first case involving allegations of crimes against humanity, the Los Palos case,
defense counsel appeared virtually to concede the existence of the contextual ele-
ments of crimes against humanity as well as the existence of an armed confl ict,
which the panel seemed intent on establishing even though it is not one of the ele-
ments of crimes against humanity as defined in the Special Panels’ legislation.
Nonetheless, the additional complexity of these cases has resulted in longer trials.
For instance, the Los Palos case featured ten defendants and was conducted over
thirty-five sessions that took place over four months. The duration of later Spe-
cial Panels’ trials increased further still because as time went on, a greater propor-
tion of the Special Panels’ resources were allocated to defense counsel; thus, while
the early cases featured no defense cases to speak of, later defendants had the ben-
efit of counsel who called witnesses, made objections, and fi led motions—that is,
defense counsel who engaged in activities that protected their clients’ rights but
that also lengthened the duration of trials. Consequently, the Lolotoe case, featur-
ing three defendants, required forty-two sessions conducted over the course of
thirteen months.
As the duration of Special Panels’ trials increased, efforts to obtain guilty pleas
to eliminate the need for those trials intensified. By the time the Special Panels
closed, about 50 percent of its cases had been disposed of by means of guilty
pleas, and many of these cases featured the same due-process difficulties that
first appeared in the João Fernandes case. In particular, many defendants pled
guilty without any real awareness of what they were doing or of the consequences
of their pleas. For instance, in June 2003, when the Special Panel asked Benjamin
Sarmento if he wanted to plead guilty, he seemed to indicate that he did, but
he repeatedly asserted that he had been ordered to commit the crimes, making
such statements as: “People send us to kill. That’s why we did it. That is like we
accept our guilty” and “This charge, I accept, because they told me to do it. That’s
why I accept. But the problem is that for me to think about doing it, I wouldn’t
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have done it. That is because I was told to do it.”  Despite the obvious ambi-
guities in Sarmento’s admissions, the panel accepted his guilty plea, making no
attempt to inform him of the consequences of his action. A few minutes later,
Sarmento’s codefendant Romeiro Tilman also attempted to plead guilty, and his
responses were even more equivocal. Tilman apparently held a victim down while
someone else killed him. When asked if he was prepared to plead guilty, Tilman
responded:
I agree. This is not because of what I wanted, but because those in charge forced me.
I did it. It is not that I used a knife, or a machete to kill. I didn’t. The commander of
militia forced me. I was scared of death. My colleague did it. And I have been in jail for
over 3 years. This wrong is not mine. The person who did this is not here. And I, have
come to accept my wrong. . . . I feel that I am wrong because I held with my hands.
Because Tilman claimed to have been forced to commit the crime, the court ad-
journed to allow him to consult with his lawyer. Returning from his consultation,
Tilman said simply, “I am guilty.” 
Jhoni Franca’s guilty-plea colloquy followed a similar pattern. Franca entered
into a written plea agreement whereby he pled guilty to four counts of impris-
onment and one count of torture as crimes against humanity. During the plea
colloquy, Franca admitted to three of the counts, but he emphatically denied the
remaining two counts of imprisonment. Franca’s lawyer then requested an op-
portunity to speak with Franca, and, after their conversation, Franca admitted to
the two imprisonments, stating that he had previously been confused but “now
we have agreed together that I am ready and available to admit my responsibility
because I have already signed the agreement acknowledging my responsibility.” 
The panel then accepted Franca’s plea even though the reason he proffered for
admitting his responsibility—the fact that he had already signed the agreement—
should not have alleviated any doubts about whether the guilty plea was informed
and voluntary.
As guilty pleas became more prevalent at the Special Panels, an evolution oc-
curred, similar to that seen at the ICTY, in the kinds of plea bargaining practiced,
in the sophistication of the resulting agreements, and in the sentencing practices
that the panels utilized to encourage future guilty pleas. As the following discus-
sion will show, plea bargaining was not practiced during the first few years of the
Special Panels’ existence, yet it eventually became a fundamental feature of the
panels’ guilty-plea processes.
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The Evolution of Plea Bargaining
The Special Panels’ first guilty plea, tendered by João Fernandes, was not the re-
sult of plea bargaining. Fernandes engaged in no negotiations with prosecutors 
but rather made a spontaneous and possibly ill-advised confession. The same can
be said about the next guilty plea, that of Joni Marques, who tried to plead guilty
to three counts but whose admissions were sufficiently unclear that the panel
accepted his guilty plea only as to one count. Marcurious José de Deus entered
the Special Panels’ third guilty plea in April 2002, and neither it nor the guilty
plea of Augusto Dos Santos, which was entered one month later, appeared to
result from negotiations. The introduction of better-resourced defense counsel at
the end of 2002, however, put an end to such spontaneous confessions. Because
these defense counsel routinely advised their clients to say nothing and plead not
guilty, prosecutors in later cases were forced to negotiate with defendants if they
wanted to obtain guilty pleas.
These negotiations occasionally featured charge bargaining and invariably fea-
tured sentence bargaining and a written plea agreement that memorialized the
parties’ understanding. These agreements followed a standard form that contained
provisions setting forth the defendant’s admissions, his willingness to waive vari-
ous rights by pleading guilty, and his assertion that the plea was knowing, volun-
tary, and supported by adequate evidence. The agreements also set forth the sen-
tence recommendation that the parties agreed upon, and it listed any charges that
the prosecution had agreed to withdraw in exchange for the defendant’s plea.
Most of the negotiations that culminated in plea agreements centered on the
prosecution’s sentence recommendations, which were relatively lenient; toward
the end of the Special Panels’ life, they hovered at about seven years’ imprisonment
for one murder as a crime against humanity. The results of these plea negotiations
carried considerable weight because the Special Panels never imposed a sentence
longer than that recommended by the prosecution. In an effort to introduce some
uniformity into the negotiations, Deputy Prosecutor for Serious Crimes Nicholas
Koumjian introduced guidelines at the end of 2003 that provided ranges of ap-
propriate sentence recommendations for guilty pleas made before trial and after
trial. Although prosecutors apparently tried to reach agreements that fell within
the guidelines, they had the flexibility to negotiate outside of them, if circum-
stances warranted. Circumstances apparently did frequently warrant negoti-
ating outside of the bargaining ranges; in the Ludji & Pereira case, for instance,
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prosecutors agreed to recommend a mere three-year sentence after José Pereira

pled guilty to one murder as a crime against humanity. Indeed, the guidelines,
which are fairly general in any event, appear never to have been strictly adhered
to, and because the length of sentences declined over time, some defense counsel
believed that the guidelines were out-of-date soon after they were promulgated.
More controversial is the question of whether charge bargaining took place
at the Special Panels. Prosecutors routinely withdrew charges when the conduct
forming the basis for the charges was already reflected in other counts to which
the defendant had pled guilty. So, for instance, when Jhoni Franca pled guilty to
four counts of imprisonment and one count of torture as crimes against human-
ity, the prosecutor withdrew one count of persecution and two counts of inhu-
mane acts as crimes against humanity, since the latter counts concerned the same
conduct that formed the basis of the former counts. As noted in the discussion
in Chapter 4 on the ICTY, this sort of charge bargaining does not distort the
factual basis of the conviction because, although charges are dropped, the guilty
plea continues to reflect the defendant’s actual conduct. However, Special Panels
prosecutors also withdrew charges reflecting conduct different from that forming
the basis of the guilty plea. In both the Benjamin Sarmento case and the Abilio
Mendez Correia case, for instance, the prosecution dropped charges of murder
as crimes against humanity for the killing of two people whose deaths were not
otherwise represented in the guilty plea. Prosecutors maintained that such with-
drawals were not driven by a desire to secure guilty pleas but came about because
the evidence supporting the charges was insufficient. The judgment in the
Martins and Gonçalves case supports this explanation. In Martins, the prosecu-
tor withdrew one count of murder as a crime against humanity for the killing of
three people and one count of deportation as a crime against humanity. Although
these withdrawals appeared to be part of a plea bargain, the panel observed that
they “could not [have been] wiser, since [it] is clear that a similar case would not
have much hope of a positive result for the Prosecutor, given the vagueness of the
statements on the issues.”  Nonetheless, defense counsel often viewed the with-
drawal of charges as part of a charge-bargaining process, a perception that was
enhanced when the prosecution waited until the last stage of the negotiations to
withdraw the charges. Adding to that impression, the prosecution, in its own
Serious Crimes Unit update, described the withdrawal of charges in the Correia
case and the de Carvalho case as being “due to” their guilty pleas.
Examining the Special Panels’ sentencing practices one sees that the panels
never imposed a sentence on a guilty-plea defendant longer than that recom-
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mended by the prosecution. That, however, was perhaps the only stable feature
of the panels’ sentencing policy; a brief summary of the sentences imposed in
guilty-plea cases highlights their lack of uniformity. As noted above, João Fer-
nandes, the first defendant to plead guilty, did not negotiate with the prosecution
over its sentencing recommendation. The panel nonetheless ostensibly gave Fer-
nandes credit for the guilty plea in that it treated the plea as a mitigating factor in
sentencing. The panel also considered the superior orders pursuant to which Fer-
nandes committed the crime a mitigating factor, and it sentenced him to twelve
years’ imprisonment for the one murder. Following the Fernandes decision,
the Special Panels conducted trials in a number of cases featuring similar facts.
In particular, Carlos Soares, Manuel Bere, Agustinho da Costa, and Augusto Ta-
vares each were convicted of one murder after a trial, and each had the benefit of
superior orders as a mitigating factor. These cases, thus, resembled Fernandes in
every respect except for Fernandes’s guilty plea. Soares, Bere, da Costa, and Tava-
res received prison sentences of fifteen-and-one-half, fourteen, fifteen, and sixteen
years, respectively. Because these sentences are approximately 20 percent longer
than Fernandes’s sentence, one might assume that the panel had discounted Fer-
nandes’s sentence by 20 percent on the basis of his guilty plea; however, another
defendant, Jose Valente, was convicted of one murder following trial, and with-
out the benefit either of superior orders or a guilty plea, he received a sentence
of twelve-and-one-half years’ imprisonment, only six months longer than the
sentence imposed on Fernandes. Further, Joseph Leki was convicted of commit-
ting four murders—three more than Fernandes—and with superior orders as a
mitigating factor, he received a sentence of thirteen years’ imprisonment, just
one year longer than Fernandes’s sentence.
The sentences imposed on the ten defendants convicted in the Los Palos case
similarly fail to reveal the quantum of discount, if any, that the Special Panels
bestowed on defendants pleading guilty. Nine of the Los Palos defendants were
members of the Team Alfa militia, while the tenth, Joni Marques, was one of Team
Alfa’s commanders. Several of the defendants made inculpatory statements at the
start of the trial, admitting, for instance, to participating in some of the crimes
but maintaining that they had not performed all of the acts for which they had
been charged or asserting that they had participated in the crimes under threat
of death. The Los Palos indictment charged Marques with seven counts, and in
his opening statement, Marques attempted to plead guilty to three of the counts.
The panel declined to accept two of the attempted guilty pleas because Marques’s
admissions did not precisely match the charges, but it did accept the third, which
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related to the murders of nine clergy and journalists. In its sentencing, the
panel considered as a mitigating circumstance Marques’s guilty plea, but its
judgment gives little indication of what benefit Marques received in exchange for
that guilty plea.
The panel determined that Marques was “in charge” of the operation to kill the
clergy and journalists, and, while acknowledging that the plan itself was drafted
by Indonesian officers, it considered Marques’s supervision of the plan’s imple-
mentation to be an aggravating factor. The panel sentenced Marques to nineteen
years’ imprisonment for this count, which is the same sentence that the panel
imposed on two of Marques’s codefendants, neither of whom had a leadership
role in the operation. The mitigating effect of Marques’s guilty plea, then, seems
to have functioned to negate the aggravating effect of his supervisory role in the
killing operation; however, it is not clear what the aggravating effect of Marques’s
supervisory role would have been since a comparison of the sentences that the
panel imposed on Marques and his codefendants on the other counts is not very
illuminating. Marques, for instance, was convicted on another count of ordering
a murder, while codefendant João da Costa was convicted of physically assisting
in that murder. The panel considered Marques’s supervisory role as an aggravat-
ing factor, and he received a nineteen-year sentence, while da Costa, who was not
considered a supervisor, received a seventeen-year sentence. The comparison is
not very useful, however, because the two defendants were involved in the mur-
der in very different ways and because the panel also considered da Costa “one
of the leaders in arresting the victim,” so da Costa’s sentence may also have been
enhanced to some degree as a result of his role in the arrest.
A possibly more useful comparison can be made from the sentences the Los
Palos panel imposed on a count involving the expulsion of civilians and the de-
struction of villages. The panel determined that, although there existed insuf-
ficient evidence to prove that Marques had burned any houses himself, Marques
was present when the expulsions and house-burnings took place, and his pres-
ence was that of a commander. The panel considered his supervisory position
as an aggravating factor and sentenced him to seven years’ imprisonment for this
count. It went on to find that codefendant Paolo da Costa himself burned houses
and expelled villagers, but it found that he did so pursuant to the superior orders
of Marques. In sentencing Paolo da Costa, then, the panel not only did not con-
sider any aggravating factors with respect to a leadership role but considered as a
mitigating factor the superior orders under which Paolo da Costa committed the
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crime. Yet the panel sentenced Paolo da Costa to six years’ imprisonment, a
term only one year shorter than the term it imposed on Marques. Again, the facts
underlying the two convictions are by no means identical, but the sentences do
suggest that Marques’s supervisory role did not earn him a significant sentence
increase. To the extent, then, that Marques’s guilty plea for the killing of clergy
and journalists merely negated the sentence enhancement for his supervisory
role, one can surmise that Marques’s guilty plea benefited him little.
The Special Panels’ sentencing practice in guilty-plea cases appeared to un-
dergo a dramatic change following the guilty plea of Marcurious José de Deus. De
Deus pled guilty to one murder that appeared similar in relevant respects to the
murders described in the Fernandes, Soares, Bere, Agustinho da Costa, and Ta-
vares cases. The panel considered as mitigating factors not only de Deus’s guilty
plea and superior orders but also his apology to the family of the victim, and
it sentenced him to a mere five years’ imprisonment. One month later, Augusto
Dos Santos likewise pled guilty to one murder, and he too received a five-year
sentence after the panel took account of his guilty plea, remorse, and superior
orders as mitigating factors. The panel did not say anything to indicate why the
de Deus and Dos Santos sentences were so low, nor was there any indication that
the prosecution’s views accorded with that of the Trial Chamber. Indeed, in Dos
Santos, the prosecutor asked for a “high” sentence, noting that the defendant
murdered an old man and did so in a cruel manner. Early Special Panels cases,
therefore, featured somewhat arbitrary sentencing practices whereby some defen-
dants pleading guilty appeared to gain considerable sentencing discounts while
others received little or no leniency, with no explanation given for the disparate
treatment.
In its June 2003 opinion in the Agustinho Atolan case, the Special Panels at-
tempted to explain its sentencing policy and in particular to set forth a specific
sentencing discount to be applied to defendants pleading guilty. Atolan pled
guilty to one count of murder as a crime against humanity, and the defense and
prosecution agreed to recommend a seven-year prison sentence. After surveying
analogous past cases, the panel concluded that the Special Panels’ practice was to
sentence defendants convicted of one murder following a trial to a prison term of
between twelve and sixteen years. The panel went on to praise defendants who,
“being regretful, [choose] a procedural option which spares time and resources
of the Court,” and it asserted that if such defendants were to receive an appro-
priate “advantage” in exchange for their guilty plea, then their sentences should
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be halved. To support the need for a substantial discount, the panel observed:
“A less drastic approach proved to be useless: after the first decision of the Special
Panel, in the João Fernandes case, where the Court took a less lenient decision,
more than one year elapsed before a second guilty plea was submitted.”  Con-
sequently, after concluding that it would have sentenced Atolan to a fourteen-year
prison term had the case proceeded to trial, the panel sentenced him to seven
years, the exact sentence recommended by the prosecutor.
Six months later a panel composed of Dora Martins De Morais, Antonio Hel-
der Viera do Carmo, and Francesco Florit adhered to the framework articulated
in Atolan when it decided the Martins & Gonçalves case. In that case, Anastacio
Martins pled guilty to one count of murder as a crime against humanity for the
killing of three people, while his codefendant, Domingos Gonçalves, proceeded
to trial and was also convicted of one count of murder as a crime against human-
ity for the killing of three people along with one count of deportation as a crime
against humanity. Cutting and pasting several paragraphs from the Atolan case,
the panel held that a guilty plea should normally result in a 50 percent reduction in
sentence. The panel then determined that a single brutal murder of the sort Mar-
tins committed would warrant a sixteen-year prison term following a trial, while
Martins’s three murders would have resulted in a twenty-three-year sentence had
he proceeded to trial. Discounting Martins’s sentence by half, then, the panel
sentenced him to eleven-and-one-half years’ imprisonment, which was within
the eight-to-twelve-year range recommended by the prosecution. Gonçalves
did not plead guilty, so he was in line to receive a twenty-three year sentence for
the three murders he committed and an additional year of imprisonment for the
deportation count. Although Gonçalves did not receive any discount for a guilty
plea, the panel did consider, in mitigation, his low rank and the current difficul-
ties he and his family faced: namely, that he was unemployed and that he “has lost
a leg, cut by his own wife; his wife is mad; his children are young and his mother
is very old.”  In light of these mitigating factors, the panel sentenced Gonçalves
to fifteen years’ imprisonment.
Despite the potential benefits of a clear rule, such as the 50 percent discount
articulated in Atolan, the rule did not appear to have been followed in a sub-
stantial number of subsequent cases. My conclusion is tentative because the Spe-
cial Panels’ reasoning about sentencing is not always apparent; some judgments
are not available in English, and in other cases, the panels issued only three-
or four-page “Dispositions of the Decision,” which do little more than state the
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defendants’ crimes and the sentences imposed for those crimes. At the same
time, none of the prosecutors, defense counsel, or NGO staff whom I interviewed
seemed particularly familiar with the 50-percent-discount rule, suggesting that
prosecutorial recommendations played a far more influential role in sentencing.
However limited the effect of the 50-percent-discount rule, its very articula-
tion reflected the Special Panels’ keen interest in encouraging guilty pleas. Setting
forth a clear range of sentences that would be imposed after a trial and promis-
ing defendants who pled guilty a substantial discount from those sentences were
steps well-calculated to motivate a large number of defendants to enter guilty
pleas. But the otherwise arbitrary nature of the Special Panels’ sentencing prac-
tices undercut these efforts. For instance, one Special Panel not only failed to
follow the Atolan panel’s 50-percent-discount rule but contemporaneously im-
posed a number of lenient sentences following trials. Indeed, a month after the
Martins & Gonçalves decision, this panel convicted Damiao Da Costa Nunes of
two counts of murder as crimes against humanity and one count of persecution
as a crime against humanity. Although the panel concluded that there existed no
mitigating factors, it nonetheless sentenced Da Costa Nunes to a total of ten-and-
one-half years’ imprisonment for all of the counts. The panel’s sentencing in
some subsequent cases has been similar.
Imposing lenient sentences following trials undermined efforts to obtain
guilty pleas and was particularly detrimental to the Special Panels since they had
an enhanced need for summary dispositions as they brought their operations to
a close. In anticipation of the May 2005 closure of the Special Panels, the Secu-
rity Council required the prosecution to complete its investigations by November
2004. Long before November 2004, then, the prosecution had already completed
numerous investigations, but it was unable to issue indictments in these cases
because there was not sufficient time to hold trials before May 2005. These cases
could have gone forward, however, if some of the cases then pending before the
panels had been resolved through guilty pleas.
Summary of the Plea Bargaining of International Crimes
This chapter and Chapters 4 and 5 have described and analyzed the practice of
plea bargaining at the ICTY, the ICTR, and the Special Panels; that is, the prac-
tice of plea bargaining at the only recent international tribunals to conduct more
than a handful of prosecutions. In another work, I analyzed the functional and
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ideological roles that plea bargaining plays in various domestic jurisdictions to

create a framework for evaluating the emergence of plea bargaining in the realm
of international crimes. In that work, I concluded that the ICTY and ICTR have
a strong functional need for summary methods of case disposition. Although
some features of the tribunals’ structure and ideology seem to militate against the
practice of plea bargaining, other features would encourage it, and I concluded
that the tribunals’ compelling functional need to dispose of cases expeditiously
suggested that they would, over time, more frequently resort to plea bargaining.
That prediction proved true with respect to the ICTY and the Special Panels,
though the latter was not included in the previous study because its work had not
yet begun in earnest. Certain ideological commitments of ICTR defendants have
acted to discourage many of them from pleading guilty, but notwithstanding
that fact approximately 25 percent of ICTR convictions have resulted from guilty
pleas. Like it or not, then, guilty pleas are apt to become a pervasive feature
of any international criminal justice system that seeks to prosecute more than a
miniscule number of offenders. Whether we should like it or not is the question
to which Chapter 7 now turns.
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ch a p t e r sev e n
Using Conventional Plea Bargaining to Increase

the Number of Criminal Prosecutions
for International Crimes
Plea bargaining is now a pervasive feature of Anglo-American criminal justice

systems, but this was not always the case. Indeed, before the nineteenth century,
guilty pleas were virtually unknown in British and American criminal proceed-
ings. Early British trials in particular, were short, summary proceedings; conse-
quently, prosecutors had little incentive to induce defendants to waive their right
to a trial. The introduction of a series of adversarial features—most notably com-
plex evidentiary rules and the use of defense counsel—transformed the there-
tofore summary jury proceedings into more time-consuming, complex events
dominated by professional advocates. Because this transformation significantly
lengthened the time necessary to conduct a trial, an alternative procedure—the
guilty plea—gained popularity as a means of disposing of cases more expedi-
tiously. To encourage defendants to plead guilty, prosecutors offered defendants
some form of sentencing concession in exchange for the defendants’ guilty pleas.
As noted in the Introduction, guilty pleas procured by plea bargaining have, since
then, become the most prevalent means of disposing of American criminal cases.
In addition to its prevalence, plea bargaining has also become one of the most
disreputable features of the American criminal justice system, and a summary
description of some of the abuses to which the practice gives rise quickly reveals
why. American prosecutors frequently rely on charge bargaining of the sort
that distorts the historical record of proceedings. Some prosecutors, for instance,
systematically overcharge defendants so as to be able to withdraw charges dur-
ing the bargaining process. Albert Alschuler, a leading critic of plea bargaining,
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128 conventional plea bargaining
describes prosecutors who “charge robbery when they should charge larceny from
the person, [who] charge grand theft when they should charge petty theft, [who]
charge assault with intent to commit murder when they should charge some form
of battery.”  Other prosecutors issue accurate indictments but, as a result of the
bargaining process, agree to withdraw charges in a way that understates the actual
criminal responsibility. So, “[g]uns are ‘swallowed’ as armed robberies become
unarmed robberies; burglaries committed at night are transformed through pros-
ecutorial wizardry to burglaries during the day; and defendants solemnly affirm
that they have driven the wrong way on one-way streets in towns without one-way
streets.”  Plea bargaining also encourages prosecutors and defense attorneys to
misrepresent facts and to bring frivolous motions, all in the hope of obtaining a
better plea. Prosecutors might, for instance, conceal fatal defects in the case, such
as that a critical witness has died, will not testify, or cannot be found. Defense
attorneys, for their part, frequently demand jury trials when they have no inter-
est in trying the case before a jury, and they often fi le numerous pretrial motions
in an effort to enhance their own bargaining positions. Finally, as a result of
the way in which most appointed counsel are compensated, American plea bar-
gaining gives rise to conflicts of interest whereby defense counsel feel compelled
to pressure their clients to plead guilty regardless of whether it is in their best
interests to do so. Retained defense attorneys, for instance, typically obtain a flat
fee, paid up front, for their representation. That fee is always sufficient, and
frequently generous, for the work involved in securing a guilty plea, but it is
often woefully inadequate as compensation for taking a case to trial. Appointed
counsel, for their parts, are typically paid either a flat fee or an hourly rate with
a ceiling. Whichever form the compensation takes, the amounts are embarrass-
ingly low. Because the compensation caps are almost always the same regardless
of whether the defendant pleads guilty or goes to trial, appointed defense counsel
have powerful incentives to dispose of as many cases as possible by guilty plea.
As Chad Baruch notes, court-appointed defense attorneys and those paid a flat
fee who proceed to trial “take[] the risk of earning as little as one or two dollars
per hour.” 
Regulatory efforts can ameliorate some of these abuses, but even then the
trade of sentence leniency for financial savings remains problematic on peno-
logical grounds. If a defendant who pleads guilty committed the crime for which
he or she was charged, then, as a result of the concessions bestowed through
plea bargaining, the defendant receives less punishment than the legislature has
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conventional plea bargaining 129
deemed penologically adequate. If the defendant is innocent, as some defen-

dants who plead guilty apparently are, then the defendant suffers undeserved
punishment. Either way, justice is not done or seen to be done. As a result of
these practical and conceptual flaws, American plea bargaining has been harshly
condemned by victims, civil liberties groups, and the vast majority of scholars
who have studied the practice. Why, then, would anyone advocate exporting
the much maligned practice of plea bargaining to international tribunals and al-
ready-troubled domestic criminal justice systems seeking to prosecute the grav-
est crimes known to humankind?
The answer to that question is twofold: the different contexts in which domestic
and international crimes are prosecuted and the different needs those prosecu-
tions satisfy render the widely criticized domestic practice of plea bargaining a
justifiable—even desirable—choice when the crimes to be prosecuted are inter-
national. Turning first to context, the political environments in which domestic
crimes and international crimes are prosecuted differ markedly. Domestic critics
of plea bargaining consider it justice on the cheap—an unfortunate dilution of
the full justice that a criminal justice system ought to provide. This view is in many
respects accurate, and a primary reason that it is accurate is that most domestic
criminal justice systems are founded on the presumption that violent crimes will
be investigated, and when possible, prosecuted. Given this presumption of pros-
ecution, it is not surprising that the plea bargaining of domestic crimes is resisted
and viewed as an undesirable accommodation to expediency. However, the pre-
sumption of prosecution that is so central in the context of domestic crimes sim-
ply does not exist for international crimes. As Chapter 2 detailed, prosecutions
for international crimes have been the exception, not the rule. As cynical com-
mentators have put it: if you “kill one person, you go to prison; kill 20, you go to
an insane asylum; kill ten thousand, and you get invited to a peace conference.” 
That adage highlights the political and military impediments to prosecuting in-
ternational crimes, but as the ad hoc tribunals and their progeny have learned,
financial impediments can prove just as constraining. Even the wealthiest crimi-
nal justice system in the world could not hope to provide full-scale trials to the
more than one hundred thousand people accused of genocide in Rwanda, say, or
even the ten thousand people suspected of committing international crimes in
Bosnia. Expeditious alternatives must be found if more than a small fraction of
these defendants are to be held criminally accountable. Seen in this light, the use
of plea bargaining in the context of international crimes does not constitute an
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unfortunate dilution of justice but rather presents a potent opportunity to impose

justice on those who would otherwise evade it.
Indeed, plea bargaining for international crimes can be seen as the step be-
yond that taken by the South African TRC. Although the TRC granted offend-
ers immunity from prosecution, it did so only after receiving the offenders’ full
and complete confessions. Plea bargaining similarly trades jail time for truth, but
unlike the amnesty offered by the South African TRC, plea bargaining does not
trade away all of the jail time. Instead of offering defendants immunity, plea bar-
gaining offers them a sentencing discount. Thus, a plea-bargaining system such
as the one I describe below is the deal that South Africa’s democratic government
would have liked to strike if it had had the political and military strength to do so.
And such a deal would have provided far greater satisfaction to victims. As vast
an improvement as the South African TRC was over previous truth commissions,
it is nonetheless considered a failure among many South Africans. Multiple
reasons exist for this dissatisfaction, but one of the most important relates to the
TRC’s perceived failure to “do justice,”  a failure that plea bargaining would
help to remedy.
Plea bargaining, then, has the valuable potential to enhance what limited
criminal accountability can currently be imposed in the context of international
crimes. A second reason to advocate its use in that context relates to the needs
of societies emerging from mass violence, and in particular the need for truth-
telling and acknowledgment. Although the primary function of guilty pleas is to
serve as the basis for defendants’ convictions, those guilty pleas, assuming they
are made by people who are in fact guilty, also constitute a limited form of truth-
telling because, through the guilty plea, defendants admit that they committed
the crimes to which they pled guilty. In the context of domestic crime, that limited
form of truth-telling has little effect because it conveys little noteworthy informa-
tion. When a woman reports her car missing from its parking spot, for instance,
few question that a car has been stolen; a defendant’s guilty plea to that theft
conveys only that the defendant was the person who stole the car. International
crimes, by contrast, are routinely and repeatedly denied. Latin American forced
disappearances exemplify the secrecy that can surround international crimes;
and even crimes of enormous scale, crimes that cannot possibly be concealed—
like the execution of the more than seven thousand Bosnian Muslim men and
boys at Srebrenica—can be said never to have happened. Thus, in the context of
international crimes, the mere act of pleading guilty—of admitting that a crime
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occurred and that the defendant is responsible—can have a powerful impact on

victims and survivors. Indeed, after former Bosnian Serb Army officers Momir
Nikolić and Dragan Obrenović pled guilty in May 2003 to helping implement
the Srebrenica massacres, one survivor described feeling a sense of relief that he
had not known since the executions took place. In the same vein, the president
of the Ahmići municipality—which Miroslav Bralo participated in ethnically
cleansing—lauded Bralo’s guilty plea, saying:
I am asked about the impact that [Bralo’s guilty plea] will have on relations in this area.
I say it will have a fantastic effect. We are now twelve years after Ahmici. If five or six
or seven years ago there were people like Miroslav Bralo who would say they had done
this and this, and that and that happened, it would now be much better for people to
live at peace with one another here, and move from the hard positions against each
other. They, the actors, the perpetrators, they are often the only ones who really know
just what happened. It is time to clear their consciences and I am glad that those with
some decency are now telling their crimes.
Likewise, many victims praised Biljana Plavšić’s guilty plea for its contribution
to “the eventual process of reconciliation.”  The acknowledgment that is inher-
ent in a guilty plea can prove profoundly meaningful to victims and conflict-riven
societies.
The “price” that must be paid for guilty pleas is sentence leniency, but in the
international context, this price is no cost at all. By enabling more prosecutions to
take place, plea bargaining will in most cases increase the overall punishment im-
posed in the context of each mass atrocity. Further, even if the overall quantity
of punishment were to remain the same following plea bargaining, that punish-
ment would better serve its intended ends because it would be distributed over a
larger number of defendants. As noted in Chapter 3, deterrence is better effected
by certain punishment than by severe punishment; plea bargaining increases the
number of criminal prosecutions, thereby making punishment that much more
certain. Although in the international context deterrence is a thin reed upon
which to justify the imposition of criminal sanctions, whatever value deterrence
has in this realm will be enhanced by imposing criminal punishment on a larger
pool of defendants.
Even if a particular plea-bargaining scheme were to result in less overall
punishment per atrocity, the benefits gained by imposing that punishment on a
larger number of offenders would likely justify the scheme. For one thing, the im-
position of criminal sanctions in the international realm serves to counteract the
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culture of impunity that has prevailed with respect to international crimes. Pun-
ishing a substantial number of offenders, even if the punishment imposed on
each is penalogically inadequate by any of the traditional measures, nonetheless
drives home the point that international crimes do attract (at least some) sanc-
tions. Prosecuting a substantial number of offenders also enhances short-term
peace-building by paving the way for refugees and displaced persons to return
to their homes. In many areas of Bosnia, for instance, refugee returns have been
impeded by the fact that war criminals remain in positions of financial and police
power in ethnically cleansed regions. As one commentator put it: “Refugees won’t
return home while the people who drove them away are still around. . . . That’s
the final point of ethnic cleansing.”  Imposing even relatively short prison sen-
tences on these offenders removes them from their positions of power and allows
victims to return and resume their lives.
Although granting leniency in exchange for guilty pleas is apt to enhance crim-
inal accountability in the international context, the perception of that leniency—
particularly among victims—is just the opposite. Victims were outraged when
the ICTY sentenced Predrag Banović to a mere eight years’ imprisonment af-
ter he pled guilty to beating five prisoners to death and participating in twenty-
seven other beatings and shootings. The popular reaction was worse still to the
ICTY’s imposition of an eleven-year sentence on Biljana Plavšić after she pled
guilty to implementing an ethnic-cleansing campaign that left tens of thousands
dead and hundreds of thousands expelled from their homes. Although victim
perception cannot control the decisions of a criminal justice system—after all,
victims of domestic crimes also routinely complain about leniency in sentenc-
ing—the horror that greeted some of the ICTY sentences also cannot be cavalierly
dismissed. Prosecutions of international crimes advance not only penological
goals but didactic and reconciliatory goals, and these latter goals are undermined
by widespread victim dissatisfaction. In particular, although the use of plea bar-
gaining may enhance accountability and truth-telling, these benefits will have lim-
ited effect if they are drowned out, as it were, by victim outrage over sentencing.
Ameliorating this outrage, therefore, must be a primary concern for anyone
considering the use of plea bargaining for international crimes. I propose two
ways of reducing victim dissatisfaction with the sentencing concessions that
must be bestowed to obtain guilty pleas. The first concerns the severity of the sen-
tences imposed following full-scale trials, and the second relates to the creation of
appropriate expectations.
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A plea-bargaining scheme must offer some leniency if it is to persuade defen-

dants to plead guilty, but how much leniency is a question of vital significance
and can be seriously considered only in the context of particular atrocities. An-
swers to such questions as how many offenders were involved, what kind of crimes
were committed, how much is already known about the crimes, and what re-
sources exist for prosecutions will help to define the value to be ascribed to guilty
pleas and the concomitant reward that should be offered in exchange. Rwanda,
for instance, is faced with an impossible caseload and possesses only the most
meager of resources; Rwandan defendants who confess, then, are not surprisingly
favored with generous sentencing discounts, as will be discussed in more detail
in Chapter 10.
How resentful victims will become as a result of these discounts will largely
depend on the baseline sentences imposed absent a guilty plea. In other words,
Bosnian victims were not outraged because Plavšić received a certain percentage
discount from an ideal sentence; they were outraged because she was sentenced
to a mere eleven years of imprisonment for her high-level role and substantial in-
volvement in the ethnic-cleansing campaign. Similarly, victims decried Banović’s
eight-year sentence because it constituted “shamefully small punishment” for
the large number of brutal crimes that he committed. Eight years in prison is
eight years longer than most international criminals spend behind bars, yet sen-
tences such as Banović’s, which appear spectacularly lenient compared with those
handed out for less-serious domestic crimes, run the risk of trivializing prosecu-
torial efforts and undermining the notion that international crimes are human-
kind’s gravest.
Although, in the eyes of victims, no sentence will constitute adequate punish-
ment for the harms inflicted in the context of mass atrocities, a practice of im-
posing lengthy prison sentences after trial can serve to acknowledge the severity
of the crimes while at the same time providing an appropriately high baseline
from which to discount sentences following guilty pleas. The ICTR has already
taken this path, sentencing most of its convicted defendants to life imprison-
ment. Similarly, Rwanda has established gacaca courts, which must sentence
murderers who fail to confess to prison terms of up to thirty years. The ICTY,
by contrast, has imposed life imprisonment in only one case, and it was reduced
to a forty-year term on appeal. The ICTY has, in addition, imposed sentences
of between forty and forty-six years in three additional cases, but two of those
sentences were also reduced on appeal, and most ICTY sentences have been
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considerably shorter in the first instance. Further, it has been the practice of
the ICTY to release defendants after they have served two-thirds of their sen-
tences. That the ICTY has imposed lenient sentences is not surprising given
the belief, held by many Western Europeans, that a life sentence constitutes cruel
and unusual punishment. This view emerged in the context of domestic crime,
however, where murder and multiple murders, in particular, are exceptional oc-
currences. Whatever the merits of such a position in the domestic context, it
seems ill-advised in the international context where some defendants will be re-
sponsible for dozens or even hundreds of deaths. Specifically, in cases involving
murder, life imprisonment should be the presumptive sentence. A plea-bargain-
ing discount, then, to a term of twenty years’ imprisonment will bestow a signifi-
cant benefit on most defendants  without running so great a risk of trivializing
the crimes and embittering victims.
A second way of reducing public dissatisfaction with plea bargaining relates
to the creation of public expectations. In particular, a guilty-plea system will be
more favorably perceived if those perceiving it have realistic expectations about
the goals it is seeking to accomplish and the political context in which those goals
must be pursued. Victims’ reactions to the South African TRC, on the one hand,
and the ICTY, on the other, exemplify this point. South African victims were
largely accepting of their TRC, even though it exempted confessing defendants
from all punishment, not just from a portion of it, whereas Bosnian victims have
sharply condemned the sentencing discounts that the ICTY has offered confess-
ing defendants. These differing reactions stem primarily from the different con-
texts in which the two institutions were created and the way in which those con-
texts shaped victim expectations. The TRC was a negotiated solution, and South
African victims recognized the compromise embodied in the TRC to be neces-
sary to accomplish a peaceful transition. The ICTY, by contrast, was anything
but negotiated. The international community imposed the ICTY on the former
Yugoslavia; thus, no compromises were initially apparent in the ICTY’s mandate,
and victims and commentators came to expect the tribunal to dispense full jus-
tice to each individual brought before it. Financial constraints have lately forced
the ICTY to engage in sentencing compromises; however, these constraints have
not been well-publicized, and victims have been left feeling shortchanged.
For guilty pleas to provide optimal benefits, plea bargaining must be under-
stood by the relevant constituencies for what it is: a compromise measure that
allows for the prosecution of a greater percentage of criminal defendants. In
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particular, any international criminal justice system that plans to use plea bar-
gaining should showcase the practice as an integral feature of the system from
the outset. Victims and other interested parties must understand that offenders
who confess will receive sentencing discounts, and they must understand why
those confessions justify sentencing rewards. Victims must be made to see that
insisting on full-scale trials and full punishment will result in considerably fewer
prosecutions and less overall punishment. A candid dialogue about the goals of
criminal prosecutions and the financial constraints that limit their attainment
will diminish the likelihood of subsequent dissatisfaction and provide victims
with a realistic understanding of the prosecutorial endeavor.
These suggestions—regarding the severity of the baseline sentences and the
appropriate expectations that must be inculcated in victims—will help to re-
duce victim dissatisfaction with the discounted sentences that result from tra-
ditional plea bargaining of the sort currently practiced in the United States and
at the ICTY. The following chapter constructs an innovative guilty-plea system
designed not just to increase the number of prosecutions that can take place but
also to advance long-term reconciliation in regions recently torn by violent con-
flict. The values added through such a system will additionally help to legitimize
plea bargaining, so that it is viewed less as an unseemly cost-cutting measure and
more as a key element in a society’s effort to move beyond large-scale violence.
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c h a p t e r e igh t
Plea Bargaining as Restorative Justice

Using Guilty Pleas to Advance Both Criminal
Accountability and Reconciliation
Chapter 7 described the benefits that can result from the conventional practice of
plea bargaining in the context of international crimes. Specifically, the use of plea
bargaining creates an opportunity to prosecute offenders who would otherwise
remain free, and it conveys a limited amount of truth and acknowledgment about
the crimes committed. Guilty pleas have the capacity to advance not only these
aims but also reconciliatory goals that are better associated in the international
context with nonprosecutorial mechanisms, such as truth commissions and rep-
arations schemes. In the context of domestic crimes, these goals have recently
begun to be pursued through restorative-justice processes. Th is chapter explores
the incorporation of restorative-justice principles to efforts to prosecute inter-
national crimes and the key role that guilty pleas can play in that incorporation.
The Theory
As its name indicates, restorative justice aims to correct imbalances and restore
broken relationships through healing, harmony, and reconciliation. The needs
of victims constitute a central focus for restorative justice; thus, instead of ask-
ing the primary question of a conventional criminal justice system—what should
be done with the offender?—restorative justice asks what should be done for the
victim. At the same time, restorative justice emphasizes the community’s ongo-
ing relationship with offenders. Offenders are not to be viewed as “people who
are different from ourselves and who do not properly belong in our society”; 
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bargaining as restorative justice 137
rather, they are considered part of the community even if they need to be moni-
tored and to be made aware of the harm they have caused. To advance these mul-
tiple goals, restorative-justice programs promote face-to-face contact between
offenders and victims, and preferably also family members and other interested
members of the community. At such meetings, “offenders are urged to account
for their behaviour; victims are encouraged to describe the impact which the
crime has had upon them, materially and psychologically; and all parties are en-
couraged to decide upon a mutually agreeable form and amount of reparation—
usually including an apology.”  Through restorative-justice programs, then, all
of the individuals with an interest in the crime come together and seek to col-
lectively determine how to address the harms caused by the crime and their
implications for the future.
Empirical research into restorative justice is still in its early stages, but stud-
ies consistently show that those who participate in restorative-justice programs
come away more satisfied than those whose cases proceed through the ordinary
court system. In particular, restorative-justice processes appear to respond better
to participants’ needs and desires. John Braithwaite describes “an overwhelming
amount of evidence” showing that victim, offender, community, and police satis-
faction with restorative justice processes “is extremely high, typically 90–95,
and in some studies even higher. . . . Moreover, for cases randomly assigned to
conference rather than court, perceptions of fairness and overall satisfaction are
higher in conference than in court cases for all types of participants.”  Barton
Poulson similarly observes that restorative justice outperforms court procedures
on almost every variable for victims and offenders.
Although victims are popularly viewed as punitive, seeking retribution above
all else, research now indicates that many victims place considerable—in some
cases predominant—weight on other values, including information, participa-
tion, material reparation, and symbolic reparation, which includes apologies.
Victims participating in restorative-justice programs have the opportunity to tell
their stories, express their feelings, and question offenders about issues that in-
terest or worry them. Such victims, not surprisingly, are more likely to feel that
their needs and views have been taken into account. Mark Umbreit notes that
“[v]ictims frequently report that while restitution was the primary motivator for
them to participate in [victim-offender mediation], what they appreciated most
about the program was the opportunity to talk with the offender.”  Victims par-
ticipating in restorative-justice programs also report feeling less fear and anger
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138 bargaining as restorative justice
about the crime and less concern about revictimization than victims who pro-
ceed through ordinary court processes. Indeed, one study indicated that victims
of violent crime whose cases had proceeded through the ordinary court system
were five times as likely to believe that they would be revictimized as victims who
had participated in restorative-justice processes. In addition, offenders are far
more likely to apologize during a restorative-justice proceeding than a conven-
tional court proceeding, and the value of sincere apologies to both victims and
offenders is extraordinary. At least one study reports that, to many victims, an
apology is more important than tangible reparation. Restorative-justice pro-
cesses aim to reconcile offender and victim, and genuine expressions of remorse
are the first and essential step in that reconciliation process.
Offenders, for their parts, also report greater satisfaction with restorative-
justice processes. Like victims, offenders who participate in restorative-justice
programs are more likely to feel that their stories have been heard and their needs
considered. Most importantly, the victim-offender interactions that form the
basis of restorative-justice processes are designed to instill in offenders a greater
appreciation for the harms that they have caused. Studies indicate that offend-
ers employ a variety of psychological techniques to shield themselves from an
awareness of the full human consequences of their behavior. That sort of denial
is harder for offenders to sustain when they must come face to face with victims
and listen to them describe the injuries they have suffered. These interactions help
offenders to see their victims as human beings, equal to themselves; the interac-
tions likewise encourage victims to view their offenders as real people, people
who cannot be excused for their crimes but who do have explanations to offer.
Preliminary research also indicates a reduction in recidivism rates after offenders
participate in a restorative-justice program.
The foregoing discussion indicates that the use of restorative-justice measures
has the potential to improve markedly the performance of a domestic criminal
justice system. Restorative-justice procedures have been used primarily for non-
violent crimes, and one might assume that they would be less efficacious in the
context of violent crime on the theory that the graver the injury a victim suf-
fers, the more that victim will desire retribution over the values advanced by
restorative-justice programs. In particular, restorative-justice programs primar-
ily utilize material and symbolic reparations to restore victims, and one would
expect that these reparatory measures would have little restorative value in the
context of violent crime. The research conducted thus far, however, does not
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bear out this view. The few studies that have examined the effectiveness of re-
storative-justice processes following severely violent crime have reported positive
results. Indeed, some studies have shown that restorative justice is more effec-
tive at reducing violent crime than at reducing petty property crime. Heather
Strang and Lawrence Sherman speculate that the greatest benefit from restorative
justice may be found in the most serious crimes: “It appears that the higher level
of emotional engagement by victims and offenders in these kinds of encounters
is the ‘engine’ leading to the emotions of empathy and remorse which may be the
essential ingredients for reduced reoffending.” 
A study of victim-offender mediation in Texas and Ohio showed “that many of
the principles of restorative justice can be applied in crimes of severe violence, in-
cluding murder, with clear effectiveness in supporting both the process of victim
healing and offender accountability.”  In the Texas and Ohio programs, family
members of the murder victims had typically initiated the meetings and did so
primarily because they sought information from offenders and an opportunity
to describe to offenders the impact of the crimes. Offenders agreed to participate
for a number of reasons, including a desire to apologize to victims, a desire to
assist in the victim’s healing process, and a desire to assist in their own reha-
bilitation and healing. Not all victims were able to forgive their offenders, but
offenders who were forgiven found it a very moving and motivating experience.
As one offender put it: “If you murder somebody’s child, and they forgive you,
if she can forgive me, I can forgive. I made a commitment. I’m not gonna mess
up.”  In all, victims, family members of victims, and offenders reported an ex-
tremely high level of satisfaction with their participation in the program. Seventy-
seven of seventy-eight participants reported that they were satisfied, and seventy-
one selected the highest rating, “very satisfied.”  In addition, all of the initial
participants reported that the sessions were very healing, and, astonishingly,
80 percent of all participants reported that their involvement in the program had
had a life-changing effect. Similar results were obtained through a Wiscon-
sin restorative-justice program that brought together victims and offenders of
severely violent crime.
As the authors of the study on the Texas and Ohio programs report:
Victims/family members and offenders alike reported feeling more at peace and better
able to cope with their lives. For the 30 victims and family members, letting go of
hate, obtaining answers, placing the anger where it belongs, having a human encoun-
ter, and/or experiencing the offender’s ownership and remorse have been important
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factors. The 33 offenders pointed to being accountable, seeing their victim as a person,
understanding the impact of their actions, being able to give something back, feeling
the victim/family member’s opinion of them had changed for the better, and being
more open to feelings.
These studies relating to violent domestic crime indicate that restorative-

justice values might usefully inform efforts to prosecute international crimes, al-
though questions remain about the nature of the sanctions to be imposed through
restorative processes. Domestic restorative-justice programs typically culminate
in a reparations plan that imposes certain financial and/or service obligations
on offenders, but not severe burdens such as long-term imprisonment. Because
most domestic restorative-justice programs center on petty crimes, there exists a
reasonable potential that financial and service-oriented reparations can substan-
tially repair the relevant harms. Such measures are apt to be considered wholly
inadequate, by contrast, in the context of severely violent crimes. Indeed, much
of the research indicating that restorative processes benefit victims and offenders
of violent domestic crimes does not address the question of punishment because
the victim-offender mediations studied in that research took place long after the
offender was sentenced to long-term imprisonment or even death. It is by no
means clear that the programs would have so satisfied victims if the programs
had resulted in a significant diminution of incarceration.
Even in the context of the domestic restorative-justice programs involving
petty crimes, a debate among restorative-justice theorists exists as to whether the
burdens imposed on offenders through restorative justice constitute punishment
in the retributive sense or are in fact alternatives to punishment. For instance,
John Braithwaite, the restorative-justice movement’s most well-known and in-
fluential proponent, urges that punishment be minimized to the greatest degree
possible. Braithwaite and others maintain that punishment results in a variety of
unfortunate consequences;  consequently, they urge restorative measures as an
alternative to traditional punishment. Other commentators, by contrast, espouse
the view that not only are restoration and retribution compatible but that restora-
tion requires retribution. That view has appeal, particularly in the context of
international crimes, which typically feature large-scale violence. Crimes of this
magnitude cry out for onerous sanctions, justified at least in part on retributive
principles. In addition, the underdeveloped nature of international criminal jus-
tice apparatuses cautions against eschewing retributive punishment even if resto-
ration could be accomplished without it. For most of human history, international
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crimes have been followed by no sanctions whatever. The “culture of impunity”

surrounding international crimes has begun to erode in recent years, and it would
be profoundly unwise to impair this erosion by declining to impose retributive
punishment in circumstances in which its imposition would be feasible.
In the international context, a criminal justice system that imposes retributive
sanctions pursuant to restorative processes would provide divided societies with
optimal benefits. The linchpin to such a system is the guilty plea. Most domestic
restorative-justice programs require defendants to admit their guilt, on the rather
obvious ground that defendants cannot be in an appropriate frame of mind to ac-
cept responsibility and/or make amends if they continue to contest having com-
mitted the crime in the first place. Having pled guilty, then, a domestic defendant
in a jurisdiction that offers restorative-justice alternatives would have a choice
between having the case proceed through ordinary court processes or participat-
ing in a restorative-justice program. For international crimes, I propose incor-
porating restorative-justice principles into guilty-plea processes. In particular, I
propose conditioning acceptance of a defendant’s guilty plea on the completion
of certain restorative obligations; in this way, defendants who wish to obtain the
sentencing benefits that typically flow from a guilty plea will have to engage in
a restorative process designed to advance peace and reconciliation between in-
dividual victims and offenders and between their respective groups. The follow-
ing section sketches the contours of a guilty-plea system conducted pursuant to
restorative-justice principles.
The Practice
A guilty-plea system that embodies restorative-justice principles would bear

little resemblance to the guilty-plea processes currently in use in most domes-
tic criminal justice systems, including the American criminal justice system. In
particular, a restorative-justice guilty-plea system would differ from current pro-
cesses with respect to the amount and type of information obtained, the level of
victim participation, and the imposition of reparatory obligations. Turning first
to truth-telling, as already noted, every guilty plea that reflects the defendant’s
actual commission of a crime conveys some information; a restorative-justice ap-
proach to guilty pleas would seek, however, to obtain more and different kinds
of information. In particular, a restorative-justice approach would require defen-
dants pleading guilty to provide a full and complete accounting of their crimes
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as part of a guilty plea. That accounting has the potential to benefit prosecutors,
victims and family members of victims, and offenders.
First, a full accounting of the crime would in many cases reward prosecutors
with information implicating other, perhaps more-senior, offenders. Such infor-
mation can be of vital importance to the success of efforts to prosecute high-level
offenders who orchestrated but did not actually execute the crimes. As Chapter 10
will describe, ICTY prosecutors have required many plea-bargaining defendants
to provide information about the crimes of their associates and superiors and to
testify in the trials of those individuals. The information revealed through these
processes has proved instrumental in enabling ICTY prosecutors to prosecute
senior military and political figures.
A complete accounting also has the potential to provide family members with
crucial details about the crimes, such as the location of the body, the cause of
death, and the events that took place during their loved one’s final days or hours.
This information is of vital consequence to family members, many of whom can-
not begin to move beyond their tragedy without it. Psychologist Teufika Ibra-
himefendić testified during the ICTY’s Krstić trial about the women and children
who lost their male relatives during the Srebrenica massacres:
The fact that they do not know the truth—even the worst truth, would be better for
them than this uncertainty, this constant, perpetual uncertainty as to what happened
to their loved ones, because they keep waiting, they’re waiting for something. They
cannot begin life, they cannot face up with the reality of the death of a missing person.
They only remember the moment they bade farewell, the moment when they agreed to
meet in a spot that would be safe.
Ibrahimefendić’s expert opinion about the devastating effects of uncertainty

was poignantly confirmed for the Trial Chamber in that case by the testimony
of a Bosnian Muslim mother whose fourteen-year-old son had been pulled from
her arms when the women and children had been separated from the men and
boys at Srebrenica. Even though the executions of Bosnian Muslim men and boys
from Srebrenica had been widely documented and was certainly known to the
witness, when the judge asked her whether she had anything to say or ask of the
defendant, she said:
I would like to appeal to you to ask Mr. Krstić, if you can, whether there is any hope
for at least that little child that they snatched away from me, because I keep dreaming
about him. I dream of him bringing flowers and saying, “Mother, I’ve come.” I hug
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him and say, “Where have you been, my son?” and he says, “I’ve been in Vlasenica all
this time.” So I beg you, if Mr. Krstić knows anything about it, about him surviving
some place. . . .
Other parents have reconciled themselves to the deaths of their children but are
still consumed with questions. South African mother Joyce Mthimkulu put it
thus: ” ’If they can just show us the bones of my child, I’ll be grateful. Where did
they leave the bones of my child? Where did they take him? Who handed him
over to them? What did they do to him?” 
Finally, an accounting would constitute a powerful acknowledgment of wrong-
doing. Commentators have noted that truth commission reports often serve less
to impart knowledge to victims about the crimes that took place than to consti-
tute official—and much needed—acknowledgment that crimes did take place and
that victims were harmed. Admissions made in the context of guilty pleas may
prove even more valuable to victims since the acknowledgment of wrongdoing
is made by wrongdoers themselves, rather than an outside body. Offenders,
too, benefit when they are able to acknowledge the wrongs they have committed,
among other reasons, because, as already noted, “for the offender to acknowledge
responsibility . . . , he must first acknowledge the victim as a real individual.” 
While the quantity and content of the information disclosed is of vital signifi-
cance, the process by which information is disclosed can prove just as significant
on a restorative-justice model. A defendant pleading guilty in the United States,
for instance, is questioned by a judge to determine whether the defendant is
making the plea knowingly, voluntarily, and unequivocally and whether the plea
satisfies any other requirements the jurisdiction imposes. In the United States,
these plea colloquies are perfunctory affairs; questions are mechanically posed,
answers are monosyllabically provided, and all of the participants seek to get
the proceedings over with as quickly as possible. By contrast, the primary pur-
pose of a restorative-justice guilty-plea hearing would not be to satisfy certain
minimal requirements, but to learn all that can be learned from the defendant
and to publicize that information to the greatest degree and the greatest effect.
The South African TRC provides a useful model in this regard. Although the
TRC’s Amnesty Committee may have granted amnesty to certain applicants who
failed to make full disclosure, little question exists that the TRC obtained and
publicized a tremendous quantity of information and made significant efforts to
investigate cases, in part to determine whether amnesty applicants were making
full disclosure and, if they were not, to encourage them to do so.
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Turning to victim participation, domestic guilty-plea colloquies typically do

not include victim input; sentencing hearings frequently do, but even there, the
victim’s role is limited and carefully defined. A restorative-justice approach to
guilty pleas would promote more and more-varied victim involvement. In do-
mestic restorative-justice programs, victims are encouraged to describe both the
material and emotional harms they have suffered and to describe how they wish
those harms to be repaired. Doing so not only helps victims to feel that their needs
and views have been taken into account, but it helps offenders to appreciate the
consequences of their actions and encourages them to view victims as valuable
individuals. The South African TRC permitted victims to confront and question
those who had wronged them, and at least some guilty-plea proceedings could
permit similar victim involvement. Widespread victim participation was feasible
in the South African context because many South African crimes featured one
defendant for perhaps a handful of victims. Other mass atrocities feature con-
siderably more victims per perpetrator, and in those cases, logistics may prevent
many victims from personally participating. Victim-offender interactions should
be encouraged whenever possible, however, because they not only benefit victims
and offenders in the ways described above, but they also give rise to a different
and more nuanced kind of truth-telling; while judges ask questions to determine
whether the legal elements of the crime have been satisfied, and truth commis-
sioners ask questions they believe of interest to society in general, victims seek
information specific to their own needs and experiences. These questions and the
answers they elicit, though at times idiosyncratic, provide valuable insights into
how the crimes are perceived by those most affected.
Turning to reparations, most domestic restorative-justice programs require
offenders to provide material and/or symbolic reparations. Apologies are a par-
ticularly potent form of symbolic reparations. They are considered an essential
first step in the reparations process, and many victims desire apologies more than
material reparations. Genuine apologies may be all the more potent in the con-
text of international crimes because they can signify not only remorse over the
particular wrongdoing but a change of attitude about the conflict and the victim
class. Apologies, for that reason, can serve vital pedagogical and dramaturgical
purposes in societies riven by ethnic or religious conflicts. The apparent trans-
formation of former Bosnian Serb leader Biljana Plavšić, for instance, exemplifies
this phenomenon. While leading an ethnic-cleansing campaign that resulted in
the deaths of more than one hundred thousand Bosnian Muslims and Croats,
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Plavšić was considered among the most rabid of Serb nationalists. She termed
the purge of non-Serbs “a natural phenomenon”  and described Muslims as “‘a
genetic defect on the Serbian body.’ ”  In pleading guilty, however, Plavšić apolo-
gized, acknowledging that “many thousands of innocent people were the victims
of an organized, systematic effort to remove Muslims and Croats from the terri-
tory claimed by Serbs.” At the time, she said, she had convinced herself that the
ethnic-cleansing plan was a matter of survival and self-defense. She came later to
acknowledge, however, that she and other Bosnian Serb leaders had “led an effort
which victimised countless innocent people . . . and violated the most basic duty
of every human being, the duty to restrain oneself and to respect the human dig-
nity of others.”  Plavšić’s apology was widely publicized, and, although Bosnian
victims subsequently decried the lenient sentence Plavšić received, most were
moved and gratified by her apology. In a similar vein, post-apartheid South
Africa’s efforts to transform attitudes about blacks and their role in society were
immeasurably enhanced by the public apologies proffered by some TRC amnesty
applicants. These apologies and the responses they elicited were widely broadcast
and discussed.
Although sincere apologies constitute a valuable reconciliation tool, not all
apologies are sincere. Indeed, given the rabid racist and nationalistic ideology
that fuels much international crime, it is perhaps too optimistic to expect that
many offenders will be able sincerely to regret their crimes soon after they have
committed them. But a guilty-plea system that presents offenders with the con-
crete harms resulting from their crimes—the widow who cannot feed her family
without her murdered husband’s income, the mother who dreams nightly of the
son who was snatched from her arms before being executed—can hope to reach
the conscience of offenders and humanize victims in a way that contradicts the
racist ideology. Whether this sort of guilty-plea system will effect such a transfor-
mation in a majority of cases cannot be known, and the question arises whether a
guilty-plea system should require defendants to apologize or encourage them to
do so through the bestowal of sentencing concessions. Most domestic restorative-
justice programs do require defendants to apologize, and the ICTY and other
international tribunals encourage apologies by regarding remorse as a mitigating
factor in sentencing.
Some commentators question the reconciliatory value of required or rewarded
apologies, and indeed some believe that apologies perceived to be insincere may
be more damaging than restorative. At least one psychological study supports this
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view by suggesting, somewhat analogously, that the perceived honesty of those

providing an explanation as a conflict-management strategy is a critical compo-
nent of the explanation’s effectiveness. Lee Taft has argued, in addition, that the
moral process of apology is potentially corrupted when apologies are rewarded
or required. Of course, the gravity of these concerns will depend in part on the
means used to obtain the apologies; in particular, the greater the coercion em-
ployed, the greater the skepticism that is likely to greet the apology. Thus, the
perceived sincerity of required apologies is apt to be lower than that of apologies
that are merely rewarded by sentencing discounts; similarly, larger sentencing
discounts are likely to undermine the perceived sincerity of apologies more than
smaller discounts will. The reception that will greet an apology is also likely to be
influenced by the role that apology has traditionally played in the society in ques-
tion. Although the Japanese criminal justice system, for instance, rewards apolo-
gies and other displays of remorse with substantial benefits, those apologies do
not consequently appear to be undermined in the view of the public, probably
because apologies are an entrenched feature of virtually every aspect of Japanese
life. If apologies are to be rewarded, then, it is these factors that must be care-
fully considered both in designing the rewards and in explaining them to victims
and the public.
The enormous potential value of most apologies, in my view, justifies carefully
crafted efforts to encourage them. For one thing, the concern that victims will be
more likely to reject apologies that appear self-serving may not be a substantial
one. Psychological studies have shown that victims who fail to accept apologies
are viewed negatively and that victims consequently face strong social pressure
to accept apologies, even when the apologies are reasonably perceived to be insin-
cere. Erin Ann O’Hara and Douglas Yarn, moreover, utilized evolutionary biol-
ogy to explain apology as an adaptive strategy that encourages survival through
cooperation; on this theory, humans have developed an emotional and cognitive
bias to seek and grant forgiveness, a bias that may encourage reconciliation even
when the proffered apology is not heartfelt. Further, even if an apology is in-
sincere at the time it is uttered, the mere act of making it can begin a process that
leads to genuine remorse. Finally, encouraged or even coerced apologies may be
valuable in the context of international crimes precisely because there is so little
that otherwise can be done at a practical level to repair the harms wrought by
mass violence. Because every effort seems so patently inadequate, every effort
that has even the smallest potential to enhance reconciliation should be favorably
considered.
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Most domestic restorative-justice programs also impose on offenders material

reparations obligations, such as restitution or community service. Since many
of the crimes channeled through domestic restorative-justice processes are rela-
tively minor, the reparatory obligations imposed on offenders usually constitute
credible attempts to restore victims to their previous positions. When the crime
at issue is rape, torture, or worse yet, murder, no fi nancial payment or service re-
quirement will come close to repairing the harm. Because material reparations
are so wholly inadequate in the context of grave crimes, it may seem as though
they are not worth pursuing, but, in fact, quite the opposite is true.
For one thing, some victims value financial reparations over incarceration. As
South African Eunice Miya put it, after her son was killed in a massacre by South
African police: “Going to jail is useless. . . . The . . . [perpetrators] must just sup-
port our children’s children.”  Further, many survivors of large-scale violence
suffer tremendous financial privations as a result of their victimhood. Many eth-
nically cleansed Bosnians, for instance, lost all of their material possessions upon
their expulsion; often those returning home have found only the charred remains
of their houses. And victims who were severely beaten, tortured, or raped often
bear physical and emotional scars that subsequently prevent them from engaging
in gainful employment. The reparations that can feasibly be required of offenders,
many of whom will themselves be impoverished, cannot be expected to improve
dramatically the financial lot of such victims, but they can help in small and
symbolic ways. A Bosnian Serb who is required to spend one day per week assist-
ing in the reconstruction of a home he burned down provides his victims more
than mere financial support; by undertaking such a reparatory effort, offenders
acknowledge and publicize their wrongdoing in an especially tangible way. Har-
vard psychiatrist Judith Herman opines that victims value this sort of restitution
far more than reparations from the state. Victims want to have “‘a sense that the
people who did the damage are made to give something back, or to try to clean
up the mess that they made.’” 
Indeed, such reparations benefit not only victims and the community, but also
offenders because they enhance offender reintegration. Societies in general, and
victim groups in particular, are more welcoming of offenders who have made
some attempt to right their wrongs, and offenders gain a greater appreciation
for the harm they have caused when they undertake some attempt—financial or
otherwise—to repair that harm. At the same time, reparations obligations must
take into account the factual context of the crimes. When imposing community-
service requirements on Hutu killers, the Rwandan government chose not to
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require Hutu to perform services directly to Tutsi survivors because doing so was
apt to rekindle painful memories of the Tutsi’s past use of oppressive community-
service requirements as a means of subjugating the Hutu, memories that might
reinflame ethnic tensions.
As will now be obvious, many key features of the restorative-justice guilty
pleas just described appear in one or another of the traditional responses to mass
atrocities, namely, conventional criminal trials, truth commissions, and repara-
tions schemes. Criminal trials impose accountability on offenders; truth com-
missions encourage victims to describe the harm that they have suffered; and rep-
arations schemes provide much-needed financial assistance to victims. Pursuing
these values in independent bodies, however, considerably dilutes their impact.
Recent truth commissions, for instance, have effectively disseminated the truth
as it is perceived by victims, but most have failed entirely to include the perpe-
trator’s perspective. Without the threat of prosecution to encourage their testi-
mony, most offenders choose to keep their own counsel, and crucial details about
victims remain hidden to family members; crucial insights into the motivation
of perpetrators, which could help to prevent future atrocities, go unexplored; and
crucial interactions between victims and offenders—such as apologies and ac-
ceptance—fail to take place. Without the participation of offenders, the truth
that is reported is not the complete truth, and the reconciliation that takes place
is but partial.
Criminal prosecutions, for their part, also function most efficaciously when
informed by the truth that only offenders can provide. Many prosecutions cannot
proceed at all without the evidence of coperpetrators or underlings. Insufficient
evidence poses an especially acute problem for those seeking to prosecute high-
level defendants who may appear insulated from the ghastly deeds by several lev-
els of intermediary perpetrators. Moreover, as a systemic matter, efforts to under-
take a significant number of prosecutions are likely to fail as a result of resource
constraints. Thus, if justice—and by that I mean more than token justice—is to
be done, it must be facilitated by defendants who are willing to confess. The mon-
etary payments made pursuant to government-funded reparations schemes are
welcome both as financial assistance and as implicit acknowledgment of wrong-
doing, but their reconciliatory potential would be greatly enhanced by offender
contributions, both to the material reparations and, when possible, in the form of
symbolic reparations, such as apologies.
South Africa did amalgamate many of these values in the three bodies that
comprised its TRC. The TRC’s Human Rights Violations Committee invited vic-
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tims to tell their stories; the Amnesty Committee required offenders to reveal
their crimes and permitted some victim-offender questioning; and the Reparation
and Rehabilitation Committee made recommendations to the government re-
garding reparations. Commentators quickly seized on these values to pronounce
the TRC a restorative-justice process, and that label is not entirely misplaced.
However, the TRC’s adoption of certain restorative practices did not spring from
a principled commitment to the values of restorative justice but from political
weakness. Indeed, the TRC’s political inability to hold confessing offenders crim-
inally or civilly accountable in even the smallest way undermined both the claim
that it did justice in any form and its own potential to advance reconciliation.
Potential Obstacles
A restorative-justice guilty-plea system can provide many benefits to societies

emerging from mass violence, but is such a system feasible to implement? A num-
ber of objections may be raised, but the following two are perhaps the most com-
pelling. First, defendants accused of international crimes may find the mere act
of pleading guilty difficult enough without being forced to reveal significant addi-
tional information; that is, the disclosure requirements inherent in a restorative-
justice approach might deter a substantial number of defendants from pleading
guilty, thus dooming the project to failure. Second, plea bargaining is apt to mo-
tivate guilty pleas only to the extent that the defendants pleading guilty have rea-
son to fear prosecution and conviction. Thus, for a plea-bargaining system to be
viable, the criminal justice system in which the plea bargaining takes place must
have the political and financial ability to credibly threaten prosecutions, even
though the political will ultimately to fund those prosecutions may not exist.
Turning to the first problem, asking defendants to reveal all that they know
about their own crimes and those of their associates is asking a lot. Defendants
who make full disclosure may justifiably fear retaliation against themselves or
their families. Those back home often view the mere act of pleading guilty a
betrayal; revealing damaging particulars is apt to prove all the more risky. The
first three ICTR defendants to plead guilty, as well as some ICTY defendants, in-
sisted that the tribunals provide them and their families with substantial protec-
tion, including relocation. As a Croatian reporter observed about a recent ICTY
defendant who pled guilty: “The question is where Ivica Rajić will be able to live
once he has served his sentence. I sincerely doubt it that those whom he has got
into trouble will leave him alone for as long as he lives.”  Such concerns are by
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no means exaggerated. As noted above, after providing ICTR prosecutors with

incriminating evidence about high-level Rwandan offenders, Juvénal Uwilingiy-
imana went missing in November 2005, and his body was later found in a Belgian
canal. Several ICTR witnesses and their families have also been murdered by
Hutu extremists, even though they were purportedly under ICTR protection.
Any criminal justice system prosecuting international crimes must be prepared
to provide substantial protection to those who plead guilty and implicate other
offenders. Violence suffered by confessing defendants and their families is not
only tragic for the individuals involved, but it has the potential to destroy the
guilty-plea system by deterring other defendants from pleading guilty.
Fear of retaliation will not be the only deterrent. Making the complete disclo-
sures that I have described will require defendants to engage in a level of critical
self-examination that will prove excruciating to many. American defendants par-
ticipating in a typical guilty-plea colloquy can grunt a “yes” or “no” to most of the
perfunctory questions asked of them. Such colloquies do not require defendants
to think very hard, to engage very deeply, or to critically examine their actions in
any meaningful way. The guilty-plea scheme that I envisage, by contrast, requires
all of those things, and requires it in a context in which it is even more difficult
to provide. A domestic defendant who pleads guilty to car theft admits only that
he or she stole a car. An international defendant who pleads guilty to persecu-
tion as a crime against humanity must call into question, at least nominally, a
host of deeply held beliefs that the defendant may prefer to leave unscrutinized.
Even those most committed to the racist or nationalist ends that motivated their
actions must recognize, at some level, the evil inherent in torturing a fellow hu-
man being, or, worse yet, in extinguishing a life. A guilty-plea system embodying
restorative-justice principles would not be satisfied with a summary description
of the crime but would require the defendant to disclose sufficient information
to satisfy the victims’ and survivors’ need to know and to prompt critical self-
inquiry and appropriate shame. How did you torture John Smith? What did he
do when you placed the plastic bag over his head? What were you trying to gain
by these actions? How do you feel about them now? The anguish that many
South African amnesty applicants exhibited in answering questions such as these
evidences both the understandable reluctance of human beings to face piercing
questions about their own unspeakable behavior as well as its transformative
potential.
Thus, asking defendants to open themselves to such potentially searing expe-
riences may, in many cases, be asking too much. Prosecutors of domestic crimes
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can typically increase the number of guilty pleas by increasing the sentencing
concessions that they offer. Similarly, one might expect that more substantial
sentencing concessions would be required to motivate defendants to provide the
requirement-laden guilty pleas that I advocate. South Africa, however, offered
the ultimate sentencing concession—freedom from all punishment, criminal or
civil—in exchange for full disclosure, yet many offenders refused the bargain,
preferring instead to risk a criminal prosecution. That the risk was not a substan-
tial one in South Africa explains the willingness of many offenders to gamble, and
it highlights the fact that, to be successful, a guilty-plea scheme must be backed
up by a credible threat of prosecution. The South African experience also demon-
strates that factors such as how interrelated the crimes are and which defendants
choose initially to come forward have considerable influence on whether future
defendants are motivated to plead guilty.
In South Africa, for instance, just when it looked as though no one but low-
level offenders would seek amnesty, five mid-level police officers confessed to in-
volvement in forty apartheid-era murders. In their amnesty applications, these
officers implicated General Johan van der Merwe, maintaining that he had or-
dered them to fire on civilians during a 1992 demonstration. Van der Merwe then
sought amnesty himself, and he in turn implicated two cabinet-level officials and
asserted that former president P. W. Botha had personally ordered the bombing of
a church headquarters. A similar phenomenon occurred in the ICTY’s Sikirica
case (see Chapter 4). As noted there, the case centered on the Keraterm prison
camp and featured three defendants—Duško Sikirica, Keraterm’s commander
of security, and Damir Došen and Dragan Kolundžija, two of Keraterm’s shift
commanders. Sikirica was considered the most culpable of the three and was
charged not only with war crimes and crimes against humanity but also with
genocide and complicity to genocide. Kolundžija, by contrast, was considered
the least culpable; although he was charged with crimes against humanity as a
result of the inhumane conditions under which prisoners were detained, pros-
ecutors acknowledged that Kolundžija did not himself mistreat any prisoners and
in fact made significant efforts to relieve their suffering. Once Kolundžija—the
least culpable defendant—pled guilty and acknowledged the conditions prevail-
ing in the Keraterm camp, the remaining defendants presumably felt they had
little choice but to follow suit, and, within a few days, they too pled guilty. The
snowball effect, then, may help to motivate even the most reluctant defendants to
disclose their wrongdoing.
The second, and more grave, obstacle threatening the guilty-plea system I
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envisage relates to financing—not the financing of the guilty-plea procedure, but

of the trials that stand as its alternative. The South African experience demon-
strates that most defendants will not confess their crimes unless motivated by a
credible threat of prosecution. The problem in the context of international crimes
is that such prosecutions are not economically feasible. Indeed, the primary rea-
son for conducting plea bargaining in the first place is that the international
community (in the case of international tribunals) or domestic criminal justice
systems either are not willing or are not able to devote the resources necessary to
conduct a significant number of full-scale trials. But the system must appear to be
willing and able to do just that, or it will not be able to motivate guilty pleas.
Domestic criminal justice systems regularly face and surmount this problem.
Indeed, the criminal justice system of one of the wealthiest nations in the world—
the United States—is able to credibly threaten individual defendants with trials
even though, as currently operating, the system would come to a grinding halt
if significant numbers of defendants began insisting on trials. As then Chief
Justice Warren Burger calculated more than thirty years ago, “[a] reduction from
90 per cent to 80 per cent in guilty pleas requires the assignment of twice the judi-
cial manpower and facilities—judges, court reporters, bailiffs, clerks, jurors and
courtrooms. A reduction to 70 per cent trebles this demand.”  The system’s
dependence on plea bargaining has not been lost on American public defend-
ers, who, as a result of their large caseloads and organized structure, have the
ability to organize “general strikes,” during which all of their clients insist on a
trial. The mere threat of a general strike is often enough to compel prosecutorial
concessions. General strikes are rarely used, however, primarily because they
require individual defendants to act as sacrificial lambs for the benefit of the de-
fendant class. In particular, in order to persuade prosecutors and judges of their
resolve, some defendants must proceed to trial, and these defendants will receive
significantly longer sentences than they would have had they pled guilty. Few ad-
equately informed defendants will be willing to spend an extra ten or fifteen years
in prison to benefit complete strangers. Thus, at least in the domestic context, as
long as prosecutors can persuade individual defendants that they, personally, are
at risk of prosecution, that threat generally provides defendants with sufficient
motivation to consider a guilty plea.
The analogy to domestic-court experience is not perfect, however. The most
ambitious general strikes in the domestic context encompass the defendants of,
say, one city, and the goal of the strike is to secure additional leniency, not to de-
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stroy the system altogether. International defendants, by contrast, could reason-

ably conclude that their refusal to enter guilty pleas will completely destroy the
system; that is, that it will result in the prosecution of few or none because the sys-
tem financially is incapable of trying a significant number of defendants. Interna-
tional defendants are also more likely to band together in this way because they
are more likely to share deeply held ideological views and because many of them
will actually know one another and thus may form a cohesive group. In certain
circumstances, cash-strapped international tribunals may be able to sidestep this
problem by threatening to send cases to less-desirable domestic courts. As it pre-
pares to close its doors in the next few years, the ICTY has begun to transfer some
of its cases to special chambers of the courts of Bosnia-Herzegovina. The prospect
of ending up before a Bosnian court, and in particular while housed in a danger-
ous Sarajevo prison, has reportedly motivated a number of ICTY defendants to
plead guilty.
Most international tribunals do not possess this weapon and neither do do-
mestic criminal justice systems seeking to prosecute international crimes. These
bodies can still motivate a substantial number of guilty pleas, though, by wisely
using what funds are available and carefully orchestrating the timing of prosecu-
tions. In particular, a domestic or international criminal justice system seeking
to motivate guilty pleas should use a substantial proportion of its resources to
conduct thorough investigations and to arrest and detain large numbers of ap-
propriate suspects at the outset of the prosecutorial endeavor. Doing so will create
a credible threat of sanctions, particularly if arrests are immediately followed by
trials for low-level offenders whose cases are relatively quick and easy to prove.
Such a forceful beginning can act to put pressure on defendants to consider guilty
pleas; as noted above, guilty pleas beget more guilty pleas, particularly when those
pleading guilty must reveal substantial information implicating other offenders.
As Chapter 10 will describe, the Rwandan criminal justice system was entirely
unable to provide trials to all of the 130,000 detained genocide suspects, but its
long-term detention of these individuals without prospect of trial motivated a
substantial number of them to confess through Rwanda’s gacaca process. Rwan-
da’s treatment of its genocide suspects blatantly violated prevailing due-process
standards and should not be emulated; at the same time, conducting widespread
arrests of individuals for whom there truly exists substantial evidence of criminal
wrongdoing is entirely appropriate. Many of these offenders may have to be re-
leased eventually if financial constraints prevent them from being tried in a timely
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manner, but one can hope that, in the meantime, a substantial number of them
will choose to plead guilty and in doing so will motivate other guilty pleas.
Summary
This chapter has constructed an innovative model of plea bargaining that lo-
cates the practice simultaneously within the realm of such mechanisms as truth
commissions, reparations schemes, and conventional criminal justice systems.
Although the primary function of plea bargaining is to increase the number of
convictions that prosecutors can obtain, if practiced on a restorative-justice
model, plea bargaining has the additional potential to advance many of the ends
typically served by the nonprosecutorial methods referred to above. Plea bargain-
ing can increase the amount and kinds of information available to victims and
society, as prosecutors use the lure of leniency to persuade defendants to disclose
the details of their crimes. Guilty-plea hearings can empower victims by allow-
ing them to participate in ways that would be inappropriate in the context of
an ordinary criminal prosecution. Although even restorative-justice guilty-plea
proceedings cannot be conducted in the manner of truth-commission hearings,
whose primary purpose is to provide victims a safe place to tell their stories,
they can permit some victims some time to present the information most im-
portant to them and to seek desired information from offenders. These victim-
perpetrator interactions can advance individual reconciliation, between the
particular victims and perpetrators, and societal reconciliation, as the insights
revealed through these interactions enable different sectors of society to reach a
better understanding of the crimes and their societal impact.
Restorative justice promotes a number of values simultaneously, but the rela-
tive emphasis to place on each element will depend, in the international context,
on the particular circumstances of the atrocity. Truth-telling might be a preemi-
nent goal in the aftermath of some conflicts, for instance, while other conflicts
will call for a greater emphasis on criminal accountability. The following chapter
explores ways in which various restorative values must be balanced through an
examination of four very different atrocities.
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ch a p t e r n i n e
Applying Restorative Principles in the

Aftermath of Different Atrocities
A Contextual Approach
I began this book with the observation that financial constraints will in most in-
stances prevent the prosecution of the vast majority of international criminals
unless alternatives to full-scale trials are utilized. I continued by exploring the
benefits of prosecuting a larger proportion of offenders and identifying plea bar-
gaining as a means of effecting more prosecutions without increasing the overall
financial costs of the prosecutorial endeavor. I then examined in more detail the
value of plea bargaining in the context of international crimes, and in particular,
I constructed a model guilty-plea system that would aim both to increase the
number of prosecutions that can take place and to enhance peace-building and
reconciliation efforts. Such a guilty-plea system would seek simultaneously to
advance retributory and restorative goals. This chapter will explore the different
balances between restoration and retribution that might optimally be struck for
different atrocities.
Advancing both retributive and restorative goals can be of considerable value
to societies emerging from widespread violence, but those goals conflict when it
comes to resource allocation. A guilty-plea system aiming solely to increase the
number of criminal prosecutions, for instance, would permit guilty pleas to be
entered with the most minimal inquiry consistent with due-process standards,
and it would seek to obtain from defendants only the information and testimony
likely to be useful in subsequent prosecutions. By contrast, if guilty pleas are
to advance truth-telling in a broader sense, and other restorative-justice values
such as victim participation, offender reintegration, and individual and societal
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156 applying restorative principles
reconciliation, a more complex, and costly, model must be utilized. Proceedings

that feature detailed offender confessions, victim questioning, and the develop-
ment of reparatory obligations take time and cost money, time and money that
could be used to prosecute additional offenders.
Crafting the most desirable balance between retribution and restoration in a
guilty-plea system will hinge on a number of factors specific both to the inter-
national crimes in question and the cultures of the offenders and victims. How
much truth must be sought from offenders may depend on how much informa-
tion is already available about the crimes. How much weight to place on apologies
may be influenced by cultural views about the way apologies are made, received,
and valued in the society in question. The size and makeup of the offender and
victim populations will also be important guides in determining how many pros-
ecutions to undertake. Were the offenses carried out by a large number of per-
petrators against mostly anonymous victims? If so, perhaps the need for truth-
telling and victim involvement is not acute, and the guilty-plea system should
devote most of its resources toward obtaining convictions. This chapter will ex-
amine these issues in the context of four very different atrocities—in Argentina,
Bosnia, Rwanda, and East Timor—in order to explore how different restorative
elements might optimally coalesce in different factual settings.
Whatever the precise contours of the balance ultimately chosen, it is impera-
tive that the guilty-plea system contain substantial restorative-justice elements.
For one thing, a tendency exists, particularly among human-rights activists, to
overestimate the value of prosecutions and to undervalue the less obvious bene-
fits provided by nonprosecutorial measures. Thus, even in situations in which the
benefits of restorative-justice measures appear limited, it may be wise to include
them. More importantly, and as alluded to above, restorative-justice elements
should be included in a guilty-plea system because they legitimize the plea bar-
gaining that is the essential prerequisite to obtaining guilty pleas. Ordinary plea
bargaining—by which a defendant receives a sentencing discount for the mere
act of self-conviction—breeds contempt. American victims hate it, and Bosnian
victims hate it. Citizens of even the wealthiest nations recognize that resources
are limited and that different societal needs must be balanced, so that not ev-
ery offender can be prosecuted, nor can each receive the optimal level of pun-
ishment. Most people further recognize, particularly in the context of societies
emerging from mass violence, that convicting five offenders and sentencing each
to ten years’ imprisonment is likely to better serve the goals of criminal law than
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applying restorative principles 157
convicting one offender, sentencing that one person to life imprisonment, and
leaving the remaining four offenders unpunished. Despite this recognition, there
remains a trenchant unseemliness about subjecting justice to calculations and a
severe risk that these sorts of calculations will further embitter victims. Kenneth
Kipnis, a leading American critic of plea bargaining, has argued that punishments
should be deserved and that bargains are out of place in a context where people
are to get what they deserve. Kipnis’s argument has validity, but it assumes a
retributory model of criminal punishment that does not exhaust the possibilities.
When the model is expanded to include not only retribution and the other tradi-
tional goals of criminal law but also restorative-justice values, the significance of
guilty pleas—and the methods used to motivate them—emerge. For this reason,
some restorative-justice elements should be included in every guilty-plea system
concerned with international crimes, and these elements should be well-publi-
cized, for they will legitimize what might otherwise be viewed solely as a distaste-
ful cost-cutting mechanism.
A Summary of Four Atrocities
Detailed histories have been written about the violent conflicts that engulfed
Argentina, Bosnia, Rwanda, and East Timor. The following summary treatment
is intended only to provide a sufficient basis for examining how different restor-
ative and retributive features might optimally be balanced in different factual
contexts.
Argentina
Twentieth-century Argentine history is replete with coups, but the coup that
deposed Isabel Perón in 1976 ushered in a particularly violent and repressive mil-
itary regime. Eager to stamp out a real or perceived threat from left ist guerrillas,
the military unleashed a brutal campaign, targeting “subversives” who were be-
lieved to oppose the military’s rabidly anti-communist view of Western Chris-
tian civilization. Central to the military’s “dirty war” was its widespread use
of “disappearances,” during which government agents abducted, tortured, and
usually killed suspected subversives. The disappearances followed a similar
pattern. Civilian authorities, such as the police, were warned to steer clear of
the targeted area. An armed task force would then burst into the victim’s home,
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usually in the wee hours of the morning, ransack the house, and load the victim
into an unmarked car. The attackers would then drive the then-hooded victim
to a clandestine detention center where the victim was made to suffer ghastly
torture methods. Some prisoners were detained for years, others were imme-
diately tortured to death, while still others were killed through mass executions.
To prevent detection of these activities, the Argentine military “disappeared” the
bodies. A large number of victims were thrown, still alive, from airplanes over
the sea, and their remains have never been recovered. Many of those killed
through mass executions had their heads and hands cut off so that their bodies
could not be identified. Although these activities were carefully organized and
thoroughly documented within governmental apparatuses, they were nonethe-
less carried out with the utmost external secrecy. The government categorically
denied the existence of the detention centers at which tens of thousands were
imprisoned, and, by “disappearing” the victims’ bodies, no evidence was left
to be discovered. Families of the disappeared fi led habeas corpus petitions in
droves, but “from 1973 on, judges did not manage to locate or rescue a single one
of the many disappeared.” 
In all, between ten thousand and thirty thousand people were disappeared
at the hands of the Argentine military. Victims came primarily from the
blue-collar working class and certain sectors of the middle class, especially stu-
dents, professionals, and white-collar employees. Nearly a third of the victims
were women, and most victims were young: 71 percent were thirty years old or
younger, and 83 percent were younger than thirty-five years of age. Although a
small percentage of victims were active in left-wing guerrilla organizations, the
vast majority had little or no connection to any illegal activities. The perpetra-
tors, for their part, numbered approximately one thousand.
The families of the disappeared remain devastated by these crimes. As Argen-
tina’s Truth Commission reported:
First it was the people, their absence giving hope to the relatives that the kidnap vic-
tim would be freed and return; then the concealment and destruction of documen-
tation, which undoubtedly existed in every case, prolonging the uncertainty about
what had happened; and finally, the nameless bodies, without identity, driving people
distraught at the impossibility of knowing the specific fate of their loved one. It was a
bottomless pit of horror. . . .
[The disappearances had the effect] of paralysing public protest, of ensuring the
silence of the relatives. By giving them hope that their loved ones might be alive, in
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the nebulous category of missing persons, an ambiguity was created which forced the
relatives into isolation, frightened to do anything which might annoy the government.
They were terrified by the mere idea that their own actions might decide whether their
son, daughter, father or brother joined the lists of the dead. . . .
Lastly, at the heart of this policy of total disappearance lay the prevention by every
possible means of solidarity being shown by the population in general, with all the pro-
tests and demands this would lead to within the country, and the knowledge abroad
that behind the façade of a fight against a terrorist minority lurked genocide.
The fact that the Argentine junta perpetrated its repression by means of dis-
appearances has, in the view of many, impeded reconciliation. As human-rights
activist Emilio Mignone put it: “Exiles come back or stay abroad, but are alive. . . .
Dead are buried and we pay them homage, according to our customs. But the dis-
appeared are neither dead nor alive. They constitute a tragedy, something that has
wounded Argentine society and that makes reconciliation difficult.”  Argentine
journalist Hector Verbitsky agreed, observing “After someone takes away your
daughter, tortures her, disappears her, and then denies ever having done it—
would you ever want to ‘reconcile’ with those responsible? The word makes no
sense here. The political discourse of reconciliation is profoundly immoral, be-
cause it denies the reality of what people have experienced.”  Also impeding
reconciliation is the unrepentant attitude of the military. Most members of the
armed forces continue to believe that their actions were justified by the threat
posed by the left. Following a transition to democracy in 1983, nine leaders of the
military were prosecuted and convicted for their roles in the atrocities. In the face
of military unrest, these leaders and others awaiting prosecution were soon par-
doned, and on the date of his release from prison, the first president of the mili-
tary junta, Jorge Rafael Videla, “wrote a public letter to the high command stating
that the Army had been wrongly accused and that it deserved an apology and
vindication from society.”  Similarly, Julio “El Turco Julian” Simón appeared on
television maintaining “that all of his victims were dangerous terrorists” and said
that he would commit the same actions against them again, if given the chance.
Bosnia
From 1945 until 1990, Yugoslavia was composed of six republics: Bosnia-
Herzegovina, Croatia, Montenegro, Serbia, Slovenia, and Macedonia. Although
most of the people of the different regions of Yugoslavia share a common language
and physical appearance, religious differences and divergent historical experi-
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ences led to the growth of strong, separate ethnic identities. After World War
II, Josip Broz Tito emerged as leader of a unified Yugoslavia, and most accounts
credit him with containing ethnic tension by use of stern repression at the hands
of secret police. However, Tito’s death in 1980, followed by economic difficulties
and the end of communist rule, set the stage for rising nationalism and ethnic
friction. Slobodan Milošević capitalized on rising Serbian nationalism to be-
come Serbian Communist Party chief in 1986, and he attempted to create a more
centralized Yugoslavia under Serbian dominance. The leaders of the other re-
publics resisted Milošević’s efforts, and in 1991 the republics began declaring
independence from the Federal Republic of Yugoslavia. Macedonia’s secession
was peaceful, and Slovenia secured its independence after only ten days of fight-
ing. The war in Croatia, however, was longer and bloodier, leading to more than
ten thousand deaths and six hundred thousand displaced persons. But it was
Bosnia-Herzegovina’s declaration of independence in March 1992 that gave rise
to the most fierce and protracted fighting.
Unlike the other republics, which were predominantly populated by one eth-
nic group, Bosnia-Herzegovina had substantial Serbian, Muslim, and Croatian
populations. The Serbs living in Bosnia had opposed independence, and after
proclaiming the formation of an independent Serbian Republic of Bosnia and
Herzegovina, they began launching attacks on Bosnia’s Croatian and Muslim
populations. Assisted by the Serb-dominated Yugoslav National Army, the Bos-
nian Serbs implemented a plan to create a “Greater Serbia” by occupying and
“cleansing” non-Serbs from areas which formed a corridor linking Serbia with
parts of Bosnia-Herzegovina and Croatia that were populated by Serbs. Using
methods reminiscent of the Nazis, the Serbs engaged in mass forced population
transfers of non-Serbs in convoys of cattle trucks; they organized massacres and
destroyed entire towns and more than one thousand major historical, religious,
and cultural monuments in Bosnia and Croatia; they systematically raped Mus-
lim women and girls; and they established more than four hundred prison camps
where tens of thousands of Bosnian Muslims and Croats were beaten, tortured,
and killed, while others died from malnutrition and disease brought on by the
appalling conditions prevailing in the camps. M. Cherif Bassiouni and Peter
Manikas describe the Serbian attacks aimed at ethnic cleansing as following “a
similar pattern”:
First, Bosnian Serb paramilitary forces, often with the assistance of the JNA [Yugoslav
People’s Army], seized control of the area. In many cases, Serb residents were told
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to leave the area before the violence began. The homes of non-Serb residents were
targeted for destruction and cultural and religious monuments—especially churches
and mosques—were destroyed. Second, the area fell under the control of paramilitary
forces who terrorized the non-Serb residents with random killings, rapes, and looting.
Third, the seized area was administered by local Serb authorities, often in conjunc-
tion with paramilitary groups. During this phase, non-Serb residents were detained,
beaten, and sometimes transferred to prison camps where further abuse, including
mass killings, occurred. Non-Serb residents were often fired from their jobs and their
property was confiscated. Many were forced to sign documents relinquishing their
rights to their homes before being deported to other areas of the country.
Bosnian Muslim and Bosnian Croat forces were weaker than those of the
Bosnian Serbs, but they could be similarly brutal when they had the opportu-
nity. Fighting continued until 1995 when the presidents of Croatia, Bosnia-
Herzegovina, and the Federal Republic of Yugoslavia entered into the Dayton
Peace Accords. In total, the Bosnian war resulted in tens of thousands of
rapes, approximately two hundred thousand deaths, and the forced relocation
of more than two million people. The number of offenders has been estimated
at ten thousand.
Whereas the Argentine forced disappearances and the Rwandan and East Ti-
morese violence described below were fairly uniform in their basic contours, the
Bosnian war featured several different kinds of atrocities—including the prison
camps, the siege of Sarajevo, and the mass execution at Srebrenica. Each is sum-
marily described here.
Prison Camps. As part of their ethnic-cleansing campaign, Bosnian Serb forces

took over municipalities and regions and, after gaining control, interned Mus-
lim and Croats—primarily men and boys—in brutal prison camps. Conditions
in these camps were inhuman. Prisoners were provided scant water and food;
they frequently received only one meal per day, which was often spoiled or other-
wise inedible. Because prisoners received only starvation rations, they frequently
lost between forty-five and sixty-five pounds of body weight during their deten-
tions. The camps were horribly overcrowded. In some camps, prisoners had
no room to lie down and were forced to sleep on top of one another. Facilities for
personal hygiene were virtually nonexistent. Many camps had no toilet facilities
and no washing facilities; consequently, dysentery and lice were widespread.
In addition to the suffering caused by deplorable conditions, prisoners were
subjected to frequent torture, sexual assaults, and beatings that in many cases re-
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sulted in death. Beatings would be administered for purposes of interrogation

as well as entertainment. Events at the Omarska camp were typical:
[G]roups from outside the camp would appear, would call out particular prisoners
from their rooms and attack them with a variety of sticks, iron bars or lengths of heavy
electric cable. Sometimes these weapons would have nails embedded in them so as to
pierce the skin. On occasions knives would be used to slash a prisoner’s body.
Most murder victims were killed one at a time at the camps, but a few mass execu-
tions also took place. At the Keraterm camp in July 1992, for instance, a machine
gun was placed in front of Room 3. The doors were locked, gas was thrown into
the room, and, when prisoners tried to break down the door, soldiers responded
with gunfire, killing more than 125 of them. In a massacre at the Omarska
camp, also in July 1992, nearly 200 prisoners were shot and killed during the
course of a single night.
Siege of Sarajevo. For more than three-and-one-half years, Serb forces number-
ing some thirteen thousand held Bosnia’s largest city, Sarajevo, under siege.
The forces positioned themselves in the hills overlooking the city and launched a
campaign of terror by means of indiscriminate shelling and sniper attacks against
civilians. Holed up in a high-rise building in a Sarajevo suburb, Serb snipers were
able to target civilians attempting to traverse various thoroughfares in the center
of the city. People trying to cross a frequently attacked bridge, for example, were
forced to hide behind a tree or a wall and then jump up and run, trying to evade
the expected gunfire. Automobile accidents abounded, as frightened drivers
sped through dangerous intersections. Serbs also routinely targeted shelling
against civilians. Ambulances and funerals became such regular targets that am-
bulances began avoiding main roads, and funerals were held only at night. The
shellings averaged from two hundred to one thousand per day, and because
civilians were attacked “‘more or less every day, if not every day,’”  they stayed
indoors whenever possible. “They learned to move around as little as possible,
rarely leaving their apartments: some old people were ‘literally dying of malnu-
trition because they were too terrified to come out.’ ”  By the end of the war,
the siege had killed approximately twelve thousand civilians, as many as sixteen
hundred of them children.
Srebrenica. In July 1995, Bosnian Serb forces captured and occupied the predom-
inantly Bosnian Muslim town of Srebrenica. Within a few days, Serb forces had
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separated the men from the women and children and had transported the women
and children across battle lines into Bosnian-Muslim–held territory. The Bosnian
Muslim men were loaded onto buses and transported to various detention sites,
where they were systematically executed by firing squads. Groups of ten were
lined up, ordered to turn their backs, and then shot. In the course of a few days,
Bosnian Serb forces executed more than seven thousand men and boys, burying
their bodies in mass graves. To prevent their detection, these graves were exca-
vated a few months later and the bodies reburied in different locations. Nine
years after the executions, about five thousand bodies had been recovered but
only about twelve hundred had been identified through DNA techniques. Until
very recently, Bosnian Serbs categorically denied that the executions took place;
they maintained, rather, that the killings were fabricated or insisted that, if Mus-
lims were killed, they were killed in combat or by other Muslims. In this vein, a
2002 report issued by the Documentation Center of the Republika Srpska Bureau
of Government purportedly designed to “ ‘present the whole truth about crimes
committed in Srebrenica region [sic]’ ” stated that “ ‘the number of Muslim sol-
diers who were executed by Bosnian Serb forces for personal revenge or for simple
ignorance of international law would probably stand at less than 100.’ ”  It was
not until more than nine years after the massacres that Bosnian Serb leaders fi-
nally acknowledged the atrocities, and that acknowledgment came only after
the imposition of intense international pressure.
Rwanda
In 1994, large-scale ethnic violence engulfed Rwanda, a small country in the

Great Lakes region of Africa. Rwanda’s population is composed of two pre-
dominant groups, the Hutu and the Tutsi. The Tutsi minority had ruled Rwanda
for centuries, but in 1959 the Hutu took control of the country and thereafter
unleashed a series of massacres against the Tutsi that drove nearly one hundred
thousand Tutsi into exile in neighboring countries. By the late 1980s, the number
of Tutsi in exile had grown to approximately six hundred thousand, and the ex-
iled Tutsi had formed an army, the Rwandan Patriotic Front (RPF). During the
early 1990s, the RPF and the Rwandan government, then led by Hutu President
Habyarimana, engaged in several military clashes, and after fighting to a stand-
still, the parties entered into the Arusha Accords in 1993. The accords provided,
among other things, for a new transitional government, with a prime minister
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acceptable to both sides, and for multiparty general elections with the full par-
ticipation of the RPF.
Both sides soon began to undermine the accords, and President Habyarimana
in addition attempted to unify Hutu and shore up their support by creating a
common enemy—the Tutsi. Tutsi civilians living in Rwanda were equated with
RPF soldiers and with centuries-old Tutsi oppressors. Tutsi devils were reported
to be lurking in the villages, waiting to retake control of the country by perpetrat-
ing genocide on Hutu. By December 1990, the newspaper Kangara
had begun charging that the Tutsi had prepared a war that “would leave no survivors.”
Another pamphlet . . . declared in February 1991 that the RPF planned “to restore the
dictatorship of the extremists of the Tutsi minority,” by “a genocide, the extermination
of the Hutu majority.” As the conflict progressed, the warnings became increasingly
explicit and hysterical. By mid-1993, propagandists were asserting, “We know that they
have attacked us with the intention of massacring and exterminating 4.5 million Hutu
and especially those who have gone to school.” 
The government made the Tutsi threat appear all the more real by staging phony
attacks allegedly perpetrated by Tutsi. For instance, the military “staged a fake
assault on the important Bigogwe military camp.” The “attack” was so believ-
able that in one commune the bourgmestre had trouble persuading the Hutu not
to flee but instead to stay and attack their Tutsi neighbors. The government
also used radio and newspapers to spread its virulent message of hate, and it
ensured broad dissemination by distributing radios free to local authorities.
Long before the massacres began, the government drew up lists of people to be
killed and established a training camp for Hutu militia to indoctrinate them in
ethnic hatred and instruct them on methods of mass murder. The government
also distributed millions of dollars’ worth of firearms and machetes throughout
the country. By late March 1994, Hutu extremists were determined to slaughter
massive numbers of Tutsi and Hutu political opponents. As Philip Gourevitch de-
scribes it: “The dead had seen their killers training as militias in the weeks before
the end, and it was well known that they were training to kill Tutsis; it was an-
nounced on the radio, it was in the newspapers, people spoke of it openly.” 
In April 1994, a plane carrying President Habyarimana was shot down, and,
blaming the Tutsi for the assassination, Hutu soldiers, the militia, and the
Presidential Guard immediately began to hunt down and kill Tutsi and moderate
Hutu. Within an hour of Habyarimana’s death, roadblocks had been established
to catch and kill Tutsi who were trying to flee, and armed forces were conducting
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house-to-house searches, seeking Tutsi and targeted individuals, such as politi-

cians, journalists, and civil-rights activists. At the genocide’s outset, small bands
of assailants killed individual victims where they found them, but soon after,
efforts were made to drive large numbers of Tutsi out of their homes and into
large buildings—schools, churches, and the like—where they could be extermi-
nated through large-scale operations. Most victims were hacked to death by
machetes, but when a large number of victims congregated in one location,
authorities often called in military units to use mortar shells or hand grenades.
These attacks left tens of thousands of bodies often piled four and five feet high,
and many of these were thrown into rivers.
Rwanda’s political tradition, according to some scholars, was characterized
for centuries by a “systematic, centralized and unconditional obedience to au-
thority,”  which well served those organizing the genocide. The leaders of the
genocide appropriated the well-established military, administrative, and politi-
cal hierarchies and were consequently able to mobilize efficient, comprehensive
massacres. Although the military and the militia took the initial lead in the ex-
termination, the scale of the killings required the mobilization of hundreds of
thousands of ordinary civilians, “tens of thousands to actually slaughter and the
others to spy, search, guard, burn, and pillage.”  The interim government that
assumed power following the death of President Habyarimana instructed the
political administration in carrying out this mobilization. Prefects transmitted
orders from the interim government while bourgmestres and their subordinates
did the actual work of mobilizing the people. These local leaders went house to
house, signing up all of the adult men and posting “work” schedules at public no-
tice areas. They transported assailants to massacre sites, supervised the killings,
and generally ensured the smooth functioning of the genocide.
Many ordinary Hutu participated voluntarily, indeed enthusiastically, in the
massacres. Government propaganda had succeeded in demonizing Tutsi to
such a degree that many Hutu believed that their only choice was to kill or be
killed by Tutsi. In addition to this fear, the scarcity of land in Rwanda moti-
vated some Hutu to kill their Tutsi neighbors in an effort to gain their victims’
property. At the same time, not all Hutu were willing executioners. To moti-
vate widespread participation, authorities offered considerable rewards, includ-
ing cash payments, food, drink, and other material incentives. These incentives
were insufficient in some cases, and authorities were then forced to use threats of
violence. Prefects and bourgmestres opposed to the killings were murdered, and
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civilians who refused to search for Tutsi were threatened with severe sanctions,
including death. Although tens of thousands of Hutu refused to participate in
the extermination and thus saved Tutsi lives, a stunning number of Hutu—
more than one hundred thousand—either killed, facilitated the killings, or stood
by silently while the genocide took place.
The massacres of Tutsi and moderate Hutu continued for one hundred days,
during which time five hundred thousand to one million people were murdered.
The killings came to an end only when the RPF defeated the Rwandan army in
July 1994.
East Timor
East Timor had been a Portuguese colony for more than 450 years when,
in 1974, Portugal began considering dismantling its colonies, including East
Timor. Before Portugal could take any action, however, Indonesia invaded East
Timor in December 1975 and soon after formally annexed the territory, proclaim-
ing East Timor the twenty-seventh province of Indonesia. Indonesia’s inva-
sion and subsequent twenty-four-year occupation were brutal: more than two
hundred thousand Timorese—about a third of the preinvasion population—un-
necessarily lost their lives during these years, a death toll that some scholars have
labeled genocidal. By 1999, however, Indonesia’s continued military presence in
East Timor had led to trenchant international criticism and a fi nancial drain on
Indonesia’s fragile economy. As a consequence, then Indonesian president B. J.
Habibie agreed with Portugal and the U.N. on a consultation process whereby a
referendum would be held permitting East Timorese to vote either to become in-
dependent or to remain within Indonesia, bearing a special autonomous status.
The months before the ballot saw considerable violence, aimed at intimidat-
ing the East Timorese population into voting to remain within Indonesia. The
Indonesian military (TNI) established, funded, and armed local militias, typi-
cally made up of illiterate East Timorese peasants, instructing them to brutalize
and in many cases kill proindependence supporters and their families. In one
of the worst preelection acts of violence, Indonesian military forces and local
militia attacked a large group of civilians who had taken refuge in the Liquica
church, killing at least twenty-five of them. Despite the intimidation, when East
Timorese went to the ballots on August 30, 1999, 78.5 percent of them voted for
independence. After the result was announced, the violence, which had there-
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tofore primarily targeted known supporters of independence, became large-scale

and indiscriminate. Indonesian-sponsored militia groups wreaked devastation
on East Timor, killing some 1,400 people, raping and torturing countless more,
and forcibly deporting approximately 250,000 to Indonesian-controlled West
Timor. The physical violence perpetrated on victims was particularly brutal.
Militia members used primitive weapons such as machetes and spears to kill their
victims and, in many cases, mutilated them before killing them. A favorite tactic,
for instance, involved cutting off the victim’s ear and forcing him or her to eat
it. Virtually all of the East Timorese who participated in the violence main-
tained that they did so because they were forced to or at least ordered to by militia
leaders or the Indonesian military. The postelection “scorched earth” campaign
also led to unparalleled property destruction. Entire villages were razed, and vir-
tually every aspect of East Timor’s infrastructure was destroyed. Of particular
relevance here, virtually all court buildings were in rubble after the referendum,
and all court equipment, furniture, registers, records, and archives as well as law
books and case fi les were lost or burned. In addition, during the Indonesian oc-
cupation, judges, lawyers, and prosecutors had been installed by Indonesia, and
all of them returned to Indonesia following the referendum.
To put an end to the violence, the Security Council sent a multinational force
to restore order and keep peace. The U.N. thereafter established UNTAET as
a peacekeeping mission to administer East Timor until its independence was
viable. A key element of UNTAET’s mandate involved the monumental task
of establishing a judicial system from scratch. The effort got off to a slow start.
For several months after the referendum, for instance, UNTAET had no contact
with areas outside of East Timor’s capital city, Dili. Thus, the majority of East
Timorese had no access to any judicial system. Thereafter, UNTAET did take
steps to construct courthouses, police stations, and prisons as well as to appoint
and train police officers, prosecutors, and judges, but these efforts have not
come close to creating for East Timor a viable justice system capable of serving
the country’s needs. Resources are extremely scarce, and this shortage of funds
hampers East Timor’s judicial system in every aspect of its work. A shortage of
judges has plagued the courts since their inception and has caused district courts
to cease functioning for months at a time. Indeed, the problem became acute
in July 2003, when nine judges traveled to Portugal for a year-long training proj-
ect. More worryingly, it was announced in January 2005 that all twenty-two
East Timorese probationary judges failed their written competence examina-
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tions. Like the Special Panels for Serious Crimes (see Chapter 2), the district
courts also suffer from a severe shortage of translators and interpreters. Many
court staff cannot speak the national languages of East Timor, and there is a
complete lack of interpreters in the courts of Baucau, Oecusse, and Suai. Most
East Timorese are unaware of the shortcomings in their judicial system because
the location of the courts leaves East Timorese entirely unable to access the courts
even if they were adequate. UNTAET Regulation 2000/11 called for the establish-
ment of eight district courts, but, as a result of the scarcity of qualified legal
personnel, only four have been established, and these are often located far from
the populations they are intended to serve. The Suai District Court, for instance,
presents an especially egregious example because it currently operates not from
Suai but from Dili, apparently because there are no public defenders in Suai.
Many crime victims have no means of traveling to the courts; no vehicles can
pass during some periods of heavy rain, and when roads are passable, vehicles are
so scarce that in some criminal cases, victims, witnesses, and even perpetrators
must be transported to court in the same vehicle.
These manifest failures of the formal justice system might be devastating to the
inhabitants of many countries, yet they barely have been noticed in many areas of
East Timor because most East Timorese prefer, in any event, to have their crimes
and other disputes addressed through so-called “local justice” mechanisms. Lo-
cal justice has been practiced in East Timor since “time immemorial.”  It con-
stituted the primary means of conflict resolution throughout the 450 years of Por-
tuguese colonization and the twenty-four years of Indonesian occupation, and
it likewise stands as the means by which most current disputes are resolved.
Local justice practices vary considerably from region to region in East Timor, but
some underlying principles of justice and social interaction that pervade most of
the local systems can be identified.
Most accounts of East Timorese local justice emphasize its interrelation with
other features of the East Timorese sociocosmic system. Among the most crucial
features of this system are blood kinship and the relationships built through mar-
riage. East Timorese marriages are arranged in accordance with certain social
rules, most important of which is that the consummation of a marriage requires
an exchange of goods, described as a “bride price.” The wife’s family (the Wife
Giver) and the husband’s family (the Wife Taker) engage in a well-established
exchange and are thereafter ordered in a hierarchical relationship with one an-
other. An individual belongs not only to a Wife Giver or Wife Taker family but
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also to a “sacred house,” which traces the individual’s lineage to the common an-
cestor who founded the house. Each sacred house is headed by an elder, who is
responsible for contacting the ancestors and for the various aspects of ceremonial
life. In addition to the elder, who is the ritual authority of the community, each
community has one or a series of political authorities. The liurai, for instance,
constitutes the highest political authority in some communities and must liaison
between the community and the outside world, including governmental authori-
ties or, in the past, colonial powers. The liurai typically assigns legal tasks to
a lian nain, but, with respect to many disputes, the lian nain need not become
involved. Conflicts that occur between family members, for instance, are brought
for resolution to the head of the family. When a confl ict occurs between members
of two families, the elders of those families meet to resolve the dispute. Only if
these authorities do not succeed in resolving the conflict do the lian nain or other
community leaders become involved. In such an instance, village authorities
may convene a meeting of village elders, in which community participation is
encouraged.
“Crimes” and other transgressions of the social order are understood by East
Timorese as disruptions of the cosmic flow of values. Consequently, the appropri-
ate punishment for such transgressions aims to restore the imbalance of values
that has occurred. When one person harms another, for instance, a debt is cre-
ated, and that debt accrues not just to the individual who perpetrated the offense
but to the offender’s family and, in some instances, to his or her community.
Thus, crime is not perceived as an individual matter but rather as a problem that
has the potential to threaten the entire community. According to one scholar,
East Timorese “would be afraid not to follow their customs, as it could prove very
dangerous to them and their families not to do so. The idea that mystical sanc-
tions are likely to be imposed by the ancestors or the spirits remains a very strong
force.”  Because crime is conceived as creating an imbalance of values, the pun-
ishment meted out through local justice seeks primarily to replace values and to
reestablish the correct exchange, which will, in turn, reinforce the sociocosmic
order. As Dionísio Babo-Soares puts it, “the East Timorese conception of rec-
onciliation forms part of a grand process that aims to link the past and the future”
and “is an evolving process which seeks ultimately to achieve a stable social order
within society.” 
The East Timorese conception of justice, therefore, is not solely or even primar-
ily about punishing the offender; rather, it seeks first and foremost to compensate
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the victim and the victim’s family, whose honor has been damaged, as a means
of reestablishing balance. In cases of theft, for instance, the offender must
compensate the victim for the stolen goods and pay additional compensation.
If a house is destroyed, the family of the perpetrator must compensate the vic-
tims for everything that was in the victims’ house, or, if they are unable to do
so, the victims are entitled to the perpetrator’s belongings. Even a murder may
result in compensation being paid by the murderer to the victim’s family. Re-
storing the social order requires not only compensation but reconciliation, which
is understood to involve the offender’s public acknowledgment of wrongdoing,
an apology, and the victim’s forgiveness. A successful reconciliation signifies
that the conflict has been resolved and that both sides are again engaged in a
peaceful relationship; if reconciliation fails to occur, by contrast, East Timorese
believe that the social order remains imbalanced and the community’s well-being
subject to threat. A reconciliation process typically culminates in a ceremony that
centers around a communal meal, including the alcoholic beverage tuak, which
is typically provided by the offender. Because compensation and reconciliation
constitute the central features in the East Timorese conception of justice, deten-
tion is rarely imposed on offenders. Indeed, in the eyes of many East Timorese,
detention constitutes no punishment at all because prisoners are fed and housed
in jail and in some cases can avoid their compensation obligation. In addition,
the potential harm to the community that results from a transgression of the
social order is in no way addressed by the offender’s incarceration.
Restorative-Justice Values in Different Factual Contexts
Prosecutions for each of the atrocities described above would benefit by

the inclusion of the restorative-justice elements appearing in most domestic
restorative-justice programs. However, as discussed above, because international
crimes typically feature so many offenders and so few resources with which to
prosecute them, hard decisions must be made about the extent to which various
restorative elements should be included. To elucidate the factors relevant to such
decisions, this section will examine the degree to which the inclusion of the three
primary restorative-justice elements—truth-telling, victim participation, and
reparations—would benefit the prosecution of crimes committed in Argentina,
Bosnia, Rwanda, and East Timor. The value of these elements will depend in part
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on the time that has elapsed between the crimes and their prosecution. A soci-
ety will likely have less need for truth-telling procedures to be included in pros-
ecutions, for instance, when prosecutions occur many years after the crime was
committed because, during that time, considerable information about the crimes
will likely have been revealed through other mechanisms. In order to provide a
relevant comparison among the atrocities, this section will assume that prosecu-
tions take place within a few years after the commission of the crimes.
Truth-telling
The mere act of pleading guilty constitutes a minimal form of truth-telling be-
cause, by pleading guilty, the defendant acknowledges that a crime took place and
that the defendant was a perpetrator of that crime. Restorative-justice processes
aim to elucidate more than the mere minimum quantity of facts necessary to
support a guilty plea; rather, they encourage defendants to reveal all relevant in-
formation about the crimes in question. By obtaining and publicizing this infor-
mation, a restorative-justice guilty-plea system can advance truth-telling in three
ways. First, it can provide specific factual details about the crime, often of vital
significance to victim families, such as how the victim was killed, what treatment
he or she received before dying, where the body is now, and why this particular
victim was selected. Second, revelations made by defendants may constitute of-
ficial acknowledgment of the crime that can help to undercut long-standing de-
nials of criminal wrongdoing. Finally, these revelations can provide information
useful for prosecuting other, often more senior, defendants.
These different kinds of “truth” will benefit post-atrocity societies to differing
degrees depending on the circumstances surrounding the atrocity and, in partic-
ular, depending on how much truth is already known about the crimes. Revela-
tions conveying the factual details of the crimes will be far more valuable in the
context of a crime that has been carefully concealed—an Argentine disappear-
ance, for instance—than it will be in the context of a crime for which most details
are already known—an East Timorese massacre, say, that took place in full public
view. To this day, thousands of Argentine families do not know what happened
to the relative who was yanked from his or her home by government agents, let
alone why that person was selected for disappearance in the first place. The same
uncertainties do not plague most East Timorese survivors because many of them
witnessed firsthand the deaths of their loved ones.
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Similarly, a society’s need for the acknowledgment that can be conveyed

through a defendant’s confession will vary according to how much has already
been acknowledged. In Bosnia, for instance, little acknowledgment of any sort
took place for a number of years after the war. Most Bosnian Serbs continued
to deny, most fundamentally, that atrocities even took place: the prison camps
at which thousands of non-Serbs were murdered or died from malnutrition or
disease have been known to Serbs as “collection centers” or “centers for the pro-
tection of the population.” Denial about the prison camps is so entrenched that
many Serbs actually believe that photographs of starving prisoners depict people
who were sick before entering the camp. Similarly, until November 2004, the
Srebrenica deaths, if they were acknowledged at all, were said to have taken place
during armed conflict by enemy combatants. By contrast, the Argentine crimes,
along with similar offenses committed in other Latin American countries, were
widely documented and publicized soon after their commission  so that, even
just a few years after the democratic transitions, perpetrators could no longer
categorically deny their occurrence; offenders continued, however, steadfastly to
defend their actions as justified in light of the threat posed by leftist guerrillas.
The above-described letter written by former Argentine president Jorge Rafael
Videla exemplifies this phenomenon, as do more recent statements by General Pi-
nochet of Chile in which he described himself as a “patriotic angel” and asserted
not only that he had nothing for which to apologize, but that he himself should
be the recipient of an apology. Peruvian general Roberto Clemente Noel’s 2003
pronouncements are of a similar vein. Clemente Noel, for instance, pronounced
himself “proud” of his wartime past, which he described as fi lled with heroism
and sacrifice, despite the findings of a recent Peruvian truth commission that he
was responsible for tortures and extrajudicial executions at a notorious military
base. Offenders such as these have the ability to resist acknowledging their
crimes primarily because they continue to hold some political or military power
in their countries. In Rwanda, by contrast, Tutsi forces completely defeated the
Hutu extremists who organized the genocide, so the new Rwandan government
has had the political ability to officially acknowledge and condemn the crimes.
Some of this acknowledgment has come about through the government’s efforts
to prosecute more than one hundred thousand offenders; additionally, evidence
of the violence is never far from sight because the country remains dotted with
genocide “memorials”—piles of decomposing bodies that have been left where
they fell.
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The third sort of truth revealed by restorative-justice procedures concerns in-

formation relevant to the prosecution of other offenders, and this information will
also have greater or lesser value depending on the circumstances surrounding the
atrocity. ICTY prosecutors, for instance, have had considerable difficulty linking
political and military leaders with particular crimes because the structures of
Bosnian civil and military authority became blurred during the war. In the De-
lalić case, for example, ICTY prosecutors were unable to prove that Zejnil Delalić
acted as commander of the Čelebići prison camp;  they were likewise unable to
prove in the Kvočka case that Dragoljub Prcać held the position of deputy com-
mander of the Omarska camp. ICTY prosecutors have begun, therefore, to rely
heavily on the testimony of subordinates in their prosecutions of high-level and
sometimes even mid-level offenders (see Chapter 10). Likewise, East Timorese
militias were hastily organized, and their activities were orally directed by mem-
bers of the Indonesian military. Implicating even the mid-level offenders who in-
structed the militias in the choice of targets, for instance, requires the testimony
of low-level militia members.
By contrast, the hierarchy of the Argentine military is well-established, and
the forced disappearances were so uniform and systematic that one can infer
that they were authorized by high-ranking officials. As one low-level Argen-
tine navy officer pointed out, “a gang of ten guys can[not] succeed in mobiliz-
ing airplanes belonging to the coast guard and the navy.”  Even in the context
of Argentine crimes, however, evidentiary uncertainties can arise because the
orders for criminal activity were given orally; thus, when high-level Argentine
junta members were convicted in 1985, it was at least partially on the basis of
subordinate testimony. Those prosecuting Rwandan crimes have perhaps the
least need for the testimony of low-level perpetrators. A genocide on the scale of
Rwanda’s requires such careful organization, planning, and broad civilian par-
ticipation that it cannot be carried out in secret. The plan to exterminate the Tutsi
was implemented through well-established hierarchical structures and was so
well-publicized that radio broadcasts frequently identified the names and some-
times the locations of Tutsi to be killed. The public nature of the crimes and
well-established structures through which they were carried out consequently
render the testimony of subordinates less important in the Rwandan context, but
even there it has certain value because the general chaos surrounding the Rwan-
dan killings along with the lack of credibility of some victim testimony can leave
prosecutors with evidentiary insufficiencies.
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Victim Participation
The feasibility of victim participation will depend primarily on the victim-

perpetrator ratio; in particular, a high victim-perpetrator ratio will render wide-
spread victim participation a practical impossibility. When victim participation
is feasible, it can serve two related goals. First, as discussed above, victim ques-
tioning can lead to the revelation of information that may not come to light
through ordinary truth-telling efforts. The truth-telling procedures that would
be utilized by a restorative-justice guilty-plea system would themselves be rigor-
ous, but victims are nonetheless apt to seek idiosyncratic information that may
not otherwise be revealed. Such information is most likely to be sought when the
crimes were committed in secrecy and when they took place against individual
victims over a protracted period of time. The Argentine forced disappearances,
for instance, fit this model. In particular, the fact that most Argentine murder
victims were neither immediately killed nor killed in a uniform fashion, as were
victims in Rwanda or Srebrenica, for instance, makes it more likely that family
members would ask detailed questions about the treatment their loved ones re-
ceived before their deaths, as well as about the precise causes of their deaths.
Second, permitting victims to question offenders empowers victims and legit-
imates them vis-à-vis offenders. Victim questioning will be most meaningful in
this regard when the victim had personal contact with offenders during the crime.
The few victims who survived the Srebrenica executions, for instance, would
have little to say to members of the firing squad charged with their extermination
because they had no meaningful contact with their would-be executioners. The
Bosnians beaten and tortured in prison camps and the East Timorese mutilated
by militia members, by contrast, may well appreciate an opportunity to confront
and question those who brutalized them. Such interactions are apt to be all the
more powerful when victims and offenders knew one another before the conflict,
as did many Bosnian prisoners and prison guards and East Timorese victims and
offenders, or when their relationship was characterized by a substantial power
imbalance that was overcome following the atrocities, as was the case in South
Africa. Indeed, by confronting their former torturers in the South African TRC,
black apartheid victims turned the tables on their tormentors and—by exten-
sion—on oppressive white society as a whole. Mass atrocities are typically carried
out at least nominally on ideological grounds, and giving victims the floor, as
it were, constitutes a powerful way of vindicating their inherent humanity and
contradicting the dehumanizing message underpinning the atrocity.
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Reparations
Symbolic reparations made by offenders, particularly apologies, are power-

ful tools for reconciliation. Further, unlike many of the restorative features dis-
cussed above, the inclusion of mechanisms to promote apologies is also logis-
tically straightforward and inexpensive. Because apologies are so valuable and
their inclusion will not appreciably diminish the number of offenders who can be
prosecuted, apologies should be encouraged in the context of virtually all mass
atrocities. That said, apologies are apt to be most valuable in communities where
widespread denial about the crimes continues to exist, and they are apt to be most
meaningful when offender and perpetrator knew one another before the con-
flict. The perception and value of apologies will, in addition, vary to some degree
among different cultures, and those administering a guilty-plea system must be
attuned to these cultural variations so that apologies can be elicited and conveyed
in a way that will maximize their reconciliatory potential. That an apology is a
key feature of East Timorese local justice processes, for instance, means that its
value in that context is particularly high.
Requiring offenders to pay material reparations enhances the prospects for
reconciliation by benefiting victims while at the same time making offenders
aware, in an especially concrete way, of the harm that they have caused. Virtually
all instances of mass atrocity place grave financial burdens on victims, but even
among victims of severe violence, some distinctions can be drawn. Crimes such
as the Srebrenica massacres, which targeted male heads-of-households, had a dev-
astating financial effect on survivors. To this day, many Srebrenica widows live
in cramped “collective centers” and rely on the inadequate pensions of their late
husbands to survive. By contrast, Argentine forced disappearances were dis-
proportionately perpetrated against young people, many of whom were not fam-
ily wage-earners; their deaths did not impose on their families the same degree
of financial loss. Crimes involving the destruction and theft of property—such as
the looting and burning down of houses that were part and parcel of the Bosnian
Serbs’ ethnic-cleansing campaign and the devastation in East Timor—seem es-
pecially amenable to financial reparations because the material value of the harm
can be more objectively ascertained. A society’s tradition of imposing reparations
obligations on offenders is also relevant in determining their appropriateness in
a given context. Because a compensation obligation is the primary component of
the East Timorese response to crime, the failure to include a reparatory element
would likely undermine the perceived legitimacy of any prosecution.
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Despite the beneficial potential of reparations obligations, they will not prove
feasible to impose in most instances because the victim-offender ratio in most in-
ternational crimes is too high. Some Rwandan offenders killed several thousand
people, and even those Bosnian offenders directly responsible for a mere dozen
deaths cannot be expected to make financial payments to victims unless the of-
fenders happen to possess extraordinary wealth. Service obligations can, how-
ever, be imposed in cases featuring either a large number of victims per offender
or an impoverished offender. The required service obligations ideally would be
rendered directly to victims, if the number of victims permits it and if victims
desire it, and the obligations would preferably bear some relationship to the crime
or the harm caused by the crime.
The Contours of Optimal Restorative-Justice Guilty-Plea Systems

in the Argentine, Bosnian, Rwandan, and East Timorese Contexts
In exploring the various aims that would be advanced by a restorative-justice

guilty-plea system, the foregoing section identified the different ways in which
those aims function and might be valued in the aftermath of different atrocities.
Advancing truth-telling may be a worthy goal in virtually all instances, but the
kind of truth that will be revealed will vary with the circumstances of the crime,
as will the capacity of that truth to promote individual and societal reconciliation.
The foregoing section, then, sought to use the concrete examples of atrocities in
Argentina, Bosnia, Rwanda, and East Timor to explore the kind of assessments
that must take place when striking the appropriate balance between restorative
and retributive goals. This section relies on the insights of the previous section to
present general descriptions of guilty-plea systems appropriate for the atrocities
under discussion. Efforts have already been made to obtain guilty pleas for Bos-
nian, Rwandan, and East Timorese crimes, as discussed in Chapters 4, 5, and 6, and
the following discussion will refer to these guilty-plea practices where relevant.
To present a useful comparison, this section must largely ignore the sort of
political constraints that can significantly impair efforts to undertake criminal
prosecutions. Imposing criminal accountability will not be politically viable ei-
ther internationally or domestically in the context of many atrocities, but that
fact must be set aside if any sort of theoretical framework is to be developed.
At the same time, the political constraints that might in the real world prevent
the undertaking of prosecutions cannot be ignored entirely, because those same
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considerations will influence the contours of a guilty-plea system appropriate for

that particular society. A guilty-plea system developed to process Argentine dis-
appearances, for instance, will be largely shaped by the secrecy that surrounds
those crimes. That secrecy persisted because the Argentine military continued
to wield considerable power long after the country transitioned to democracy.
Thus, although this section will not specifically consider whether, in a particular
political climate, prosecutions would occur in the first place, it will take note
of less decisive political constraints that would influence the development of an
optimal guilty-plea procedure. Because restorative-justice guilty-plea systems are
amenable to implementation by both an international tribunal and a domestic
criminal justice system, this section also will not consider the level of resources
possessed by the body undertaking the prosecutions in determining the appro-
priate balance to be struck among various values. Clearly, Argentina has a greater
financial ability to undertake domestic prosecutions than does East Timor, but
both Argentine and East Timorese crimes might be prosecuted by international
bodies whose budgets might themselves differ considerably. Finally, to simplify
the analysis, this section will also assume, perhaps contrary to fact in some cases,
the general desirability of retributive punishment and the particular desirability
of prosecuting as many offenders as possible. Restorative elements, therefore, will
be assessed in a given context in light of the fact that their inclusion will result,
negatively, in fewer overall prosecutions. Finally, the descriptions that follow are,
of necessity, summary; they sketch optimal guilty-plea systems for the four atroc-
ities in broad outline but do not delve into many of the more nuanced details.
Argentina
Argentine crimes present a particularly compelling case for the inclusion of

substantial restorative-justice elements in a guilty-plea scheme. For one thing,
the fact that Argentine crimes were committed by a relatively small number of
offenders—about one thousand—makes it more likely that retributive aims can
be fulfi lled despite the inclusion of restorative-justice features. Further, the se-
crecy surrounding the fate of the victims and the refusal of most offenders to
acknowledge the wrongfulness of their actions render particularly valuable mea-
sures aimed at encouraging apologies and at advancing the three different kinds
of truth-telling described earlier—divulging facts, acknowledging the wrong,
and inculpating superiors. As for victim participation, many of the victims who
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were released alive would benefit from the opportunity to confront and question
those responsible for their mistreatment. The majority of Argentine victims were
killed, however, and, while this fact would ordinarily diminish the importance
of victim participation since the victims themselves can do no questioning, the
secrecy surrounding the crimes and the considerable time that elapsed between
the abductions and the victims’ eventual deaths increase the likelihood that fam-
ily members would seek information from offenders that might not emerge dur-
ing ordinary criminal proceedings.
An optimal guilty-plea system addressing Argentine crimes, then, would de-
vote considerable time and resources to obtaining from defendants all relevant
information about their crimes and about the military structures in which those
crimes took place. Because many Argentine offenders continue to maintain that
most victims were leftist subversives who posed a substantial threat to the na-
tion, the guilty-plea system would seek in particular to learn why various victims
had been targeted as a means of vindicating the vast bulk who had no direct ties
to left ist guerrillas. Publicizing the information received from offenders would
pierce the secrecy surrounding the crimes and pave the way for other offenders
to acknowledge their wrongful conduct. The need for that acknowledgment is so
strong in the Argentine context that devoting considerable efforts to encourag-
ing defendants to apologize would also be beneficial. Given the intransigence of
many offenders, such apologies, if perceived to be sincere, would send a potent
reconciliatory message.
Although the prosecution of Argentine crimes would initially benefit greatly
from the inclusion of a substantial number of restorative features, the value of
these features would diminish over time. As the truth becomes known and as
offenders begin to acknowledge the wrongfulness of their actions, the societal
value of these confessions and apologies would diminish because they would be
perceived as cumulative. This diminishing-returns effect would occur in the
context of all mass atrocities, but it is apt to be especially marked in the Argen-
tine context because the crimes were conducted in a relatively uniform way and
because, even if offenders make full disclosure, much will remain unknowable.
That is, although not all Argentine murder victims were dropped from airplanes,
a substantial proportion were, so the value of learning specific details about the
dropping of a particular victim into the sea will diminish over time. In addition,
although learning from a particular offender the fate of a loved one will provide
some measure of closure to friends and families, it will not provide what many
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friends and families seek most: a body to bury. Because so many Argentine crimes
featured the destruction or permanent concealment of the victim’s body, the truth
that can emerge from a restorative-justice process concerned with Argentine
crimes is by necessity limited, and its value may thus diminish sharply over time.
Bosnia
Ideally, the restorative-justice elements included in a guilty-plea system pros-

ecuting Bosnian crimes would vary depending on the nature of the atrocity at
issue. The prosecution of crimes occurring during the siege of Sarajevo would,
for instance, present the least need for restorative-justice features. The need to
obtain information about the crimes is minimal in this context: it is, for instance,
a well-known fact that Serb soldiers, stationed in high-rise buildings, were fir-
ing on civilians. The acknowledgment that would result from a rigorous truth-
telling endeavor would also be of limited value because only limited acknowledg-
ment is possible in this context, as a few examples from other atrocities show. For
instance, as a result of the widespread denial surrounding the Srebrenica mas-
sacres, acknowledgment in that context would constitute official acceptance
that Bosnian Serb forces executed many thousands of defenseless Bosnian Mus-
lim men and boys. The acknowledgment that might emerge from restorative-
justice processes concerned with Argentine disappearances would be more lim-
ited because the commission of those disappearances has already been officially
accepted, but it would nonetheless convey the important fact that most victims
were innocent of any wrongdoing. Acknowledgment in the context of the Sara-
jevo crimes would be yet more limited still. It has never been questioned that the
Sarajevan civilians shot at or shelled were victims of Serb forces. Nor has it been
in doubt that these victims were innocent civilians. Serb offenders have main-
tained only that civilian injuries were the incidental effects of a legitimate mili-
tary campaign. So, the only acknowledgment possible in the Sarajevan context
is the acknowledgment that civilians were purposefully targeted to spread terror
among the population—an acknowledgment of relatively limited significance.
With respect to information implicating superiors, although every prosecu-
tion has some need for such information, the fact that the siege crimes were per-
petrated by soldiers engaged in a clear military offensive means that prosecutors
can more easily tie the crimes of subordinates to their superiors through well-
defined military hierarchies. Since victims were not individually “selected” and
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did not have any meaningful contact with their offenders before, during, or after
the crimes, the prosecution of these crimes probably would not give rise to a
considerable number of questions or a substantial desire for victim participation.
Finally, although apologies have reconciliatory potential in virtually every con-
text, that potential in the Sarajevo context is more limited than in most because
victims and offenders had no previous relationship and in most cases did not
even live in the same community before the conflict. Material reparations also are
of value in virtually every instance, but nothing about the victims of the Sarajevo
siege suggests that they have a more pressing need for reparations than any other
victims of violence.
Restorative-justice features would provide greater benefits in the prosecutions
of Srebrenica offenders. The Bosnian Serbs’ steadfast denial of the massacres cre-
ated a pressing need for all three kinds of truth-telling. The need for acknowl-
edgment is perhaps foremost, but offender confessions would also provide valu-
able information about the locations of victims’ bodies, many of which remain
unfound, and would help to inculpate high-level offenders who are not tied to
the executions through any documentary evidence or established military hier-
archy. Victim participation would not be of significant value in the Srebrenica
context because virtually all of the victims were killed and were killed in a quick
and uniform way that does not give rise to substantial uncertainty on the parts
of family members. The value of apologies in Srebrenica, by contrast, is apt to
be considerable because many victims and perpetrators grew up in the region
and some knew one another before the conflict. Momir Nikolić, who helped
implement the Srebrenica massacres, for instance, was a schoolteacher before the
war and taught some of the men and boys who were later executed. Efforts
to require offenders to provide material reparations would also be particularly
beneficial because the victims were the male heads-of-household in traditional
Muslim families, and their deaths have left their families financially devastated.
The high victim-perpetrator ratio means that reparations, if feasible at all for
offenders to provide, would feature only token sums, but even these could offer
much-needed assistance.
Prosecutions of crimes that took place at Bosnian prison camps would ben-
efit most from the inclusion of restorative-justice elements. The need for truth-
telling in all of its forms is especially compelling with respect to these crimes.
Basic details of the crimes have not yet come to light. Many prisoners who entered
the camps have never been seen again, leaving loved ones in the dark about the
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victims’ ultimate fate and the location of their remains. Even ICTY prosecutors
have been unable to identify many of the victims of the crimes for which they
have charged defendants. In the Češić case, for instance, prosecutors charged
Ranko Češić with killing two unnamed individuals and misidentified one of
Češić’s other murder victims.
Serb denial about the true purpose of the camps and the conditions that
prevailed within them is widespread, so truth-telling efforts would also serve
as official and much-needed acknowledgment. In addition, the uncertain orga-
nizational structure of the camps’ leadership and the ready access given to unaf-
filiated outside groups bent on mistreating prisoners render offender testimony
of particular value to prosecutors wishing to convict coperpetrators or superiors.
Allowing victim participation would also enhance reconciliation efforts, particu-
larly because many victims and offenders lived in the same community and knew
one another before the conflict. These previous relationships enhance victims’
desire for involvement, and the fact that those who were killed or died in the
camps did so after lengthy periods of confinement is likely to engender numer-
ous questions from family members. The benefits of both symbolic and material
reparations in this context are also apt to be considerable. The previous relation-
ship existing between many victims and perpetrators enhances the significance
of sincere apologies, just as they also enhanced the emotional pain caused by the
crimes. That previous relationship will also render more meaningful any efforts
to provide material reparations. Although most of the harms that victims suf-
fered are not especially amenable to monetary quantification or redress through
service obligations, most of the crimes were perpetrated by not-impecunious of-
fenders against a victim population that suffered tremendous financial losses as a
result of the ethnic cleansing that formed the core feature of the conflict.
An analysis of the Bosnian conflict indicates that a guilty-plea system designed
to convict the maximum number of offenders while advancing reconciliation to
the greatest possible degree would have the flexibility to treat different atrocities
within a single conflict in the way most likely to meet the system’s multifarious
goals. Past experience, however, indicates that most criminal justice procedures
are not so readily adaptable, and, even if they were, that adaptation might give rise
to claims of inequity as some defendants would be required to fulfi ll truth-telling
and other obligations not required of other defendants. If we assume instead a
uniform guilty-plea system for Bosnian crimes that features the same procedures
in every case, then the foregoing analysis indicates that the system should empha-
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size restorative elements to a substantial degree, but not the degree justified in the
Argentine context. For one thing, the considerably greater number of offenders
in the Bosnian conflict—approximately ten thousand—raises more pressing con-
cerns that the use of restorative features will substantially undercut the system’s
ability to prosecute a reasonable proportion of offenders. In addition, as has been
described, the need for restorative-justice features is simply not as great when it
comes to some Bosnian crimes. At the same time, as Chapter 10 will reveal, the
inclusion of very few restorative-justice elements in ICTY efforts to obtain guilty
pleas presents problems of its own. In sum, an optimal guilty-plea system for use
across the spectrum of Bosnian crimes would require perpetrators to disclose all
the details of their offenses, even though the details of some crimes would already
have been widely publicized. Defendants also would be strongly encouraged to
apologize and would be required to make material reparations whenever feasible.
The optimal level of victim participation will necessarily depend on the number
of people victimized by a particular offender and the nature of the crime, but ef-
forts would be made to allow at least one victim to question each offender, if only
for the sake of symbolism.
Rwanda
At first glance, the Rwandan genocide presents the least compelling case of
the four atrocities under study for the inclusion of substantial restorative-justice
features. For one thing, the sheer number of offenders would seem to argue in
favor of establishing an efficient, streamlined guilty-plea system that emphasizes
criminal accountability over other values. Indeed, because so many Rwandans
participated in the genocide—more than one hundred thousand and as many as
one million by some estimates—a large proportion of offenders will go unpun-
ished no matter what prosecutorial mechanisms are used. Restorative-justice
measures, then, must prove particularly valuable if they are to justify the “costs”
they impose in terms of forsaken prosecutions. This substantial value is also not
apparent at first glance. The truth-telling function of restorative justice, for in-
stance, offers some benefits in the Rwandan context but fewer than is the norm
for mass atrocities because much is already known about the Rwandan genocide.
The extermination of the Tutsi was publicly encouraged by the government and
a topic of broad popular interest long before the killings actually began. When
the massacres did commence, they occurred in full public view. Granted, many
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survivors were in hiding when their family members were hacked to death, so
they might benefit from hearing offender confessions that contain details about
the crimes. But unlike many of the crimes committed in Argentina and Bosnia,
there exists at least the possibility in Rwanda that other members of the commu-
nity who were not in hiding could provide relevant details.
The acknowledgment that results from offender confessions also is not a par-
ticularly valuable commodity in the Rwandan context, since the new Rwandan
government completely vanquished its genocidal predecessor and immediately
and officially acknowledged the crimes when it took power. Some information
provided by defendants would assist in prosecuting high-level offenders since or-
ders were issued orally and prosecutors have had some difficulty tracing chains of
command. But even those benefits hold less value in Rwanda than in the context
of other mass atrocities because the Rwandan crimes were of a uniquely public
nature and were committed through a relatively clear organizational structure
that has at least to some degree assisted prosecutors in connecting the high-level
architects of the genocide to the crimes on the ground.
On the surface, then, the foregoing factors appear to argue for a relatively
streamlined guilty-plea system that aims to process offenders as quickly and
efficiently as possible. A closer look at these factors and at other restorative-
justice values reveals, however, that restorative justice in fact has a vital role to
play in helping Rwanda move beyond its genocide. In particular, although the
large number of Rwandan offenders does mean that a substantial proportion will
not be prosecuted and particularly not if restorative-justice procedures are used,
it means more fundamentally that a stunning percentage of Hutu were involved
in the genocide in one or another capacity, and that fact must inform the nature
of the prosecutorial enterprise at its most fundamental level. As journalist Philip
Gourevitch put it: “the work of the killers was not regarded as a crime in Rwanda;
it was effectively the law of the land.”  Although it is not true that when every-
one is guilty, no one can be held responsible, it is true that when a substantial
portion of the population is guilty, notions of responsibility stretch and distort; in
such a context, imposing retributive punishment may be of less long-term value
than are efforts aimed at reconciling individuals, enhancing understanding, and
rebuilding communities.
The restorative role of victim-offender dialogue is apt to be especially signifi-
cant in the Rwandan context because offenders and survivors are forced to inter-
act with one another on a daily basis. Hutu and Tutsi speak the same language,
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worship in the same churches, and share the same social customs. Most impor-
tantly, unlike Bosnians, who now live in ethnically “pure” pockets segregated
from their wartime enemies, Hutu and Tutsi live among one another in small,
rural communities. Further, many murdered Tutsi were killed by people from
their own communities, and, because most survivors are too impoverished to
move, they must regularly interact with their loved ones’ murderers. In such a
setting, restorative-justice processes offer tremendous potential for advancing in-
dividual and societal healing and reconciliation. Although everyone in Rwanda
knows in broad outline what happened in the spring of 1994, many do not know
why it happened or, more importantly, the effects these events continue to have
on those in their community. An optimal restorative-justice process in Rwanda
would aim to bring communities together to discuss the crimes and their conse-
quences for all concerned. One cannot expect such discussions to eliminate the
intense animosity that was inculcated in Hutu and Tutsi in the years before the
genocide, but it would, at the least, provide opportunities for civil dialogue. These
opportunities may prove particularly valuable in the Rwandan context because
Rwandans are reported to be reluctant to discuss emotional issues.
Victim-offender dialogue may also prove of key import in determining a
Rwandan offender’s true culpability. As noted above, many Hutu who killed did
not do so willingly, and even Hutu who were enthusiastic participants in the
genocide were themselves the victims of a relentless media campaign against the
Tutsi that was particularly potent because it was broadcast to a largely unedu-
cated peasant population that did not have the benefit of unbiased media sources
to counteract the hate. On the one hand, this is nothing new: large-scale violence
is virtually always governmentally organized and spurred on by government-
backed hate propaganda. Argentine naval officer Adolfo Scilingo, who eventually
broke rank with his military colleagues and confessed to having thrown live pris-
oners out of airplanes, for instance, seemed genuinely to believe that his actions
were lawful and justified because they were authorized by the Argentine Navy.
War criminals throughout history have unconvincingly alleged that they were
forced to do their dirty deeds. Yet, the evidence indicates that a claim of com-
pulsion has considerable credibility in a significant number of Rwandan cases,
and this claim may be better explored through restorative rather than retributive
processes. In between the two extremes of those who killed gleefully and those
who killed under threat of death are a substantial proportion of offenders whose
culpability is less well-defined. The potential for restorative-justice processes to
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elucidate these matters should not be overstated given the ease of claiming co-
ercion, but some victim-offender dialogue will allow for some nuanced explora-
tions of these issues, explorations that may prove impossible within the confines
of an ordinary criminal proceeding.
The provision of reparations, both symbolic and material, also has consid-
erable potential to enhance reconciliation in Rwanda. Apologies will be of key
importance given the day-to-day proximity of victims and offenders and their
relationships before and after the genocide. Few offenders would have the means
to provide material reparations, but Rwanda does have a tradition of imposing
community-service requirements, and these existing structures could be used to
impose reparatory obligations on offenders. These structures must be deployed
with care, however, because the community-service requirement has been abused
on numerous occasions in Rwanda’s past. As noted above, requiring Hutu to per-
form services directly to Tutsi might revive memories of past Tutsi oppression,
some of which involved the exploitation of the community-service requirement.
East Timor
Restorative-justice proponents frequently seek to legitimize modern restor-

ative-justice processes by observing that traditional societies have used these
processes for centuries. Although differences between traditional restorative
practices and their modern incarnations certainly exist, the fact is that, for many
centuries, the vast majority of crimes and other conflicts in East Timor have been
addressed by means of local justice practices that share many features with West-
ern restorative-justice programs. The atrocities in East Timor, then, present the
most compelling case for the inclusion of restorative-justice elements, of the four
atrocities under study, for the simple reason that most East Timorese not only ex-
pect the inclusion of these features as part and parcel of an appropriate response
to crime but would consider a criminal justice system that failed to include them
illegitimate and potentially threatening. In the East Timorese worldview, merely
incarcerating offenders fails to appropriately reconcile victims, offenders, and
their relevant communities, and that failure could leave the communities vul-
nerable to harm. The inclusion of substantial restorative features would—in East
Timor as everywhere else—reduce the number of prosecutions that can occur,
but that reduction would have fewer deleterious consequences in East Timor than
elsewhere because local justice processes already exist in East Timor to address
the crimes that go unprosecuted by the formal justice system. Indeed, as I will
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discuss in greater detail in Chapter 10, East Timor’s internationally sponsored

Commission for Reception, Truth, and Reconciliation used local justice mecha-
nisms to impose some accountability on offenders of less-serious East Timorese
crimes.
The inclusion of restorative-justice elements would be of substantial value in
the East Timorese context even in the absence of widespread community expec-
tation of their inclusion. Turning first to truth-telling, considerable information
about the crimes came to light soon after their commission. Many attacks were
committed in broad view by perpetrators who were known to victims and wit-
nesses. Further, the violence that occurred after the referendum, though dev-
astating, was relatively short-lived, and the rapid arrival of the U.N. peacekeeping
forces prevented the concealment of many crimes. At the same time, the bodies
of some of the victims of large-scale massacres have yet to be discovered because
they were transported to undisclosed locations or dumped in rivers. The ab-
sence of the victims’ remains, which is devastating enough for Western families,
arguably carries even greater significance for the East Timorese, since they con-
duct elaborate funeral rites that require the presence of a corpse.
The acknowledgment that results from truth-telling would not be of vital im-
portance in East Timor because the immediate arrival of the peacekeeping force
enabled the crimes in their general form to be investigated, acknowledged, and
publicized. The ability to obtain details about high-level perpetrators and chains
of command, however, would substantially benefit East Timorese prosecutions.
Although the considerable involvement of the Indonesian military in the atroci-
ties has been well-established in general outline, Indonesia’s refusal to transfer
suspects or evidence means that only limited information has come to light about
the specifics of that involvement. Indeed, some question exists as to whether the
East Timorese militia instigated the violence and were supported only by rogue
elements in the Indonesian military or whether the Indonesian military itself was
the primary force behind the atrocities. Most commentators consider the latter
view more plausible, a position supported by the Serious Crimes Unit’s Febru-
ary 2003 indictment of eight high-ranking Indonesian officials including General
Wiranto, defense minister and commander of the Indonesian Armed Forces.
The Special Panels for East Timor were unable to prosecute these suspects as a
result of Indonesia’s refusal to surrender them, but if such prosecutions ever were
to be undertaken, their success would be based in large part on the testimony of
lower-level defendants.
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Victim participation would also be of considerable value in the East Timorese

context for reasons in addition to the community’s expectation of victim and
community involvement. The victim-perpetrator ratio in East Timor is relatively
low (for mass atrocities), so victim-perpetrator questioning is logistically feasible.
The fact that many victims and offenders knew one another before the crimes—
indeed, some were even related —would enhance the value of victim-offender
interactions. These interactions would also assist in efforts to explore the nature
of the offenders’ culpability, an important question since virtually all low-level
offenders have claimed to have acted under compulsion. Finally, most of the vio-
lence in East Timor was committed through the use of primitive weapons such
as machetes and spears. Victims and family members are apt to be more desirous
of questioning offenders who perpetrated their violence in direct and proximate
ways than of offenders who wrought harms through more remote means.
The value of including reparations in prosecutions of East Timorese atrocities
derives primarily from the central role that reparations play in the East Timorese
conception of justice. To the East Timorese, there is no justice without compensa-
tion, nor is there reconciliation—a crucial component of East Timorese justice—
without public acknowledgment of fault. For these reasons, criminal prosecu-
tions of international crimes in East Timor are apt to possess little legitimacy
unless their punishment includes the imposition of reparatory obligations for
offenders. Imposing such obligations on East Timorese offenders is fortunately
fairly straightforward because an exchange of goods features in virtually every
aspect of East Timorese relations.
Summary
The relative value of various restorative-justice elements can vary considerably

depending on a host of contextual features relating to the nature of the atrocity,
the nature of the society in which the atrocity took place, and the nature of post-
atrocity events. Because the inclusion of restorative-justice measures reduces a
criminal justice system’s financial ability to prosecute offenders, issues such as
those explored must be carefully weighed when craft ing an optimal restorative-
justice guilty-plea system in any given situation.
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ch a p t e r t e n
The Minimal Role of Restorative Justice in

Current International Criminal Prosecutions
Chapter 9 examined the ways that restorative and retributive elements might op-
timally coalesce in model guilty-plea systems addressing crimes in Argentina,
Bosnia, Rwanda, and East Timor. Actual guilty-plea processes are being used in
the prosecutions of crimes that occurred in the latter three locations, and this
chapter will evaluate those processes in light of the restorative-justice models just
constructed. First, I will consider the extent to which, if any, the guilty-plea pro-
cesses of the ICTY, the ICTR, and the Special Panels include the three primary
restorative-justice features—victim participation, truth-telling, and reparatory
measures. I will conclude that restorative-justice elements play only a minimal
role in the guilty-plea processes of these institutions. Next, I will explore two in-
novative local justice mechanisms, in Rwanda and East Timor, that impose ac-
countability on offenders through processes that seek to blend restorative and
retributive features.
Restorative Elements in ICTY Guilty-Plea Processes
As Chapter 4 described, the ICTY’s practice of plea bargaining has undergone

a marked evolution from a rarely used, somewhat suspect procedural device to a
well-accepted case disposition mechanism. Concomitant with that evolution in
practice has come an evolution in the rationales used to justify the ICTY’s prac-
tice of plea bargaining. In the early days of ICTY plea bargaining, the parties and
the Trial Chambers justified the bestowal of sentencing concessions primarily
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current prosecutions 189
on the ground that guilty pleas saved the tribunal time and resources. In Er-
demović, for instance, Judges Gabrielle Kirk McDonald and Lal Chand Vohrah
asserted that guilty pleas benefit the public by “minimising costs, in the saving of
court time and in avoiding the inconvenience to many, particularly to witnesses.”
Judges McDonald and Vohrah observed that these benefits are particularly valu-
able in the context of international criminal cases because these cases, “by their
inherent nature, are very complex and necessarily require lengthy hearings if
they go to trial under stringent financial constraints arising from allocations
made by the United Nations itself dependent upon the contributions of States.” 
The Trial Chambers also noted the truth-telling value of guilty pleas  and the
fact that guilty pleas eliminate the need for victims to travel to The Hague to tes-
tify, and in one case, a Trial Chamber asserted that guilty pleas demonstrate a
defendant’s honesty. But the primary emphasis was on the financial savings
brought about by guilty pleas. These rationales served tolerably well. Because the
ICTY’s early guilty pleas were infrequent and did not result in substantial sen-
tencing discounts, they did not give rise to considerable opposition, and neither
the prosecution nor the Trial Chambers had need to formulate more elaborate
justifications in defense of them.
The spate of defendants pleading guilty in 2003 and the more generous sen-
tencing concessions bestowed on these defendants, by contrast, have generated
enormous opposition, even among some members of the ICTY bench. Presum-
ably as a result of this opposition, ICTY prosecutors and Trial Chambers dis-
covered the language of restorative justice; that is, although not termed as such,
the ICTY began invoking restorative-justice principles in defense of its plea
bargaining, particularly in cases featuring especially lenient sentencing recom-
mendations. Gone—ostensibly—is the belief that guilty pleas should be rewarded
primarily for the financial savings they bring about. The Momir Nikolić Trial
Chamber, for instance, acknowledged that “the savings of time and resources
due to a guilty plea has [sic] often been considered as a valuable and justifiable
reason for the promotion of guilty pleas.” However, the Trial Chamber concluded
that it could not “fully endorse this argument” because “in cases of this mag-
nitude, where the Tribunal has been entrusted by the United Nations Security
Council—and by extension, the international community as a whole—to bring
justice to the former Yugoslavia through criminal proceedings that are fair, in
accordance with international human rights standards, and accord due regard
to the rights of the accused and the interests of victims, the saving of resources
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190 current prosecutions
cannot be given undue consideration or importance.”  Similarly, the Deronjić

Trial Chamber surveyed the purposes and justifications for plea bargaining in
domestic jurisdictions and contrasted them with the very different goals of the
international tribunals: “[I]n contrast to national legal systems where the reasons
for mitigating a punishment on the basis of a guilty plea are of a more pragmatic
nature, the rationale behind the mitigating effect of a guilty plea in this Tribunal
is much broader, including the fact that the accused contributes to establishing
the truth about the conflict in the former Yugoslavia and contributes to reconcili-
ation in the affected communities.” 
Thus, instead of emphasizing the more “pragmatic” rationales, such as re-
source savings, that are now relegated to the realm of domestic criminal justice
systems, the ICTY has lately justified the practice of plea bargaining primarily on
the ground that obtaining guilty pleas advances truth and enhances reconcilia-
tion and peace-building efforts in the Balkans, goals that are not mere ideals but
that form the crux of the tribunal’s mandate. Plavšić was the first case in which
this rationale appeared, and there the prosecution, eager to justify its lenient
sentencing recommendation, lauded Plavšić’s guilty plea, as “an unprecedented
contribution to the establishment of truth and a significant effort toward the ad-
vancement of reconciliation.”  The prosecution moreover took the theretofore
unheard-of step of presenting joint witnesses with the defense to testify about
the contribution Plavšić’s guilty plea made to peace-building efforts in Bosnia.
The prosecution took the same approach in the Obrenović and Momir Nikolić
cases. In Obrenović, the prosecution asserted that Obrenović’s guilty plea “rep-
resents a significant contribution to the establishment of truth and a significant
effort toward the advancement of reconciliation,”  and the prosecution’s clos-
ing arguments in both Obrenović and Momir Nikolić centered almost exclusively
on the truth-telling and reconciliatory value of the defendants’ guilty pleas.
Similarly, in Babić, commentators noted that “the prosecution and defense are
practically on the same side.”  At Babić’s sentencing hearing, “lawyers for the
prosecution and the defence repeatedly echoed each other’s arguments,”  and
both sides were so eager to praise Babić’s guilty plea that it was frequently difficult
to distinguish the prosecution’s position from that of the defense. In his closing
arguments, Babić’s defense attorney even quoted from the prosecution’s opening
statement, observing that the prosecution had addressed the point “in a more
thorough and eloquent fashion than I would have been able.” 
The ICTY’s recent implicit embrace of restorative-justice principles is wel-
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come. Indeed, it is the thesis of this book that guilty pleas often possess greater
potential to restore and reconcile than full-scale trials. For that potential to be
realized, however, the ICTY must do more than just talk about the reconciliatory
value of guilty pleas; it must, in addition, incorporate into the processes by which
defendants plead guilty features such as those drawn from restorative justice that
are designed to enhance reconciliation. Restorative-justice elements have begun
to appear in ICTY guilty-plea processes, but they have not been incorporated to
the degree necessary to provide the benefits currently attributed to them, par-
ticularly given the bitterness spawned by the ICTY’s lenient sentencing practice.
An examination of the ICTY’s practice of plea bargaining in light of three key
restorative-justice values now follows.
Victim Involvement
Victims play little or no role in the ICTY’s plea-bargaining processes nor could
they. Victim involvement would impair the confidentiality of the plea negotia-
tions and thereby deter defendants from engaging in them. Because ICTY tri-
als are held before a relatively small number of professional judges, defendants
cannot take the chance that the judges will become aware of plea negotiations
because those very same judges will try the defendants if the negotiations fail to
result in an agreement.
ICTY victims could be involved in the sentencing of guilty-plea defendants,
yet no victim testified at nine of the last eleven sentencing hearings for ICTY de-
fendants who pled guilty. When victims do testify before the ICTY, they typi-
cally present their information to the Trial Chamber and do not interact with the
defendant. The sentencing hearing for Dragan Nikolić, the former commander
of the Sušica prison camp, proved an exception to that rule, however, and dem-
onstrated the potential value of victim-offender interactions. In Dragan Nikolić’s
sentencing hearing, prosecutors called to testify Habiba Hadzić, a sixty-year-old
woman who had been detained at the camp. Hadzić’s sons had also been impris-
oned at Sušica, and the last time she saw them was when she was transferred out
of Sušica. Midway through her testimony, Hadzić made clear that she longed
to know what had happened to her sons. At the conclusion of her testimony,
when asked whether she would like to say anything to the judges about her ex-
periences at Sušica, Hadzić briefly responded to that question but then, without
invitation, proceeded to ask Nikolić himself a question: “I would just like to ask
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Dragan to tell me where [my sons] are, in which mass grave, so that their mother
could give them a dignified funeral. I want to give them a proper burial, and then
I can go away myself.”  After consulting with his lawyer, Nikolić told Hadzić
that her sons had been taken in a group of about forty people to Debelo Brdo and
there were “liquidated.” Nikolić went on to inform her that her sons’ identifica-
tions had been removed but that he remembered that one of them was wearing a
denim jacket and trousers and his body might therefore be identified by his cloth-
ing. Learning where, how, and when her sons were killed and the likely loca-
tion of their remains was of profound significance to Hadzić. She obtained this
information only because the prosecution saw fit to include her in the sentencing
hearing and, even then, only because she herself stepped out of the traditionally
defined witness’s role and confronted the defendant.
Truth-telling
As previous chapters have discussed, various forms of truth can emerge from
guilty pleas. Defendants who plead guilty can provide facts about the crimes that
are of particular interest to victims, they can provide information inculpating
other defendants, and they can speak the truth in their acknowledgment of their
culpability. Recent ICTY guilty pleas have advanced each of these kinds of truth
to some degree, but ICTY prosecutors have put the bulk of their efforts into ob-
taining information inculpating other defendants. Although in early cases, pros-
ecutors were willing to enter into plea agreements without any promise of insider
testimony, in nine of the last eleven plea agreements, prosecutors have required
defendants to provide information regarding the crimes of other perpetrators.
In many cases, plea-bargaining defendants have been required to meet with pros-
ecutors “as often as necessary”  and to testify against other ICTY defendants
now or in the future, if asked to do so by the prosecution. To ensure that de-
fendants are sufficiently candid and forthcoming, the prosecution has, in some
cases, requested that their sentencing be postponed until after they had testified
in other cases. Only after the prosecution had evaluated the testimony was it
willing to make its sentencing recommendations to the Trial Chamber. That
the Trial Chambers also place considerable value on a defendant’s willingness to
provide insider testimony is evidenced by the fact that the Momir Nikolić cham-
ber sentenced Nikolić to a prison term seven years longer than the longest sen-
tence in the prosecution’s recommended range largely because it determined that
his testimony in the Blagojević case was evasive and not entirely forthright.
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The prosecution’s efforts to obtain inculpatory information through the use of

plea agreements has borne considerable fruit. Most recent defendants pleading
guilty have provided the prosecution with information, and six such defendants
have provided substantial testimony in one or more ICTY trials. In 2003, Dra-
gan Obrenović and Momir Nikolić each testified for seven days in the Blagojević
case, and both men affirmed their testimony in the Krstić appeal hearing.
Miodrag Jokić testified for five days in the Strugar trial, and Milan Babić testi-
fied for a grueling eleven days in the Milošević case. Miroslav Deronjić, labeled
by his attorney as a “crown witness” for the prosecution, testified in a record
four cases, spending literally weeks on the ICTY stand. Most recently, Ivica
Rajić, who pled guilty in October 2005, is scheduled to testify at the joint trial of
Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić,
and Berislav Pušić, some of whom were his superiors in the Bosnian Croat
army.
The revelations made during the testimony of these defendants have been in-
valuable to prosecutors. At the time he appeared in the Milošević case, Milan
Babić was perhaps the highest-level insider to testify, and he provided a crucial
link between Milošević and the Croatian Serbs’ effort to ethnically cleanse Cro-
ats from the Serbian Autonomous Region of the Krajina in Croatia. Journalists
labeled Babić’s testimony “the Prosecution’s smoking gun,”  and prosecutors
themselves considered Babić’s testimony so valuable that they agreed to give up
fourteen planned witnesses—approximately 20 percent of the total number of
witnesses for the Croatian phase of the case—in exchange for two additional days
of direct examination of Babić. Lead prosecutor Geoff rey Nice said this case
could “almost be proved with [this] one witness.”  The testimony of Miroslav
Deronjić has likewise been tremendously important to the prosecution. In the
Milošević case, Deronjić provided crucial information about Serbia’s arming of
the Bosnian Serbs, and he linked Milošević to that effort. In Krajišnik, Deron-
jić provided a painstaking and detailed account of how the policies promulgated
by high-level Bosnian Serb politicians were implemented at the local level and led
eventually to the expulsion and murder of thousands of Muslim civilians.
Rajić’s testimony promises to be equally valuable since Rajić possesses insider
information about Croatia’s involvement in the Bosnian war and about the crimes
of his superiors in the Bosnian Croat army, matters that Rajić has already al-
luded to in the factual basis of his guilty plea. Rajić’s case indeed highlights
the need for such insider information because it shows the lengths that some gov-
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ernments are willing to go to cover up international crimes. After Rajić’s forces

destroyed Stupni Do, Rajić’s superiors issued a written order instructing Rajić to
investigate the crimes. Rajić was told orally, however, not to conduct the investi-
gation because the order was issued only to appease the international community.
Rajić and his superiors thereafter participated in a cover-up of the crimes. He
was told to change his name, and while the international community was led to
believe that he had been discharged from the Bosnian Croat army, he was instead
promoted to the rank of active colonel under his assumed name.
Although insider testimony at the ICTY has unquestionably facilitated the
prosecution of high-level defendants and revealed information of interest to
the communities in question, a desire for the sentencing concessions that are
provided in exchange for such testimony can motivate defendants to lie. Momir
Nikolić, for instance, initially told prosecutors that he had ordered and super-
vised executions at Sandici and the Kravica warehouse—two of the largest ex-
ecution sites of the Srebrenica massacres—when, in fact, he was not even present
when the executions took place. Nikolić admitted lying soon after he had done
so and said that he had fabricated the story because he had so wanted the plea
agreement to succeed. In a similar vein, Miroslav Deronjić also admitted to
lying to prosecutors in initial interviews, maintaining that he did so in part be-
cause he feared for his safety and that of his family. In addition, Deronjić later
admitted to gleaning some factual details that he had provided to prosecutors
from other ICTY detainees. The problem is not unique to the ICTY. Under
the U.S. Sentencing Guidelines, defendants charged with federal crimes could
obtain the most sizable sentence reductions by providing “substantial assistance
in the investigation or prosecution of another person who has committed an of-
fense.”  Federal defendants were often so desirous of obtaining the sentenc-
ing concessions bestowed on those who cooperate that they would compete with
one another to be first to the prosecutor’s door or to provide the most “useful”
information. These incentives also frequently motivated defendants to embel-
lish the truth, to resolve questionable issues in favor of the prosecution, or to lie
outright, a 1999 study found.
In early ICTY guilty-plea cases, the Trial Chambers expressed concern about
these sorts of conflicts of interest. The Todorović plea agreement contains a provi-
sion allowing prosecutors to reinstate the entire indictment against Todorović if
he failed to fulfi ll his obligations under the plea agreement. This provision troubled
Judge David Hunt, who repeatedly expressed his concern that Todorović’s testi-
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mony in subsequent cases would lack credibility because Todorović stood to have
his plea agreement dissolved if he did not “fulfil his obligations.”  Such con-
cerns now seem almost quaint. The Momir Nikolić Trial Chamber did object to a
provision in Nikolić’s plea agreement that permitted the prosecution to withdraw
the genocide charges only upon the sentencing of Nikolić, but both that Trial
Chamber and others have been willing to postpone the sentencing of guilty-plea
defendants until after the defendants have testified in other cases precisely so as
to determine the defendant’s level of cooperation. They do so apparently without
excessive worry that sequencing the events in that way will encourage defendants
to embellish their testimony to gain favor from the prosecution and the Trial
Chamber. Indeed, when Momčilo Krajišnik’s defense counsel highlighted the
problem by fi ling a motion seeking to postpone Deronjić’s testimony in Krajišnik
until after Deronjić had been sentenced, the Trial Chamber rejected the motion.
The chamber noted, among other things, that a professional bench would be less
likely to be misled by a witness and that, even after sentencing, defendants might
be tempted to misrepresent facts. The Trial Chamber’s last point is quite true:
defendants might be motivated to embellish their testimony even after sentenc-
ing because that testimony can provide the basis for a motion for early release.
Putting aside for the moment the troubling aspects of insider testimony, the
prosecution’s efforts to obtain such testimony has had the beneficial effect of re-
vealing substantial information about the crimes themselves and some details of
particular relevance to victims. For instance, as part of their guilty pleas, Dra-
gan Obrenović and Momir Nikolić submitted “Statements of Facts,” which are
lengthy, detailed documents describing the preparation and implementation of
the Srebrenica massacres and the roles the defendants played in those events. Most
importantly to victims, perhaps, Nikolić revealed the locations of two hitherto
unknown mass graves. Deronjić’s factual basis similarly provides a detailed
account of the ethnic-cleansing plan and its implementation in the Bratunac
municipality in general and in the town of Glogova in particular. He also gave
prosecutors a seventy-one-page document that was valuable primarily for the
prosecution of other high-level offenders but that also provided some details of
special concern to victims.
Because the prosecution’s primary, if not exclusive, interest is in obtaining
information relevant to pending or future ICTY trials, it has made little effort to
obtain information from plea-bargaining defendants who do not possess such
information. In particular, prosecutors have made virtually no attempt to obtain
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information of sole relevance to victims’ families—information, for instance, re-

lating to the location of particular bodies or the reasons why this or that victim
was targeted. For this reason, the plea agreements of low-level defendants who
have little information valuable to future ICTY cases have tended to be short,
cursory documents. The factual basis of Ranko Češić’s plea agreement, for in-
stance, is barely two pages long, and its contents appear to be cut and pasted
almost verbatim from Češić’s indictment. Worse still, the indictment itself was
incomplete and partially inaccurate. It charged Češić with killing two unnamed
individuals, and these individuals remained unnamed in the factual basis for
Češić’s guilty plea. The indictment misidentified another murder victim—a
mistake that was carried over into the factual basis. The prosecutor labeled
the misidentification a “housekeeping matter[],” and the indictment and factual
basis for the guilty plea were quickly amended during Češić’s sentencing hear-
ing. In a similar vein, although Predrag Banović’s factual basis does contain
a reasonable amount of information regarding the conditions prevailing in the
Keraterm camp, at which he was a guard, Banović also personally participated in
beating five people to death and severely beating twenty-seven more, and these
crimes receive little attention in the factual basis, which merely incorporates in-
formation appearing in Banović’s indictment.
Even some high-level offenders have concluded plea agreements without pro-
viding prosecutors virtually any details about the crimes to which they pled
guilty. Biljana Plavšić, for instance, whose political position and role in the
ethnic-cleansing campaign gave her insights into every aspect of its planning
and implementation, concluded a plea agreement with a scant five-page factual
basis that presents only the briefest sketch of the atrocities and of Plavšić’s role in
committing them. Victims groups have vehemently protested the dearth of facts
contained in such plea agreements. Family members of the approximately two
hundred men executed at Koricanske Stijene, for instance, expressed outrage at
the plea agreement that ICTY prosecutors concluded with Darko Mrd̄a precisely
because it failed to require Mrd̄a to reveal the locations of the victims’ bodies.
Similarly, when the victims group Women from Podrinje protested Deronjić’s
lenient ten-year sentence, it did so in part on the ground that “[t]he victims have
not found . . . peace even after 12 years, because not even 1 of the victims from
Bratunac have been found.” 
Perhaps as a result of these complaints, ICTY Judge Schomburg has recently
made efforts both to publicize whatever truth the prosecution has managed to
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glean and to press defendants to reveal yet more information. In both the Dragan
Nikolić and Deronjić cases, for instance, Judge Schomburg read, slowly and delib-
erately, the full text of the indictments during the defendants’ guilty-plea hearing.
After nearly every paragraph, Judge Schomburg asked the defendants, “is that
correct?,” thereby forcing them to specifically admit the details of the brutal con-
duct for which they had been convicted. In the Deronjić plea hearing, Judge
Schomburg additionally read out the factual basis in open court. Deronjić tes-
tified as a witness in his own sentencing hearing, and there Judge Schomburg
questioned him vigorously through forty pages of transcript, requiring Deronjić
to clarify and significantly expand on statements appearing in the factual basis
for his guilty plea. Additionally, the Trial Chamber was sufficiently concerned
about “material discrepancies” between that factual basis and Deronjić’s state-
ments in other cases that it called a supplemental sentencing hearing to resolve
the issues. In a similar vein, after Keraterm camp guard Predrag Banović pled
guilty, prosecutors received a phone call from the wife of a man killed at Kera-
term. She was distressed upon hearing of the guilty plea and feared that her hus-
band’s suffering and death would not be acknowledged. Consequently, during the
guilty-plea hearing, the prosecutor read out the names of the victims to pay them
respect and to acknowledge “that ultimately these proceedings are about people
who suffered at the Keraterm camp.” 
The Trial Chambers’ limited efforts both to publicize the information revealed
through guilty pleas and to force guilty-plea defendants to publicly acknowledge
their wrongdoing are welcome because some ICTY defendants who ostensibly
admit their culpability when pleading guilty seem reluctant to internalize that
culpability. Ivica Rajić’s sentencing brief, for instance, contained assertions that
blatantly contradicted the factual basis that Rajić submitted with his plea agree-
ment. For instance, in the sentencing brief, Rajić suggested that the murder vic-
tims in Stupni Do numbered only seventeen, even after acknowledging that in
“the plea agreement, we agreed to . . . 36 victims.”  Similarly, Rajić quibbled
over the number of combatants among the victims. Although the plea agreement
states that approximately six of the thirty-eight victims were combatants, Ra-
jić subsequently maintained that the “majority” of victims were soldiers. He
also admits in the plea agreement to participating in a cover-up of the crimes.
Rajić later contended, however, that he participated in the cover-up only because
he was ordered to do so.
Other guilty-plea defendants have also made vague references to duress when
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it came time to be sentenced, though they offered no evidence that they com-
mitted their crimes under compulsion. Ranko Češić’s sentencing brief, for in-
stance, notes without elaboration that Češić killed the victims under superior
orders and would have been killed himself had he not followed those orders.
Darko Mrd̄a’s sentencing brief similarly states that Mrd̄a was only following or-
ders when he participated in the execution of more than two hundred men, and
“failure to follow those orders would have resulted in serious consequences for
Mrd̄a.”  And Banović’s sentencing brief states that Banović “did not find a way
to resist the power of his superiors nor the force of those who wilfully barged into
the camp, committed crimes, and forced him and others to commit crimes, too.”
As if this claim were not sufficiently inconsistent with Banović’s guilty plea, the
brief goes on to assert that, although Banović is “of the opinion that he did not
kill anyone while beating him, he admitted that he had reason to believe that the
injuries that the participants in the crime inflicted to prisoners resulted in death
of a victim [sic], so he admitted that he was capable of committing a crime.” 
The prosecutor was so disturbed by the inconsistency between these statements
and Banović’s admission of guilt that she raised with the Trial Chamber the ques-
tion of whether Banović’s plea was unequivocal.
The Trial Chamber itself in the Mrd̄a case highlighted the material inconsis-
tencies between Mrd̄a’s guilty plea and the statements he subsequently made to
a court-appointed psychologist. Mrd̄a, for instance, admitted in his factual basis
that he personally selected “men of military age with the awareness and expecta-
tion that these men would be killed.” When subsequently describing the events
to the psychologist, however, Mrd̄a at one point stated that he selected the men
and only later found out that they were to be killed. At another point, Mrd̄a stated
that “some people were chosen,” without stating who did the choosing. Mrd̄a
also admitted in the factual basis to participating in the shooting and killing of
some of the victims, yet he initially told the psychologist that he was shooting
without aiming at people and later said that “[d]uring the time he held the gun
in his hands, approximately 10 people were hit by bullets.” As the Trial Chamber
summarized it: “a picture is created that Mr. Mrd̄a was standing there with his
weapon and while he was standing there, ten people were killed? By whom? Not
by Mr. Mrd̄a; Mr. Mrd̄a, who did not aim at persons?” 
Despite the fact that the inconsistencies in Mrd̄a and Banović were raised dur-
ing the sentencing hearings, which those defendants attended, the Trial Cham-
bers did not make any effort to query the defendants as to what they thought that
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they had done and to what they believed themselves to be pleading guilty. Rather,
in Mrd̄a, defense counsel simply urged the Trial Chamber to rely on the plea
agreement in case of inconsistencies, an answer that immediately satisfied the
Trial Chamber. Banović’s defense counsel likewise hastily assured the cham-
ber that he did not intend to call the plea agreement into question, and that ended
the matter. In Rajić, the Trial Chamber did not even seek assurances from de-
fense counsel. Instead, at the sentencing hearing, the Trial Chamber summarily
dismissed the inconsistent assertions, stating:
[I]n your submission now you have made a number of points that are in contradiction
with the facts as they have been agreed to in the plea agreement. . . . [W]e, as the Trial
Chamber, are bound by these facts and . . . we can’t re-open a discussion on a number
of items that you would now want to bring under our attention or facts that you would
wish to put in a different light.
The Trial Chambers’ treatment of the inconsistencies in these cases may have
been appropriate since the inconsistencies may have been more a reflection
of overzealous defense counsel than defendants unwilling to internalize their
crimes. At the same time, a restorative-justice approach would have sought to de-
termine the genesis of the inconsistencies and, if they originated with the defen-
dant, to engage the defendant and encourage him to face up to his wrongdoing.
Instead, the Trial Chambers made no effort to learn what the defendants actually
believed about their role and culpability in the crimes but focused solely on con-
firming that the legal basis for the conviction—the guilty plea—was unequivocal
and therefore valid. Although there was good reason to worry that the defendants
had failed to come to terms with the crimes they committed, that fact was not
relevant. As long as the Trial Chamber was satisfied that the plea agreement still
governed, the matter was closed.
Apologies
Studies of domestic restorative-justice programs indicate that apologies con-

stitute a key element in the effort to advance reconciliation between victims
and offenders. The ICTY has always encouraged defendants to apologize by con-
sidering remorse a mitigating factor in sentencing. Virtually all of the ICTY defen-
dants pleading guilty to date have made statements of remorse at their sentencing
hearings, but early statements of remorse did not sound especially remorseful. The
bulk of Todorović’s statement, for instance, dealt not with Todorović’s remorse
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but with the deprivations that war had brought to his town and the difficulties
that he himself had suffered as a result of the war. Todorović further sought to
diminish his responsibility by claiming that he never wanted to be police chief
but that “destiny or a set of unfortunate circumstances put [him] in that position,
and at the worst possible time, the time of war.”  Finally, although Todorović
pled guilty to beating one man to death, severely beating numerous others, and
sexually assaulting others still, he said nothing of those acts but rather noted
only that “he lacked courage to prevent the illegal and inhuman activities that
were going on.”  The Sikirica defendants appeared to model their statements on
Todorović’s, so their statements had similar failings. Duško Sikirica, commander
of the Keraterm camp, for instance, pled guilty to killing one man, but he failed to
mention that fact in his statement of remorse and rather spoke only of his omis-
sions and the compulsion under which he acted. He said in part:
Before the war in Bosnia, we all lived together in good neighbourly relations regardless
of who or what we were. Prijedor was a good place to live in . . . the former Yugoslavia
and to live together. I had many friendships, many of which transcended ethnic differ-
ences. When the war broke out, we had to go where we were told to go because we had
no choice. We could [sic] refuse to obey orders—do I have to repeat? Unfortunately,
when the war broke out, we had to go where we were told to go. We didn’t have much
choice. We could either obey orders, refuse to obey them, or desert. I was sent to Kera-
term, although I would have preferred to go somewhere else at the time, because to go
and work in Keraterm was the worst thing that could have happened to me. . . . After I
saw and I understood the consequences, I wish to tell the Trial Chamber that I deeply
regret everything that happened in Keraterm while I was there. I feel only regret for
all the lives that have been lost and the lives that were damaged in Prijedor, in Kera-
term, and unfortunately, I contributed to the destruction of these lives. I am especially
sorry that I did not have enough moral courage and power to prevent some or all of
the terrible things that happened. I would like to be able to turn back the clock and
act differently.
Darko Mrd̄a’s “statement of remorse” manifested a similar unwillingness to

face up to his crimes  while, even more troublingly, Ivica Rajić used his state-
ment to paint himself as a heroic peacemaker who “played a key role in stopping
this completely senseless conflict” and who “stood up to lawlessness, very often
at the risk of [his] own life.”  Such statements as these breed contempt, not
reconciliation.
The good news is that most of the more recent ICTY defendants to plead guilty
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have issued statements of remorse that in fact convey remorseful sentiments.

Ranko Češić, for instance, stated:
First of all, without any false sentiments, I wish to express my deep remorse for all the
evil I have done. Words such as “remorse” are insufficient to express what somebody
like me feels. Looking back in time after so much time has elapsed since I commit-
ted those crimes, there is an enormous difference between my state of mind now and
then. Now I would never do the things I did then, the things that took place in a time
of euphoria, a time when all human dignity was abolished.
Before the trial, I pleaded guilty to the counts of the indictment, and I did my best
to help the Office of the Prosecutor and the Tribunal to bring to light a small part of
the overall truth, the part that refers to my actions.
Your Honors, I will do anything to bring back the past and not to do what I have
done. Since this is not possible, all that is left for me is to feel the deepest remorse for
what I have done. To this I would like to add that I did not want to bring my friends and
relatives here to say nice things about me because I didn’t want to increase the pain of
the victims and their families, out of respect for the deceased.
I hope that my sincere remorse, which I feel deeply, will help to prevent similar
things from happening in the future, and I wish to say that any people that experiences
war is unfortunate, and people who live through this and families who have suffered
pain feel this deeply. I want to say that I hope nobody will ever do the things that I have
done and that prison is not the only punishment for me, because it is even harder to go
on living with this feeling of guilt.
In a similar vein, Dragan Nikolić asserted:
I repent sincerely.
I genuinely repent. I am not saying this pro forma, this repentance and contrition
comes from deep inside me, because I know most of those people from the earliest
stage. I want to avail myself of this opportunity to say to all of those whom I hurt, ei-
ther directly or indirectly, that I apologize to everyone who spent any time in Sušica, be
it a month or several months. I would like, now that I have this opportunity to speak in
public, to make even those victims feel the sincerity of my apology and my repentance,
even those who were never at the Sušica camp and who are now scattered all over the
word [sic] as a result of that conflict and the expulsions which made it impossible for
them to return home.
The Trial Chambers have uniformly found these statements of remorse sincere
and treated them as mitigating factors, even when prosecutors opposed such
treatment. Guilty-plea defendants lately have been so keen to be perceived as
remorseful that some of those who have appealed their sentences have taken the
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opportunity to express their remorse a second time at the appeals hearing,

perhaps hoping for an additional sentence reduction on appeal.
Despite the genuine sound of these apologies, doubts remain about their impact
and their sincerity. Predrag Banović’s statement of remorse was moving, but
Bosnian speakers immediately recognized that it was almost certainly written by
someone else: when reading the statement, the uneducated Banović followed the
words with his finger and mispronounced some of the more complex words.
Milan Babić’s apology to his “brother Croats” also failed to impress many in
Croatia, “where his reconciliatory tone has been viewed as an insincere attempt
to save his own skin.”  Access to information about the ICTY is limited in the
states of the former Yugoslavia, so many victims are not even aware of the defen-
dants’ apologies, or if they are aware, know only that the defendant apologized
but have no information about what he or she said. Even victims who have
information about the apologies are understandably skeptical about their sincer-
ity. ICTY defendants pleading guilty in recent times have garnered tremendous
sentencing discounts and other benefits in exchange for their guilty pleas. If these
benefits are sufficiently desirable to have motivated some defendants to misrepre-
sent facts, they are certainly attractive enough to encourage defendants to feign
remorse. However, as discussed earlier, the same concerns arise in the context of
domestic restorative-justice programs and will in any setting in which apologies
are rewarded or required.
Restorative Elements in ICTR Guilty-Plea Processes
Victim Involvement
Rwandan victims, like Yugoslav victims, are afforded little or no role in the
ICTR’s guilty-plea processes. Victims do not participate in the plea-bargaining
process, and in none of the ICTR cases to be disposed of by guilty plea did victims
testify at the sentencing hearings. To be fair, though, it is not clear that victims
could have played a meaningful role in some of those hearings. The crimes com-
mitted in those cases featured many thousands of victims, and in Kambanda,
Ruggiu, and Rutaganira, the defendants’ criminal actions were far removed from
the scenes of the massacres. Thus, victim testimony at the sentencing hearings of
these defendants would have neither assisted the tribunal significantly nor con-
stituted the sort of valuable victim involvement discussed throughout this book.
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That said, the ICTR has made little effort to connect with Rwandan victims
even when doing so would provide victims with substantial benefits. The ICTR
has translated only a few of its judgments into Kinyarwanda, the local language;
it should come as no surprise, then, that more than ten years after the ICTR was
established, many Rwandans remain substantially unaware of its work. Six
years after it was created, the ICTR did establish an outreach office in Kigali to
publicize tribunal proceedings, but that office has done virtually nothing to edu-
cate the majority of Rwandans who live in rural areas. Indeed, most visitors to the
center are lawyers, researchers, or university students, not genocide survivors.
As Samantha Power observed:
The [ICTR] is a world away from the people whom international justice claims to
serve. The rare Rwandan who tries to visit the UN court must take a bus through four
countries to get there—from Kigali, Rwanda, to Kampala, Uganda, to Nairobi, Kenya,
to Arusha, Tanzania. The journey takes two days, and costs around $40 for the bus
ticket and $20 for a Kenyan transit visa. This is more than most Rwandans earn in a
month.
Whatever value victim participation might have in the Rwandan context, in

guilty-plea cases or otherwise, the ICTR has done little to capture it. The ICTR’s
efforts in this regard stand in stark contrast to the Rwandan government’s gacaca
proceedings, which will be discussed later in this chapter, because gacaca, at least
in its conception, envisages a substantial role for victims.
Truth-telling
The ICTR’s commitment to truth-telling broadly resembles that of the ICTY.

Like their counterparts in The Hague, ICTR prosecutors have made substantial
efforts to obtain from guilty-plea defendants information that is useful to pros-
ecuting other defendants. However, whereas ICTY prosecutors have been quite
successful in obtaining useful information, ICTR prosecutors have had much
more difficulty. Of the six ICTR defendants to plead guilty, two—Rutaganira and
Bisengimana—refused entirely to cooperate with the prosecution. Rutaganira
held such a low political position in Rwanda that he may not have had access to
much information of value to the prosecution in any event. Moreover, Rutagani-
ra’s codefendants had been tried several years before Rutaganira surrendered to
the ICTR, so the information he did possess was likely to be of little relevance by
the time he could have made it available to prosecutors. Bisengimana, by con-
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trast, likely does know a great deal that would be useful to ICTR prosecutors.
Bisengimana committed his crimes with both Laurent Semanza, who has already
been convicted, and Juvénal Rugambarara, who has not. Rugambarara succeeded
Semanza as bourgmestre of Bikumbi commune, and the ICTR has charged him
with participating with Bisengimana and Semanza in many of the same events
that formed the basis for those defendants’ convictions. At Semanza’s trial,
prosecutors labeled Semanza, Bisengimana, and Rugambarara “the evil troika,” 
and there is little question that, had he wanted to, Bisengimana could have as-
sisted the prosecution in its case against Rugambarara.
All the four remaining guilty-plea defendants have ostensibly cooperated with
the prosecution, yet the value of that cooperation is in some cases questionable.
As noted in Chapter 5, the most recent ICTR defendant to plead guilty—Joseph
Serugendo—provided prosecutors with approximately two hundred pages of
incriminating information, but Serugendo’s bleak medical outlook makes it
unlikely that he will be able to testify for the prosecution in future cases. Omar
Serushago and Georges Ruggiu also provided prosecutors with considerable in-
culpatory information about other ICTR defendants, but in the end, that infor-
mation proved less useful than it had initially seemed.
As noted in Chapter 5, Serushago gave prosecutors a great deal of informa-
tion before his indictment, and some of this information led to the arrests of
a number of high-level offenders. Serushago continued cooperating throughout
his plea negotiations, and in his plea agreement, he implicated no fewer than
twenty-nine named individuals. He described various meetings, for instance,
and named the high-level political leaders and local authorities who conducted
those meetings. Serushago also volunteered the names of the militiamen most
involved in the massacres in the Gisenyi prefecture. Whereas that information
was sufficiently specific as to be potentially useful, Serushago’s plea agreement
also contained statements that were so broad as to be of little value. For instance,
his plea agreement concludes with the expansive declaration that “[m]ilitary offi-
cers, members of the Interim Government, militia leaders and Civilian authori-
ties, planned, prepared, instigated, ordered, aided and abetted their subordi-
nates and others in carrying out the massacres of the Tutsi population and their
‘accomplices.’”  Other inculpatory statements in Serushago’s plea agreement
were cut and pasted from his indictment, so they did not provide prosecutors
with new information.
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Serushago promised to follow up these statements with trial testimony, and

although he did testify in the so-called Media Trial, his testimony did prose-
cutors little good. The judges in the Media Trial criticized Serushago’s testimony
for its many “inconsistencies and contradictions.”  For instance, he initially
told prosecutors that one of the defendant’s victims was a woman or a boy; while
testifying at trial, however, he steadfastly maintained that the victim had been
a man. Serushago also testified that a certain Colonel Rwendeye attended two
death squad meetings in 1993 and 1994. Confronted with evidence that Rwendeye
had died in 1990, Serushago rejected that evidence and instead maintained that
Rwendeye had died at the end of 1992. When it was pointed out that Serushago’s
revision nonetheless made Rwendeye “the only dead man at the meeting,” 
Serushago tried to deny his own testimony, claiming that he had testified that
the meetings had taken place at the end of 1992 and 1993. The Trial Chamber
recounted numerous other inconsistencies and contradictions to support its ulti-
mate conclusion that Serushago was “confused and at times incomprehensible in
his testimony.”  As a consequence, the chamber deemed Serushago’s testimony
to be “not consistently reliable” and accepted it only to the extent that it was cor-
roborated by other testimony.
As for Ruggiu, his plea agreement spans thirty pages, but the first several
pages read more like diary entries than legal provisions in that they explicate
in substantial detail the factors motivating Ruggiu’s decision to plead guilty as
well as his hopes for the reconciliatory effect of his guilty plea. Subsequent
pages of Ruggiu’s plea agreement contain “admissions” about the genocide, but
they are so broad and vague as to be virtually useless to the prosecution. Ruggiu
“admit[ted],” for instance, “that all [RTLM] broadcasts were directed towards ral-
lying the population against the ‘enemy,’ the RPF and those who were considered
to be allies of the RPF” (emphasis added). In a similar vein, Ruggiu acknowl-
edged “that RTLM broadcast extremist Hutu . . . ideology” and that RTLM broad-
casts “incited young Rwandans, Interahamwe militiamen and soldiers to take
part in armed conflict against the ‘enemy’ and its accomplices, [and] to kill and
inflict serious bodily and mental harm on Tutsi and moderate Hutu.” Going on to
issue a sweeping indictment, Ruggiu asserted in his plea agreement “that RTLM
broadcasters, including himself, together with RTLM managerial and editorial
staff, bear full responsibility for the 1994 massacre of Tutsi and Hutu opposition
party members.”  Statements such as these are welcome acknowledgment for
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victims, but they provide little assistance to the prosecution. Moreover, Ruggiu’s
subsequent testimony in the Media Trial, was even less credible than Serushago’s.
While on the stand, Ruggiu admitted to lying to prosecutors in his early inter-
views, and the remainder of his testimony was so riddled with inconsistencies
that the Trial Chamber rejected it “in its entirety.” 
In Jean Kambanda’s initial interviews with the prosecution, by contrast, he
provided prosecutors with information far more valuable than the vague, unsup-
ported assertions appearing in Ruggiu’s plea agreement. In fact, Kambanda pro-
vided prosecutors with ninety hours of recorded testimony that included, in the
prosecution’s words, direct evidence “of such key facts” as the meeting between
the “Council of Ministers and Prefets . . . where the topic of massacres commit-
ted against the civilian population was raised; the contents of deliberations and
decisions agreed upon by consensus in the numerous closed sessions of the Cabi-
net; [and] the involvement of Ministers, senior Military officers and Prefets” in
the commission of crimes within the tribunal’s jurisdiction. The prosecution
labeled Kambanda’s information “invaluable,”  and a review of the portions of
Kambanda’s disclosures that are revealed in Linda Melvern’s account of the
Rwandan genocide supports that description. The testimony that Kambanda
promised subsequently to provide might likewise have been invaluable, but the
prosecution lost its opportunity to acquire that testimony when it recommended
that Kambanda receive a life sentence. Upon learning of that recommendation,
Kambanda immediately stopped cooperating with the prosecution, and its subse-
quent efforts to obtain his further assistance have thus far proved unavailing.
Prosecutors may have seen greater success in obtaining inculpatory informa-
tion from such defendants as Michel Bagaragaza and Juvénal Uwilingiyimana,
who did not plead guilty. As members of the akazu, Bagaragaza and Uwilingiy-
imana were well-positioned to have information of vital significance to the prose-
cution, and there is reason to believe that the prosecution received at least some of
that information. Certainly, it is unlikely that prosecutors would have requested
to transfer Bagaragaza’s case to Norway had he not provided them with valuable
information. As for Uwilingiyimana, a Toronto newspaper reported that, at the
time he went missing, he was on the verge of signing a ninety-two-page document
in which he answered various questions posed by the prosecution. How useful
Uwilingiyimana’s evidence would have been, though, is open to question. Recall
that a letter attributed to Uwilingiyimana appeared on the Internet and accused
ICTR investigators of threatening him with bodily injury if he did not convey the
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information they needed to prove their cases. If that letter was authentic, then
Uwilingiyimana’s statements to the prosecution were valueless. In addition, after
Uwilingiyimana’s death, defense counsel in the Karemera et al. case sought the
disclosure of the information that Uwilingiyimana had provided prosecutors,
claiming that it would help to exculpate their clients. Defense counsel revealed
that they too had interviewed Uwilingiyimana and had intended to call him
as a witness. As defense counsel Peter Robinson put it, “His death actually
does more harm to us than the prosecution.”  These conflicting accounts of
Uwilingiyimana’s evidence and loyalties suggest that he may have been tailoring
his story to suit the needs of his listeners. Consequently, his “assistance” to the
prosecution may well have proved no more helpful than that of Serushago and
Ruggiu before him.
Even though their efforts have largely failed, ICTR prosecutors have at least
tried to obtain from guilty-plea defendants inculpatory information about other
defendants. By contrast, prosecutors have made little or no attempt to obtain in-
formation that would be of exclusive interest or value to survivors. The plea agree-
ments of ICTR guilty-plea defendants, for instance, typically contain no informa-
tion about victims. Serushago killed only four people, but even his plea agreement
does not identify those victims. Chances are, of course, that neither Serushago
nor anyone else even knows the identities of his specific victims, and it would be
more ludicrous still to attempt to identify the victims of such high-ranking of-
ficials as Kambanda, since their crimes—in orchestrating and implementing the
genocide—affected all of the victims. The difficulty, then, of obtaining informa-
tion useful to victims in the context of such widespread and anonymous violence
as that which took place in Rwanda must be taken into account when assessing
those efforts.
However, whereas failing to obtain information useful to victims may not be
worrisome in certain contexts, distorting the information already available is.
As Chapter 5 discussed, ICTR prosecutors have shown newfound willingness to
withdraw genocide charges and dramatically amend indictments to induce de-
fendants to plead guilty. That prosecutors would resort to such tactics is under-
standable given the pressure they are under to adhere to the tribunal’s completion
strategy and the difficulty they have had in persuading defendants to plead guilty
in exchange for sentencing concessions alone. But the fact remains that such mea-
sures distort the historical record and consequently undermine truth-telling and
reconciliation efforts.
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Apologies
The ICTR’s experience with statements of remorse mirrors that of the ICTY.
The first ICTR defendant to plead guilty, Jean Kambanda, issued no statement of
remorse. Throughout Kambanda’s interviews with the prosecution, he appeared
completely unrepentant, and when asked during his sentencing hearing if he
had anything to say, Kambanda declared simply, “I have nothing further to add.”
Although both the prosecution and defense urged the Trial Chamber to interpret
Kambanda’s guilty plea as an expression of remorse, the chamber declined to do
so, observing that “remorse is not the only reasonable inference that can be drawn
from a guilty plea.” The chamber went on in an incriminatory tone: “Jean Kam-
banda has offered no explanation for his voluntary participation in the genocide;
nor has he expressed contrition, regret or sympathy for the victims in Rwanda,
even when given the opportunity to do so by the Chamber, during the hearing of
3 September 1998.” 
Kambanda’s decision to remain silent clearly did not bolster his chances of re-
ceiving a sentence discount, a lesson that was well-learned by subsequent guilty-
plea defendants, all of whom have expressed their remorse. Bisengimana’s state-
ment seemed carefully scripted. In stating his remorse, Bisengimana took great
pains to acknowledge only those omissions that formed the basis for his guilty
plea. Rutaganira likewise “begged forgiveness of the families of the victims,”
stating that he “regret[ted] not having been able to save the people in the Church”
and that he would “never forget the horrible sight [he] saw the day after the at-
tacks.”  Ruggiu, for his part, “plead[ed]” with the families of the victims to “un-
derstand that I greatly regret and sincerely what happened in Rwanda in 1994,” 
and Serushago had to choke back tears when he asked for forgiveness.
Although these statements of remorse might be viewed solely as calculating at-
tempts to obtain leniency, that is not necessarily the way that victims view them.
Helena Cobban writes of a Rwandan businessman, identified by the pseudonym
B.V., who criticizes virtually every aspect of the justice that is meted out at the
ICTR. There was, however, “one moment in all the years of the ICTR’s work that
gave B.V. and his friends some real satisfaction,” and this moment came when
Serushago made his confession in open court:
B.V. had seen Serushago’s statement on television, and he remembered it clearly even
five years after the event: “Serushago cried. He pleaded for forgiveness. He showed
remorse,” he said. . . . “Rwandese liked to see the way Serushago acted,” B.V. told me.
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He contrasted Serushago’s behavior—and the popular reaction to it—with that of the

most prominent suspect to plead guilty at ICTR, Jean Kambanda. . . [who] notably
failed to express any remorse. “Kambanda just admitted he had committed the crimes,
and thought that was enough,” B.V. said. “And he didn’t even understand why, after he
had done that, he got a life sentence.” 
Restorative Elements in Special Panels Guilty-Plea Processes
Truth-telling and Victim Involvement
The Special Panels made little effort in any of their cases to develop or publi-
cize an historical record of the atrocities. As Chapter 2 described, the panels were
inadequately funded throughout their existence, and they simply did not have the
resources to advance truth-telling in any meaningful way. Judges for the Special
Panels were not assisted by secretaries or law clerks, so when they issued judg-
ments at all, those judgments featured only very brief statements of fact, virtually
all of which had been cut and pasted from the indictments. As time went on,
moreover, the panels dispensed even with issuing judgments; in their later years,
the panels disposed of many cases by means of oral decisions or “Dispositions
of the Decision,” which did not include any facts. In addition, even though the
Special Panels were required to make a transcript publicly available, they often
failed to do so. After defendants in the Los Palos case fi led a notice of appeal,
the court of appeal ordered the court registry to provide the official trial record,
but there is no indication that the registry ever did so. Similarly, the defense
counsel in the José Cardoso case fi led a notice of appeal in April 2003 but had been
unable to provide a written appeal statement by June 2004 because no transcript
was available.
Given the Special Panels’ general failure to develop the historical record, it
should come as no surprise that the prosecution and the panels likewise failed to
generate considerable information through the use of guilty pleas. According to
the Serious Crimes Unit’s chief of prosecutions, prosecutors sought to obtain as
much information as they could when they interviewed any defendant, but they
made no special efforts to obtain information from defendants who pled guilty,
and they certainly did not condition a sentence recommendation on a guilty-
plea defendant’s willingness to cooperate with the prosecution. Indeed, the chief
of prosecutions reported that, because the standard plea agreement provided
that defendants could be prosecuted for crimes not covered by the agreement,
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prosecutors would not have expected defendants to disclose information because

doing so might put them at risk of a subsequent prosecution.
The prosecution’s lack of interest in defendant information, while unfortu-
nate, is understandable given the context in which the Special Panels operated.
Only in recent years have the better-funded ICTY prosecutors begun condition-
ing their sentencing recommendations on the defendants’ provision of informa-
tion, and the information they have sought almost exclusively concerned other
ICTY cases involving high-level defendants. Because the Special Panels had no
ability to arrest any high-level defendants, the sort of information that is of sub-
stantial value at the ICTY was worth little at the Special Panels. Further, most
of the defendants that the Special Panels were able to prosecute were low-level
militia members who had no valuable information to provide prosecutors in any
event.
The Special Panels were also entirely unable to involve victims in their pro-
ceedings, whether those proceedings involved guilty pleas or not. Most East
Timorese live in remote villages and did not have the means to travel to the Spe-
cial Panels’ proceedings in Dili. In addition, the Special Panels had no public
information program, and because many villagers are illiterate, the scant media
reports on the Special Panels that did exist would not have helped them. In-
deed, communication is so limited in East Timor that, when defendants were
arrested from villages, most villagers had no idea where they were taken or what
fate befell them; as far as the villagers were concerned, the defendants simply
disappeared. Further, the few East Timorese who made efforts to attend Spe-
cial Panels’ proceedings faced considerable obstacles. During the first few days
of the Los Palos case, for instance, East Timorese were prevented from entering
the court building because they lacked U.N. identity cards. Although this policy
was soon changed and guards were instructed to grant the public access, mis-
takes were occasionally made throughout the trial, and interested people were
prevented from attending. In addition, even when the doors were not barred,
victims and witnesses were nonetheless indirectly prevented from attending the
proceedings because the panels never published their court dates. Many of the
East Timorese who surmounted these sorts of hurdles and did manage to attend
a court session faced disappointment nonetheless because the proceedings were
not translated into a language they understood. In the Carlos Soares case, for
instance, four members of the defendant’s family traveled from the villages to
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hear the defense’s closing statements in the case but did not understand a word
of it because it was read in Portuguese, and no English or Tetum translation was
provided. The panels suffered from a scarcity of interpreters throughout their
existence so that defendants themselves were often unable to follow the proceed-
ings in their entirety because the overworked interpreters routinely failed to
translate exchanges between judges and counsel.
Reparations and Apologies
The Special Panels did require some defendants to pay the costs of the pro-
ceedings, but they imposed no obligations to make material reparations to vic-
tims. As for apologies, a few of the later guilty-plea defendants made statements
of remorse. Some of these were very brief. Augusto Dos Santos, for instance,
stated: “I did not know that man. He did no wrong to me. I am sorry.”  Other
statements placed more emphasis on the pressure exerted on the defendant to
commit the crimes than on the defendant’s remorse for having committed them.
Sabino Leite’s statement comprised approximately forty-five sentences, for in-
stance, but in only one did he express remorse for the harm he inflicted. In the
remainder of his statement, he informed the judges of his low-level status, the
compulsion under which he acted, the difficulty his family faces while he is in
prison, and his desire to be immediately released. Indeed, after stating that he felt
remorse for his actions, Leite went on to say that the time he had already spent
in prison served to pay for his “mistakes,” and he asked the judges to release him
immediately. He concluded his statement by reiterating this request: “I repeat, I
would like to be released this second.”  Jhoni Franca’s statement was similar:
it featured one or two sentences of remorse amidst approximately fift y sentences
of justifications. The available evidence indicates that many Special Panels de-
fendants did act under extreme compulsion, so it is understandable that they
would emphasize that fact in their statements. At the same time, statements that
seek primarily to justify defendants’ behavior do little to advance reconciliation
between victims and offenders. The point is a small one in any event because even
if these statements had been better drafted, they nonetheless would have had little
or no impact because victims were unaware of them.
In sum, then, Special Panels’ guilty pleas served only one purpose—efficiency:
that is, they resulted in a more expeditious resolution of cases. However, unlike
some ICTY cases that make unsupportable claims about the reconciliatory value
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of their guilty pleas, the Special Panels were forthright about their practical focus.
As the Atolan panel put it:
The fact that the decision of the accused to plead guilty came at the end of a moral
process of remorse, as a way to reconcile himself “with his Timorese brothers as well
as with God” (words by the learned Counsel) is, in itself, of minor importance. What
matters is the practical reflex of this internal drive or, in other words, the cooperation
with the Prosecution during the inquiry and with the Court, pleading guilty.
Reconciliation and Restoration through Rwanda’s Domestic

Guilty-Plea Procedures and Its Gacaca Courts
The ICTR guilty-plea procedures discussed above contain few restorative ele-
ments; Rwanda, however, has made some of its own efforts to encourage defen-
dants to self-convict. After the genocide, the new Tutsi-led Rwandan government
embarked on the largest-scale national criminal prosecution effort in history.
By 1998, Rwanda had arrested and imprisoned approximately 130,000 people on
genocide charges  and had adopted Organic Law No. 08/96 (Organic Law) to
govern the prosecution of these suspects. The Organic Law classified offenders
into four categories depending on their level of culpability. Category 1 perpetra-
tors include those who had planned, instigated, or organized the genocide along
with notorious murderers who distinguished themselves by their excessive mal-
ice. Category 2 perpetrators include lower-level murderers, the “foot soldiers” of
the genocide. Category 3 perpetrators are those who committed serious assaults,
and Category 4 perpetrators committed property offenses.
Recognizing that it could not hope to provide full-scale trials to 130,000 de-
fendants, the Rwandan government included in the Organic Law an innovative
guilty-plea procedure that offers reduced sentences primarily to perpetrators
who fall into Categories 2 and 3. The penalty reductions are significant. For
instance, the law provides that Category 2 defendants will receive a sentence of
life imprisonment if convicted following trial but will receive a sentence of seven
to eleven years’ imprisonment if they plead guilty before prosecution and a sen-
tence of twelve to fifteen years’ imprisonment if they plead guilty after having
been accused. To obtain these sentence reductions, defendants must do more
than just plead guilty, though; in addition, they must provide “a detailed descrip-
tion” of all of their offenses, “including the date, time and the scene of each act,
as well as the names of victims and witnesses, if known,” along with information
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relating to accomplices, conspirators, and “all other information useful to the

exercise of public prosecution.”  Defendants are also required to apologize for
their offenses. The Rwandan guilty-plea procedure, then, incorporates many
of the restorative features examined throughout this book.
The guilty-plea process has functioned as intended in a small proportion of
cases. Some defendants have confessed their crimes, pled guilty, identified their
coperpetrators, and apologized to victims. And some victims have received
not only apologies but much-desired information. One twenty-two-year-old Tutsi
woman, who watched a defendant murder her family, desperately wanted to know
where the bodies had been buried. Upon her request, the defendant disclosed this
information through the guilty-plea process, and the victim stated that it “was
some kind of closure to me.”  Cases like this have been rare, however. Initially,
few defendants chose to confess, largely because they were unaware of the guilty-
plea procedure and the sentencing benefits it bestows on defendants. After the
genocide, only a handful of practicing lawyers remained in Rwanda, and virtu-
ally none of them would agree to represent genocide suspects. Because few
defendants had legal representation, and the prosecution failed to convey to de-
fendants even the most basic information about their cases, a large proportion of
defendants did not even know with what crimes they had been charged, let alone
how to take advantage of a complex guilty-plea procedure.
Another impediment to pleading guilty was fear of retaliation: the Rwandan
guilty-plea procedure required confessing defendants to name coconspirators
and accomplices, among others, but it provided for no witness-protection mech-
anism to prevent reprisals. Indeed, while a defendant’s confession was under
review, the defendant remained detained in the same facilities that housed those
prisoners implicated in the defendant’s confession. Further, and particularly
early on, there existed no organized procedure for communicating a defendant’s
confession. In some cases the confession had to be conveyed through the in-
formal prison hierarchy and thus was made known to those inclined to retaliate.
Some prisoners refused to confess not so much because they feared retaliation
but because they did not feel that they had done anything wrong. Some of these
prisoners were indeed factually innocent, but even those who had committed
crimes often did not believe themselves to be morally culpable because the previ-
ous government had encouraged their crimes.
Given these difficulties, it is not surprising that only 500 prisoners of the ap-
proximately 130,000 detained confessed in 1997. Confessions increased follow-
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ing the widely publicized April 1998 executions of twenty-two convicted Hutu,
so that seven thousand confessions had been received by September 1998, and
twenty thousand by 2000. Rwandan courts had great difficulty processing these
confessions, however. The hearing and review process proved slow and cumber-
some, and a scarcity of personnel ensured that at any given time only one-fourth
of the confessions were verified by the Public Prosecution Department. Thus,
although five hundred defendants confessed throughout 1997, by the middle of
that year, only twenty-five of them had been accorded reduced sentences on the
basis of their guilty pleas.
Rwanda’s initial guilty-plea system consequently failed to speed cases through
the system. Nine years after the genocide, Rwanda had managed to dispose of the
cases of only sixty-five hundred defendants with more than one hundred thou-
sand still awaiting trial. Calculating that it would take more than two hun-
dred years to try all of the prisoners using conventional methods, the Rwandan
government began plans to transform a precolonial, community-based system
of dispute resolution, known as gacaca, into a centrally managed system for try-
ing genocide cases. In precolonial times, gacaca was used to resolve small-scale
disputes, typically involving property rights, marital disputes, inheritance ques-
tions, and the like. Using traditional gacaca, village elders, called Inyangamu-
gayo, would convene all parties to the dispute to mediate solutions and reinte-
grate offenders into the community. In 2001, the Rwandan government adapted
traditional gacaca by enacting a law establishing approximately eleven thousand
gacaca jurisdictions to prosecute genocide and crimes against humanity. The
government professed its hope that gacaca would establish the truth about the
genocide, would impose deserved criminal sanctions, and would promote na-
tional reconciliation by reintegrating guilty parties into society.
The government amended the original gacaca law in 2004, altering the struc-
ture of the gacaca jurisdictions. Gacaca jurisdictions are now divided into three
levels—cell, sector, and sector courts of appeal. Each gacaca jurisdiction is charged
with specific tasks. Approximately 9,500 cell-level gacacas must investigate and
record the crimes that took place within a cell and must try suspects accused of
property crimes. The 1,550 sector-level gacacas try Category 2 suspects and hear
appeals from certain cell-level decisions. Finally, the courts of appeal hear ap-
peals of sector-level gacaca decisions. The work of the gacacas will proceed in
three stages. Cell-level gacacas will begin the process by investigating the crimes.
Specifically, during the first phase, cell-level gacacas must prepare lists of people
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killed as a result of the genocide, forms detailing the damage suffered by cell
residents, and lists of accused people. These investigations will form the basis
for later prosecutions, but they also advance gacaca’s truth-telling and reconcili-
ation missions by establishing a historical record of the genocide and allowing
those who have suffered losses to feel that their grievances have been taken into
account. During the second phase, cell-level gacacas must collect information
relevant to the accusation of suspects and, using that information, must sort sus-
pects into the three categories of offenders. During the third and final phase,
suspects will be tried in the appropriate gacaca. In 2002, a pilot phase was be-
gun wherein gacaca was introduced in 10 percent of the country; the process
was launched nationwide in January 2005. The first trials in the pilot sectors be-
gan March 10, 2005, while trials in the rest of the country began in the spring
of 2006.
In its conception, Rwanda’s gacaca experiment contains a unique blend of
retributive and restorative elements. Gacaca jurisdictions have the authority to
impose severe criminal sanctions, including sentences of thirty years’ imprison-
ment. At the same time, gacaca also seeks to enhance truth-telling and recon-
ciliation through use of the guilty-plea procedure contained in the 1996 Organic
Law, with modifications that provide for even greater leniency to confessing of-
fenders. In particular, Category 2 suspects who confess prior to their gacaca trial
will not only receive reduced prison sentences but will also be eligible to have half
of their sentences commuted to community service. To obtain these conces-
sions, suspects must not only, as before, make full and complete confessions and
apologize, but must also reveal the location of the remains of their victims.
These confessions, along with virtually all of the work of the gacacas, are in-
tended to take place in front of and with the participation of the entire commu-
nity. The work of cell-level gacacas is conducted before their General Assemblies,
which are composed of all cell inhabitants older than eighteen years. Each gacaca
also contains a bench, with nine judges and four deputies, and a coordinating
committee, with five members. Thus, the gacacas’ judicial staff alone numbers
nearly 170,000 Rwandans. A gacaca session cannot be convened without the
attendance of at least seven judges and one hundred members of the General As-
sembly. The gathering of information and the investigation of suspects, there-
fore, is intended to be informed by substantial community participation. Even as-
certaining simple factual details, such as who lived in the cell before the genocide,
involves the entire community; in some cells, each household was requested to
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bring a list of their pregenocide members, and in others, gacaca leaders prepared
the lists and discussed them during the assembly. Creating lists of accused
was somewhat chaotic given the wide community participation. A Penal Reform
International Report illustrated the painstaking nature of a simple census process
in areas where many inhabitants are illiterate: “People came with small pieces of
paper, with a few (incomplete) names scribbled down which were often difficult
to read, to recall the persons living in each household. Full names and ages were
often unknown and memory gaps were frequent.”  However, despite the ineffi-
ciency and chaos caused by the community participation, that very participation
offered the potential to legitimize the lists.
Confessions, too, are often delivered in front of the very communities in which
the crimes took place and with the participation not only of victims’ families but
defendants’ families and other suspects whom defendants may need to impli-
cate if their confessions are to be complete. Confessions made in such a context
can be interactive. Community members may provide their own recollection of
events and may question suspects: “Why is this story different from what you said
last time?”  and “You told us you had 15 bullets on the first day and that you
only killed one person. What did you do with the remaining bullets?”  Through
these interactions, survivors may face down murderers in front of the community
in which they murdered: During a gacaca in Kigese, for instance, one woman,
“looking straight ahead and not at the man being cross-questioned, said to him,
‘You killed my son.’ After a rambling denial from him, she spoke again, calm and
determined: ‘You killed my son.’ ”  The theory of gacaca is that such structured,
yet informal, face-to-face encounters enable survivors to convey what is mean-
ingful to them and have it heard in the communities in which their lives gain
meaning. As Allison Corey and Sandra Joireman describe it, the active participa-
tion of survivors “contributes to political and personal reconciliation within the
Rwandan population, since people are given the opportunity to confront their
attackers, tell their stories and express pent-up emotions all in a secure environ-
ment.”  Gacaca also requires offenders to face the very people harmed by their
actions and have those actions and that harm exposed before their friends and
family. That exposure has at least the potential to shame suspects in reintegrative
ways that do not occur in the context of formal courtroom proceedings.
Although the theoretical benefits of mechanisms like gacaca that seek to bal-
ance and blend retributive and restorative aims are compelling, their practical
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implementation can prove a challenge. For that reason, among others, some com-
mentators are decidedly pessimistic about gacaca’s prospects for achieving its
stated ends. Gacaca’s real-world problems are unquestionably numerous and
daunting, and while some could be easily remedied, others are entrenched in
the socioeconomic context in which gacaca must be carried out. For instance, a
significant proportion of gacaca judges are illiterate, and even those who can
read and write have had difficulty mastering the material they must learn because
they had, at most, thirty-six hours of training. More worryingly, some judges
have themselves been accused of genocide-related crimes; nearly twelve hundred
judges resigned in June 2005 as a result of such allegations. Other judges are
viewed as biased because they have relatives in prison or because they are survi-
vors and are assumed to reflexively promote survivor interests. Gacaca’s juris-
diction is itself biased, which causes tremendous disillusionment among Hutu.
In putting an end to the genocide, the Tutsi-led RPF committed many crimes of
its own against Hutu—killing many tens of thousands of them —yet the Tutsi-
dominated Rwandan government has not placed these crimes within gacaca’s
jurisdiction. Hutu victims, then, have no hope of seeing their perpetrators
prosecuted; consequently, many Hutu see their participation in gacaca as satisfy-
ing a governmentally imposed obligation, not as “a process that truly serves each
community as much as it depends upon all of them.” 
Gacaca’s most notable failing concerns its core element—community partici-
pation. After initial enthusiasm about gacaca, attendance dropped off. Dis-
satisfaction with gacaca’s one-sidedness accounts for the failure of some Rwan-
dans to participate, while fear accounts for much of the rest. Tutsi survivors fear
violence from those whom they accuse; Hutu witnesses fear that the information
they provide will be used subsequently to prosecute them; and the families of
perpetrators fear that confessions by those perpetrators will result in retalia-
tion against them. Indeed, during the spring of 2005, thousands of Hutu fled
Rwanda for neighboring countries, and rumors circulated that some of those de-
parting feared being accused of genocide through gacaca. The economic con-
sequences of gacaca participation also deter Rwandans from attending. Ninety
percent of Rwandans are subsistence farmers who must eke out a living by work-
ing their fields or performing itinerant labor. Attending a gacaca session requires
Rwandans to forego their usual livelihood, which is a sacrifice that not all are
willing or able to make. Attendance has become so poor in some cells that au-
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thorities have taken to using coercive measures to compel attendance, and the
2004 amendments to the gacaca law authorize gacaca courts to impose criminal
sanctions on those who refuse to testify as to what they know.
Confessions have increased since the introduction of gacaca, though gaca-
ca’s inception coincided with more robust independent efforts by prosecutors
to obtain guilty pleas, so the increase in confessions is not necessarily entirely
attributable to gacaca. Whatever the cause, by late 2004 approximately sixty-
five hundred detainees had confessed, and these confessions, along with the
government’s January 2003 decision to release very young, elderly, and ill pris-
oners, brought freedom to tens of thousands. These confessions, though, are
implicating scores of additional suspects. Extrapolations from the confessions
obtained during gacaca’s pilot phase suggest that as many as one million addi-
tional suspects might be identified through gacaca. Thus, a process designed
to clear the prisons appears poised to fi ll them up again. An additional problem
regarding gacaca confessions concerns their completeness; Penal Reform Inter-
national reported that some prisoners confess to crimes less serious than those
they actually committed or admit only those crimes for which they are already
sure to be convicted. Throughout the world, confessing defendants seek to under-
state their criminal liability, but gacaca participants are more able to succeed in
their efforts because gacaca courts have made no effort to verify the truthfulness
or completeness of confessions. Some Rwandan prisoners additionally make
“arrogant” confessions, speaking “in a loud aggressive voice, a stream of words
expressed without any visible sign of feeling or remorse, ending in vociferous
attempts to pressure the victims to pardon them immediately, on the spot.” 
Finally, human-rights organizations are quick to point out gacaca’s due-process
failings and, in particular, the fact that defendants are provided no right to legal
counsel.
Although responsibility for some of gacaca’s problems must fall to Rwanda’s
current Tutsi-led government, many of gacaca’s failings are no worse than one
might expect to encounter in a desperately impoverished country seeking ac-
countability and reconciliation after a cataclysm of violence that extinguished
nearly a million lives. It would be a miracle if issues such as these did not arise,
given Rwanda’s extreme poverty and high illiteracy rate, problems that render it
a challenge merely to compile lists of pregenocide and postgenocide cell residents.
Although the practical impediments to achieving gacaca’s goals seem at times
insurmountable, its theoretical underpinnings are sound, and it is these under-
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pinnings that should inform future transitional justice projects. As they play
out during the coming years, gacaca proceedings will likely exemplify both the
promise of criminal justice measures that aim to blend restorative and retributive
features and the obstacles they must surmount.
Reconciliation and Restoration through East Timor’s Commission

for Reception, Truth, and Reconciliation
Although the Special Panels failed entirely to include restorative features in

their prosecutions, many less-serious offenses in East Timor have nonetheless
been addressed through restorative processes that have been initiated in local
communities and incorporated into East Timor’s innovative truth commission.
After the 1999 violence, tens of thousands of East Timorese who had partici-
pated in militia activities fled to West Timor and remained there, fearful of the
reception that would greet them if they were to return home. The continuing
presence of a large number of refugees in West Timor was considered a secu-
rity threat to East Timor, so serious efforts were made to facilitate their peace-
ful return. In particular, different types of grassroots reconciliation processes
have been convened since 2000 to welcome refugees. In some cases, refugees are
brought back by family members, while in others a village or district will arrange
to meet members of their communities living in the refugee camps and will bring
them back under the auspices of local political authorities. In either case, refugees
participate in a ceremonial handover, which takes place at the border. During
this handover, refugees are expected to face their communities and confess their
offenses. A local team evaluates these confessions, verifying them with available
witnesses. An elected representative of the refugees or an elder also issues a con-
fession on behalf of the group. After receiving that confession, the community
members who are present can address complaints to particular individuals, and
a discussion typically ensues. Upon arriving home, refugees participate in a wel-
coming ceremony, which also features confessions and apologies. Often the cer-
emony will culminate in an exchange of betel nut or an “oath of blood,” in which
each side drinks the other’s blood.
Also to advance reconciliation, UNTAET established a Commission for Re-
ception, Truth, and Reconciliation in July 2001, which is generally known by
the Portuguese acronym CAVR. CAVR operated for two years, during which
time it investigated the human-rights violations that had occurred within the
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context of political conflicts in East Timor between 1974 and 1999. To ful-
fi ll its mandate, CAVR took nearly eight thousand statements from victims 
and held a series of well-attended public meetings centering on specific instances
of violence, such as internal political conflict between 1974 and 1976, famine
and forced displacement during the late 1970s and early 1980s, and women in
conflict. CAVR was also tasked with preparing a comprehensive report detail-
ing the information it gathered and making recommendations for preventing
future human-rights violations. In most respects, then, CAVR is fairly similar
to a number of previous truth commissions, but it differs from them markedly in
its inclusion of a Community Reconciliation Process (CRP), which, like the grass-
roots initiatives described above, is intended to facilitate refugee returns and to
reconcile perpetrators of less-serious crimes with their victims.
Offenders  wishing to participate in the CRP began the process by submit-
ting to CAVR a written statement that contained, among other things, a full de-
scription of the relevant acts, an admission of responsibility for those acts, and
a renunciation of the use of violence to achieve political objectives. UNTAET
granted the CRP jurisdiction, as it were, only over less-serious crimes; conse-
quently, after an offender submitted a statement, a copy was sent to the Office
of the General Prosecutor to give the prosecutor the opportunity to exercise ju-
risdiction if the prosecutor considered the offenses too serious to be processed
through the CRP.
If the Office of the General Prosecutor waived its right to prosecute, then
the regional commissioner of CAVR scheduled a public hearing on the matter.
Although the relevant UNTAET regulation appears to envisage that a hearing
would be convened for each individual offender, most CRP hearings featured
multiple offenders, in some cases as many as twenty. CRP hearings were pre-
sided over by a panel that included community representatives and that was
chaired by the CAVR regional commissioner. Traditional community leaders
were typically not appointed to the CRP panel but often functioned in an over-
sight capacity, and their eventual endorsement of a particular hearing bestowed
on it considerable legitimacy. During a CRP hearing, the panel would hear
from the offenders, the victims, and community members. At the start of a
hearing, a CRP official would read the offender statements that had been sub-
mitted for that hearing; next, the offender was given an opportunity to make an
oral statement. Some offenders issued very brief statements while others spoke at
length. In making some of these statements, it was evident that offenders “were
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‘lowering themselves’ before their communities, and that the hearing was at one
level a public process of shaming, that concluded with the official re-admittance
of the [offenders] back into the family.”  The public accounting required by
the hearing was emotional and difficult for some offenders. “[M]any looked . . .
uncomfortable throughout the proceedings.” 
After offenders made their statements, they were subject to questioning from
the CRP panel and from victims and community members. Although offend-
ers were technically required to disclose all relevant information about their of-
fenses, including information about other offenders, in many instances, little
interrogation about these matters took place. Rather, victim questioning in par-
ticular tended to focus on idiosyncratic issues of importance to the victim. For
instance, one victim, who had been beaten by an offender, did not ask the offender
for information about the other person who had beaten him but wanted instead
to know what had happened to his sacred sword that had been stolen during the
incident. Similarly, some community members asked questions relevant to the
offender’s actions while others used the opportunity to ascertain whether the of-
fender had any information about an unrelated offense that had been perpetrated
on the questioner. Following the hearing, the panel was required to determine
an appropriate act of reconciliation, which, if the offender agreed to it, would be
memorialized in a Community Reconciliation Agreement. In some cases, the
panel included service requirements, such as four days of labor to build a com-
munity hall, the planting of trees for ten days on church land, or the cleaning of
church land for one day a week for several months. In other cases, offenders were
required to compensate their victims through the transfer of livestock. How-
ever, the majority of offenders were required only to apologize and promise not to
engage in future violence. In addition to setting forth the act of reconciliation,
Community Reconciliation Agreements also included a description of the of-
fenders’ acts, a record of their acceptance of responsibility, and their apologies.
CRP processes concluded in the spring of 2004 and were considered a suc-
cess. The CRP expected to receive approximately one thousand statements from
offenders, and in the end, it received more than fi fteen hundred, a 50-percent in-
crease over projections. Indeed, the popularity of the program resulted in a large
backlog of cases for the CRP as it was concluding its operations, and this backlog
required CRP officials to rush through the caseload in ways that may have im-
paired the hearings’ quality to some extent. As a result of substantial outreach
efforts, the hearings generated considerable community interest and were
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usually well-attended. An average of two hundred to three hundred people at-

tended the hearings in Bobonaro, for instance, while another hearing saw more
than five hundred attendees and another more than one thousand. Although
not all victims and community members were satisfied with the process, and some
in particular complained that the acts of reconciliation were not commensurate
with the harms done, victim and community approval remained generally high.
A CRP internal review completed in March 2004 found high levels of forgiveness
among victims, with some victims clearly expressing the importance to them
of confronting and questioning offenders. Indeed, this review determined that
the level of victim satisfaction and forgiveness had far less to do with what act
of reconciliation was imposed than with the perceived comprehensiveness and
truthfulness of the offender’s confession. The CRP’s success in incorporating
substantial features of local justice legitimized the process and enhanced victim
and community satisfaction with the eventual results.
As noted above, UNTAET deemed the CRP appropriate only for relatively
minor crimes, such as theft, minor assault, the killing of livestock, and arson
that did not result in death or injury. These guidelines were not always fol-
lowed, however, and in some cases the CRP did address serious crimes. As
troubling as this is to some commentators, the failure to process other serious
crimes through the CRP has proved more troubling to local communities because
most of the offenses deemed too serious for the CRP have not been addressed in
any manner whatsoever because East Timor’s underdeveloped, underresourced
criminal justice system has not had the capacity to undertake the prosecutions.
Thus, there currently exists the disquieting likelihood that perpetrators of the
most serious crimes will face no justice at all, a prospect that has deeply distressed
many victims. East Timor’s experience, then, highlights a central thesis of this
book: that in many cases doing some “justice,” even if it is inadequate by usual
standards, brings considerable benefits, particularly when the likelihood exists
that arguably more appropriate measures will not prove feasible.
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Conclusion
Weighing the value of various responses to mass atrocities is an unfulfi lling ex-
ercise. To a population shattered by widespread murders, rapes, abductions, and
torture, no response can be an adequate response. No amount of money, truth-
telling, or criminal sanctions can come close to repairing lives ruptured by vio-
lence. “Reconciliation,” a six-syllable word that can be hard to say, is even harder
to achieve, a fact evidenced by the chaos and violence that continue to plague
many areas that had formerly experienced war and had ostensibly put their con-
flicts behind them.
Despite the inherent inadequacy of remedial measures, anecdotal evidence
suggests that which measures are chosen and how they are implemented do in
fact matter. Societies torn apart by mass violence benefit when truth is told,
when reparations are provided, and when perpetrators suffer criminal punish-
ment. Victims will often be dissatisfied with the amounts of these commodities
handed out following mass atrocities: many South African victims believe that
perpetrators disclosed some details but not all of them;  victims routinely com-
plain about the amounts of reparations they receive;  and few victims consider
any prison sentence adequate punishment for the perpetration of one, let alone
many, murders. Attempting to redress the harms resulting from international
crimes, therefore, is an unsatisfying task that can realistically aim to provide only
a small measure of comfort and vindication amidst widespread sorrow, despair,
and frustration.
The plea-bargaining system developed in this book is designed to enhance
that small measure of comfort and vindication. It is premised on the belief that,
S3857.indb 223 10/4/06 6:47:02 AM

224 conclusion
even in a context in which a large proportion of offenders will not be prosecuted,

increasing the number of offenders who do face criminal sanctions enhances the
ability of those prosecutions to serve the penological goals that they are credited
with serving. It is further premised on the belief that the way in which guilt is de-
termined has a crucial significance for the way in which that guilt is perceived by
the relevant parties. In particular, defendants who acknowledge their atrocities
rather than deny the obvious, who accept responsibility rather than blame their
enemies, and who apologize to victims rather than continue to demonize them
stand a better chance of reintegrating and advancing peace efforts. These recon-
ciliatory values come with a price tag, however—sentencing discounts—which
some believe is a price too high. Sentence discounts are most problematic when
they are bestowed for the mere act of self-conviction, but even when prosecutors
utilize a restorative-justice guilty-plea system such as I have developed here, a
careful balance must be struck between leniency and the reconciliatory benefits
that the leniency purchases, for offering leniency in too large a quantity is likely
to impair the very reconciliation that the system seeks to advance. The ICTY
can praise to the skies Biljana Plavšić’s guilty plea, but when it sentenced her to a
mere eleven-year prison term, of which she will serve at most two-thirds and in
a posh Swedish prison, the ICTY contributed more to enhancing bitterness than
reconciliation.
Even if seemingly appropriate balances can be crafted in various factual con-
texts, both practical and theoretical objections to the provision of sentencing
discounts still exist. Many objections to the practice of plea bargaining appear
on the foregoing pages. A few prosecutors have distorted the facts of the crimes
in order to obtain guilty pleas; a few defendants have been caught lying in an
effort to secure more favorable plea agreements; and a good number of East Ti-
morese defendants have pled guilty without any real awareness of the nature of
the crimes to which they were pleading guilty, let alone the consequences of their
guilty pleas. These issues can be addressed to a greater or lesser extent through
regulation, but the theoretical objections remain. Domestic critics of plea bar-
gaining have argued that punishments should be deserved and that bargains are
out of place in a context where people are to get what they deserve. Defendants
who plead guilty and obtain sentencing concessions, however, never receive the
penologically appropriate punishment that the legislature has mandated. Such
concerns are magnified in the context of international crimes because the crimes
are so grave. No adequate punishment exists for those who participate in large-
S3857.indb 224 10/4/06 6:47:03 AM

conclusion 225
scale murders, rapes, and the like, and discounting an already inadequate sanc-
tion can seem all the more troubling. In the foregoing pages, I have suggested
focusing not on the egregious nature of the crimes, but on the historical and po-
litical contexts in which the response to those crimes will be developed. Despite
the gravity of international crimes, the vast majority have and will go unpun-
ished. As a consequence, I have argued that the exceptionality of prosecutions for
international crimes goes a long way toward justifying sentencing discounts; that
is, I have advanced a half-a-loaf theory which posits that sentencing discounts are
theoretically and practically less disquieting in a context in which few offenders
receive any punishment at all than they are in a system that has the political and
financial capacity to impose appropriate punishment on most offenders. In other
words, context matters.
An examination of context could, however, lead to the opposite conclusion.
One could assert, by contrast, that it is precisely because these trials are so rare,
precisely because they have been preceded by so many centuries of impunity, that
the few that are now undertaken must be undertaken with the greatest possible
care. According to this view, those prosecuting international crimes must be all
the more intent on adhering to the highest due-process standards and on impos-
ing appropriately harsh punishment consistent with those standards, rather than
engaging in unseemly bargaining and handing out discounts mandated by po-
litical constraints. Although according to this view, few trials will be undertaken
now, they will stand as exemplars for succeeding generations when, one can hope,
political considerations will not hold such sway, and the prosecution of interna-
tional crimes is the norm, not an aberration.
Although this argument has surface appeal, it does not give sufficient weight
to the importance of truth-telling and reparations, values that a grant of leniency
can advance. Putting those values aside, moreover, I am also not convinced that
the gold-standard trial model currently in use at the ICTY, for instance, has any
hope of ever becoming a viable means of disposing of significant numbers of
cases involving international crimes. The international community’s response to
the ICTY’s expenditures certainly provides no reason to expect that it will. More
tellingly, American trials take less time and cost less money than international
trials, yet still they are provided to a mere 10 percent of American criminal de-
fendants. European countries that once eschewed any sort of trial negotiations
are now utilizing bargaining practices that bear a substantial resemblance to
plea bargaining, as their trial procedures have become more complex and their
S3857.indb 225 10/4/06 6:47:03 AM

226 conclusion
caseloads more burdensome. The American public holds plea bargaining in

contempt, and citizens of European countries have likewise expressed discomfort
with the increasing prevalence of bargaining in their criminal justice systems;
yet, the negotiations go on. Consequently, if a wealthy country like the United
States refuses to spend the funds necessary to provide its own violent nationals
with full-scale trials, despite public disapproval, how much more unlikely is it
that it will contribute substantial resources to provide full-scale trials to a large
number of violent offenders half a world away? Equally, if a wealthy country like
the United States cannot see fit to allocate sufficient funds to provide full-scale
trials to its small number of violent offenders, how much more unlikely is it that
developing nations, which face pressing demands in health, education, and police
protection, among many others, will be able to provide full-scale trials to many
thousands of offenders?
As these questions indicate, there is no greater chasm than that which divides
what should be done to redress the harms caused by international crimes and
what will be done. The guilty-plea system developed here aims at narrowing that
chasm, if but a little.
S3857.indb 226 10/4/06 6:47:03 AM

r e f e r e nce m at t e r
S3857.indb 227 10/4/06 6:47:03 AM

S3857.indb 228 10/4/06 6:47:03 AM
Notes
b o ok e pig r a ph s : Prosecutor v. Plavšić, Case No. IT-00-39&40/1-S, Prosecution’s

Brief on the Sentencing of Biljana Plavšić (Nov. 25, 2002) Daria Sito-Sucic, Muslim Vic-
tims Outraged, Say Plavšić Sentence Low, Reuters, Feb. 27, 2003.
Introduction
1. The ICTY’s first prosecutor, Richard Goldstone, hailed the tribunals as “a tremen-
dous and exciting step forward,” Richard Goldstone, Conference Luncheon Address,
7 Transnat’l L. & Contemp. Probs. 1, 2 (1997), while Payam Akhavan described the
establishment of the ICTY and ICTR as “an unprecedented institutional expression of
the indivisibility of peace and respect for human rights” that “represents a radical depar-
ture from the traditional realpolitik paradigm which has so often and for so long ignored
the victims of mass murder and legitimized the rule of tyrants in the name of promoting
the purported summum bonum of stability.” Payam Akhavan, Justice and Reconciliation
in the Great Lakes Region of Africa: The Contribution of the International Criminal Tribu-
nal for Rwanda, 7 Duke J. Comp. & Int’l L. 325, 327 (1997).
2. See, e.g., Michael P. Scharf, Balkan Justice (1997); Jose E. Alvarez, Rush to Clo-
sure: Lessons of the Tadić Judgment, 96 Mich. L. Rev. 2031 (1998); Sanja Kutnjak Ivković,
Justice by the International Criminal Tribunal for the Former Yugoslavia, 37 Stan. J. Int’l
L. 255, 331 (2001) (describing the media frenzy at the opening of the Tadić trial); Kellye L.
Fabian, Note and Comment, Proof and Consequences: An Analysis of the Tadić & Akayesu
Trials, 49 DePaul L. Rev. 981 (2000).
3. Allison Marston Danner, When Courts Make Law: How the International Criminal
Tribunals Recast the Laws of War, 59 Vand. L. Rev. 1, 25 (2006).
4. After less than a month in office, Argentine president Néstor Kirchner purged the
military high command, announced a willingness to extradite human-rights offend-
ers wanted in other countries, and called on the Argentine Supreme Court to declare
amnesty laws and pardons unconstitutional. Larry Rohter, Now the Dirtiest of Wars
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230 notes to introduction
Won’t Be Forgotten, N.Y. Times, June 18, 2003, at A4. First, Mexico agreed to extradite
an Argentine ex-navy officer to stand trial in Spain on charges of genocide and terror-
ism. Diego Cevallos, Rights-Mexico: Extradition of Accused Argentine Torturer Approved,
Interpress Service, June 10, 2003. Next, Kirchner prepared to extradite Argentine mili-
tary officers to various European countries that are seeking to prosecute them. Rohter,
supra; Damian Wroclavsky, Argentina Says It Would Extradite “Angel of Death,” Reuters,
Oct. 11, 2003. In August of 2003, the Argentine Senate overwhelmingly voted to repeal the
amnesty laws that had put an end to trials in the 1980s, Reed Lindsey, Taking on the Past,
Argentina Repeals Amnesty, Boston Globe, Aug. 22, 2003, at A12, and in June 2005, the
Argentine Supreme Court struck down the amnesties, holding that they were contrary
to current international law norms requiring states to protect human rights and punish
abuses, Hector Tobar, Argentine Court Voids Amnesty in Dirty War, L.A. Times, June 15,
2005, at A9.
In Chile, courts are sidestepping the amnesty law that ostensibly prevents prosecu-
tions, and they are allowing prosecutions against former military officials to go forward.
Approximately 160 former members of the military are now on trial, and a handful have
already been convicted. See Sebastian Brett, Justice a Step Closer in Chile, The Observer,
May 30, 2004 (“Of more than 200 former officers now facing trials, 15 have received jail
sentences, including Pinochet’s former intelligence chief, Manuel Contreras.”); Louise
Egan, Victims: Chile’s Human Rights Plan Soft on Military, Reuters, Aug. 13, 2003; see also
Ellen Lutz & Kathryn Sikkink, The Justice Cascade: The Evolution and Impact of Foreign
Human Rights Trials in Latin America, 2 Chi. J. Int’l L. 1, 24 (2001) (noting that “[s]ince
Pinochet’s arrest, twenty-five Chilean officers have been arrested on charges of murder,
torture, and kidnapping” and describing a 1999 Chilean Supreme Court case holding the
amnesty law inapplicable in cases of disappearances).
5. ICLN Conference, Establishing the International Criminal Court, The Hague,
Dec. 16–18, 2002 (comments of Sam Muller, ICC Advance Team coordinator).
6. In March 2005, the ICC’s deputy prosecutor in charge of investigations confirmed
that the ICC would be capable of prosecuting only a handful of perpetrators per mass
atrocity. Serge Brammertz, Speech, Challenges Faced during an Investigation, Grotius
Center, The Hague, Mar. 10, 2005.
7. Mark Osiel, Mass Atrocity, Collective Memory, and the Law 39 (1997).
8. See Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of In-
ternational Crimes, 151 U. Pa. L. Rev. 1, 9–28, 46–47 (2002) [hereinafter Combs, Copping
a Plea to Genocide].
9. Wayne R. LaFave et al., Criminal Procedure 21–22 (3d ed. 2000) (observing
that no more than 15 percent of felony charges and only 3 percent to 7 percent of misde-
meanor charges are likely to be resolved by trial); Stephanos Bibas, The Right to Remain
Silent Helps Only the Guilty, 88 Iowa L. Rev. 421, 422 (2003) (reporting that only 6 percent
of felony cases proceed to trial); George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J.
857, 1012 (2000) (noting that in modern American courtrooms, “guilty plea rates above
ninety or even ninety-five percent are common”). As Stephanos Bibas puts it, “Our world
is no longer one of trials, but of guilty pleas.” Stephanos Bibas, Judicial Fact-Finding and
Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1150 (2001).
S3857.indb 230 10/4/06 6:47:04 AM

notes to introduction 231
10. See Combs, Copping a Plea to Genocide, supra note 8, at 40–43.

11. Guilty pleas were offered by Predrag Banović, see Prosecutor v. Meakić et al., Case
No. IT-02-65-PT, Joint Motion for the Consideration of a Plea Agreement between Predrag
Banović and the Office of the Prosecutor, Annex 1 (June 18, 2003) [hereinafter Banović
Plea Agreement]; Momir Nikolić, Prosecutor v. Momir Nikolić, Case No. IT-02-60-PT,
Joint Motion for Consideration of Plea Agreement between Momir Nikolić and the Office
of the Prosecutor, Annex A, Amended Plea Agreement (May 7, 2003) [hereinafter Momir
Nikolić Plea Agreement]; Dragan Obrenović, Prosecutor v. Dragan Obrenović, Case No.
IT-02-60-PT, Joint Motion for Consideration of Plea Agreement between Dragan Obre-
nović and the Office of the Prosecutor, Annex A, Plea Agreement (May 20, 2003) [here-
inafter Obrenović Plea Agreement]; Dragan Nikolić, Prosecutor v. Dragan Nikolić, Case
No. IT-94-2-S, Sentencing Judgement, para. 35 (Dec. 18, 2003) [hereinafter Dragan Nikolić
Sentencing Judgement]; Darko Mrd̄a, Prosecutor v. Mrd̄a, Case No. IT-02-59-S, Sentenc-
ing Judgement, para. 4 (Mar. 31, 2004) [hereinafter Mrd̄a Sentencing Judgement]; Mio-
drag Jokić, Prosecutor v. Jokić, Case No. IT-01-42/1-S, Sentencing Judgement, paras. 7–11
(Mar. 18, 2004) [hereinafter Jokić Sentencing Judgement]; Miroslav Deronjić, Prosecutor
v. Deronjić, Case No. IT-02-61-PT, Plea Agreement (Sept. 29, 2003) [hereinafter Deronjić
Plea Agreement]; and Ranko Češić, Prosecutor v. Češić, Case No. 95-10/1-PT, Plea Agree-
ment (Oct. 8, 2003) [hereinafter Češić Plea Agreement].
12. See, e.g., Dario Sito-Sucic, Muslim Victims Outraged, Say Plavšić Sentence Low, Re-
uters, Feb. 27, 2003; Amra Kebo, Regional Report: Plavšić Sentence Divides Bosnia, IWPR’s
Tribunal Update, No. 302, Feb. 24–28, 2003; Emir Suljagić & Amra Kebo, Mrd̄a Guilty
Plea Sparks Anger, IWPR’s Tribunal Update, No. 322, Aug. 1, 2003; Bosnian Women’s
Association Calls Serb Camp Guard Sentence “Insult,” BBC Worldwide Monitor-
ing, Oct. 29, 2003; Bosnian Muslims Protest “Shameful” War Crimes Sentence, Agence
France-Presse, Oct. 29, 2003; Nerma Jelacić & Chris Stephen, Anger at Short Sentence
for Prison Killer, IWPR’s Tribunal Update, No. 331, Nov. 1, 2003.
13. See Milanka Saponja-Hadzić, Hague Deals Reduce Impact, IWPR’s Tribunal Up-
date, No. 321, July 24, 2003.
14. For a discussion of large-scale human-rights abuses in other Asian countries, see
Carlos Santiago Nino, Radical Evil on Trial 26–30 (1996); Leo Kuper, Genocide:
Its Political Use in the Twentieth Century 79–80, 150–54 (1981); Belinda A. Aquino,
The Human Rights Debacle in the Philippines, in Impunity and Human Rights in In-
ternational Law and Practice 231 (Naomi Roht-Arriaza ed., 1995); Niall MacDermot,
Crimes against Humanity in Bangladesh, 7 Int’l. Law. 476 (1973).
15. David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23
Fordham Int’l L.J. 473, 477 (1999).
16. 1 Truth and Reconciliation Commission of South Africa Report, Chap. 1, para. 36
and Chap. 5, para. 70 (2003). Similarly, restorative justice is understood to emphasize “re-
pair of social connections and peace rather than retribution against the offenders.” Mar-
tha Minow, Between Vengeance and Forgiveness: Facing History after Geno-
cide and Mass Violence 92 (1998). Restorative justice has been said to comprise three
dimensions: “the central and elevated role of the victim, the general focus on repair,
and the procedural emphasis on seeking mutual involvement and support for the three
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232 notes to chapter 1
co-participants and explicitly promoting the role of each in producing justice outcomes.”
Willie McCarney, Restorative Justice: An International Perspective 3 J. Center for Fami-
lies, Child. & Cts. 3, 5 (2001).
17. Gerry Johnstone, Restorative Justice: Ideas, Values, Debates 1 (2002); see
also Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 2003 Utah L.
Rev. 303, 314; Mark S. Umbreit et al., The Impact of Victim-Offender Mediation: Two De-
cades of Research, Fed. Probation, Dec. 2001, at 29, 29 [hereinafter Umbreit et al., The
Impact of Victim-Offender Mediation].
Chapter 1
18. Beginning with the Geneva Convention of 1864, Geneva Convention for the Ame-
lioration of the Condition of the Wounded of Armies in the Field, Aug. 22, 1864, 18 Mar-
tens Nouveau Recueil (ser. 1) 607, and followed by the 1868 St. Petersburg Declaration,
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400
Grammes Weight, Nov. 29, 1868, 18 Martens Nouveau Recueil (ser. 1) 474, and the 1874
Declaration of Brussels, Project of an International Declaration Concerning the Laws and
Customs of War, Aug. 27, 1874, 4 Martens Nouveau Recueil (ser. 2) 219, states primarily
of the Western Hemisphere began to regulate the conduct of armed conflict. The Hague
Peace Conferences of 1899 and 1907 advanced this movement by further developing and
codifying the principles previously articulated. See, e.g., Convention (No. IV) Respect-
ing the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36
Stat. 2277, T.S. No. 539. For insightful analyses of the developments since the Hague Peace
Conferences in each of the areas addressed by the conferences, see Symposium, The Hague
Peace Conferences, 94 Am. J. Int’l L. 1 (2000).
19. Agreement for the Prosecution and Punishment of the Major War Criminals of
the European Axis Powers, art. 6, Aug. 8, 1945, 54 Stat. 1544, 82 U.N.T.S. 280; Charter of
the International Military Tribunal for the Far East, art. 5, Jan. 19, 1946, T.I.A.S. No. 1589,
4 Bevans 20 (as amended, Apr. 26, 1946, 4 Bevans 27).
20. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,
1948, 102 Stat. 3045, 78 U.N.T.S. 277. For a comprehensive treatment of the history and cur-
rent contours of the crime of genocide, see William A. Schabas, Genocide in Inter-
national Law (2000). For an interesting account of Raphael Lemkin’s role in developing
the concept and the prohibition of genocide, see Samantha Power, A Problem from
Hell 31–78 (2002).
21. Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, art. 50, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Ge-
neva Convention for the Amelioration of the Condition of the Wounded, Sick and Ship-
wrecked Members of Armed Forces at Sea, art. 51, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S.
85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 130, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civil-
ian Persons in Time of War, art. 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
22. In 1947, the U.N. General Assembly asked the International Law Commission
(ILC) to begin work on a Code of Offenses against the Peace and Security of Mankind,
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notes to chapter 1 233
G.A. Res. 177 (II), U.N. Doc. A/CN.4/4 (1947), and a draft was completed in 1954, Int’l Law
Comm’n, Report of the International Law Commission on the Work of Its Sixth Session,
U.N. Doc. A/2693 (June 3–July 28, 1954), reprinted in [1954] 2 Y.B. Int’l L. Comm’n 140,
U.N. Doc. A/CN.4/SER.A/1954. By the time the draft was finished, however, political in-
terest in prosecuting international crimes had already begun to fade as hostilities erupted
in Korea, and the other major powers began to accuse one another of crimes against the
peace. Draft Code of Offenses against the Peace and Security of Mankind, 80 Am. Soc’y.
Int’l Proc. 120, 125 (1986) (remarks of Sharon A. Williams) [hereinafter Draft Code];
D. H. N. Johnson, The Draft Code of Offences against the Peace and Security of Mankind,
4 Int’l & Comp. L. Q. 445, 451 (1955). The draft was further criticized for failing to define
aggression. Draft Code, supra at 121 (remarks of Stephen C. McCaff rey). The task of defin-
ing aggression became mired in Cold War politics; it was not until 1974 that the General
Assembly adopted a resolution defi ning “aggression,” G.A. Res. 3314 (XXIX), U.N. Doc.
A/9631 (Dec. 14, 1974), and it was not until 1996 that the ILC adopted a final text of the
draft code on offenses, Int’l Law Comm’n, Report of the International Law Commission on
Its Forty-eighth Session, para. 50, U.N. Doc. A/51/10 (6 May–26 July 1996).
The U.N. General Assembly asked the ILC to examine the establishment of an interna-
tional criminal court, G.A. Res. 260B (III), U.N. Doc. A/760, at 12–13 (1948), and the ILC
submitted a draft to the General Assembly in 1953. However, the U.N. tabled these efforts
pending the completion of the Draft Code of Offenses against the Peace and Security of
Mankind, which, as noted above, was itself tabled pending agreement on the definition
of aggression. M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The
Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11,
53 (1997).
23. See 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery, art. 6, Sept. 7, 1956, 18 U.S.T. 3201, 266
U.N.T.S. 3; 1950 Convention for the Suppression of the Traffic in Persons and of the Exploi-
tation of the Prostitution of Others, arts. 1–2, Mar. 21, 1950, 96 U.N.T.S. 271, 274.
24. See Convention against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, art. 4, Dec. 10, 1984, 1465 U.N.T.S. 85, 113, G.A. Res. 39/46, U.N. Doc.
A/39/51 (1984).
25. International Convention on the Suppression and Punishment of the Crime of
Apartheid, art. III, Nov. 30, 1973, 1015 U.N.T.S. 243.
26. See Robert Conquest, The Great Terror: Stalin’s Purge of the Thirties
699–713 (rev. ed. 1973); Robert Conquest, The Great Terror: A Reassessment 486–87
(1990). Leo Kuper, however, maintains that the death toll was much higher than twenty
million. Kuper, supra note 14, at 97. Subsequent Soviet leaders Khrushchev and Gor-
bachev formed commissions to investigate illegal activity under Stalin, but the results
of these investigations remained largely secret. Kathleen E. Smith, Destalinization in the
Former Soviet Union, in Impunity and Human Rights in International Law and
Practice 113, 117 (Naomi Roht-Arriaza ed., 1995); see also Conquest, Stalin’s Purge of
the Thirties, supra at 11.
27. For a discussion of the difficulty in ascertaining the numbers of Ugandan victims
of different kinds of violence, see Louise Pirouet, Refugees in and from Uganda in the
S3857.indb 233 10/4/06 6:47:05 AM

Post-Colonial Period, in Uganda Now 239, 246–50 (Holger Bernt Hassen & Michael
Twaddle eds., 1988). For a discussion of Uganda’s expulsion of Asians, see Expulsion of
a Minority: Essays on Ugandan Asians (Michael Twaddle ed., 1975).
28. Michael J. Bazyler, Reexamining the Doctrine of Humanitarian Intervention in
Light of the Atrocities in Kampuchea and Ethiopia, 23 Stan. J. Int’l L. 547, 554–69 (1987).
29. Inbal Sansani, The Pinochet Precedent in Africa: Prosecution of Hissène Habré,
Hum. Rts. Brief, Vol. 8, No. 2, at 32, 32 (2001); Reed Brody, The Prosecution of Hissène
Habré—An “African Pinochet,” 35 New Eng. L. Rev. 321, 321–23 (2001).
30. Ten years after Habré took up residence in Senegal, a Senegalese prosecutor in-
dicted him for torture on the basis of a suit brought by his victims. Senegal’s new president
removed the judge on the Habré case a few days before the court ruled, and the Appeals
Chamber then quashed the indictment. Brody, supra note 29, at 321, 326, 329–30; Sansani,
supra note 29, at 33–34.
31. Nino, supra note 14, at 32.
32. Brazil’s amnesty, for instance, covered both those who had committed political
crimes and military and police agents who had violated human rights. Nino, supra note 14,
at 33–34; Roseann M. Latore, Coming Out of the Dark: Achieving Justice for Victims of Hu-
man Rights Violations by South American Military Regimes, 25 B.C. Int’l & Comp. L. Rev.
419, 425 (2002). El Salvador granted perpetrators an amnesty only days after the release
of a truth commission report naming the perpetrators. Margaret Popkin & Naomi Roht-
Arriaza, Truth as Justice: Investigatory Commissions in Latin America, in 1 Transitional
Justice: How Emerging Democracies Reckon with Former Regimes 262, 283 (Neil J.
Kritz ed., 1995); Douglass W. Cassel, Jr., International Truth Commissions and Justice, in 1
Transitional Justice: How Emerging Democracies Reckon with Former Regimes
326, 327 (Neil J. Kritz ed., 1995). In Uruguay, the two major political parties enacted a
blanket amnesty, relinquishing the state’s right to prosecute crimes committed before
March 1985 by military and police officials either for political reasons or in fulfi llment of
their functions. Uruguayan citizens challenged the amnesty law, but after a government-
backed scare campaign in which General Hugo Medina asserted that the country would
be threatened if the amnesty were overturned, a majority voted to maintain the amnesty
law. Alexandra Barahona de Brito, Human Rights and Democratization in
Latin America: Uruguay and Chile 126–27 (1997). More recently, in 1995, the Peruvian
Congress enacted a blanket amnesty, covering both common and military crimes origi-
nating from the “fight against terrorism” between May 1980 and June 1995 but granting
immunity only to “the Military, Police, or Civilian Personnel.” William W. Burke-White,
Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty
Legislation, 42 Harv. Int’l L.J. 467, 486–87 (2001). See also Douglass Cassel, Lessons from
the Americas: Guidelines for International Response to Amnesties for Atrocities, L. & Con-
temp. Probs., Autumn 1996, at 197, 200–01.
33. Law of Amnesty, No. 2.191 (Apr. 18, 1978) (Chile).
34. Pinochet had drafted a constitution that envisaged the country passing to a pro-
tected democracy under the tutelage of the military. According to one commentator:
“Pinochet’s men designed and scheduled the transfer of power to civilian hands on their
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terms, and put themselves in position to secure significant advantages within the new
democratic order.” David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions
in the Latin American Southern Cone, in 1 Transitional Justice: How Emerging De-
mocracies Reckon with Former Regimes 82, 89–90 (Neil J. Kritz ed., 1995). The con-
stitution provided for a plebiscite to determine whether Pinochet should remain in power,
and in 1988, a narrow majority rejected the continuation of his rule. Barahona de Brito,
supra note 32, at 98; Nino, supra note 14, at 37.
35. Barahona de Brito, supra note 32, at 105; Mark Ensalaco, Truth Commissions for
Chile and El Salvador: A Report and Assessment, 16 Hum. Rts. Q. 656, 657 & n.3 (1994).
36. Nino, supra note 14, at 37.
37. Ensalaco, supra note 35, at 662.
38. The Guatemalan Commission for Historical Clarification, Guatemala:
Memory of Silence, at I, paras. 2, 66, available at http://shr.aaas.org/guatemala/ceh/
report/english/intro.html [hereinafter Guatemalan Truth Commission Report]. Guate-
mala did subsequently adopt a partial amnesty law, but it excluded from the amnesty
crimes of genocide, torture, and forced disappearance as well as crimes that are not sub-
ject to a statute of limitations or that do not permit the extinction of criminal responsi-
bility. Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and
Justice for State-Sponsored Claims, 35 Vand. J. Transnat’l L. 1399, 1480 n.479 (2002)
(translating the provisions of the amnesty law).
39. Nathanial Heasley et al., Impunity in Guatemala: The State’s Failure to Provide
Justice in the Massacre Cases, 16 Am. U. Int’l L. Rev. 1115, 1120 (2001).
40. Aldana-Pindell, supra note 38, at 1489; Andrew N. Keller, To Name or Not to Name?
The Commission for Historical Clarification in Guatemala, Its Mandate, and the Decision
Not to Identify Individual Perpetrators, 13 Fla. J. Int’l L. 289, 290 (2001).
41. Heasley et al., supra note 39, at 1150–51.
42. Bosnia’s president, Alija Izetbegović, asked for the deployment of preventative
peacekeepers in 1991, and he pleaded for preventative NATO air strikes when fighting
broke out in 1992, but those requests fell on deaf ears. Even after reports of Serb-run death
camps became known, the United States was not inclined to act, and Britain and France
insisted on limiting international action in Bosnia to a relief effort assisted by the U.N.
Protection Force. Warren Zimmermann, Origins of a Catastrophe: Yugoslavia
and its Destroyers xii, 172, 215 (rev. ed. 1999); Scharf, supra note 2, at 30–32.
43. Resolution 764 reaffirmed that all parties to the Yugoslav confl ict were required to
comply with international humanitarian law and that those who committed or ordered
the commission of grave breaches of the Geneva Conventions were individually respon-
sible for war crimes. S.C. Res. 764, para. 10, U.N. Doc. S/RES/764 (July 13, 1992). Resolution
771, issued in August 1991, required member states to report violations of international
humanitarian law to the Security Council. S.C. Res. 771, para. 5, U.N. Doc. S/RES/771
(Aug. 13, 1992). The Security Council’s economic embargo against Serbia was riddled with
loopholes, at Russia’s insistence, which allowed Serbia to circumvent it easily. Scharf,
supra note 2, at 34.
44. S.C. Res. 781, U.N. Doc. S/RES/781 (Oct. 9, 1992).
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45. Scharf, supra note 2, at 35–36. It was not until March 1993 that the Security Coun-
cil authorized NATO to enforce the no-fly zone, and it was not until nearly a year later that
NATO would finally take action to shoot down Serb aircraft violating the ban. Id. at 36.
46. S.C. Res. 780, para. 2, U.N. Doc. S/RES/780 (Oct. 6, 1992).
47. The commission’s second chairman, M. Cherif Bassiouni, maintained that U.N.
officials were fearful of the Commission because they believed “that the top priority of
the Security Council is to achieve a political settlement, and that everything that impedes
this goal should really be checked.” Iain Guest, On Trial: The United Nations, War
Crimes, and the Former Yugoslavia 93–94 (1995).
48. M. Cherif Bassiouni & Peter Manikas, The Law of the International
Criminal Tribunal for the Former Yugoslavia 207 (1996). The international com-
munity’s failure to support the commission led its fi rst chairman, Fritz Karlshoven, to re-
sign in protest. The commission’s subsequent chairman, M. Cherif Bassiouni, was able to
get the commission’s work underway by relying on volunteer attorneys and law students
and $800,000 he obtained in grants from various foundations. Scharf, supra note 2, at
46–47.
49. Bassiouni & Manikas, supra note 48, at 202–03; Theodor Meron, War Crimes
Law Comes of Age 282 (1998); Anthony D’Amato, Editorial Comment, Peace vs. Account-
ability in Bosnia, 88 Am. J. Int’l L. 500, 500–02 (1994); Ivan Simonović, The Role of the
ICTY in the Development of International Criminal Adjudication, 23 Fordham Int’l L.J.
440, 444–45 (1999).
50. Scharf, supra note 2, at xv; see also Christian Tomuschat, International Criminal
Prosecution: The Precedent of Nuremberg Confirmed, 5 Crim. L.F. 237, 237 (1994) (“One
may call it truly amazing that the international community, acting through the Security
Council, has been able to set up two international criminal jurisdictions in the recent
past.”).
51. Ruth Wedgewood, The Evolution of United Nations Peacekeeping, 28 Cornell
Int’l L.J. 631, 638 (1995).
52. Virginia Morris & Michael P. Scharf, 1 The International Criminal Tri-
bunal for Rwanda 59–60 (1998) [hereinafter Morris & Scharf, ICTR]. For a descrip-
tion of the U.N. decision-making that led to the withdrawal, see Linda Melvern, Con-
spiracy to Murder: The Rwandan Genocide 179–81, 186–88, 196–203, 214–20 (2004).
53. Report of the United Nations Commissioner for Human Rights, Mr. José Ayala
Lasso, on his Mission to Rwanda, 11–12 May 1994, at para. 32, U.N. Doc. E/CN.4/S-3/3
(1994).
54. Power, supra note 20, at 359.
55. Report of the Secretary-General on the Establishment of the Commission of Experts
pursuant to paragraph 1 of Security Council Resolution 935 (1994) of 1 July 1994, U.N. Doc.
S/1994/879 (July 26, 1994).
56. Rwanda had initially proposed the establishment of an international tribunal and
had participated in the deliberations on the ICTR statute, but it ultimately voted against
Security Council Resolution 955 establishing the ICTR and leveled a number of criticisms
against the tribunal, including its inability to impose the death penalty and its location in
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Tanzania rather than in Rwanda. See generally, Payam Akhavan, Current Developments,
The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punish-
ment, 90 Am. J. Int’l L. 501, 504–08 (1996).
57. Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc.
A/Conf.183/9 [hereinafter Rome Statute].
58. Germany provided both restitution for war-related property confiscations and
compensation to victims of Nazi persecution. The Federal Compensation Law, pursuant
to which Germany compensated victims of the Nazis, was sweeping in its coverage. It
provided compensation for “physical injury and the loss of freedom, property, income,
professional, or financial advancement if the loss resulted from persecution for political,
social, religious, or ideological reasons.” Ruti G. Teitel, Transitional Justice 122–23
(2000).
59. See Naomi Roht-Arriaza, The Need for Moral Reconstruction in the Wake of Past
Human Rights Violations: An Interview with José Zalaquett, in Human Rights in Po-
litical Transitions: Gettysburg to Bosnia 195, 198 (Carla Hesse & Robert Post eds.,
1999); Barahona de Brito, supra note 32, at 206. Chile had provided health benefits for
torture victims, however. Roht-Arriaza, supra at 198. Following the publication of a report
that documented thousands of state-sponsored tortures, Chilean president Ricardo La-
gos, in November 2004, offered pensions to the more than twenty-eight thousand torture
victims. Chile Torture Victims Win Payout, BBC News, Nov. 29, 2004.
60. Horacio Verbitsky, The Flight: Confessions of an Argentine Dirty War-
rior 166 (1996) (Afterward by Juan E. Méndez describing the reparations plan).
61. Larry Rohter, Argentine Default Reopens “Dirty War” Wounds, N.Y. Times,
Mar. 12, 2002; Christina M. Wilson, Note, Argentina’s Reparation Bonds: An Analysis of
Continuing Obligations, 28 Fordham Int’l L.J. 786, 792–93 (2005). Only in March 2005
did Argentina reach a settlement in which it agreed to pay creditors, at most, thirty cents
on each dollar. Larry Rohter, Argentina Announces Deal on Its Debt Default, N.Y. Times,
Mar. 4, 2005.
62. Promotion of National Unity and Reconciliation Act, No. 34 of 1995, at Preamble
and Ch. 5, available at www.doj.gov.za/trc/legal/act9534.htm [hereinafter South African
TRC Act].
63. Wendy Orr, Reparation Delayed Is Healing Retarded, in Looking Back, Reaching
Forward: Reflections on the Truth and Reconciliation Commission of South
Africa 239, 246–47 (Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000); Catherine
Jenkins, After the Dry White Season: The Dilemmas of Reparation and Reconstruction in
South Africa, 16 S. African J. Hum. Rts. 415, 476 (2000).
64. Ginger Thompson, South Africa to Pay $3900 to Each Family of Apartheid Victims
Families, N.Y. Times, Apr. 16, 2003. For a detailed discussion of the effort to provide repa-
rations in South Africa, see Erin Daly, Reparations in South Africa: A Cautionary Tale, 33
U. Mem. L. Rev. 367 (2003).
65. Law on Extrajudicial Rehabilitation (“Large Restitution Law”) (Czech and Slovak
Federal Republic 1991), reprinted in Central and Eastern European Legal Texts
(March 1991).
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66. Federal Republic of Germany and German Democratic Republic, Treaty on the
Establishment of German Unity, art. 41 and Annex III, done at Berlin, Aug. 31, 1990, re-
printed in 30 I.L.M. 457 (1991).
67. Restitution of Land Rights Act 22 of 1994, assented to Nov. 17, 1994.
68. For a careful treatment of the questions that arise and their implications, see Tei-
tel, supra note 58, at 139.
69. Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (1988) (codified at 50
U.S.C. § 1989B [2000]).
70. The Guatemalan Truth Commission Report stated, for instance, that the “State
also tried to stigmatise and blame the victims and the country’s social organisations,
making them into criminals in the public eye and thus [turning them] into ‘legitimate’
targets for repression.” Guatemalan Truth Commission Report, supra note 38, at Conclu-
sions I, para. 49. As Naomi Roht-Arriaza put it: “[I]n Latin America, por algo sera (“they
must have done something”) was the watchword among the silent and terrorized major-
ity watching their neighbors and colleagues disappear. Those killed were often derided
as subversives and terrorists, worthy of no better fate.” Naomi Roht-Arriaza, Reparations
Decisions and Dilemmas, 27 Hastings Int’l & Comp. L. Rev. 157, 160 (2004). The South
African committee charged with making reparations recommendations was named the
Reparation and Rehabilitation Committee precisely because reparations do act to reha-
bilitate victims in the political sphere. See Teitel, supra note 58, at 137.
71. Teitel, supra note 58, at 137.
72. 28 U.S.C. § 1350 (2000). See also Torture Victims Protection Act of 1991, Pub. L.
No. 102-256, 106 Stat. 73 (1992), which authorizes civil suits against anyone who, under
color of law of any foreign nation, tortures or summarily executes another person.
73. Plaintiffs in American civil suits have had difficulty collecting their judgments be-
cause defendants seldom have assets in the United States. See John F. Murphy, Civil Liabil-
ity for the Commission of International Crimes as an Alternative to Criminal Prosecution,
12 Harv. Hum. Rts. J. 1, 49 (1999).
74. President Reagan issued a statement that read: “No payment can make up for those
lost years. What is most important in this bill has less to do with property than with
honor. For here we admit wrong.” President Bush sent individual letters of apology to
survivors. Minow, supra note 16, at 112–13.
75. President William J. Clinton, Remarks in Apology for Study Done in Tuskegee
(May 16, 1997), available at http://www.cmh.pitt.edu/presremarks.html.
76. Minow, supra note 16, at 113–14.
77. See Onuma Yasuaki, Japanese War Guilt and Postwar Responsibilities of Japan, 20
Berkeley J. Int’l L. 600, 606 (2002).
78. Norimitsu Onishi, Japan Apologizes to China for Injuries from Remnants of War,
N.Y. Times, Aug. 13, 2003, at A5.
79. Minow, supra note 16, at 112.
80. Apologies All Around, Transitions Online (Prague), Sept. 15, 2003; Political Par-
ties in Croatia Differ on President’s Apology for War Crimes, BBC Worldwide Monitor-
ing, Sept. 12, 2003.
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81. See, e.g., Daniel W. Shuman, The Role of Apology in Tort Law, 83 Judicature 180,
186 (2000); Chad W. Bryan, Precedent for Reparations? A Look at Historical Movements
for Redress and Where Awarding Reparations for Slavery Might Fit, 54 Ala. L. Rev. 599,
599–600 (2003). A 1995 suit brought by African American plaintiffs seeking, among other
things, an apology for slavery was dismissed for lack of standing, Cato v. United States, 70
F. 3d 1103, 1111 (1995), and a bill introduced into the House of Representatives in 1997 call-
ing for an apology for slavery, H.R. Res. 96, 105th Cong. (1997), similarly went nowhere,
which is not surprising, given that contemporaneous polls showed that 61 percent of those
polled opposed the government’s issuing an apology, Bryan, supra at 605–06.
82. See Mark S. Ellis & Elizabeth Hutton, Policy Implications of World War II Repara-
tions and Restitution as Applied to the Former Yugoslavia, 20 Berkeley J. Int’l L. 342,
349 n.37 (2002).
83. Maki Arakawa, A New Forum for Comfort Women: Fighting Japan in United States
Federal Court, 16 Berkeley Women’s L.J. 174, 183 (2001).
85. Pumla Gobodo-Madikizela, A Human Being Died That Night: A South
African Story of Forgiveness 14 (2003).
86. Lyn S. Graybill, Truth & Reconciliation in South Africa: Miracle or
Model? 48 (2002).
88. Elizabeth Kiss, Moral Ambition Within and Beyond Political Constraints: Re-
flections on Restorative Justice, in Truth v. Justice 68, 82 (Robert I. Rotberg & Dennis
Thompson eds., 2000).
89. See Prosecutor v. Plavšić, Case No. IT-00-39&40/1-S, Transcript, at 593 (Dec. 17,
2002) (testimony of Alex Boraine).
91. Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of
Truth Commissions 26 (2002). Other, more recent, official apologies include the “ap-
peal for forgiveness made by the President of [Guatemala] on 29 December 1998, and the
partial appeal for forgiveness made by the Guatemalan National Revolutionary Unity
on 19 February 1998.” Guatemalan Truth Commission Report, supra note 38, at II, and
Croatian president Sanader’s apology for his country’s World War II atrocities, Sanader
Condemns “Croatia’s Auschwitz,” Agence France-Presse, Mar. 16, 2004 (on fi le with
author). Srebrenica victims’ and survivors’ groups have sought “a public apology” for the
crimes committed at Srebrenica, see Mothers’ Association Urges Re-examination of All
Aspects of Srebrenica Massacre, BBC Worldwide Monitoring, Oct. 10, 2003, showing
the importance of symbolic gestures even as a response to unspeakable brutality.
92. The Secretary General, The Rule of Law and Transitional Justice in Conflict and
Post-Conflict Societies, delivered to the Security Council, para. 50, U.N. Doc. S/2004/616
(Aug. 23, 2004) [hereinafter The Rule of Law and Transitional Justice]. Priscilla Hayner
documents twenty-one truth commissions in her definitive work on the subject: these
truth commissions investigated atrocities in Argentina, Bolivia, Burundi, Chad, Chile, El
Salvador, Ecuador, Haiti, Germany, Guatemala, Nepal, Nigeria, Sierra Leone, Sri Lanka,
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South Africa, Uganda, Uruguay, and Zimbabwe. Uganda saw two truth commissions,
one in 1974 and one in 1986, while South Africa saw three, two established by the African
National Congress (ANC) to investigate abuses in ANC detention camps and the very
famous South African Truth and Reconciliation Commission, which was tasked with in-
vestigating gross human rights abuses that took place during the apartheid era. Hayner,
supra note 91, at 32–71. See also Kenneth Christie, The South African Truth Com-
mission 54–55, 58–59 (2000) (comparing and contrasting nineteen truth commissions).
93. The truth commission established by the Philippines was created without staff
or budget and was quickly overwhelmed by a large number of complaints. The Ugandan
Truth Commission established in the 1980s was likewise handicapped by insufficient re-
sources, as was the Chadian Truth Commission, which lacked appropriate vehicles and
office space, Priscilla B. Hayner, Fifteen Truth Commissions—1974 to 1994: A Comparative
Study, 16 Hum. Rts. Q. 597, 620, 623–24 (1994); Barahona de Brito, supra note 32, at 25.
94. The Uruguayan Truth Commission and the first Ugandan Truth Commission
operated in difficult political circumstances. The Chadian commission “received threats
from former security personnel who had been rehired into the new intelligence service”
that were sufficiently intimidating that three-fourths of the original commissioners had
to be replaced, while the Ugandan truth commissioners “were targeted by the state in
apparent reprisal for their work,” with one losing his employment, another framed with
murder charges and sentenced to death, and a third having to flee the country to avoid
arrest. Hayner, Fifteen Truth Commissions, supra note 93, at 612–13, 616, 624.
95. Guatemalan Truth Commission Report, supra note 38, at Conclusions II,
para. 111.
96. Keller, supra note 40, at 300–01.
97. The commission nonetheless had difficulty obtaining relevant documents, includ-
ing those detailing the United States’ support of the El Salvadoran government. The com-
mission also had difficulty persuading victims and witnesses to testify publicly because
they feared retaliation, so the commission consequently was compelled to take confiden-
tial testimony. Thomas Buergenthal, The United Nations Truth Commission for El Salva-
dor, 27 Vand. J. Transnat’l L. 497, 507, 510, 513 (1994); U.N. Commission on the Truth
for El Salvador, Report of the Commission on the Truth for El Salvador: From Madness to
Hope, 23–24, U.N. Doc. S/25500, Annexes (1993) (English version) [hereinafter El Salvador
Truth Commission Report].
98. The Chadian Truth Commission was the first to publish names. See Hayner, Fif-
teen Truth Commissions, supra note 93, at 625. The Honduran report took an intermediate
approach: it focused on the institutional responsibility of the army high command and
certain special units but did name the names of the heads of those units as potential tar-
gets of a judicial investigation. Popkin & Roht-Arriaza, supra note 32, at 281.
99. Buergenthal, supra note 97, at 520.
100. El Salvador Truth Commission Report, supra note 97, at 25. Some commenta-
tors have argued that naming “culprits who ha[ve] not defended themselves and were not
obliged to do so [is] the moral equivalent to convicting someone without due process.”
José Zalaquett, Introduction to 1 Report of the Chilean National Commission on Truth
and Reconciliation xxxii (Philip Berryman trans., 1993).
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101. See, e.g., Sierra Leone Truth and Reconciliation Commission Report, Vol. 2,
Ch. 2, paras. 5, 145, 155, 156, 172, 206, 228, 261, 330, 363 (2004), available at http://www
.trcsierraleone.org/pdf/FINAL20VOLUME20TWO/VOLUME202.pdf [hereinafter
Sierra Leone TRC Report].
102. Id. at para. 405.
103. Id. at paras. 36, 444–552.
104. Books describing the South African TRC include Christie, supra note 92; Dor-
othy Shea, The South African Truth Commission (2000); Antije Krog, Country
of my Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South
Africa (1999); Looking Back, Reaching Forward: Reflections on the Truth and
Reconciliation Commission of South Africa (Charles Villa-Vicencio & Wilhelm
Verwoerd eds., 2000); Jillian Edelstein, Truth & Lies: Stories from the Truth and
Reconciliation Commission in South Africa (2002).
105. Hayner, supra note 91, at 42.
106. South African TRC Act, supra note 62, at arts. 18–20. For a more detailed treat-
ment of the TRC’s amnesty powers and decisions, see Ronald Slye, Justice and Amnesty,
in Looking Back, Reaching Forward: Reflections on the Truth and Reconcili-
ation Commission of South Africa 174 (Charles Villa-Vicencio & Wilhelm Verwoerd
eds., 2000). For a more detailed discussion of the requirements for amnesty, see Emily
H. McCarthy, Symposium Note, South Africa’s Amnesty Process: A Viable Route toward
Truth and Reconciliation?, 3 Mich. J. Race & L. 183, 203–39 (1997).
107. Hayner, supra note 91, at 43; Shea, supra note 104, at 14–15; Charles Villa-Vicen-
cio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal
Court and Truth Commissions Meet, 49 Emory L.J. 205, 209 (2000).
108. See Christie, supra note 92, at 140; Hayner, supra note 91, at 43.
109. Krog, supra note 104, at 158.
110. Colleen Scott, Combating Myth and Building Reality, in Looking Back, Reach-
ing Forward: Reflections on the Truth and Reconciliation Commission of
South Africa 107, 109 (Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000).
112. David Goodman, Why Killers Should Go Free: Lessons from South Africa, 22
Wash. Q. 1, 6 (1999).
113. Kiss, supra note 88, at 77.
114. The Role of Forgiveness in the Law, Symposium, 27 Fordham Urb. L.J. 1347, 1403
(2000) (comments of Martha Minow). But see Krog, supra note 104, at 95 (describing Jef-
frey Benzien’s amnesty hearing in which Benzien within the first few minutes “manage[d]
to manipulate most of his victims back into the roles of their previous relationship—
where he has the power and they the fragility”).
115. Kiss, supra note 88, at 77; Krog, supra note 104, at 119. David Goodman, for in-
stance, describes Jacques Hecter’s “flat, emotionless” apology, and his subsequent asser-
tion that “I’m not really fuckin’ sorry for what I did. . . . And I’d do it again if the circum-
stances called for it.” Goodman, supra note 112, at 4.
116. As one South African perpetrator commented, “[t]he victims’ lawyer says we must
talk to them, but it is difficult . . . because every time we say we’re sorry, they shake their
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heads and say they don’t accept it.” Krog, supra note 104, at 117. See also Paul Lansing & Ju-
lie C. King, South Africa’s Truth and Reconciliation Commission: The Conflict between In-
dividual Justice and National Healing in the Post-Apartheid Age, 15 Ariz. J. Int’l & Comp.
L. 753, 772 (1998); Robyn Dixon, A Decade after Apartheid: The Official Truth Falls Short
for Many, L.A. Times, May 30, 2004, at A5 (reporting on a victim who refused to “have a
beer” with the person who murdered his mother and sister). Some victims resented what
they perceived as pressure to forgive. See Charles Villa-Vicencio, Getting on with Life:
A Move towards Reconciliation, in Looking Back, Reaching Forward: Reflections
on the Truth and Reconciliation Commission of South Africa 199, 201 (Charles
Villa-Vicencio & Wilhelm Verwoerd eds., 2000). Although Alex Boraine asserted that it
was not the intention of the TRC to demand forgiveness, Alex Boraine, A Country Un-
masked 356 (2000), some commentators believe that the TRC did just that. Stuart Wilson,
The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty, 17 S. Afr.
J. Hum. Rts. 531, 548 (2001).
117. The TRC institutional hearings had mixed results. The legal hearings were par-
ticularly disappointing because judges refused to appear. Kiss, supra note 88, at 78; see
generally David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Rec-
onciliation and the Apartheid Legal Order (1998). For a description of the business
hearings, see Krog, supra note 104, at 314–17.
118. For a description of the exhumations carried out by the South African TRC, see
Krog, supra note 104, at 271–72. Krog also reports on the request of a South African
widow “for something to bury—even if it was just a piece of bone or a handful of ash.”
Id. at 44.
119. Minow, supra note 16, at 59–60.
120. For a discussion of the healing experiences of some victims who testified at the
South African TRC, see Hayner, supra note 91, at 138–39. Elizabeth Kiss further reports
that “after testifying before the [South African] TRC, one . . . man, blinded as the result of
an assault by a police officer, replied, ‘I feel what has been making me sick all the time is
the fact that I couldn’t tell my story. But now . . . it feels like I got my sight back by coming
here.’” Kiss, supra note 88, at 72; Antije Krog reproduces a letter from a victim who, after
testifying before the South African TRC stated, “It’s as if I have been freed from a prison
that I’ve been in for eighteen years.” Krog, supra note 104, at 191–93.
Some psychologists are skeptical, however, that a one-time catharsis can result in
long-term psychological healing. Hayner, supra note 91, at 139; Brandon Hamber, Does
the Truth Heal? A Psychological Perspective on Political Strategies for Dealing with the
Legacy of Political Violence, in Burying the Past: Making Peace and Doing Justice
after Civil Conflict 155, 160 (Nigel Biggar ed., 2003). Further, relating the brutal de-
tails of their mistreatment in one sitting without psychological support leaves some vic-
tims at serious risk for developing post-traumatic stress disorder. Hayner, supra note
91, at 139.
122. Krog, supra note 104, at 62.
123. See Hayner, supra note 91, at 30, 155; Teitel, supra note 58, at 69; Kiss, supra
note 88, at 71–72; Robert I. Rotberg, Truth Commissions and the Provision of Truth, Jus-
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tice, and Reconciliation, in Truth v. Justice 3, 6 (Robert I. Rotberg & Dennis Thompson
eds., 2000).
124. Teitel, supra note 58, at 79.
Chapter 2
125. S.C. Res. 808, at 2, U.N. Doc. S/RES/808 (Feb. 22, 1993).
126. Rome Statute, supra note 57, at Preamble.
127. Catherine Cissé, The International Tribunals for the Former Yugoslavia and
Rwanda: Some Elements of Comparison, 7 Transnat’l L. & Contemp. Probs. 103, 114
(1997).
128. Human Rights First, A Human Rights First Report on the ICTR and
National Trials, at IV(A) (1997), available at http://www.humanrightsfirst.org/pubs/
descriptions/rwanda.htm.
129. In 1997, the U.N. Office of Internal Oversight Services issued a report criticiz-
ing the ICTR’s administration and management, finding, among other things, that not
a single administrative area of the ICTR registry “functioned effectively.” Financing the
International Criminal Tribunal, Report of the Secretary-General on the Activities of the
Office of Internal Oversight Services, para. 9, U.N. Doc. A/51/789 (Feb. 6, 1997).
130. Sara Darehshori, Inching toward Justice in Rwanda, N.Y. Times, Sept. 8, 1998.
131. For a discussion of the difficulties the ICTY has faced in obtaining custody over
defendants, see Gabrielle Kirk McDonald, Problems, Obstacles and Achievements of the
ICTY, 2 J. Int’l Crim. Just. 558, 559–67 (2004). During 2005, the ICTY began experiencing
considerably greater success in obtaining custody over indicted people. From November
2004 to June 2005, the tribunal obtained custody over twenty-two suspects, Press Release,
ICTY, Statement by Judge Theodor Meron, President, International Criminal Tribunal
for the former Yugoslavia, to the Security Council, TM/MOW/976e (June 13, 2005) [here-
inafter Meron June 2005 Statement to the Security Council], a development that resulted
largely from the economic pressure that the international community in general and the
European Union in particular exerted on the states of the former Yugoslavia to cooperate
with the tribunal. See Bogdan Ivanisević and Géraldine Mattioli, Human Rights Watch,
Real Progress in The Hague, Mar. 29, 2005, http://hrw.org/english/docs/2005/03/29/
serbia10386.htm.
132. See Secretary-General’s Report on Aspects of Establishing an International Tribu-
nal for the Prosecution of Persons Responsible for Serious Violations of International Hu-
manitarian Law Committed in the Territory of the former Yugoslavia, para. 106, U.N. Doc.
S/25704 (1993), reprinted in 32 I.L.M. 1159 (1993).
133. Press Release, ICTY, Address by His Excellency, Judge Claude Jorda, President
of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations
Security Council, JDH/P.I.S./708-e (Oct. 30, 2002), available at http://www.un.org/icty/
pressreal/p708-e.htm. Before 2002, the average ICTR trial lasted between one and two
years. Statement by the President of the ICTR to the United Nations General Assem-
bly, Oct. 28, 2002, available at http://69.94.11.53/ENGLISH/speeches/pillay281002ga.htm
S3857.indb 243 10/4/06 6:47:08 AM

[hereinafter ICTR President’s 2002 General Assembly Statement]. More recent large-scale
ICTR trials are now taking longer to complete.
134. Together the ICTY and ICTR spend approximately $250 million per year. ICTY
at a Glance, General Information, updated May 8, 2006 (noting a budget for 2006–07 of
$276,474,100), available at http://www.un.org/icty/glance-e/index.htm; Coalition for In-
ternational Criminal Justice, Frequently Asked Questions -ICTR, http://www.cij.org/
index.cfm?fuseaction=faqs&tribunalID=2#q7 (noting a budget of $255,909,500 for 2004–
05). Before and after the recent spate of guilty pleas at the ICTY, each tribunal would
render judgments in perhaps two to five cases in a typical year. Eleventh Annual Report
of the International Tribunal for the Prosecution of Persons Responsible for Serious Vio-
lations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, para. 49, U.N. Doc. A/59/219, S/2004/627 (Aug. 13, 2004) (reporting
that the Trial Chambers rendered two final judgments on the merits and nine sentencing
judgments following guilty pleas); Ninth Annual Report of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International Humani-
tarian Law Committed in the Territory of the Former Yugoslavia since 1991, Summary,
U.N. Doc. A/57/379-S/2002/985 (Aug. 14, 2002) (reporting that Trial Chambers had issued
five judgments during the year) [hereinafter ICTY 2002 Annual Report]; Tenth Annual
Report of the International Criminal Tribunal for the Prosecution of Persons Responsible
for Genocide and Other Serious Violations of International Humanitarian Law Com-
mitted in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and
Other Such Violations Committed in the Territory of Neighbouring States between 1 Jan-
uary and 31 December 1994, paras. 10, 21, U.N. Doc. A/60/229-S/2005/534 (Aug. 15, 2005)
(reporting the Trial Chambers disposed of three cases during the year, one of which was
disposed of by means of a guilty plea) [hereinafter ICTR 2005 Annual Report]; Seventh
Annual Report of the International Criminal Tribunal for the Prosecution of Persons Re-
sponsible for Genocide and Other Serious Violations of International Humanitarian Law
Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide
and Other Such Violations Committed in the Territory of Neighbouring States between
1 January and 31 December 1994, para. 4, U.N. Doc. A/57/163-S/2002/733 (July 2, 2002)
(indicating that no judgments were issued that year) [hereinafter ICTR 2002 Annual Re-
port]; Sixth Annual Report of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International Human-
itarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible
for Genocide and Other Such Violations Committed in the Territory of Neighbouring
States between 1 January and 31 December 1994, para. 1, U.N. Doc. A/56/351-S/2001/863
(Sept. 14, 2001) (reporting that one Trial Chamber judgment was issued).
135. Prosecutor v. Kordić, Case No. IT-95-14/2-T, Judgement, para. 3 (Feb. 26, 2001).
136. Prosecutor v. Blaškić, Case No. IT-94-14-T, Judgement, para. 19 (Mar. 3, 2000)
[hereinafter Blaškić Judgement].
137. Prosecutor v. Brd̄anin, Case No. IT-99-36-T, Judgement, Annex B, para. 1180 (Sept.
1, 2004). ICTR trials have typically featured fewer witnesses. See Prosecutor v. Akayesu,
Case No. ICTR-96-4-T, Judgement, para. 24 (Sept. 2, 1998) (reporting that forty-one wit-
S3857.indb 244 10/4/06 6:47:08 AM

nesses were heard and 155 exhibits introduced) [hereinafter Akayesu Judgement]. Pros-
ecutor v. Elizaphan and Gérard Ntakirutimana, Case Nos. ICTR-96-10 & ICTR-96-17-T,
Judgement and Sentence, para. 26 (Feb. 21, 2003) [Ntakirutimana Judgement] (Feb. 21,
2003) (reporting that forty-three witnesses were heard and 149 exhibits were admitted);
Nahimana Judgement, supra note 3, at para. 53 (noting that ninety-three witnesses were
heard in a case involving three defendants).
138. Completion Strategy of the International Criminal Tribunal for Rwanda, U.N.
Doc. S/2003/946, para. 15, Enclosure to Letter from Erik Møse, President, ICTR, to the
Secretary General, Letter Dated October 3, 2003, Annex (Oct. 6, 2003) (reporting, in 2003,
on a defendant who had been in custody since 1999) [hereinafter ICTR Completion Strat-
egy Letter].
139. See Ralph Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. Int’l Crim.
Just. 541, 543 (2004); International Criminal Tribunal for Rwanda: Trials and
Tribulations, § 3 (Apr. 1, 1998), available at http://web.amnesty.org/ai.nsf/index/ior400
031998?OpenDocument&of=THEMES/INTERNATIONAL+JUSTICE; ICTR President’s
2002 General Assembly Statement, supra note 133.
141. In particular, they conduct more than one trial in each courtroom, holding pro-
ceedings in some cases in the mornings and in others in the afternoons. ICTR President’s
2002 General Assembly Statement, supra note 133; ICTR 2002 Annual Report, supra
note 134, at paras. 2–3.
142. The tribunals now permit certain proceedings to be held before one judge rather
than a three-judge panel, and they permit other tasks to be performed by senior legal of-
ficers, rather than judges. In July 2001, for instance, the ICTY’s Rule 65ter was amended
to authorize a senior legal officer to perform some of the functions previously assigned
to the pretrial judge. The ICTR has revised its procedural rules to allow a trial to proceed
with a substitute judge if a sitting judge falls ill or is unable to attend for any other reason.
ICTR R.P. & Evid. 15bis (2003).
143. Fift h Annual Report of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International Human-
itarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible
for Genocide and Other Such Violations Committed in the Territory of Neighbour-
ing States between 1 January and 31 December 1994, paras. 138–39, U.N. Doc. A/55/435-
S/2000/927 (Oct. 2, 2000). Not all of these efforts have been successful. The prosecutor
had difficulty joining ICTY cases because, during its early years, the ICTY did not have
custody over a large percentage of its indictees. The ICTR did have custody over most of
its indictees and thus was able to join related cases, but the cases became so large and
unwieldy that the ICTR has, in general, reverted to trying single-defendant cases.
144. See Combs, Copping a Plea to Genocide, supra note 8, at 70–78; Daryl A. Mundis,
From ‘Common Law’ towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and
Evidence, 14 Leiden J. Int’l L. 367 (2001).
145. ICTY at a Glance, General Information, http://www.un.org/icty/glance-e/index
.htm (follow General Information hyperlink).
S3857.indb 245 10/4/06 6:47:09 AM

146. Coalition for International Criminal Justice, supra note 134.

147. ICTR 2005 Annual Report, supra note 134, at Summary.
148. See S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003); S.C. Res. 1534, U.N. Doc.
S/RES/1534 (Mar. 26, 2004).
149. In June 2005, the president of the ICTY informed the U.N. Security Council that
trials could not be completed by 2008, as the Security Council had instructed, but would
of necessity continue into 2009. Meron June 2005 Statement to the Security Council, su-
pra note 131.
150. Press Release, ICTY, Address by the Prosecutor of the International Criminal Tri-
bunals for the Former Yugoslavia and Rwanda, Mrs. Carla del Ponte, to the United Na-
tions Security Council, JJJ/P.I.S/.709-e (Oct. 30, 2002), available at http://www.un.org/icty/
pressreal/p709-e.htm [hereinafter Del Ponte 2002 Address]; ICTY 2002 Annual Report,
supra note 134, at para. 6. For a discussion of the ICTR’s reduction in investigations, see
Letter dated 30 April 2004, from the President of the International Criminal Tribunal
for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda and Rwandan
Citizens Responsible for Genocide and Other Such Violations Committed in the Territory
of Neighbouring States between 1 January and 31 December 1994 addressed to the Presi-
dent of the Security Council, paras. 6, 30, U.N. Doc. S/2004/341, (May 3, 2004) [hereinafter
ICTR April 2004 letter to the Security Council].
151. ICTY R.P. & Evid. 28 (2004). For additional commentary on the rule and on the
controversy it generated in the Office of the Prosecutor, see Daryl A. Mundis, The Judicial
Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals, 99
Am. J. Int’l L. 142, 147–50 (2005).
152. Press Release, ICTY, Address by Carla Del Ponte, Chief Prosecutor of the Inter-
national Criminal Tribunal for the Former Yugoslavia to the United Nations Security
Council, CT/P.I.S./863-e (June 30, 2004).
153. ICTR April 2004 letter to the Security Council, supra note 150, at paras. 36–38;
ICTR Completion Strategy Letter, supra note 138, at para. 23.
154. ICTR 2005 Annual Report, supra note 134, at Summary.
155. Sukhdev Chhatbar, Priest Dismisses Rwanda Genocide Charges, Says He’s Praying
for the Victims, Canadian Press, Sept. 27, 2004; Modestus Kessy, Genocide Suspects Call
Off Protest, The Sunday Observer (Tanzania), Sept. 26, 2004.
156. Report on the Operation of the International Criminal Tribunal for the Former
Yugoslavia Submitted by Judge Claude Jorda, President, on Behalf of the Judges of the Tri-
bunal, paras. 47–54, U.N. Doc. A/55/382-S/2000/865, Annex I (May 12, 2000) available at
http://www.un.org/icty/pressreal/RAP000620e.htm.
157. A June 2004 report from the Organization for Security and Co-operation in Eu-
rope (OSCE), for instance, concluded that “there is a considerable lack of impartiality
amongst parts of the judiciary.” Org. for Sec. & Co-operation in Eur. Mission to
Croatia: Supplementary Report: War Crime Proceedings in Croatia and Find-
ings from Trial Monitoring, 13 (June 22, 2004) [hereinafter OSCE, Supplementary
S3857.indb 246 10/4/06 6:47:09 AM

Report]; see also Human Rights Watch, Croatia: Conviction Spotlights Justice Failings,
July 19, 2004, available at http://hrw.org/english/docs/2004/07/19/croati.9083.htm.
158. OSCE, Supplementary Report, supra note 157, at 13.
159. Org. for Sec. & Co-operation in Eur., Mission to Croatia: Background
Report: Domestic War Crime Trials 2003, 6–7, June 22, 2004. The percentage of Serb
defendants convicted is also considerably higher than the percentage of Croat defendants
convicted. Id. at 7.
160. See Croatia’s Top Court Orders War Crimes Retrial, Reuters, Aug. 19, 2004; Hu-
man Rights Watch, Croatia: Conviction Spotlights Justice Failings, supra note 157, at 1.
161. See Prosecutor v. Kovacević, Case No. IT-01-42/2-I, Order on the Prosecutor’s Re-
quest for Referral to National Authorities under Rule 11 bis (Jan. 20, 2005) [hereinafter
Kovacević 11bis request].
162. Milanka Saponja-Hadzić, Serbia Tries Hague’s Patience, IWPR’s Tribunal Up-
date, No. 362, June 11, 2004.
163. Natasa Kandić, How to Protect Witnesses Who Are Seen by Public and Police as
Traitors, Feb. 6, 2004 (on fi le with author).
164. Press Release, ICTY, Address by his Excellency, Judge Claude Jorda, President
of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations
Security Council, JDH/P.I.S./690-e (July 26, 2002), available at http://www.un.org/icty/
pressreal/p690-e.htm. For further discussion of the failings of the Bosnian courts, see
Amnesty International, Bosnia-Herzegovina: Memorandum to the High Representative of
Bosnia-Herzegovina, AI Index: EUR 63/009/2002, Aug. 1, 2002, available at http://web.
amnesty.org/library/endindex (at Search by AI index, enter EUR63/009/2002) [hereinaf-
ter Memorandum to the High Representative].
165. Bosnian State Judiciary Faces Funding Crisis as Donations Dwindle, BBC Moni-
toring Europe, June 4, 2006 (providing translated transcript of Bosnian television re-
port). Even when foreign donations were relatively plentiful, the funding provided for
the protection of victims and witnesses was inadequate. See Amnesty International,
Report 2004—Bosnia and Herzegovina, available at http://web.amnesty.org/re-
port2004/bih-summary-eng; Human Rights Watch, The Trial of Dominik Ilijasević, Bal-
kans Justice Bulletin, Jan. 2004, available at http://hrw.org/backgrounder/eca/bal-
kans0104.htm, Such funding inadequacies are particularly problematic because virtually
all war crimes trials that have taken place to date in Bosnia have featured harassment
and intimidation of witnesses. Merdijana Sadović, Teething Problems for Bosnian Courts,
IWPR’s Tribunal Update, No. 358, May 15, 2004.
166. Assessments and Report of Judge Theodor Meron, President of the International
Criminal Tribunal for the Former Yugoslavia, provided to the Security Council pursuant
to paragraph 6 of Security Council Resolution 1534, paras. 56–61 , U.N. Doc. S/2004/420,
Enclosure (May 24, 2004) [hereinafter President Meron’s May 2004 Letter to the President
of the Security Council].
167. Impunity Bears the Germ of Future Conflicts, SENSE News Agency,
Oct. 11, 2004.
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168. President Meron’s May 2004 Letter to the President of the Security Council, supra
note 166, at paras. 58–59; Press Release, ICTR, President and Prosecutor Update Security
Council on Completion Strategy, ICTR/INFO-9-2-394(a).EN (July 6, 2004).
169. ICTR Completion Strategy Letter, supra note 138 at Summary.
170. S.C. Res. 1534, supra note 148.
171. Rome Statute, supra note 57, at Preamble, para. 10 & art. 17(1).
172. Id. at arts. 18(1), (2), (4), 19(7).
173. Id. at art. 19(2).
174. Id. at art. 17(2)(a), (c).
175. Id. at art. 36(2).
176. S.C. Res. 1431, U.N. Doc. S/RES/1431 (Aug. 14, 2002).
177. Rome Statute, supra note 57, at art. 50(1). For a discussion of the negotiations
regarding the translation of ICC documents, see Socorro Flores Liera, Publications,
Languages, and Translation, in The International Criminal Court: Elements of
Crimes and Rules of Procedure and Evidence 314, 314 (Roy S. Lee ed., 2001). Deter-
mining, during the Preparatory Commission on the Rules of Procedure and Evidence,
which judgments were to be considered important enough to translate into all six lan-
guages again highlighted the question of cost, with some delegations favoring a very lim-
ited approach. Id. at 315.
178. See generally Combs, Copping a Plea to Genocide, supra note 8, at 66–69. For a
discussion of the ad hoc tribunals’ powers to compel cooperation, see Göran Sluiter,
International Criminal Adjudication and the Collection of Evidence: Obliga-
tions of States 15–39 (2002).
179. For a comparison of the enforcement powers of the ICC and those of the ad hoc
tribunals, see generally Thomas Henquet, Mandatory Compliance Powers vis-à-vis States
by the Ad Hoc Tribunals and the International Criminal Court: A Comparative Analysis, 12
Leiden J. Int’l L. 969 (1999). For a thorough discussion of the ICC’s enforcement powers,
see Sluiter, supra note 178, at 40–46.
180. Statute of the International Criminal Tribunal for the Former Yugoslavia, art.
29(2), adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993); amended by S.C.
Res. 1166, U.N. Doc. S/RES/1166 (May 13, 1998); amended by S.C. Res. 1329, U.N. Doc. S/
RES/1329 (Nov. 30, 2000); amended by S.C. Res. 1411, U.N. Doc. S/RES/1411 (May 17, 2002);
amended by S.C. Res. 1431, U.N. Doc. S/RES/1431 (Aug. 14, 2002), amended by S.C. Res.
1481, U.N. Doc. S/RES/1481 (2003) [hereinafter ICTY Statute].
181. For a discussion of states’ obligations to cooperate with the ICC, see Phakiso
Mochochoko, International Cooperation and Judicial Assistance, in The International
Criminal Court: The Making of the Rome Statute 305 (Roy S. Lee ed., 1999).
182. Rome Statute, supra note 57, at art. 93(4). The ICTY and ICTR have had difficulty
obtaining information regarding Yugoslavian and Rwandan military information, but,
unlike the ICC prosecutor, at least their prosecutors can complain to the Security Council
since the states of the former Yugoslavia and Rwanda have an obligation to provide such
information. See Del Ponte 2002 Address, supra note 150.
183. Mochochoko, supra note 181, at 308.
S3857.indb 248 10/4/06 6:47:10 AM

184. Rome Statute, supra note 57, at art. 93(3).

185. Id. at art. 90(6).
186. In that case, the state must “consult with the court,” id. at art. 89(4), and can sur-
render the person on a temporary basis, attaching the conditions it chooses, ICC R.P. &
Evid. 183, but the Rome Statute does not require the state to surrender the person at all.
187. Rome Statute, supra note 57, at arts. 98(1), 98(2).
188. Nearly one hundred states have concluded such agreements with the United
States. See Coalition for the International Criminal Court, Status of U.S. Bilateral Immu-
nity Agreements, Apr. 14, 2006, available at http://www.iccnow.org/documents/CICCFS_
BIAstatusCurrent.pdf.
189. Rome Statute, supra note 57, at art. 94(1).
190. Id. at arts. 54(2), 57(3)(d), 99(4). For discussions concerning the negotiations re-
garding on-site investigations, see William A. Schabas, An Introduction to the
International Criminal Court 104 (2001); Fabricio Guariglia, Investigation and Pros-
ecution, in The International Criminal Court: The Making of the Rome Statute
227, 231 (Roy S. Lee ed., 1999).
191. Schabas, supra note 190, at 105 (quoting Fabricio Guariglia).
192. Rome Statute, supra note 57, at arts. 89(1), 91(2)(c), 99(1).
193. For a comprehensive account of the atrocities, see Sierra Leone TRC Report, supra
note 101. For an account of the formation and activities of the Revolutionary United Front,
see Ibrahim Abdullah & Patrick Muana, The Revolutionary United Front of Sierra Leone,
in African Guerrillas 172 (Christopher Clapham ed., 1998).
194. Diane Marie Amann, Medium As Message in Sierra Leone, 7 Ilsa J. Int’l & Comp.
L. 237, 238 (2001); see also Human Rights Watch, Getting Away with Murder, Mutilation,
Rape (1999), available at http://www.hrw.org/reports/1999/sierra.
195. President Kabbah sent a letter to the U.N. secretary-general asking for U.N. as-
sistance in establishing a criminal tribunal for Sierra Leone. Annex to the Letter dated
9 August 2000, from the Permanent Representative of Sierra Leone to the United Nations
addressed to the President of the Security Council, U.N. Doc. S/2000/786 Annex (Aug. 10,
2000). The Security Council consequently adopted Resolution 1315, stating that “the situ-
ation in Sierra Leone continues to constitute a threat to international peace and security
in the region,” and it directed the secretary-general to negotiate with the government of
Sierra Leone regarding the Special Court. S.C. Res. 1315, 2 & para. 1, U.N. Doc. S/RES/1315
(Aug. 14, 2000).
196. Jess Bravin, Tribunal in Africa May Serve as Model for Trial of Hussein, Wall
St. J., Feb. 12, 2003; see also Zacklin, supra note 139, at 545 (labeling the Special Court for
Sierra Leone as “the victim of the ICTY/ICTR experience”).
197. ICTY Statute, supra note 180, at art. 1; S.C. Res. 955, Annex, art. 1, U.N. Doc. S/
RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute].
198. Letter dated December 22, 2000, from the President of the Security Council ad-
dressed to the Secretary-General, para. 2, U.N. Doc. S/2000/1234 (Dec. 22, 2000), avail-
able at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/812/77/pdf/N0081277
.pdf?OpenElement [hereinafter Sierra Leone Letter to the Security Council]; Statute of
S3857.indb 249 10/4/06 6:47:10 AM

the Special Court for Sierra Leone, art. 1, Jan. 16, 2002, available at http://www.sc-sl.org/
scsl-statute.html.
199. Daryl A. Mundis, New Mechanisms for the Enforcement of International Humani-
tarian Law, 95 Am. J. Int’l L. 934, 936 (2001); U.N. War Crimes Court to Try 20 Suspects in
Sierra Leone, N.Y. Times, Jan. 4, 2002, at A8.
200. Two of the indictees, including rebel leader Foday Sankoh, died while in custody.
Somini Sengupta, African Held for War Crimes Dies in Custody of a Tribunal, N.Y. Times,
July 31, 2003, at A6.
201. Sierra Leone Letter to the Security Council, supra note 198, at para. 2; Agreement
between the United Nations and the Government of Sierra Leone on the Establishment of
a Special Court for Sierra Leone, art. 6, Jan. 16, 2002, available at http://www.specialcourt
.org/documents/Agreement.htm.
202. Zacklin, supra note 139, at 545.
203. Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, para. 70, U.N. Doc. S/2000/915 (Oct. 4, 2000) [hereinafter Report on the Establish-
ment of a Special Court for Sierra Leone].
204. Amnesty International & Judicial System Monitoring Programme In-
donesia & Timor-Leste, Justice for Timor-Leste: The Way Forward, § 11.4, AI In-
dex: ASA 21/006/2004, Apr. 1, 2004 [hereinafter Justice for Timor-Leste].
205. Elisabeth Schreinemacher, Sierra Leone War-Crimes Court Running Out of
Money, Mail & Guardian, Oct. 6, 2005; see also Sierra Leone War Crimes Prosecutors
Gather Witnesses Ahead of Trials, Agence France-Presse, May 5, 2004; Annan Proposes
Assessed Dues to Close Sierra Leone Court’s Budget Gap, U.N. News Centre, Mar. 11, 2004,
available at http://www.un.org/apps/news/storyAr.asp?NewsID=10044&Cr=sierra&Cr1=
&Kw1=assessed&Kw2=dues&Kw3=sierra.
206. Thierry Cruvellier, Sierra Leone: The Cost of a Mixed Model, Int’l Just. Trib.,
No. 27, June 13, 2005.
207. Sierra Leone: Special Court Registrar Announces Resignation but Urged to Stay,
IRIN News, Aug. 4, 2004.
208. Report on the Establishment of a Special Court for Sierra Leone, supra note 203,
at para. 58.
209. Letter dated 12 July 2001 from the Secretary-General addressed to the President
of the Security Council, at 2, U.N. Doc. S/2001/693 (July 12, 2001).
210. William A. Schabas, The Relationship between Truth Commissions and Interna-
tional Courts: The Case of Sierra Leone, 25 Hum. Rts. Q. 1035, 1040 (2003).
211. Cruvellier, supra note 206.
212. See Human Rights Watch, Vol. 16, No. 8(A), Bringing Justice: The Special
Court for Sierra Leone, Accomplishments, Shortcomings and Needed Support,
21–31.
213. Hansjörg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United
Nations Missions in Kosovo and East Timor, 95 Am. J. Int’l L. 46, 50 (2001) [hereinafter
Strohmeyer, Collapse and Reconstruction of a Judicial System].
214. S.C. Res. 1272, para. 1, U.N. Doc. S/RES/1272 (Oct. 25, 1999).
215. UNTAET Regulation No. 2000/11 on the Organization of the Courts in East
S3857.indb 250 10/4/06 6:47:10 AM

Timor, § 9 UNTAET/REG/2000/11 (Mar. 6, 2000); UNTAET Regulation No. 2000/15 on

the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses,
§ 1.3 UNTAET/REG/2000/15 (June 6, 2000) [hereinafter UNTAET Reg. 2000/15].
216. By December 2004, the Special Panels had indicted 370 individuals, Press Re-
lease, Serious Crimes Unit, SCU Indicts Suai Church Massacre Commanders (Nov. 30,
2004), but at least 281 of them were residing in Indonesia, and that country has refused
to surrender them, Judicial System Monitoring Programme, JSMP Issue Report,
The Future of the Serious Crimes Unit, JSMP Issue Report, Jan. 2004, at 10 [here-
inafter The Future of the Serious Crimes Unit]; Justice for Timor-Leste, supra
note 204, at § 4.1. Indonesia has itself conducted domestic prosecutions of Indonesians
accused of international crimes relating to Timorese independence, but these have been
dismissed as shams. See Justice for Timor-Leste, supra note 204, at §§ 5–9; William J.
Furney, East Timor Atrocities: Submit to International Tribunal, Straits Times (Singa-
pore), Aug. 15, 2003.
217. Judicial System Monitoring Programme, The Future of Serious Crimes
(delivered by Tiago A. Sarmento, Victoria University, June 16–18, 2005) [hereinafter The
Future of Serious Crimes].
218. See UNTAET Regulation No. 2000/30 on Transitional Rules of Criminal Pro-
cedure, UNTAET/REG/2000/30 (as amended by Regulation 2001/25 of September 14,
2001).
219. Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in Inter-
national Justice, 12 Crim. L.F. 185, 205 (2001) [hereinafter Linton, Experiments].
220. David Cohen, Seeking Justice on the Cheap: Is the East Timor Tribunal Really a
Model for the Future? in Asia Pacific Issues No. 61, at 5–6 (East-West Center 2002);
see also Prosecutor v. Francisco Dos Santos Laku, Dili District Court, Special Panels for
Serious Crimes, Case No. 8/2001, Judgement at 2 (July 25, 2001); Prosecutor v. Carlos
Soares, Dili District Court, Special Panels for Serious Crimes, Case No. 12/2000, Judge-
ment at 2 (May 31, 2001) [hereinafter Carlos Soares Judgement]; Prosecutor v. Joseph Leki,
Dili District Court, Special Panels for Serious Crimes, Case No. 5/2000, Judgement at 2
(June 11, 2001) [hereinafter Joseph Leki Judgement].
221. Suzanne Katzenstein, Note, Hybrid Tribunals: Searching for Justice in East Timor,
16 Harv. Hum. Rts. J. 245, 251-52 (2003); Judicial System Monitoring Programme, Special
Panels for Serious Cases—Weekly Report 27–31 January 2003 (Jan. 27–31, 2003), available at
http://www.jsmp.minihub.org/Reports/spscweeksumm/SPSC27-31Jan03jr10feb03.pdf.
222. See Lino de Carvalho v. Prosecutor General, Court of Appeal of East Timor,
Criminal Appeal No. 25 of 2001, Judgement of Fredrick Egonda-Ntende, para. 1 (Oct. 29,
2001); Julio Fernandes v. Prosecutor General, Court of Appeal of East Timor, Criminal
Appeal No. 7 of 2001, Judgement of Fredrick Egonda-Ntende, para. 36, (June 29, 2001).
223. Judicial System Monitoring Programme, The General Prosecutor v.
Joni Marques and 9 Others (The Los Palos Case): A JSMP Trial Report, at § 3.2.1.2.
(Mar. 2002) [hereinafter JSMP, The Los Palos Case Report].
224. Id. at §§ 3.2.4.2, 3.2.4.3.
225. Suzannah Linton, Correspondents’ Reports, in 2 Y.B. of Int’l Hum. Law 471, 481
(2000). Indeed, when the court asked the prosecutor in the João Fernandes case “why the
S3857.indb 251 10/4/06 6:47:11 AM

accused is charged with one murder since the evidences [sic] in the fi le show that there
were more victims,” the prosecutor responded, among other things, that the accused is al-
ready detained, and the prosecutor needed to seek “quick justice.” Prosecutor v. João Fer-
nandes, Dili District Court, Special Panels for Serious Crimes, Case No. 01/00.C.G.2000,
Judgement at para. 5 (Jan. 25, 2001) [hereinafter João Fernandes Judgement].
226. JSMP, The Los Palos Case Report, supra note 223, at §§ 2.2.2, 3.1.2. And few,
if any, of these defenders had significant experience. All of the East Timorese defenders
in the Los Palos case had only recently completed their law degrees from universities in
Indonesia, and none of them had practiced law before their appointment to the case. Id.
at § 3.2.2.2.
227. “Los Palos” Case Trial Notes, Oct. 4, 2001, at 343.
228. JSMP, The Los Palos Case Report, supra note 223, at § 3.2.2.1.
229. Id. § 3.12.
230. Another impediment has been the government of Timor-Leste’s insistence that
judges should be from civil-law states and should speak Portuguese. Id.
231. Suzannah Linton & Caitlin Reiger, The Evolving Jurisprudence and Practice of
East Timor’s Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior
Orders, 4 Y.B. of Int’l Hum. L. 167, 185 (2001).
232. Judicial System Monitoring Programme, The Lolotoe Case: A Small
Step Forward § 3.1, (July 2004), available at http://www.jsmp.minihub.org/Reports/
jsmpreports/Lolotoe20Reports/Lolotoe20report20-20FINAL.pdf [hereinafter
The Lolotoe Case: A Small Step Forward].
233. Judicial System Monitoring Programme, Departure of International Judge Means
Special Panels for Serious Crimes in East Timor Unable to Function, Apr. 21, 2003, available
at http://www.jsmp.minihub.org/News/News/21_04_03nb.htm.
234. Phillip Rapoza, J. Special Panel for Serious Crimes, The Serious Crimes Pro-
cess in Timor-Leste: Accomplishments, Challenges and Lessons Learned, Speech deliv-
ered at the International Symposium on U.N. Peacekeeping Operations in Post-Conflict
Timor-Leste: Accomplishments and Lessons Learned (Apr. 28, 2005).
235. Judicial System Monitoring Programme, The Special Panels for Serious Crimes
Hear Their Final Case, Justice Update, Issue 12/2005 (2005), available at http://www.jsmp
.minihub.org/Justice20update/2005/May202005/050520_JSMP_JUissue12(e).pdf.
236. Public Statement, Amnesty International, Justice for Timor-Leste: Victims Await
Further Action from the Security Council to Ensure Perpetrators Are Held to Account,
(Apr. 29, 2005).
237. See generally, Ben Kiernan, The Pol Pot Regime: Race, Power, and Geno-
cide in Cambodia under the Khmer Rouge, 1975–1979 (1996). For a description of the
killings, see Hurst Hannum, International Law and Cambodian Genocide: The Sounds
of Silence, 11 Hum. Rts. Q. 82, 89–91, 93–94 (1989). For a description of the evacuation of
Phnom Penh, see Power, supra note 20, at 88.
238. Pressure from the special representative secretary-general for human rights
in Cambodia led the Cambodian government to ask the U.N.’s assistance in bringing
members of the Khmer Rouge to justice. Linton, Experiments, supra note 219, at 187-88;
S3857.indb 252 10/4/06 6:47:11 AM

Craig Etcheson, The Persistence of Impunity in Cambodia, in Reining in Impunity for

International Crimes and Serious Violations of Fundamental Human Rights:
Proceedings of the Siracusa Conference 17–21 September 1998, at 231, 239 (Chris-
topher C. Joyner ed., 1998).
239. Hans Corell, U.N. Legal Counsel, Negotiations Between the U.N. and Cambodia
Regarding the Establishment of the Court to Try Khmer Rouge Leaders, statement at a press
briefing at U.N. Headquarters in New York (Feb. 8, 2002), available at http://www.un.org/
News/dh/infocus/cambodia/corell-brief.htm.
240. Agreement between the United Nations and the Royal Government of Cambodia
Concerning the Prosecution Under Cambodian Law of Crimes Committed during the
Period of Democratic Kampuchea, arts. 1, 5(3), 6(3), June 6, 2003; David Scheffer, A Rare
Chance to Try These Architects of Atrocity, Financial Times (London), Aug. 16, 2004;
Richard Woodd & Vong Sokheng, US Senate Moves to Block KR Trial Funds, Phnom
Penh Post, Oct. 8, 2004.
241. Woodd & Sokheng, supra note 240.
242. Scheffer, supra note 240; Alan Sipress, Khmer Rouge Trials Stalled by Political
Deadlock, Wash. Post, May 5, 2004, at A24.
243. S. 2812 § 554(e), 108th Cong. (2004); H.R. 4818, § 5054(e), 108th Cong. (2004).
244. Ek Madra, U.N., Cambodia Look to Khmer Rouge Trial in 2007, Reuters,
Feb. 9, 2006.
245. S. Afr. Const., Ch. 1, § 6(1); Max Loubser, Linguistic Factors into the Mix: The
South African Experience of Language and the Law, 78 Tul. L. Rev. 105, 106 (2003).
246. The Magnus Malan trial, for instance, was conducted in Afrikaans and English
while a Zulu translator interpreted the testimony for the seven black defendants who were
charged with being triggermen. Andrew Maykuth, A Watershed Trial in South Africa:
Did an Ex-Defense Minister and Others Train an Apartheid Hit Squad?, Philadelphia
Inquirer, Apr. 22, 1996, available at http://www.maykuth.com/Africa/malan422.htm.
247. For a discussion of East Timor’s many languages, see James J. Fox, Tracing the
Path, Recounting the Path: Historical Perspectives on Timor, in Out of the Ashes: De-
struction and Reconstruction of East Timor 1, 3–5, 19 (James J. Fox & Dionísio
Babo-Soares eds., 2003).
248. For a discussion of the costs of these high-profi le South African trials, see
Hayner, supra note 91, at 89–90; Paul van Zyl, Justice without Punishment: Guaranteeing
Human Rights in Transitional Societies, in Looking Back, Reaching Forward: Reflec-
tions on the Truth and Reconciliation Commission of South Africa 42, 45–46
(Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000) [hereinafter Van Zyl, Justice
Without Punishment].
249. De Kock is popularly blamed for at least seventy murders. See Jeremy Gordin,
Foreword to Eugene de Kock, A Long Night’s Damage 13, 19 (1998).
250. Amnesty International & Human Rights Watch, Truth and Justice:
Unfinished Business in South Africa, 10–11, AI Index: AFR 53/001/2003 (Feb. 2003)
[hereinafter Truth and Justice]; Martin Meredith, Coming to Terms: South Af-
rica’s Search for Truth 370 (1999); Paul van Zyl, Dilemmas of Transitional Justice: The
S3857.indb 253 10/4/06 6:47:11 AM

Case of South Africa’s Truth and Reconciliation Commission, 52 J. Int’l Aff. 647, 653 n.15
(1999) [hereinafter Van Zyl, Dilemmas of Transitional Justice]; State to Halt Legal Aid for
“Third Force,” Mail & Guardian (S. Afr.), Apr. 4, 1997.
251. Van Zyl, Dilemmas of Transitional Justice, supra note 250, at 653; Goodman, su-
pra note 112, at 174. Various explanations have been offered for the prosecution’s failure
to secure convictions in the Malan trial, including prosecutorial incompetence and/or a
desire to protect apartheid-era criminals. See Dyzenhaus, supra note 117, at 119–20. For
an analysis of the conduct of the trial, see generally Howard Varney & Jeremy Sarkin,
Failing to Pierce the Hit Squad Veil: An Analysis of the Malan Trial, 10 South African J.
Crim. L. 141 (1997).
252. Truth and Justice, supra note 250, at 11–12.
253. Van Zyl, Justice without Punishment, supra note 248, at 45.
254. Van Zyl, Dilemmas of Transitional Justice, supra note 250, at 651.
255. Id. at 651–53; Amnesty International, The Criminal Justice System and
the Protection of Human Rights in South Africa: The Role of the Prosecution
Service, 5, AI Index: AFR 53/001/1998 (Feb. 11, 1998) [hereinafter Amnesty Interna-
tional, The Criminal Justice System].
256. Amnesty International, The Criminal Justice System, supra note 255, at 5;
David Beresford & Rehana Rossouw, Generals Avoid Justice as System Struggles to Cope,
Mail & Guardian (S. Afr.), Sept. 29, 1995.
257. See generally Amnesty International, Rwanda: The Troubled Course of
Justice, AI Index: AFR 47/010/2000 (Apr. 4, 2000).
258. Human Rights Watch Africa, Vol. 6 No. 11: Ethiopia: Reckoning under
the Law 11–12, 15–16 (Dec. 1994) [hereinafter Human Rights Watch, Ethiopia].
259. Amnesty International, Ethiopia, Accountability Past and Present:
Human Rights in Transition 46 (Apr. 1995) [hereinafter Amnesty International,
Ethiopia].
260. Human Rights Watch, Ethiopia, supra note 258, at 33–35; Amnesty Interna-
tional, Ethiopia, supra note 259, at 50.
261. Human Rights Watch, Ethiopia, supra note 258, at 26–27.
262. U.S. Dep’t of State, Country Reports on Human Rights Practices – 2004:
Ethiopia, § e, available at http://www.state.gov/g/drl/rls/hrrpt/2004/41603.htm.
263. Court Sentences Former Regime’s Security Chief to Death, Ethiopian Herald,
Aug. 11, 2005.
264. Chile: Court Ruling May Define Future of Rights Prosecutions, Human Rights
Watch News, May 27, 2004, available at http://www.hrw.org/english/docs/2004/05/27/
chile8622.htm; Lutz & Sikkink, supra note 4, at 24.
265. Eva Vergara, Chilean President Plans to Up Reparations, A.P., Aug. 13, 2003; Stacie
Jonas, The Ripple Effect of the Pinochet Case, Hum. Rts. Brief, Vol. 11, No. 3, at 36, 36 (2004).
266. Brett, supra note 4.
267. Human Rights Watch, Discreet Path to Justice?: Chile Thirty Years af-
ter the Military Coup, Briefing Paper, at 2–3 (Sept. 2003), available at http://hrw.org/
backgrounder/americas/chile/chile0903.pdf [hereinafter Discreet Path to Justice?];
S3857.indb 254 10/4/06 6:47:12 AM

see also Egan, supra note 4; Redressing Injustices of the Past Back on Chile’s Agenda, Taipei
Times, Sept. 8, 2003, at 7.
268. The Association of Relatives of Disappeared Detainees, the main organization
representing the relatives of the “disappeared,” labeled President Lagos’s proposals “a
disgrace” and asserted that they constituted a “new form of promoting the most flagrant
impunity in an underhand way.” Discreet Path to Justice?, supra note 267, at 10 n.26;
see also Egan, supra note 4. Jonas, supra note 265, at 37.
269. Egan, supra note 4.
Chapter 3
270. Philosopher Jean Hampton constructs a more positive, victim-centered view of
retribution that is founded on the equal dignity of all people. In Hampton’s view, it is
through retribution that the community uses its power to “deny the wrongdoer’s prior
claim of superiority.” Retribution, therefore, seeks to diminish wrongdoers to “a level that
is correct and equal to the level of their victims.” Jeffrie G. Murphy & Jean Hampton,
Forgiveness and Mercy 137–38 (1988).
271. See Elmar G. M. Weitekamp, Research on Victim-Offender Mediation: Findings
and Needs for the Future, in Victim-Offender Mediation in Europe: Making Re-
storative Justice Work 99, 105 (The European Forum for Victim-Offender Mediation
and Restorative Justice ed., 2000).
272. Ivković, supra note 2, at 323, 301. And it was by no means token punishment that
they advocated. More than 90 percent of respondents advocated either the death penalty
or life imprisonment and had little interest in prison sentences shorter than twenty-five
years. Id. at 323. In a similar vein, Munira Subašić, representing the Mothers of Srebrenica
and Zepa, asserted during a 2003 conference, that the twenty-seven-year sentence im-
posed on Momir Nikolić for his role in the Srebrenica executions constituted a “reward.”
As she put it, “270 years would not be enough.” Conference, Plea Agreements and Guilty
Pleas at the ICTY and Related Practice in National Systems, Dec. 5–6, 2003, Sarajevo,
Bosnia-Herzegovina [hereinafter Comment of Munira Subašić].
273. See Boraine, supra note 116, at 293; Carla Hesse & Robert Post, Introduction to
Human Rights in Political Transitions: Gettysburg to Bosnia 13, 16 (Carla Hesse
& Robert Post eds., 1999); Report of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law Commit-
ted in the Territory of the Former Yugoslavia since 1991, para. 15, U.N. Doc. A/49/342,
S/1994/1007 (Aug. 29, 1994) [hereinafter ICTY 1994 Annual Report].
274. Press Release, ICTY, Address to the United Nations Security Council by the Pros-
ecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda,
Carla Del Ponte, to the U.N. Security Council, GR/P.I.S/642-E.p642-e.htm Nov. 27, 2001.
How well retributory goals are served cannot be measured solely by reference to the num-
ber of prosecutions undertaken but also must consider the quantity of punishment im-
posed. A society that prosecutes every last offender does not necessarily serve well the
goal of retribution if it must, as a consequence, reduce the sanctions to token punish-
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ments. In other words, depending on the society in question, victims’ appropriate desire
for vengeance might be better satisfied by a smaller number of prosecutions that result in
appropriately lengthy prison sentences than by a far larger number of prosecutions that
are followed by patently trivial sanctions. Indeed, as will be discussed in Chapter 5, one
task for those seeking to use plea bargaining to increase the number of prosecutions is to
find an appropriate balance between the quantity of offenders prosecuted and the severity
of punishment imposed.
275. ICTY 1994 Annual Report, supra note 273, at para. 13.
276. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, para. 179, 185 (Mar. 24,
2000) [hereinafter Aleksovski Appeal]; Prosecutor v. Kambanda, Case No. ICTR-97-23-S,
Judgement and Sentence, para. 28 (Sept. 4, 1998) [hereinafter Kambanda Judgement]. For
an argument that at least one ICTY Trial Chamber overemphasized the goal of deterrence
in sentencing, see Shahram Dana, Revisiting the Blaškić Sentence: Some Reflections on the
Sentencing Jurisprudence of the ICTY, 4 Int’l Crim. L. Rev. 321, 330–31, 344, 347 (2004).
277. Rome Statute, supra note 57, at Preamble.
278. See Andrew von Hirsch et al., Criminal Deterrence and Sentence Se-
verity 5 (1999). This view extends back at least as far as the eighteenth century when Ce-
sare Beccaria propounded it. See Guyora Binder, Punishment Theory: Moral or Political?,
5 Buff. Crim. L. Rev. 321, 336 (2002).
279. Brent Fisse & John Braithwaite, Corporations, Crime and Accountabil-
ity 219–21 (1993).
280. See Prosecutor v. Milošević, Case No. IT-02-54, Transcript, at 16727 (Feb. 21, 2003).
281. Prosecutor v. Delalić and Others, Case No. IT-96-21-T, Judgement, para. 1232
(Nov. 16, 1998) [hereinafter Delalić Judgement].
282. See Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Sentencing Judgement,
para. 60 (Dec. 2, 2003) [hereinafter Momir Nikolić Sentencing Judgement]. In 2002, Šešelj
received a million votes in a failed presidential election, “signaling that nationalists still
enjoy considerable support in Serbia, more than two years after Milošević was ousted
from power by a pro-Western coalition.” Katarina Kratovac, Thousands Bid Farewell to
Ultranationalist War Crimes Suspect, A.P., Feb. 23, 2003.
283. Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent
Future Atrocities?, 95 Am. J. Int’l L. 7, 7, 23 (2001); Mark A. Drumbl, Rule of Law Amid
Lawlessness: Counseling the Accused in Rwanda’s Domestic Genocide Trials, 29 Colum.
Hum. Rts. L. Rev. 545, 601 (1998) [hereinafter Drumbl, Rule of Law]. For a detailed de-
scription of the activities of the Hutu insurgents living in refugee camps, see Gérard
Prunier, The Rwanda Crisis: History of a Genocide 312–17 (1995).
284. See Eric Witte, The Cost of Impunity for Liberian Ex-Leader, IWPR African
Reports, No. 44, Oct. 17, 2005; Emily Wax, In Exile, Taylor Exerts Control: Liberian Ex-
President Exercises Influence from Nigeria, Wash. Post, Sept. 17, 2003, at A17. Even crimi-
nal arrest may not be sufficient to eliminate the destructive influence of war criminals.
A number of ICTY indictees have lately run for office, including some who are in ICTY
detention. The ICTY’s registrar consequently prohibited the indictees from campaign-
ing from the ICTY’s detention center. See Restrictions on Vojislav Šešelj’s Communication
Privileges Extended, SENSE News Agency, June 10, 2004; Press Release, ICTY, Registry
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Imposes Communications Restrictions on Detainees with Regard to Political Campaign-

ing in the Media from the Tribunal’s Detention Unit, JL/P.I.S./810-e (Dec. 12, 2003). By
contrast, a Trial Chamber in October 2005 permitted indicted Kosovar politician Ramush
Haradinaj to engage in certain political activities in Kosovo while on provisional release.
Prosecutor v. Haradinaj et al., Decision on Defence Motion on Behalf of Ramush Haradi-
naj to Request Re-assessment of Conditions of Provisional Release Granted 6 June 2005,
Case No. IT-04-84-PT (Oct. 12, 2005).
285. Indeed, some of the most brutal perpetrators of international crimes showed
no previous proclivity toward violence. ICTY defendant Dragan Nikolić, commander of
the Sušica prison camp, for instance, beat to death nine detainees, sometimes kicking
them, sometimes punching them, and sometimes using metal pipes and wooden boards,
yet before the atrocities he had no prior criminal record and “ ‘was a gainfully employed
resident of Vlasenica who was well-liked by many of the victims.’” See Dragan Nikolić
Sentencing Judgement, supra note 11, at paras. 7, 71–86, 262. Similarly, Predrag Banović
beat five detainees to death and severely beat twenty-five others and shot two more, yet
he had no prior criminal record and had worked as a waiter. Prosecutor v. Banović, Case
No. IT-02-65-1-S, Sentencing Judgement, paras. 1, 29–30, 74 (Oct. 28, 2003) [hereinafter
Banović Sentencing Judgement]. Darko Mrd̄a, likewise, had no criminal record before
he participated in the executions of more than two hundred Muslim men by the Ilomska
River. See Mrd̄a Sentencing Judgement, supra note 11, at paras. 10, 88, 91.
286. For a discussion of the concept of “work” during the Rwandan genocide, see
Melvern, supra note 52, at 191–92. And work it was. Many Hutu killers described the
exhaustion that followed hours of hacking. See Erin Daly, Between Punitive and Recon-
structive Justice: The Gacaca Courts in Rwanda, 34 N.Y.U. J. Int’l L. & Pol. 355, 363 (2002).
“Survivors and other witnesses . . . speak of the killers approaching the destruction of the
crowds at a church, hospital, or hilltop as a piece of work to be kept at until fi nished. One
compared killers to government workers putting in a day at the office; another likened
them to farmers spending a day at labor. In case after case, killers quit at day’s end, to go
home and feast on food and drink they had pillaged or been given, ready to come back the
next morning, rested and fit for ‘work.’ ” Alison Des Forges, Human Rights Watch,
Leave None to Tell the Story: Genocide in Rwanda 212 (1999) [hereinafter Leave
None to Tell the Story].
287. Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be
Killed with Our Families: Stories from Rwanda 123 (1998).
288. Weitekamp, supra note 271, at 102.
289. Such an assumption may not be warranted. See Darren Bush, Law and Econom-
ics of Restorative Justice: Why Restorative Justice Cannot and Should Not Be Solely About
Restoration, 2003 Utah L. Rev. 439, 457.
290. See African Rights, Gacaca Justice: A Shared Responsibility 28 (January
2003) [hereinafter Gacaca Justice]. “Many detainees see themselves as prisoners of war,
simply ending up on the losing side.” Drumbl, Rule of Law, supra note 283, at 607.
291. Albert W. Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alter-
natives to the Plea Bargaining System, 50 U. Chi. L. Rev. 931, 933 (1983).
292. Minow, supra note 16, at 25; Teitel, supra note 58, at 56; Stephan Landsman,
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Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Com-
missions, 59 L. & Contemp. Probs. 81, 83 (1996); The Rule of Law and Transitional Justice,
supra note 92, at para. 39.
293. See Ruti Teitel, Bringing the Messiah through the Law, in Human Rights in
Political Transitions: Gettysburg to Bosnia 177, 188 (Carla Hesse & Robert Post
eds., 1999).
294. Id.
296. Id. at 40; see also Richard J. Goldstone, 50 Years after Nuremberg: A New Interna-
tional Criminal Tribunal for Human Rights Criminals, in Contemporary Genocides:
Causes, Cases, Consequences 215, 215-16 (Albert J. Jongman ed., 1996).
297. See Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgement, paras. 130–
92 (May 7, 1997) [hereinafter Tadić Judgement].
298. Crimes within the jurisdiction of the Nuremberg Tribunal, for instance, were
defined with a nexus to the waging of aggressive war. Thus, the story told by the Nurem-
berg judgment is far more a story about Germany’s crime against the peace than about its
extermination of six million Jews.
299. Osiel, supra note 7, at 158.
300. Id. at 39.
301. Id. at 2–3.
302. Id. at 2.
303. Id.
304. Id. at 3.
305. Id.
Chapter 4
306. ICTY Statute, supra note 180, at art. 1; ICTR Statute, supra note 197, at art. 1.
307. UNTAET Reg. 2000/15, supra note 215, at § 1.1.
308. The ICTY has indicted 162 individuals; the ICTR has indicted 83 individuals; and
the Special Panels for Serious Crimes indicted a whopping 391 individuals in 95 indict-
ments, though the vast majority of Special Panels’ indictees were located in Indonesia,
where there was no chance of obtaining custody over them.
309. ICTY R.P. & Evid. 62(iii); ICTR R.P. & Evid. 62(A)(iii) (Oct. 6, 1995).
310. Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgement, paras.
3, 10, and text accompanying n.141 (Nov. 29, 1996) [hereinafter Erdemović Sentencing
Judgement].
311. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge
McDonald and Judge Vohrah, para. 8 (Oct. 7, 1997) [hereinafter Erdemović, Joint Separate
Opinion of Judge McDonald and Judge Vohrah].
312. See ICTY R.P. & Evid. 62bis (Dec. 4, 1998); ICTR R.P. & Evid. 62(B)(iii) (July 1,
1999). According to the rules, the plea will be supported by a sufficient factual basis as long
as there is no material disagreement between the parties about the facts of the case.
313. ICTY R.P. & Evid. 62ter (Dec. 13, 2001); ICTR R.P. & Evid. 62bis (May 27, 2003).
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314. Rome Statute, supra note 57, at art. 65; UNTAET Regulation 2000/30, On Transi-
tional Rules of Criminal Procedure, art. 29A, Sept. 25, 2000.
315. DR Congo Rebel in Landmark Trial, BBC News, Mar. 20, 2006.
316. Prosecuting and Defending Violations of Genocide and Humanitarian Law: The
International Tribunal for the Former Yugoslavia, 88 Proc. Am. Soc. Int’l L. 239, 248
(1994) (remarks of Steven J. Lepper).
317. Scharf, supra note 2, at 67. As then judge Gabrielle Kirk McDonald remembers,
Judge Georges Abi-Saab insisted that because the crimes within the tribunal’s jurisdiction
are jus cogens, the tribunal had an obligation to prosecute them. Interview with Gabrielle
Kirk McDonald, former president of the ICTY, The Hague (Sept. 15, 2003).
318. Rumors abound, for instance, that insider witnesses are informally granted
immunity.
319. These are Dražen Erdemović, Erdemović Sentencing Judgement, supra note 310,
at para. 3; Goran Jelisić, Prosecutor v. Jelisić, Case No. IT-95-10-T, Judgement, para. 11
(Dec. 14, 1999) [hereinafter Jelisić Judgement], Stevan Todorović, Prosecutor v. Todorović,
Case No. IT-95-9/1, Sentencing Judgement, para. 5 (July 31, 2001) [hereinafter Todorović
Sentencing Judgement], Duško Sikirica, Damir Došen, Dragan Kolundžija, Prosecutor
v. Sikirica et al., Case No. IT-95-8-T, Sentencing Judgement, paras. 12–15 (Nov. 13, 2001)
[hereinafter Sikirica Sentencing Judgement], Milan Simić, Prosecutor v. Milan Simić,
Case No. IT-95-9/2-S, Sentencing Judgement, paras. 9–16 (Oct. 17, 2002) [hereinafter Simić
Sentencing Judgement], Biljana Plavšić, Prosecutor v. Plavšić, Case No. IT-00-39&40/
1-S, Sentencing Judgement, para. 5 (Feb. 27, 2003) [hereinafter Plavšić Sentencing Judge-
ment], Dragan Obrenović, Prosecutor v. Obrenović, Case No. IT-02-60/2-S, Sentencing
Judgement, para. 10 (Dec. 10, 2003) [hereinafter Obrenović Sentencing Judgement], Mo-
mir Nikolić, Momir Nikolić Sentencing Judgement, supra note 282, at para. 12; Darko
Mrd̄a, Mrd̄a Sentencing Judgement, supra note 11, at para. 5, Miodrag Jokić, Jokić Sen-
tencing Judgement, supra note 11, at paras. 7–14, Predrag Banović, Banović Sentencing
Judgement, supra note 285, at para. 13; Dragan Nikolić, Dragan Nikolić Sentencing Judge-
ment, supra note 11, at para. 36, Ranko Češić, Prosecutor v. Češić, Case No. IT-95-10/1-S,
Sentencing Judgement, para. 4 (Mar. 11, 2004) [hereinafter Češić Sentencing Judgement],
Miroslav Deronjić, Prosecutor v. Deronjić, Case No. IT-02-61-S, Sentencing Judgement,
para. 19 (Mar. 30, 2004) [hereinafter Deronjić Sentencing Judgement], Milan Babić, Pros-
ecutor v. Babić, Case No. IT-03-72-I, Amendment to the Joint Motion for Consideration
of Plea Agreement between Milan Babić and the Office of the Prosecutor Plea Agreement
(Jan. 22, 2004) [hereinafter Babić Plea Agreement], Miroslav Bralo, Prosecutor v. Bralo,
Case No. IT-95-17-PT, Plea Agreement (July 18, 2005) [hereinafter Bralo Plea Agreement];
Ivica Rajić, Case No. IT-95-12-PT, Confidential Plea Agreement (Oct. 25, 2005) [hereinaf-
ter Rajić Plea Agreement].
320. Dragan Obrenović and Momir Nikolić pled guilty in May 2003. Predrag Banović
pled guilty in June 2003. Darko Mrd̄a pled guilty in July 2003, and Miodrag Jokić pled
guilty in August 2003. Miroslav Deronjić and Dragan Nikolić pled guilty in September
2003. Ranko Češić pled guilty in October 2003, Milan Babić pled guilty in January 2004,
Miroslav Bralo pled guilty in July 2005, and the last ICTY defendant to plead guilty to
date, Ivica Rajić, did so in October 2005.
S3857.indb 259 10/4/06 6:47:13 AM

321. Prosecutor v. Erdemović, Case No. IT-96-22-Tbis, Sentencing Judgement, para. 15

(Mar. 5, 1998) [hereinafter Erdemović Second Sentencing Judgement].
322. Erdemović Sentencing Judgement, supra note 310, at para. 80.
323. Prosecutor v. Erdemović, Case No. IT-96-22-Tbis, Transcript, at 33, 44–45 (Jan. 14,
1998) [hereinafter Erdemović Transcript], available at http://www.un.org/icty/transe22/
980114it.htm.
324. Erdemović Sentencing Judgement, supra note 310, at para. 2; Erdemović Tran-
script, supra note 323, at 25–26.
325. Erdemović Transcript, supra note 323, at 35–38.
326. Erdemović Sentencing Judgement, supra note 310, at paras. 3, 10.
327. Id. at para. 6. Prosecutor v. Krstić, Case No. IT-98-33, Judgement, para. 234 (Aug. 2,
2001) [hereinafter Krstić Judgement].
328. Erdemović Transcript, supra note 323, at 48.
329. Erdemović Second Sentencing Judgement, supra note 321, at para. 18(d).
330. Erdemović Transcript, supra note 323, at 29, 38, 46.
331. Jelisić Judgement, supra note 319, at paras. 102–03.
332. Prosecutor v. Jelisić, Case No. IT-95-10-PT, Amended Indictment, paras. 16–41
(Mar. 3, 1998).
333. Jelisić Judgement, supra note 319, at paras. 8, 10–11, 24.
334. Id. at paras. 3, 38, 42–44, 49.
335. Id. at para. 15. The Appeals Chamber subsequently reversed the Trial Chamber’s
conclusion that the evidence was not sufficient to sustain a conviction on genocide. How-
ever, it did not send the case back to the Trial Chamber for a new trial. Prosecutor v. Jelisić,
Case No. IT-95-10-A, Appeal, paras. 57, 73–77 (July 5, 2001).
336. Jelisić Judgement, supra note 319, at para. 119; Prosecution v. Jelisić, Case No. IT-
95-10-T, Transcript, at 3070, 3132 (Nov. 25, 1999).
337. Telephone Interview with Nicola Kostić, ICTY defense counsel (Oct. 25, 2001).
338. Telephone Interview with Terree Bowers, former ICTY senior trial attorney
(Oct. 30, 2001).
339. Jelisić Judgement, supra note 319, at para. 139.
340. Id. at para. 127.
341. See Christopher M. Supernor, International Bounty Hunters for War Criminals:
Privatizing the Enforcement of Justice, 50 A.F.L. Rev. 215, 217 n.11 (2001); Marlise Simons,
War Crimes Court Takes It Easy on a Cooperative Bosnian Serb, N.Y. Times, Aug. 1, 2001,
at A4. A regional court in Serbia subsequently convicted nine people of “kidnapping for
money.” 9 Convicted of Kidnap of War-Crimes Suspect, N.Y. Times, Dec. 12, 2000, at A15;
see also Prosecutor v. Todorović, Case No. IT-95-9/1, Transcript, at 786 (Dec. 13, 2000).
342. Sean D. Murphy ed., Contemporary Practice of the United States Relating to Inter-
national Law, 95 Am. J. Int’l L. 387, 401 (2001).
343. The four trials led to the conviction of seven defendants: Blagoje Simić, Miro-
slav Tadić, and Simo Zarić, see Prosecutor v. Simić et al., Case No. IT-95-9-T, Judgement
(Oct. 17, 2003); Milomir Stakić, see Prosecutor v. Stakić, Case No. IT-97-24-T, Judgement
(July 31, 2003) [hereinafter Stakić Judgement]; Mladen Naletilić and Vinko Martinović,
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see Prosecutor v. Naletilić & Martinović, Case No. IT-98-34-T, Judgement (Mar. 31, 2003);
and Stanislav Galić, see Prosecutor v. Galić, Case No. IT-98-29-T, Judgement (Dec. 5, 2003)
[hereinafter Galić Judgement].
344. Prosecutor v. Simić et al., Case No. IT-95-9, Fourth Amended Indictment, para. 2
(Jan. 9, 2002); Prosecutor v. Milan Simić, Interview with Milan Simić, at 15 (Mar. 2, 1998),
reprinted as Annex A to Prosecutor’s Brief on the Sentencing of Milan Simić.
345. Prosecutor v. Simić et al., Case No. IT-95-9, Fourth Amended Indictment, paras.
16, 24–26 (Jan. 9, 2002).
346. Simić Sentencing Judgement, supra note 319, at para. 11.
347. Id. at para. 7.
348. Telephone Interview with Slobodan Zecević, ICTY defense counsel (Dec. 17,
2002).
349. Simić Sentencing Judgement, supra note 319, at paras. 7–8.
350. Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Prosecutor’s Brief on the Sen-
tencing of Milan Simić, para. 50 (July 15, 2002) [hereinafter Simić, Prosecutor’s Sentenc-
ing Brief].
351. Simić Sentencing Judgement, supra note 319, at paras. 10, 22.
352. See Todorović Sentencing Judgement, supra note 319, at paras. 32, 113.
353. Interview with BH, Sarajevo, Bosnia (Dec. 4, 2003).
354. Simić Judgement, supra note 319, at para. 13.
355. Simić, Prosecutor’s Sentencing Brief, supra note 350, at para. 54.
356. Plavšić and Nikolić had been charged with genocide while Obrenović had been
charged with complicity to commit genocide.
357. The ICTY has acquitted several defendants of genocide, see Jelisić Judgement,
supra note 319, at para. 108; Stakić Judgement, supra note 343, at para. 560, Prosecutor v.
Sikirica, Case No. IT-95-8-T, Judgement on Defence Motions to Acquit, para. 97 (Sept. 3,
2001), and has thus far determined that genocide took place only in relation to the Sre-
brenica massacres, Krstić, supra note 327, at para. 598; Prosecutor v. Krstić, Case No. IT-
98-33-A, Judgement, paras. 5–38 (Apr. 19, 2004) [hereinafter Krstić Appeal].
358. Krstić Judgement, supra note 327, at para. 727. The Appeals Chamber reduced
Krstić’s sentence to a term of thirty-five years because it set aside his conviction as a par-
ticipant in a joint criminal enterprise to commit genocide and convicted him rather of
aiding and abetting genocide. Krstić Appeal, supra note 357, at Disposition.
359. The following ICTR defendants received life sentences: Jean Paul Akayesu, Pros-
ecutor v. Akayesu, Case No. ICTR-96-4-T, Sentence (Oct. 2, 1998) [hereinafter Akayesu
Sentence]; Juvénal Kajelijeli, Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Judgement
and Sentence (Dec. 1, 2003) [hereinafter Kajelijeli Judgement and Sentence]; Jean Kam-
banda, Kambanda Judgement, supra note 276; Jean de Dieu Kamuhanda, Prosecutor v.
Kamuhanda, Case No. ICTR-95-54A-T, Judgement and Sentence (Jan. 22, 2004) [here-
inafter Kamuhanda Judgement and Sentence]; Clément Kayishema, Prosecutor v. Kay-
ishema, Case No. ICTR-95-1-T, Judgement and Sentence (May 21, 1999); Alfred Musema,
Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement and Sentence (Jan. 27, 2000)
[hereinafter Musema Judgement and Sentence]; Ferdinand Nahimana, Nahimana Judge-
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ment, supra note 3; Hassan Ngeze, Prosecutor v. Ngeze, Case No. ICTR-99-52-T, Judge-
ment and Sentence (Dec. 3, 2003); Eliezer Niyitegeka, Prosecutor v. Niyitegeka, Case No.
ICTR-96-14-T, Judgement and Sentence (May 16, 2003) [hereinafter Niyitegeka Judgement
and Sentence]; George Rutaganda, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judge-
ment and Sentence (Dec. 6, 1999) [hereinafter Rutaganda Judgement and Sentence]. Jean-
Bosco Barayagwiza would have received a life sentence, but the Trial Chamber reduced
his sentence to thirty-five years’ imprisonment to remedy the prosecution’s violation of
his procedural rights. Nahimana Judgement, supra note 3, at para. 1106.
360. Prosecutor v. Plavšić, Case No. IT-00-39&40/1-S, Prosecution’s Brief on the Sen-
tencing of Biljana Plavšić (Nov. 25, 2002) [hereinafter Plavšić Prosecution’s Sentencing
Brief], at para. 43.
361. Plavšić Sentencing Judgement, supra note 319, at para. 132.
362. Momir Nikolić Plea Agreement, supra note 11, at para. 4(a); Obrenović Plea
Agreement, supra note 11, at para. 4(a).
363. See Obrenović Sentencing Judgement, supra note 319, at para. 156; Momir Nikolić
Sentencing Judgement, supra note 282, at para. 183.
364. Momir Nikolić Sentencing Judgement, supra note 282, at para. 65.
365. Prosecutor v. Strugar et al., Case No. IT-01-42, Amended Indictment (Mar. 31,
2003). The initial indictment charged Jokić with fi fteen counts of violations of the laws
and customs of war and one count of a grave breach of the Geneva Conventions of 1949 for
military activities that took place between October 1 and December 31, 1999. Prosecutor v.
Strugar et al., Case No. IT-01-42, Indictment (Feb. 22, 2001).
366. Prosecutor v. Jokić, Case No. IT-01-42, Second Amended Indictment (Aug. 27,
2003).
367. Id. at para. 14.
368. Prosecutor v. Strugar, Case No. IT-01-42-T, Judgement, Annex IV, para. 488
(Jan. 31, 2005) [hereinafter Strugar Judgement]. The amended indictments against Strugar
and Kovacević, like Jokić’s amended indictment, do not include allegations relating to the
October and November 1991 incidents of shelling. Whereas Jokić’s amended indictment
relates only to the events of December 6, 1991, the amended indictments against Strugar
and Kovacević allege crimes occurring between December 6 and December 31, 1991. Pros-
ecutor v. Strugar & Kovacević, Case No. IT-01-42, Second Amended Indictment (Oct. 17,
2003). Strugar was convicted following a trial of holding superior responsibility for the
shelling that occurred to the Old Town on December 6, 1991. Strugar Judgement, supra at
para. 446. Kovacević was deemed unfit to enter a plea because of a psychiatric illness and
was sent to Serbia for treatment. In January 2005, prosecutors moved to transfer his case
to the courts of Serbia, a motion that remains under consideration by the Trial Chamber.
Kovacević 11bis request, supra note 161.
369. Deronjić Sentencing Judgement, supra note 319, at paras. 8–9, 48.
370. Prosecutor v. Deronjić, Case No. IT-02-61-S, Miroslav Deronjić’s Sentencing
Brief, paras. 64–67, 69 (Dec. 18, 2003).
371. Prosecutor v. Deronjić, Case No. IT-02-61-S, Dissenting Opinion of Judge Schom-
burg, para. 12 (Mar. 30, 2004) [hereinafter Deronjić Dissent].
S3857.indb 262 10/4/06 6:47:14 AM


373. Prosecutor v. Deronjić, Case No. IT-02-61-I, Indictment (July 3, 2002) [hereinaf-
ter Deronjić Indictment]; Deronjić Sentencing Judgement, supra note 319, at para. 44.
374. Prosecutor v. Deronjić, Case No. IT-02-61-S, Transcript, at 99 (Jan. 27, 2004).
Telephone Interview with Mark Harmon, ICTY prosecutor (Feb. 24, 2005). Harmon ve-
hemently rejected any suggestion that a charge bargain had taken place in the Deron-
jić case.
375. Prosecutor v. Deronjić, Case No. IT-02-61-S, Transcript, at 314 (Mar. 5, 2004).
376. Deronjić Dissent, supra note 371, at para. 4.
377. Deronjić Sentencing Judgement, supra note 319, at para. 44.
378. Prosecutor v. Deronjić, Case No. IT-02-61-PT, Amended Indictment, paras. 29–55
(Nov. 29, 2002) [hereinafter Deronjić Amended Indictment].
379. For instance, the first two indictments charged Deronjić with participating in a
joint criminal enterprise that was in existence from April 9 to May 9, 1992, id. at para. 5,
while the second amended indictment reduced the time span of the joint criminal enter-
prise to the period between “the end of April 1992 to 9 May 1992,” Prosecutor v. Deronjić,
Case No. IT-02-61-PT, Second Amended Indictment, para. 5 (Sept. 29, 2003) [hereinafter
Deronjić Second Amended Indictment]. In another minor difference, the first two indict-
ments asserted that, after Bosnian Muslims were instructed to appear at a meeting at the
community building in Glogova, Deronjic directed the assembled villagers to relinquish
their weapons. Deronjić Amended Indictment, supra note 378, at para. 8(b). The Second
Amended Indictment, by contrast, asserts only that “the residents of Glogova were told to
turn in their weapons,” without naming Deronjić as the person issuing the order. Deron-
jić Second Amended Indictment, supra at para. 8(b).
380. See Deronjić Indictment, supra note 373, para. 23. Deronjić Amended Indictment,
supra note 378; Deronjić Second Amended Indictment, supra note 379, at para. 35.
381. Prosecutor v. Deronjić, Case No. IT-02-61-S, Transcript, at 301–03 (Mar. 5, 2004).
382. Telephone Interview with Slobodan Zecević, ICTY defense counsel (Sept. 1, 2005).
383. Mrd̄a Sentencing Judgement, supra note 11, at para. 10.
384. Prosecutor v. Mrd̄a, Case No. IT-02-59-I, Indictment, para. 17 (Apr. 16, 2002).
385. See Prosecutor v. Mrd̄a, Case No. IT-02-59-PT, Transcript, at 86–87 (July 24,
2003).
386. Prosecutor v. Mrd̄a, Case No. IT-02-59-S, Darko Mrd̄a’s Sentencing Brief, para.
42 (Oct. 13, 2003) (on fi le with author) [hereinafter Mrd̄a’s Sentencing Brief]; Prosecutor
v. Mrd̄a, Case No. IT-02-59-S, Transcript, at 178 (Oct. 22, 2003).
387. Prosecutor v. Mrd̄a, Case No. IT-02-59-S, Amended Indictment, paras. 13, 15
(Aug. 4, 2003).
388. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-PT, Second Amended Indict-
ment, paras. 21–22 (Jan. 7, 2002).
389. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-PT, Third Amended Indictment,
paras. 21–22 (Oct. 31, 2003).
390. Prosecutor v. Bralo, Case No. IT-95-17-PT, Indictment, paras. 21, 25 (Nov. 2, 1995)
[hereinafter Bralo Initial Indictment].
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391. Prosecutor v. Bralo, Case No. IT-95-17-PT, Factual Basis, paras. 8–17 (July 18, 2005).
392. Some of the details regarding Bralo’s infamous rape of so-called Witness A that
had appeared in the initial indictment, however, failed to appear in the amended indict-
ment. For instance, the initial indictment alleged that Bralo raped Witness A anally, re-
quired her thereafter to “lick his penis clean,” and put his revolver in her mouth during
the rapes, Bralo Initial Indictment, supra note 390, at paras. 21, 25, allegations that did not
appear in the amended indictment.
393. Todorović Sentencing Judgement, supra note 319, at para. 9.
394. Also by way of comparison, Jelisić, who pled guilty without the benefit of a plea
bargain, received a forty-year sentence. Jelisić Judgement, supra note 319, at para. 139.
Jelisić admitted to killing thirteen people, id. paras. 3, 28, whereas Todorović admitted
only to one murder, but the difference between a twelve and forty year sentence is vast.
396. Prosecution v. Simić et al., Case No. IT-95-9, Transcript, at 2741–43 (Oct. 23, 2001);
Prosecution v. Simić et al., Case No. IT-95-9, Transcript, at 3364–66 (Nov. 2, 2001).
397. Sikirica Sentencing Judgement, supra note 319, at paras. 18, 21, 26, 32.
398. Prosecutor v. Kolundžija, Case No. IT-95-8-T, Admitted Facts Relevant to the Plea
Agreement for Dragan Kolundžija, para. 3 (Sept. 4, 2001) [hereinafter Kolundžija Plea
Agreement]; Prosecutor v. Došen, Case No. IT-95-8-T, Joint Submission of the Prosecu-
tion and the Accused Damir Došen Concerning a Plea Agreement and Admitted Facts,
paras. 8–10 (Sept. 6, 2001) [hereinafter Došen Plea Agreement]; Prosecution v. Sikirica,
Case No. IT-95-8-T, Joint Submission of the Prosecution and the Accused Duško Sikirica
Concerning a Plea Agreement and Admitted Facts, paras. 8–10 (Sept. 6, 2001) [hereinafter
Sikirica Plea Agreement].
399. Sikirica Sentencing Judgement, supra note 319, at paras. 25, 31, 37.
400. Prosecutor v. Sikirica, Case No. IT-95-8-T, Transcript, at 5687 (Oct. 8, 2001);
Sikirica Sentencing Judgement, supra note 319, at para. 42.
401. Sikirica Sentencing Judgement, supra note 319, at para. 245.
402. Aleksovski Appeal, supra note 276, at para. 191.
403. Delalić Judgement, supra note 281, at para. 1253.
404. Prosecutor v. Mucić, Case No. IT-96-21-Tbis-R117, Sentencing Judgement,
para. 44 (Oct. 9, 2001).
405. The prosecution accused Prcać of personal involvement in certain brutalities but
failed to prove its allegations. Prosecution v. Kvočka et al., Case No. IT-98-30/1-T, Judge-
ment, paras. 451–63 (Nov. 2, 2001) [hereinafter Kvočka Judgement].
406. Id. at para. 726.
407. Sikirica Sentencing Judgment, supra note 319, at paras. 33–35.
408. Plavšić Prosecution’s Sentencing Brief, supra note 360, at para. 14.
410. Id. at paras. 38–39.
411. Id. at paras. 41–44.
412. Prosecution v. Krajišnik & Plavšić, Case No. IT-00-39&40-PT, Factual Basis for
Plea of Guilt, paras. 16–17, 20 (Sept. 30, 2002) [hereinafter Plavšić Plea Agreement]; Plavšić
Sentencing Judgement, supra note 319, at paras. 14, 17.
S3857.indb 264 10/4/06 6:47:15 AM

413. Plavšić Plea Agreement, supra note 412, at para. 7.

414. Plavšić Prosecution’s Sentencing Brief, supra note 360, at para. 43; Prosecutor v.
Plavšić, Case No. IT-00-39&40/1-S, Transcript, at 638 (Dec. 18, 2002).
416. Sito-Sucic, supra note 12; Kebo, supra note 12.
417. Patrick McLoughlin, Serb War Criminal Plavšić Goes to Swedish Jail, Reuters,
June 27, 2003. Even Swedish prison guards objected when Plavšić was granted special
privileges including private accommodation with a toilet and extended recreation time,
and when she was presented a birthday cake to celebrate her birthday. Patrick McLough-
lin, War Criminal’s Conditions Rile Guards, Reuters, Aug. 1, 2003. Plavšić, by contrast,
has claimed that, in an effort to coerce her to testify against Slobodan Milošević, “bad
air from a nearby factory is being pumped into her cell, causing her lungs to bleed.” Serb
Leader Alleges Prison Conspiracy, The Independent (London), Oct. 18, 2003; Former
Bosnian Serb President Complains about Prison Conditions in Sweden, Agence France-
Presse, Oct. 17, 2003.
418. Češić Sentencing Judgement, supra note 319, at paras. 7, 9–17.
419. Jelisić Judgement, supra note 319, at para. 119; Prosecution v. Jelisić, Case No. IT-
95-10-T, Transcript, at 3070, 3132 (Nov. 25, 1999).
420. Jelisić Judgement, supra note 319, at para. 139.
421. Češić Plea Agreement, supra note 11, at para. 11; Češić Sentencing Judgement,
422. Banović Sentencing Judgement, supra note 285, at paras. 29–30.
423. Sikirica Sentencing Judgement, supra note 319, at paras. 25, 31.
424. Banović Sentencing Judgement, supra note 285, at paras. 94, 96.
425. Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgement, paras. 96–111 (Nov. 29,
2002). Vasiljević participated in the so-called Drina River incident in which Serbian para-
militaries, among others, brought seven Bosnian Muslim men to the bank of the Drina
River and shot them at close range. Five died.
427. Id. at para. 116.
428. In the first round of sentencing in Erdemović, the prosecution recommended a
sentence not exceeding ten years, Erdemović Sentencing Judgement, supra note 310, at
text accompanying n.140, and the Trial Chamber sentenced Erdemović to ten years’ im-
prisonment, id. at text accompanying n.141. In the second round of sentencing, the parties
agreed in a plea agreement “that seven years’ imprisonment would be an appropriate sen-
tence,” Erdemović, Second Sentencing Judgement, supra note 321, at para. 18, but the Trial
Chamber sentenced Erdemović to five years’ imprisonment, id. at para. 23. In Jelisić, the
prosecution asked for a sentence of life imprisonment, Jelisić Judgement, supra note 319,
at para. 119, and the Trial Chamber sentenced Jelisić to forty years’ imprisonment, id. at
para. 139. In Todorović, the parties entered into a plea agreement prohibiting the prosecu-
tion from recommending a sentence in excess of twelve years’ imprisonment. Todorović
Sentencing Judgement, supra note 319, at para. 11. The prosecution recommended a sen-
tence of twelve years’ imprisonment, id. at para. 22, and the Trial Chamber sentenced
Todorović to ten years’ imprisonment, id. at para. 115. In Sikirica, the parties entered into
S3857.indb 265 10/4/06 6:47:15 AM

plea agreements in which the prosecution agreed not to recommend sentences exceeding
seventeen, seven, and five years’ imprisonment for Sikirica, Došen, and Kolundžija, re-
spectively. Sikirica Sentencing Judgement, supra note 319, at paras. 25, 31, 37. The prosecu-
tion recommended the maximum sentences for each defendant, id. at para. 42, and the
Trial Chamber sentenced Sikirica, Došen, and Kolundžija to fi fteen, five, and three years’
imprisonment, respectively, id. at para. 245. As discussed in the text, in Milan Simić, the
parties entered into a plea agreement in which they each agreed to recommend a sentence
of not less than three and not more than five years’ imprisonment, Simić Sentencing Judge-
ment, supra note 319, at para. 13. The prosecution recommended a five-year sentence, id. at
para. 30, and the Trial Chamber imposed a five-year sentence, id. at para. 122. In Plavšić,
the prosecution recommended a sentence of between fi fteen and twenty-five years’ impris-
onment, Plavšić Prosecution’s Sentencing Brief, supra note 360, at para. 43, and the Trial
Chamber imposed an eleven-year sentence, Plavšić Sentencing Judgement, supra note 319,
at para. 132. Finally, in Banović, the prosecutor and defense both agreed to recommend
an eight-year sentence for Banović, Banović Sentencing Judgement, supra note 285, at
para. 11, and that is the term that the Trial Chamber imposed, id. at para. 96.
429. See generally Prosecution v. Momir Nikolić, Case No. IT-02-60-PT, Joint Mo-
tion for Consideration of Plea Agreement between Momir Nikolić and the Office of the
Prosecutor, at Tab A to Annex A, Statement of Facts and Acceptance of Responsibility
(May 7, 2003).
430. Prosecutor v. Momir Nikolić, Case No. IT-02-60-PT, Transcript, at 285–86
(May 6, 2003).
431. Momir Nikolić Sentencing Judgement, supra note 282, at paras. 57–73.
432. Id. at paras. 156, 176–79.
433. Obrenović Sentencing Judgement, supra note 319, at para. 156.
434. Id. at para. 87.
435. Id. at para. 85; Prosecution v. Obrenović, Case No. IT-02-60-T, Joint Motion
for Consideration of Plea Agreement between Dragan Obrenović and the Office of the
Prosecutor, at Tab A to Annex A, Statement of Facts As Set Out by Dragan Obrenović
(May 20, 2003).
436. Obrenović Sentencing Judgement, supra note 319, at para. 90.
437. Id. at para. 141. Of lesser importance, the Trial Chamber also considered as miti-
gating circumstances Obrenović’s offer of voluntary surrender, his comportment at the
U.N. detention center, and his personal circumstances. Id.
438. Id. at para. 128.
439. Id. at para. 151.
440. Id. at para. 116.
441. Id. at paras. 142–46.
442. Id. at para. 105.
443. Dragan Nikolić Sentencing Judgement, supra note 11, at paras. 56–60, 66–104.
444. Id. at paras. 189, 192.
445. Id. at para. 172.
446. Id. at para. 214.
447. Id. at paras. 227–32.
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448. Id. at para. 281 and Disposition.

449. Prosecutor v. Češić, Case No. IT-95-10/1-S, Prosecution’s Sentencing Brief, at
para. 67 (Nov. 12, 2003) [hereinafter Češić, Prosecution’s Sentencing Brief]; Prosecutor v.
Češić, Case No. IT-95-10/1-S, Transcript, at 114 (Nov. 27, 2003).
450. Češić Sentencing Judgement, supra note 319, at 111.
451. Prosecutor v. Mrd̄a, Case No. IT-02-59-PT, Transcript, at 81–82 (July 24, 2003).
452. Mrd̄a Sentencing Judgement, supra note 11, at para. 129.
453. Prosecutor v. Jokić, Case No. IT-01-42-PT, Transcript, at 139 (Aug. 27, 2003).
454. Prosecutor v. Jokić, Case No. IT-01-42/1-S, Miodrag Jokić’s Sentencing Brief,
para. 69 (Nov. 14, 2003).
455. Jokić Sentencing Judgement, supra note 11, at para. 116.
456. Deronjić Dissent, supra note 371, at paras. 2, 5.
457. Id. at para. 19.
458. Prosecutor v. Babić, Case No. IT-03-72-I, Amendment to the Joint Motion for
Consideration of Plea Agreement between Milan Babić and the Office of the Prosecution
Pursuant to Rule 62 ter, at Tab 1, Factual Statement, para. 5 (Jan. 22, 2004) [hereinafter
Babić Factual Statement].
459. Prosecutor v. Babić, Case No. IT-03-72-S, Sentencing Judgement, paras. 20, 23
(June 29, 2004) [hereinafter Babić Sentencing Judgement].
460. Id. at para. 51.
461. Id. at para. 24.
462. Prosecutor v. Babić, Case No. IT-03-72-S, Transcript, at 206 (Apr. 2, 2004).
463. See Milanka Saponja-Hadzić, Surprise at Babić Indictment, IWPR’s Tribunal
Update, No. 334, Nov. 22, 2003.
464. Prosecutor v. Babić, Case No. IT-03-72-I, Indictment, paras. 4, 13–16 (Nov. 6,
2003).
465. Prosecutor v. Babić, Case No. IT-03-72-I, Transcript, at 29 (Jan. 27, 2004); Babić
Sentencing Judgement, supra note 459, at paras. 6–8.
466. Babić Plea Agreement, supra note 319, at para. 4.
467. Babić Factual Statement, supra note 458, at para. 6.
468. Id. at paras. 26–27.
469. Babić Sentencing Judgement, supra note 459, at paras. 57, 98.
470. Prosecutor v. Babić, Case No. IT-03-72-S, Transcript, at 191 (Apr. 2, 2004).
471. Babić Sentencing Judgement, supra note 459, at paras. 101–02.
472. Press Release, ICTY, Indictment Against Miroslav Bralo Made Public, JL/P.I.S./
902-e, Oct. 13, 2004.
473. Prosecutor v. Bralo, Case No. IT-95-17-S, Sentencing Brief on Behalf of Miroslav
Bralo, para. 13 (Nov. 25, 2005) [hereinafter Bralo’s Sentencing Brief]; Prosecutor v. Bralo,
Case No. IT-95-17-S, Sentencing Judgement, para 69 (Dec. 7, 2005) [hereinafter Bralo Sen-
tencing Judgement].
474. Bralo Sentencing Judgement, supra note 473, at para. 77.
475. Bralo’s Sentencing Brief, supra note 473, at paras. 13–16; John Pomfret & Lee
Hockstader, In Bosnia, a War Crimes Impasse, Wash. Post, Dec. 9, 1997, at A1.
476. Bralo’s Sentencing Brief, supra note 473, at para. 17.
S3857.indb 267 10/4/06 6:47:16 AM

477. Id. at para 97.

478. According to defense counsel, Bralo immediately made clear his intention to
plead guilty not only to the crimes in the indictment but to the crimes in Ahmići for
which he had not been charged. Counsel advised Bralo, however, to enter not guilty pleas
until the defense and prosecution could draft a factual basis that reflected the whole of his
criminal liability. Bralo’s Sentencing Brief, supra note 473, at para. 23.
479. Prosecutor v. Bralo, Case No. IT-95-17-A, Appeal Brief on Behalf of Miroslav
Bralo, Appendix C, Apology (May 26, 2006) [hereinafter Bralo’s Appeal Brief].
480. Id. at Appendix D, Declaration of Supplemental Statement of Miroslav Bralo.
481. Id. at Appendix F, Statement of Zaim Kablar; Bralo Sentencing Judgement, supra
note 473, at 67.
482. Bralo Plea Agreement, supra note 319, at para. 9.
483. Plavšić Plea Agreement, supra note 412, at para. 7.
484. Bralo’s Sentencing Brief, supra note 473, at para. 26; Prosecutor v. Bralo, Case No.
IT-95-17-PT, Transcript, at 35 (July 19, 2005) (prosecutor informing the Trial Chamber that
there are “no promises or inducements made by the Prosecutor’s office in respect of secur-
ing the pleas that Mr. Bralo intends to tender to this Court”).
485. Prosecutor v. Bralo, Case No. IT-95-17-S, Prosecution’s Sentencing Brief, para. 97
(Oct. 10, 2005) [hereinafter Bralo Prosecution’s Sentencing Brief].
486. Prosecutor v. Bralo, Case No. IT-95-17-S, Transcript, at 114 (Oct. 20, 2005).
488. Bralo’s Appeal Brief, supra note 479, at para. 54.3; Bralo Sentencing Judgement,
490. Id. at para. 75.
491. Id. at para. 81.
492. Id. at para. 94.
493. Id. at para. 95.
494. By the time Erdemović pled guilty for the second time, the prosecution and de-
fense had entered into a plea agreement providing that the parties would jointly recom-
mend a sentence of seven years’ imprisonment, Erdemović Second Sentencing Judgement,
supra note 321, at para. 18(d).
495. See, e.g., Prosecutor v. Janković, Case No. IT-96-23/2-PT, Decision on Referral of
Case under Rule 11 bis, para. 16 (July 22, 2005).
496. Prosecutor v. Bralo, Case No. IT-95-17-A, Appeal Brief on Behalf of Miroslav
Bralo, Appendix E, Apology, Statement of Mehmed Ahmić (May 26, 2006) [hereinafter
Mehmed Ahmić Statement].
497. Prosecutor v. Rajić, Case No. IT-95-12-PT, Factual Basis, paras. 15–19 (Oct. 25,
2005) [hereinafter Rajić Factual Basis].
498. Prosecutor v. Rajić, Case No. IT-95-12-S, Sentencing Judgement, paras. 29, 42, 49
(May 8, 2006) [hereinafter Rajić Sentencing Judgement].
499. Rajić Factual Basis, supra note 497, at para. 28; Prosecutor v. Rajić, Case No. IT-
95-12-PT, Amended Indictment, para. 15 (Jan. 13, 2004).
S3857.indb 268 10/4/06 6:47:16 AM

500. Rajić Sentencing Judgement, supra note 498, at paras. 2–4.

501. See Prosecutor v. Rajić, Case No. IT-95-12-PT, Decision for Further Information
in the Context of the Prosecutor’s Motion for Referral of the Case under Rule 11bis (Sept. 8,
2005).
502. Rajić pled guilty to four Grave Breaches of the Geneva Conventions: willful kill-
ing, inhuman treatment, appropriation of property, and extensive destruction not justi-
fied by military necessity and carried out unlawfully and wantonly. Rajić Plea Agreement,
503. Id. at para. 18(a).
504. Prosecutor v. Rajić, Case No. IT-95-12-S, Transcript, at 206, 255 (April 7, 2006).
505. Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgement, para. 20 (Oct. 7,
1997).
506. The Appeals Chamber held that the Trial Chamber’s sentence rested on “the to-
tality of the criminal conduct of the accused,” and it concluded that the totality of that
conduct was not “materially affected by the Trial Chamber’s error of convicting [Jelisić]
of one additional murder.” Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement, paras.
93–94 (July 5, 2001).
507. See Todorović Judgement, supra note 319, at para. 11; Simić Judgement, supra
note 319, at para. 117; Obrenović Plea Agreement, supra note 11, at para. 14.
508. Bralo’s plea agreement also does not contain an appeal provision, but that is be-
cause the prosecution in Bralo made no promises regarding sentence recommendations.
509. The Rajić Sentencing Judgement was issued only two weeks before the date of this
writing, so it is not yet clear whether Rajić will appeal his sentence.
510. Prosecutor v. Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal,
para. 100 (July 20, 2005) [hereinafter Deronjić Appeals Judgement].
511. Prosecutor v. Babić, Case No. IT-03-72-A, Judgement on Sentencing Appeal, para.
78 (July 18, 2005) [hereinafter Babić Appeals Judgement].
512. Prosecution v. Dragan Nikolić, Case No. IT-94-2-A, Judgement on Sentencing
Appeal, paras. 23–42 (Feb. 4, 2005) [hereinafter Dragan Nikolić Appeals Judgement].
513. Id. at paras. 49–56; Babić Appeals Judgement, supra note 511, at paras. 67–68;
Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Judgement on Sentencing Appeal,
para.74 (Mar. 8, 2006) [hereinafter Momir Nikolić Appeals Judgement].
514. Prosecutor v. Jokić, Case No. IT-01-42/1-A, Transcript, at 316, 321–24 (Apr. 26,
2005); Deronjić Appeals Judgement, supra note 510, at para. 147; Babić Appeals Judge-
ment, supra note 511, at paras. 76–77.
515. Dragan Nikolić Appeals Judgement, supra note 512, at para. 57; Babić Appeals
Judgement, supra note 511, at para. 71; Momir Nikolić Appeals Judgement, supra note 513,
at para. 116.
516. See Babić Appeals Judgement, supra note 511, at paras. 68, 70, 72, 74–75, 77; Dragan
Nikolić Appeals Judgement, supra note 512, at paras. 53, 56, 59; Prosecutor v. Jokić, Case
No. IT-01-42/1-A, Judgement on Sentencing Appeal, para. 49 (Aug. 30, 2005).
517. Prosecutor v. Jokić, Case No. IT-01-42/1-A, Transcript, at 316, 345–47 (Apr. 26,
2005).
S3857.indb 269 10/4/06 6:47:16 AM

518. Babić Sentencing Judgement, supra note 459, at para. 57; see also id. at para. 79.
519. Babić Appeals Judgement, supra note 511, at para. 34.
520. Deronjić Appeals Judgement, supra note 510, at III.
521. Id. at 55.
522. Telephone Interview with Slobodan Zecević, ICTY defense counsel (Sept. 1,
2005).
523. Deronjić Appeals Judgement, supra note 510, at paras. 28–29, 59–60.
524. Prosecutor v. Jokić, Case No. IT-01-42-PT, Order on Miodrag Jokić’s Motion for
Provisional Release, paras. 4, 28 (Feb. 20, 2002); Prosecution v. Jokić, Case No. IT-01-42/
1-A, Transcript, at 321–23 (Apr. 26, 2005).
525. Babić Appeals Judgement, supra note 511, at para. 8.
526. Prosecution v. Babić, Case No. IT-03-72-A, Transcript, at 33–34 (Apr. 25, 2005).
527. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-A, Prosecution Respondent’s
Brief, paras. 8, 10(f) (Aug. 9, 2004); Prosecutor v. Dragan Nikolić, Case No. IT-94-2-A,
Transcript, at 35, 48 (Nov. 29, 2004).
528. Momir Nikolić Appeals Judgement, supra note 513, at paras. 71, 105, 109.
529. Prosecution v. Babić, Case No. IT-03-72-A, Transcript, at 21, 25 (Apr. 25, 2005).
530. Id. at 37.
531. Prosecution v. Jokić, Case No. IT-01-42/1-A, Transcript, at 358–59 (Apr. 26, 2005).
532. See generally, Nancy Amoury Combs, Procuring Guilty Pleas for International
Crimes: The Limited Influence of Sentencing Discounts, 59 Vand. L. Rev. 69 (2006) [herein-
after Combs, Procuring Guilty Pleas for International Crimes].
533. The third defendant, Milan Babić, did persuade the Appeals Chamber that the
Trial Chamber had erred in failing to consider his post-crime peace-building efforts, but
the Appeals Chamber nonetheless declined to reduce his sentence, finding that “in the
context of the complete picture of the Appellant’s conduct that was before the Trial Cham-
ber, the Appeals Chamber is not persuaded that the Trial Chamber would have, or that it
should have, issued a different sentence” had it considered Babić’s peace-building efforts.
Babić Appeals Judgement, supra note 511, at paras. 53–61. Whereas the Momir Nikolić and
Dragan Nikolić Trial Chambers had sentenced those defendants to seven and eight years
longer than the terms agreed upon in their respective plea agreements, the Babić Trial
Chamber had sentenced Babić to a term only two years longer than that appearing in the
plea agreement. Because the discrepancy was small, the Appeals Chamber may have felt
more comfortable letting the Trial Chamber’s sentence stand.
534. Momir Nikolić Appeals Judgement, supra note 513, at paras. 57–63, 68–73, 86–115.
535. Dragan Nikolić Appeals Judgement, supra note 512, at paras. 96–97.
Chapter 5
536. Prosecutor v. Kambanda, Case No. ICTR-97-23-1, Plea Agreement between Jean
Kambanda and the Office of the Prosecutor, paras. 23–40 (Apr. 29, 1998) [hereinafter
Kambanda Plea Agreement]; Kambanda Judgement, supra note 276, at para. 39.
537. Kambanda Judgement, supra note 276, at para. 1.
S3857.indb 270 10/4/06 6:47:17 AM

538. Jean Kambanda v. Prosecutor, Case No. ICTR 97-23-A, Provisional Appellant’s
Brief and Motions for Extension of the Time-Limits and for Admission of New Evidence
on Appeal Pursuant to Rules 115 and 116 of the Rules of Procedure and Evidence, paras.
3–6 (Mar. 29, 2000) [hereinafter Kambanda’s Appeals Brief].
539. Telephone Interview with SK (Dec. 1, 2004); Telephone Interview with Howard
Morrison, ICTR defense counsel (Dec. 2, 2004); Interview with BM, Nov. 8, 2004, The
Hague.
540. Kambanda Judgement, supra note 276, at para. 48; see also Prosecutor v. Kam-
banda, Case No. ICTR-97-23-I, Transcript, at 6 (Sept. 3, 1998).
542. Prosecutor v. Kambanda, Case No. ICTR-97-23-I, Prosecutor’s Pre-Sentencing
Brief at 22–23 (Aug. 31, 1998) [hereinafter Kambanda Prosecutor’s Pre-Sentencing Brief].
543. Id.; see also Prosecutor v. Kambanda, Case No. ICTR-97-23-I, Transcript, at 12
(Sept. 3, 1998).
544. Kambanda Plea Agreement, supra note 536, at para. 42; see also Lawyer for the
Former Rwandan Prime Minister Argues for Light Sentence, Internews, Sept. 4, 1998 (re-
porting prosecutor’s comments that Kambanda would testify in the genocide trials of
other government and military leaders), available at http://www.internews.org/activities/
ICTR_reports/ICTRNewsSep98.html.
545. Kambanda Judgement, supra note 276, at para. 60.
546. Kambanda Prosecutor’s Pre-Sentencing Brief, supra note 542, at 2.
547. Kambanda Judgement, supra note 276, at Verdict.
548. Id. at para. 62.
549. Kambanda v. Prosecutor, Case No. ICTR-97-23-A, Judgement, para. 3 (Oct. 19,
2000) [hereinafter Kambanda Appeals Judgement].
550. Kambanda’s Appeals Brief, supra note 538, at paras. 2–10.
551. Kambanda Appeals Judgement, supra note 549, at para. 126.
552. Telephone Interviews with SK (December 1 and 10, 2004).
553. Interahamwe means “those who fight together.”
554. Prosecutor v. Serushago, Case No. ICTR-98-39-S, Sentence, para. 25 (Feb. 5, 1999)
[hereinafter Serushago Sentence].
555. Id. at para. 32; Prosecutor v. Serushago, Case No. ICTR-98-39, Transcript, 11
(Jan. 29, 1999) [hereinafter Serushago Transcript].
556. Serushago Sentence, supra note 554, at paras. 1, 34.
557. Prosecutor v. Serushago, Case No. ICTR-98-37-I, Indictment (Oct. 8, 1998).
558. Serushago Sentence, supra note 554, at paras. 2–4; Prosecutor v. Serushago, Case
No. ICTR-98-37, Plea Agreement between Omar Serushago and the Office of the Prosecu-
tor (Dec. 4, 1998) [hereinafter Serushago Plea Agreement].
559. Telephone interview with Mohamed Othman, former ICTR prosecutor (Aug. 27,
2005).
560. Lars Waldorf, Memoirs of a Snitch, Diplomatie Judiciaire, Nov. 27, 2001.
561. Serushago Plea Agreement, supra note 558, at para. 13.
562. Serushago Transcript, supra note 555, at 10–12, 15.
S3857.indb 271 10/4/06 6:47:17 AM

563. Kambanda Judgement, supra note 276, at para. 60 and Verdict; Akayesu Sentence,
supra note 359; Prosecutor v. Kayishema & Ruzindana, Case No. ICTR 95-1-T, Judge-
ment, at Sentence paras. 25, 27–28 (May 21, 1999) [hereinafter Kayishema & Ruzindana
Judgment].
564. See Musema Judgement and Sentence, supra note 359, para. 994; Rutaganda
Judgement and Sentence, supra note 359, at para. 464; Niyitegeka Judgement and Sen-
tence, supra note 359, at para. 489; Ntakirutimana Judgement, supra note 137, at paras.
888–90; Nahimana Judgement, supra note 3, at para. 1097; Prosecutor v. Gacumbitsi, Case
No. ICTR-2001-64-T, Judgement, para. 338 (June 17, 2004) [hereinafter Gacumbitsi Judge-
ment]; Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence,
para. 815 (Feb. 25, 2004) [hereinafter Ntagerura et al. Judgement]; Kajelijeli Judgement and
Sentence, supra note 359, at para. 956; Prosecutor v. Ndindabahizi, Case No. ICTR-2001-
71-I, Judgement and Sentence, para. 503 (July 15, 2004) [hereinafter Ndindabahizi Judge-
ment]; Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, para.
558 (May 15, 2003) [hereinafter Semanza Judgement]. The Trial Chamber did not report
the prosecution’s sentence recommendation in the Kamuhanda case. However, the fact
that the chamber sentenced Kamuhanda to life imprisonment strongly indicates that the
prosecution recommended a life sentence in that case as well. See Kamuhanda Judgement
and Sentence, supra note 359, at para. 770.
565. Serushago Sentence, supra note 554, at Verdict.
566. The other defendant, Elizaphan Ntakirutimana, was sentenced to ten years’ im-
prisonment, but his advanced age and poor health contributed to the leniency of the sen-
tence. See Ntakirutimana Judgement, supra note 137, at paras. 898, 921.
567. Serushago Sentence, supra note 554, at para. 35.
568. Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, para. 38
(June 1, 2000) [hereinafter Ruggiu Judgement]. At Ruggiu’s presentencing hearing, his
lawyer maintained that Ruggiu “had come to know Rwanda through highly partisan
friends who gave him a biased idea of the political situation in the country.” How Belgian
Journalist Became Involved in Hate Media, Internews, May 15, 2000, available at http://
www.internews.org/activities/ICTR_Reports/ICTRNewsMay00.html; see also Prosecu-
tion v. Ruggiu, Case No. ICTR-97-32, Transcript, at 109–12 (May 15, 2000) [hereinafter
Ruggiu Transcript].
569. Ruggiu Transcript, supra note 568, at 113.
570. Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Amended Indictment, 12-15
(Dec. 18, 1998).
571. I Lied in My Book to Protect RTLM, Says Convicted Radio Presenter, Hirondelle
News Agency, Feb. 28, 2002.
572. Ruggiu Transcript, supra note 568, at 47–56. It later was revealed that Ruggiu lied
to prosecutors in some of these early interviews. Convicted Ex-Radio Presenter Has Men-
tal Problems, Defence Suggests, Hirondelle News Agency, Mar. 5, 2002.
573. Prosecutor v. Ruggiu, Case No. ICTR-97-32-DP, Plea Agreement between Georges
Ruggiu and the Office of the Prosecutor, para. 4 (Apr. 11, 2000) [hereinafter Ruggiu Plea
Agreement].
S3857.indb 272 10/4/06 6:47:17 AM

574. Id. at para. 2; Ruggiu Judgement, supra note 568, at para. 10 and Verdict.
575. Hate Radio Presenter Set to Plead Guilty to Genocide Charges, Hirondelle News
Agency, May 9, 2000.
576. Prosecutors emphasized this point, both in the press, see Portrait of Georges Rug-
giu, Journalist Who Incited Genocide, Hirondelle News Agency, May 14, 2000, and to
the Trial Chamber, see Ruggiu Transcript, supra note 568, at 66.
577. Ruggiu Transcript, supra note 568, at 188, 190.
578. Ruggiu Judgement, supra note 568, at paras. 53, 55.
579. Rwanda Unhappy with Ruggiu Sentence, Hirondelle News Agency, June 1,
2000.
580. Letter dated 5 December 2005 from the President of the International Criminal
Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Vio-
lations of International Humanitarian Law Committed in the Territory of Rwanda and
Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in
the Territory of Neighbouring States between 1 January and 31 December 1994 addressed
to the President of the Security Council, U.N. Doc. S/2005/782, Summary (Dec. 14, 2005).
581. See generally Combs, supra note 532, at 100–24.
582. Gacumbitsi Judgement, supra note 564, at para. 334; Ntagerura et al. Judgement,
supra note 564, at para. 806 (convicting Imanishimwe); Kamuhanda Judgement and Sen-
tence, supra note 359, at para. 750; Nahimana Judgement, supra note 3, paras. 1092–94;
Kajelijeli Judgement and Sentence, supra note 359, at para. 942; Niyitegeka Judgement
and Sentence, supra note 359, at para. 480; Semanza Judgement, supra note 564, at para.
553; Ntakirutimana Judgement, supra note 137, at paras. 877–78 (Feb. 21, 2003); Ndind-
abahizi Judgement, supra note 564, at para. 495; Ruggiu Judgement, supra note 568, at
Verdict; Musema Judgement and Sentence, supra note 359, at Verdict; Rutaganda Judge-
ment and Sentence, supra note 359, at Verdict; Kayishema & Ruzindana Judgement, su-
pra note 563, at Verdict, para. 2; Serushago Sentence, supra note 554, at Verdict; Kam-
banda Judgement, supra note 276, at Verdict; Akayesu Judgement, supra note 137, at
Verdict.
583. Prosecutor v. Kayishema et al., Case No. ICTR-95-1-I, First Amended Indictment,
para. 54 (Apr. 29, 1996).
584. Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T, Transcript, at 9 (Jan. 17,
2005).
585. Id. at 13.
586. Id. at 5–6, 10, 27.
587. Id. at 10.
588. Id. at 20, 24–25, 29.
589. Id. at 15–16, 20, 24.
590. The prosecution also asked the Trial Chamber to acquit Rutaganira of genocide,
but that request is in keeping with the factual basis of Rutaganira’s guilty plea. One cannot
commit genocide without having the specific intent to commit genocide. Thus, because
Rutaganira admitted only to failing to protect the Tutsi, the prosecution did in fact lack
sufficient evidence to convict him of genocide.
S3857.indb 273 10/4/06 6:47:18 AM

591. Akayesu Judgement, supra note 137, at para. 591.

592. The prosecution’s failure to bring rape charges, and later to add rape charges once
evidence of rape was presented at trial, generated widespread controversy. See Binaifer
Nowrojee, “Your Justice Is Too Slow?” Will the ICTR Fail Rwanda’s Rape Victims? Oc-
casional Paper 10, United Nations Research Institute for Social Development
14–17 (Nov. 2005).
593. Ntagerura et al, Judgement, supra note 564, at para. 805.
594. Rwanda: Government Wants Acquitted Bagambiki to Surrender in Order to Face
Rape Trial, Hirondelle, May 4, 2006.
595. Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T, Sentencing Judgement, para.
104 (Mar. 14, 2005).
596. Id. at Sentence.
597. Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, Judgement and Sentence,
paras. 1, 4 (Apr. 13, 2006) [hereinafter Bisengimana Judgement].
598. Bisengimana’s indictment charges him with one count of genocide, one count of
complicity in genocide, one count of conspiracy in genocide, one count of direct and pub-
lic incitement to genocide, one count of murder as a crime against humanity, one count
of extermination as a crime against humanity, one count of torture as a crime against
humanity, one count of rape as a crime against humanity, one count of inhumane acts
as a crime against humanity, and three counts of violations of the Geneva Conventions.
Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Indictment (July 1, 2000).
599. Id. at paras. 3.14, 3.21(i), 3.22, 3.27, 3.28, 3.29, 3.31.
600. Id. at paras. 3.26, 3.39, 3.45.
601. Id. at paras. 3.33, 3.35, 3.40, 3.41.
602. The amended indictment charged Bisengimana with one count of genocide, one
count of complicity in genocide, one count of murder as a crime against humanity, one
count of extermination as a crime against humanity, and one count of rape as a crime
against humanity. Prosecutor v. Bisengimana, Case No. ICTR-00-60-1, Amended Indict-
ment (Oct. 31, 2005).
603. For instance, the amended indictment no longer contained the claim that Bisen-
gimana personally committed rape. Id.
604. Id. at para. 16.
605. Id. at para. 21.
606. Id. at para. 22.
607. Id. at para. 26–28.
608. Semanza Judgement, supra note 564, at paras. 166, 169, 170, 174, 180, 196–97.
609. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Joint Motion for Con-
sideration of a Guilty Plea Agreement between Paul Bisengimana and the Office of the
Prosecutor, para. 5 (Nov. 30, 2005).
610. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Plea Agreement between
Mr. Paul Bisengimana and the Office of the Prosecutor, paras. 46, 48 (Oct. 19, 2005) [here-
inafter Bisengimana Plea Agreement]. The English version of the plea agreement requires
the prosecution to recommend a sentence of between eleven and fifteen years’ imprison-
S3857.indb 274 10/4/06 6:47:18 AM

ment, while the French version requires a recommendation of between twelve and four-
teen years. The parties agreed that the French version is correct. Prosecutor v. Bisengi-
mana, Case No. ICTR-2000-60-S, Transcript, at 47 (Jan. 19, 2006).
611. Id. at para. 49.
612. Bisengimana Plea Agreement, supra note 610, at para. 34.
613. Id. at para. 35.
614. Id. at para. 42.
615. Id. at para. 37.
616. Id. at para. 29.
617. Id. at para. 36.
618. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Transcript, at 21 (Nov. 17,
2005) (“And it will suffice to say that the paragraphs in the agreement . . . [are] indicative
of the current state of affairs regarding the evidence available to the Prosecutor at this
stage.”).
619. Id. at 22. Later, after receiving harsh criticism from the government of Rwanda,
the prosecution asserted as a general matter that genocide charges are withdrawn only
when “it would difficult to prove beyond a reasonable doubt the role that the particular
accused person played in the perpetration of the genocide.” ICTR and Rwanda Argue over
Plea Bargains, Hirondelle News Agency, Apr. 22, 2006.
620. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Transcript, at 44–49 (Nov. 7,
2000).
621. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Transcript, at 26–27 (Dec. 6,
2000); Semanza Judgement, supra note 564, at para. 150.
622. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Transcript, at 60–61 (Mar. 7,
2001); id. at para. 166.
623. Id. at para. 170.
624. Id. at paras. 196–97.
625. Id. at para. 196.
626. Defense counsel emphasized Bisengimana’s active participation in the genocide
during closing arguments, Prosecutor v. Semanza, Case No. ICTR-97-20-T, Transcript,
at 182–83 (June 18, 2002), and he elicited testimony from Semanza that Bisengimana took
orders from no one, Prosecutor v. Semanza, Case No. ICTR-97-20-T, Transcript, at 64–65
(Feb. 27, 2002).
627. Semanza Judgement, supra note 564, at para. 207.
628. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Transcript, at 26 (Nov. 17,
2005).
629. Prosecutor v. Bisengimana, Case No. ICTR-00-60-1, Amended Indictment
(Nov. 23, 2005).
630. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-I, Transcript, at 12–13
(Dec. 7, 2005).
631. Id. at 13–14, 18.
632. Bisengimana Judgement, supra note 597, at paras. 186. Not surprisingly, Bisengi-
mana asked for a twelve-year sentence; id. at para. 188.
S3857.indb 275 10/4/06 6:47:18 AM

633. Id. at para. 202. Although Bisengimana pled guilty to both murder and extermi-
nation as crimes against humanity, the Trial Chamber convicted him only of extermina-
tion, finding that the count of murder is included in the crime of extermination. Id. at
paras. 96–104.
634. ICTR/Bisengimana—Former Mayor Who Pleaded Guilty Sentenced to 15 Years,
Hirondelle News Agency, Apr. 13, 2006.
635. See Sentence against Bisengimana to Discourage Further Confessions, Hiron-
delle News Agency, Apr. 20, 2006.
636. ICTR and Rwanda Argue over Plea Bargains, Hirondelle News Agency, Apr. 22,
2006.
637. Semanza Judgement, supra note 564, at para. 590.
638. Prosecutor v. Akayesu, Case No. ICTR-96-4-I, Amended Indictment, paras. 12–
23 (June 17, 1997).
639. Akayesu Judgement, supra note 137, at paras. 184, 187, 193.
640. Id. at Verdict.
641. Akayesu Sentence, supra note 359.
642. Sentence against Bisengimana to Discourage Further Confessions, Hirondelle
News Agency, Apr. 20, 2006; ICTR/Judges/Prosecution—ICTR Hampers Prosecution
Strategy Again, Hirondelle News Agency, May 25, 2006.
643. Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, Corrigendum of Indictment,
at I (July 21, 2005).
644. Id. at para. 27.
645. Id. at paras. 21, 25.
646. Id. at paras. 10–11.
647. Id. at para. 30.
648. Sukhdev Chhatbar, Rwandan Pleads Innocent to Genocide Charge, A.P., Sept. 30,
2005.
649. Thierry Cruvellier, Confessions—A Key to Wrapping Up Trials in ICTR, Int’l
Just. Trib., Mar. 27, 2006.
650. Press Release, ICTR, Joseph Serugendo Sentenced to Six Years Imprisonment,
ICTR/INFO-9-2-478.EN (June 2, 2006) [hereinafter Serugendo Press Release].
651. ICTR/Serugendo—Serugendo’s Guilty Plea Bargain Settled on a Prison Sentence of
6 to 10 Years, Hirondelle News Agency, June. 1, 2006.
652. Id.
653. Id.
654. Id.; Serugendo Press Release, supra note 650.
655. Prosecutor Steps Up Pressure on the Akazu, Int’l Just. Trib., Dec. 5, 2005; ICTR/
Uwilingiyimana—Uwilingiyimana’s Death Threatens to Hamper Prosecutor’s Work, Hi-
rondelle News Agency, Jan. 17, 2006.
656. Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-R11bis, Decision on the Pros-
ecution Motion for Referral to the Kingdom of Norway, para. 1, May 19, 2006 [hereinafter
Bagaragaza Rule 11bis Decision].
S3857.indb 276 10/4/06 6:47:19 AM


658. ICTR: Looking for the Secrets of the Akazu, Int’l Just. Trib., Sept. 12, 2005.
659. Bagaragaza Rule 11bis Decision, supra note 656, at para. 3.
662. Mary Margaret Penrose, Lest We Fail: The Importance of Enforcement in Interna-
tional Criminal Law, 15 Am. U. Int’l L. Rev. 321, 382 n.225 (2000).
663. Tribunal Throws Out Motion to Have Bagaragaza’s Transfer to Norway, Hiron-
delle News Agency, May 19, 2006.
664. Bagaragaza Rule 11bis Decision, supra note 656, at para. 16.
665. Prosecutor Steps Up Pressure on the Akazu, Int’l Just. Trib., Dec. 5, 2005.
666. Karen Palmer, Justice in Jeopardy, Toronto Star, Mar. 27, 2006.
667. ICTR/Uwilingiyimana—Uwilingiyimana’s Death Threatens to Hamper Prosecu-
tor’s Work, Hirondelle News Agency, Jan. 17, 2006.
668. Former Rwandan Minister’s Body Found in Belgium, Asheville Global Report,
No. 363, Dec. 29–Jan. 4 2006; ICTR/Uwilingiyimana—Many Questions in Arusha after the
Announcement of Uwilingiyimana’s Death, Hirondelle News Agency, Dec. 23, 2005.
669. Letter of Juvénal Uwilingiyimana, available at http://cirqueminime.
blogcollective.com/blog/_archives/2005/12/27/1523635.html.
670. Radio interview of Uwilingiyimana’s son, Eric Migamba, by Phil Taylor, Jan. 9,
2006, available at http://www.taylor-report.com/audio/index.php?month=2006-01. See
also Gilbert Dupont, Mutilé et éviscéré, La Derniere Heure, Dec. 24, 2005.
671. ICTR/Uwilingiyimana—Many Questions in Arusha after the Announcement of
Uwilingiyimana’s Death, Hirondelle News Agency, Dec. 23, 2005.
672. The Uwilingiyimana Mystery, Int’l Just. Trib., Jan. 23, 2006.
673. Gilbert Dupont, Rien ne contredit le suicide, La Derniere Heure, Feb. 7, 2006.
674. See Combs, Procuring Guilty Pleas for International Crimes, supra note 532.
675. At the time of this writing, however, none of the defendants has yet been trans-
ferred. Status of Detainees, available at http://69.94.11.53/default.htm.
676. Prosecutor v. Barayagwiza, Case No. ICTR-97-17-AR72, Decision (Nov. 3, 1999).
677. Franck Petit, Cameroonian Intrigues, Int’l Just. Trib., Mar. 5, 2001; ICTR/Pros-
ecution—Synthesis: Prosecutors at the ICTR, Hirondelle News Agency, Oct. 28, 2003.
678. Prosecutor v. Barayagwiza, Case No. ICTR-97-17-AR72, Decision (Prosecutor’s
Request for Review or Reconsideration) (March 31, 2000).
679. ICTR/Prosecution—Synthesis: Prosecutors at the ICTR, Hirondelle News
Agency, Oct. 28, 2003; ICTR/Rusatira—General Rusatira’s Release Heightens Tension Be-
tween Rwanda and the ICTR, Hirondelle News Agency, Oct. 29, 2003.
680. J. Coll Metcalf, An Interview with United Nations’ Chief War Crimes Prosecutor,
Carla del Ponte, Internews, Feb. 15, 2000.
681. Rwanda Pressing UN to Drop Del Ponte As Prosecutor: Spokeswoman, Agence
France-Presse, July 24, 2003.
682. Ruggiu Transcript, supra note 568, at 50–52.
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683. Kambanda Prosecutor’s Pre-Sentencing Brief, supra note 542; Serushago Plea
Agreement, supra note 558, at para. 45; Ruggiu Plea Agreement, supra note 573, at
para. 226.
684. See Mary Kimani, Former Rwandan Militia Leader Asks for the Forgiveness of
Rwanda, Internews, Jan. 29, 1998, available at http://internews.org/activities/ICTR_
reports/ICTRnewsJAN99.html.
Chapter 6
686. UNTAET Reg. 2000/15, supra note 215.
687. Megan Hirst & Howard Vareny, International Center for Transitional Jus-
tice, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor 8
(June 2005).
688. The Future of Serious Crimes, supra note 217.
689. Some defendants, however, led Timorese militia groups, see, e.g., Prosecu-
tor v. João Franca da Silva, Dili District Court, Special Panels for Serious Crimes, Case
No. 04a/2001, Judgement, at para. 46 (Dec. 5, 2002); Prosecutor v. Manuel Gonçalves Bere,
Dili District Court, Special Panels for Serious Crimes, Case No. 10/2000, Judgement, at
6 (May 15, 2001) [hereinafter Bere Judgement], but such offenders nonetheless had little
status and authority compared with Indonesian military leaders.
690. Justice for Timor-Leste, supra note 204, at § 3.3, § 4.1; The Future of Serious
Crimes, supra note 216, at 10.
691. See, e.g., Prosecutor v. Julio Fernandes, Dili District Court, Special Panels for
Serious Crimes, Case No. 02 C.G. 2000, Judgement, at 4 (Mar. 1, 2000) [hereinafter Julio
Fernandes Judgement]; Prosecutor v. Carlos Soares Carmona, Dili District Court, Special
Panels for Serious Crimes, Case No. 03 C.G. 2000, Judgement at 3–4 (Apr. 19, 2001) [here-
inafter Carmona Judgement]; Bere Judgement, supra note 689, at 5; Carlos Soares Judge-
ment, supra note 220, at 4; Joseph Leki Judgement, supra note 220, at 2; Prosecutor v. Jose
Valente, Dili District Court, Special Panels for Serious Crimes, Case No. 3/2001, Judge-
ment, at 2 (June 19, 2001) [hereinafter Jose Valente Judgement]; Prosecutor v. Agustinho
da Costa, Dili District Court, Special Panels for Serious Crimes, Case No. 07/2000, Judge-
ment, at 8 (Oct. 11, 2001).
692. João Fernandes Judgement, supra note 225, at paras. 12–15.
693. Id. at Verdict.
694. João Fernandes v. Prosecutor, Court of Appeal of East Timor, Criminal Appeal
No. 2001/02, at 4–5, 8 (June 29, 2001).
695. João Fernandes v. Prosecutor, Court of Appeal of East Timor, Criminal Appeal
No. 2001/02, Judgement of Egonda-Ntende, J., at 20 (June 29, 2001).
696. Id. at 21–22.
697. Carmona Judgement, supra note 691, at 2; see also Jose Valente Judgement, supra
note 691, at 2.
698. UNTAET Reg. 2000/15, supra note 215, at §§ 19(d), 21.
S3857.indb 278 10/4/06 6:47:19 AM

699. Linton & Reiger, supra note 231, at 17–18. (The Special Panels refer to the defen-
dant in this case as Gaspar Leki and at other times as Gaspar Leite). Leki was eventually
convicted of negligence causing death and sentenced to eleven months’ imprisonment.
Prosecutor v. Gaspar Leki, Dili District Court, Special Panels for Serious Crimes, Case
No. 05/2001, Judgement, at para. 61 (Sept. 14, 2002).
700. The following trials were each conducted over the course of one day. Julio Fer-
nandes Judgement, supra note 691, at 2; Carmona Judgement, supra note 691, at 2; Bere
Judgement, supra note 689, at 4. The Joseph Leki trial was held over two sessions. Joseph
Leki Judgement, supra note 220, at 2.
701. UNTAET Reg. 2000/15, supra note 215, at § 5.1.
702. In some crimes against humanity cases, the language of the judgments on the
question of whether there had been a widespread or systematic attack on a civilian popu-
lation was cut and pasted from the indictments. Compare Deputy General Prosecutor
for Serious Crimes against Damiao Da Costa Nunes, Dili District Court, Special Panels
for Serious Crimes, Case No. 1/2003, Indictment, paras. 1–7 (Dec. 17, 2002) with Prosecu-
tor v. Damiao Da Costa Nunes, Dili District Court, Special Panels for Serious Crimes,
Case No. 1/2003, Judgement, at paras. 37–44 (Dec. 10, 2003) [hereinafter Da Costa Nunes
Judgement]. When the panels did cite outside sources, they typically relied on the reports
of international organizations. See Prosecutor v. Joni Marques et al., Dili District Court,
Special Panels for Serious Crimes, Case No. 09/2000, Judgement, para. 686 (Dec. 11, 2001)
[hereinafter Los Palos Judgement]. The standard plea agreement form used at the Special
Panels requires defendants to admit that their crimes were “committed as part of a wide-
spread or systematic attack against a civilian population with knowledge of the attack.”
See Prosecutor v. Abilio Mendez Correia, Dili District Court, Special Panels for Seri-
ous Crimes, Case No. 19/2001, Admissions by Abilio Mendez Correia, para. 2(b) (Mar. 2,
2004) [hereinafter Correia Plea Agreement]. Even in full-scale trials, the parties have of-
ten agreed on the existence of these elements. See da Costa Nunes Judgement, supra at
para. 37.
703. Los Palos Judgement, supra note 702, at paras. 680–91.
704. UNTAET Reg. 2000/15, supra note 215, at § 5 (1999).
705. Los Palos Judgement, supra note 702, at para. 13.
706. The Lolotoe Case: A Small Step Forward, supra note 232, at § 2.2.
707. Telephone Interview with Nicholas Koumjian, deputy prosecutor for serious
crimes, Special Panels for Serious Crimes (July 29, 2004); Telephone Interview with Alan
Gutman, defense counsel, Special Panels for Serious Crimes (July 30, 2004).
708. Special Panels for Serious Crimes, Prosecutor v. Benjamin Sarmento et al., Court
Record, at 11 (June 30, 2003) (on fi le with author).
709. Id. at 16.
710. Id. at 17.
711. The Lolotoe Case: A Small Step Forward, supra note 232, at § 2.5.2.2.
712. Telephone Interview with Essa Faal, chief of prosecutions, Special Panels for Seri-
ous Crimes (July 30, 2004).
713. See, e.g., Correia Plea Agreement, supra note 702, at paras. 2, 3, 6, 9. In addition,
S3857.indb 279 10/4/06 6:47:20 AM

the plea agreements provide that neither party will appeal if the panel sentences in ac-
cordance with the agreed-upon recommendation. See, e.g., id. at para. 9(2). They also warn
defendants that the panel may, despite the sentencing recommendation, impose a prison
term of up to twenty-five years, and that the prosecution is free to prosecute the defendant
for any criminal conduct not addressed in the agreement. See, e.g., id. at paras. 4, 5.
714. Telephone Interview with Essa Faal, chief of prosecutions, Special Panels for Seri-
715. Telephone Interview with Alan Gutman, defense counsel, Special Panels for Se-
rious Crimes (July 30, 2004); see also Serious Crimes Unit indictee fi le, http://socrates
.berkeley.edu/~warcrime/Serious20Crimes20Unit20Files/suspects/MVIS-65KAKY
.html.
716. Telephone Interview with Nicholas Koumjian, deputy prosecutor for serious
crimes, Special Panels for Serious Crimes (July 29, 2004); Telephone Interview with Essa
Faal, chief of prosecutions, Special Panels for Serious Crimes (July 30, 2004); see also
Office of the Deputy General Prosecutor for Serious Crimes Timor Leste, Serious Crimes
Unit Update, at 7 (Apr. 30, 2004) [hereinafter Serious Crimes Unit Update].
717. Prosecutor v. Anastacio Martins and Domingos Gonçalves, Dili District Court,
Special Panels for Serious Crimes, Case No. 11/2001, Judgement, at 3-4 (Nov. 13, 2003)
[hereinafter Martins and Gonçalves Judgement].
718. Telephone Interview with Alan Gutman, defense counsel, Special Panels for Seri-
719. Serious Crimes Unit Update, supra note 716, at 7–8.
720. João Fernandes Judgement, supra note 225, at para. 20 and Verdict.
721. Jose Valente Judgement, supra note 691, at 11–12. Valente did admit “some facts
before the Court and freely cooperated with the Public Prosecutor about his involvement
in becoming a member of Team Ratih/Panah,” id. at 11, but the same could be said of most
of the defendants discussed thus far.
722. Joseph Leki Judgement, supra note 220, at 11–12.
723. Los Palos Judgement, supra note 702, at paras. 70, 892. Marques’s admissions even
with respect to that count did not precisely match the prosecution’s allegations because
Marques denied that he was the commander of Team Alfa. Id. at para. 67. The panel ap-
parently considered the charges and the admissions a close-enough fit, however, and it
made its own finding that, despite his protestations to the contrary, Marques was in fact
a commander. Id. at para. 921.
724. Id. at para. 1069. The panels also considered as a mitigating factor the inculpa-
tory statements that Marques made that did not rise to the level of a guilty plea. Id. at
para. 1055.
725. Id. at paras. 1068, 1071, 1077, 1084. The Panel imposed eighteen-year sentences on
three other codefendants, id. at paras. 1091, 1098, 1113, and a seventeen-year sentence on a
final codefendant, id. at para. 1106.
726. Id. at paras. 1012–23.
727. Id. at para. 796.
728. Id. at para. 1035.
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729. Id. at para. 1037.

730. Prosecutor v. Marcurious José de Deus, Dili District Court, Special Panels for
Serious Crimes, Case No. PID.C.G/13/2001, at III.1.22, Sentence (Apr. 18, 2002).
731. Prosecutor v. Augusto Dos Santos, Dili District Court, Special Panels for Seri-
ous Crimes, Case No. 06/2001, Judgement, at paras. 60, 66 (May 14, 2002) [hereinafter
Augusto Dos Santos Judgement].
732. The defendant beat the victim “to death, and when he didn’t die, he took a sharp
piece of wood and hit him in the ears.” Id. at para. 55.
733. Prosecutor v. Agustinho Atolan, Dili District Court, Special Panels for Serious
Crimes, Case No. 3/2003, Judgement, at 6 (June 9, 2003) [hereinafter Agustinho Atolan
Judgement]. Without further explanation, the panel asserted that the sentences imposed
on three defendants that fell outside this range were justified by “specific reasons.” Id. at 7.
734. Id. at 7.
735. Id. at 8.
736. Martins and Gonçalves Judgement, supra note 717, at 17–18.
737. Id. at 18.
738. Id. at 19.
739. See, e.g., Prosecutor v. Abilio Mendes Correia, Dili District Court, Special Panels
for Serious Crimes, Case No. 19/2001, Disposition of the Decision (Mar. 3, 2004); Prosecu-
tor v. Benjamin Sarmento et al., Dili District Court, Special Panels for Serious Crimes,
Case No. 18/2001, Disposition of the Decision Relating to the Conviction of the Accused
Benjamin Sarmento and Romeiro Tilman (July 16, 2003); Prosecutor v. Domingos Men-
donça, Dili District Court, Special Panels for Serious Crimes, Disposition of the Decision,
Case No. 18a/2001 (Oct. 13, 2003).
740. Da Costa Nunes Judgement, supra note 702, at paras. 65–76, Disposition. Judge
Blunk dissented to the sentence, asserting that “[s]entencing an accused who has commit-
ted Murder as a Crime against Humanity by his own hands to only 8 years imprisonment
fails to meet” the goals of deterrence, retribution, reconciliation, and reprobation. Pros-
ecutor v. Damiao Da Costa Nunes, Dili District Court, Special Panels for Serious Crimes,
Case No. 04a/2001, Dissenting Opinion of Judge Siegfried Blunk (Dec. 10, 2003).
741. For instance, the panel sentenced Umbertus Ena after a trial to eleven years’ im-
prisonment for two counts of murder as crimes against humanity and one count of inhu-
mane acts as a crime against humanity. Serious Crimes Unit Update, supra note 716, at 8.
The panel also convicted Marcelino Soares after a trial of one count of murder as a crime
against humanity, one count of torture as a crime against humanity, and one count of
persecution as a crime against humanity. After determining that the defendant not only
failed to express regret but that he “appeared pleased with himself, when the victims of
his torture testified to his savage cruelty, and showed the severe wounds infl icted by him,”
the panel sentenced him to nine, six, and three years’ imprisonment, respectively, on each
of the counts and a total of eleven years’ imprisonment. Prosecutor v. Marcelino Soares,
Dili District Court, Special Panels for Serious Crimes, Case No. 11/2003, Judgement, at
Disposition (Dec. 11, 2003).
742. See generally Combs, Copping a Plea to Genocide, supra note 8.
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743. See Combs, Procuring Guilty Pleas for International Crimes, supra note 532.
744. By May 2006, the ICTR had convicted twenty-four defendants, five of them
through guilty pleas.
Chapter 7
745. See generally Combs, Copping a Plea to Genocide, supra note 8, at 9–16.
746. Plea bargaining is the subject of a vast quantity of scholarly and popular criti-
cism. See, e.g., id. at 4 n.13.
Plea bargaining is none too popular in other countries either. For works critical of
Australian plea bargaining, see Kathy Mack & Sharyn Roach Anleu, Sentence Discount
for a Guilty Plea: Time for a New Look, 1 Flinders J. L. Reform 123, 124 (1997); Kathy
Mack & Sharyn Roach Anleu, Choice, Consent and Autonomy in a Guilty Plea System, 17
L. in Context 75 (1999); John Willis, New Wine in Old Bottles: The Sentencing Discount
for Pleading Guilty, 13 L. in Context 39, 72 (1995). For criticism of British plea bargaining,
see Murder Sentence Changes Unveiled, BBC News, Sept. 20, 2004; Lincoln Archer, “We
Feel We’ve Been Robbed,” BBC News, Sept. 20, 2004.
747. Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev.
50, 89–90 (1968) [hereinafter Alschuler, Prosecutor’s Role].
748. Albert W. Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum.
L. Rev. 1059, 1141 (1976).
749. Alschuler, Prosecutor’s Role, supra note 747, at 65–67; see also William F. McDon-
ald et al., Prosecutorial Bluffing and the Case against Plea-Bargaining, in Plea Bargaining
1, 9 (William F. McDonald & James A. Cramer eds., 1980); Fred C. Zacharias, Justice in
Plea Bargaining, 39 Wm. & Mary L. Rev. 1121, 1149 (1998).
750. Alschuler, Prosecutor’s Role, supra note 747, at 56, 80; see also Kenneth Kipnis,
Criminal Justice and the Negotiated Plea, 86 Ethics 93, 94 (1976).
751. David Lynch, The Impropriety of Plea Agreements, 19 Law & Soc. Inquiry 115, 123,
and n.9 (1994).
752. Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J.
1179, 1182–84 (1975) [hereinafter Alschuler, Defense Attorney’s Role].
753. Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979, 1988 (1992)
[hereinafter Schulhofer, Plea Bargaining as Disaster]; Stephen J. Schulhofer, A Wake-Up
Call from the Plea Bargaining Trenches, 19 Law & Soc. Inquiry 135, 138 (1994); Alschuler,
Defense Attorney’s Role, supra note 752, at 1181–1206.
754. Schulhofer, Plea Bargaining as Disaster, supra note 753, at 1989.
755. Chad Baruch, Through the Looking Glass: A Brief Comment on the Short Life and
Unhappy Demise of the Singleton Rule, 27 N. Ky. L. Rev. 841, 850 (2000).
756. For an expansion of this argument, see Kipnis, supra note 750, at 104; see also
Kenneth Kipnis, Plea Bargaining: A Critic’s Rejoinder, 13 Law & Soc’y Rev. 555, 558–59
(1979).
No one denies the difficulty in determining what is the “just sentence” in any given
circumstance, but opponents of plea bargaining contend that plea bargaining violates
many of its qualities. Albert Alschuler, for instance, asserts that
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[o]ne aspect of a just sentence is that it respects the principle of equality, and, at least
as an initial matter, we are offended when defendants of equal culpability are treated
differently simply because they have made differing tactical decisions. Although at-
taching weight to these decisions might serve some social purpose, we sense that this
purpose is not, or should not be, what sentencing is about. Moreover, a just sentence
must be the product of a just process—one that focuses “on the merits” rather than on
extraneous social objectives.
Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Cal. L. Rev. 652,
680 (1981).
757. See John Baldwin & Michael McConville, Plea Bargaining and Plea Negotiation in
England, 13 Law & Soc’y Rev. 287, 296 (1979). Aogán Mulcahy describes a 1992 survey of
the Crown Court that showed that barristers believed that 6 percent of their clients who
pled guilty may have been innocent. Aogán Mulcahy, The Justifications of “Justice”: Legal
Practitioners’ Accounts of Negotiated Case Settlements in Magistrates’ Courts, 34 Brit. J.
Criminology 411, 413 (1994).
758. Plea bargaining and bargaining analogues are on the rise in Western European
countries that had not previously utilized these procedures, see Combs, Copping a Plea
to Genocide, supra note 8, at 39–45, and Europeans too have vigorously criticized the
practice, see, e.g., Mirjan Damaška, Models of Criminal Procedure, 51 Zbornik Pravnog
Fakulleta u Zagrebu 477, 483 (2001); Richard S. Frase & Thomas Weigend, German
Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?,
18 B.C. Int’l & Comp. L. Rev. 317, 344–45 (1995); Joachim Herrmann, Bargaining Justice—
A Bargain for German Criminal Justice?, 53 U. Pitt. L. Rev. 755, 756 (1992); Heike Jung,
The Criminal Process in the Federal Republic of Germany—An Overview, in The Criminal
Process and Human Rights: Toward a European Consciousness 59, 61–62 (Mireille
Delmas-Marty & Mark A. Summers eds., 1995).
759. See Reed Brody, Idi Amin at Death’s Door: Despots Should Not Rest in Peace, Int’l
Herald Trib., July 25, 2003.
760. Hayner, supra note 91, at 156; Krog, supra note 104, at 385.
761. Although South Africans generally recognize that the truth and reconciliation
process was not intended to result in widespread prosecutions—that is, that South Af-
ricans bought a peaceful transition with the price of criminal justice—that bargain still
rankles many victims. Stuart Wilson, for instance, describes a survey conducted by the
Center for the Study of Violence and Reconciliation which showed that “ ‘justice and pun-
ishment was still favoured as a way of dealing with the perpetrators over amnesty.’ ” Wil-
son, supra note 116, at 551. Elizabeth Kiss repeats a common refrain among observers of
the TRC’s work: “We’ve heard the truth. There is even talk of reconciliation. But where’s
the justice?” Kiss, supra note 88, at 68.
Another contributing factor to the perception of failure is that the TRC did not mo-
tivate enough offenders to confess. As detailed above, virtually no high-level military or
government officials sought amnesty, and the primary reason they failed to do so was
that the threat of prosecution was not sufficiently threatening. The South African experi-
ence demonstrates the obvious: that most offenders will not confess to wrongdoing un-
S3857.indb 283 10/4/06 6:47:21 AM

less they are threatened with sanctions and, moreover, unless that threat of sanctions is a
credible one.
762. Emir Suljagić, Truth at The Hague, N.Y. Times, June 1, 2003. The mayor of Sre-
brenica likewise lauded Nikolić’s guilty plea, opining that “[o]nly by recognising and ad-
mitting the real and whole truth about [Srebrenica] and other crimes in BH can trust be
rebuilt among the citizens of BH.” Momir Nikolić Sentencing Judgement, supra note 282,
at para. 147.
763. Mehmed Ahmić Statement, supra note 496.
764. Sito-Sucic, supra note 12; see also Daniel Simpson, U.N. Tribunal, with Surprise
Guilty Plea, Rivets Bosnians, N.Y. Times, Oct. 4, 2002 (reporting one Bosnian Muslim’s
view that “[i]t’s a big step forward that she admitted guilt”).
765. The reason that plea bargaining will in most cases increase the overall punish-
ment imposed is because plea bargaining results in sentence discounts that are smaller
than the financial discounts it affords. If we assume, for instance, that the average defen-
dant receives a 50 percent sentence discount for pleading guilty, then overall punishment
will increase with the introduction of a guilty-plea system as long as guilty pleas result
in a more than 50 percent financial savings over trial. Given the tremendous costs of tri-
als at the international tribunals, the proportional savings produced by a guilty plea in
virtually every instance will far exceed the proportional discounts to sentences afforded
to defendants pleading guilty.
766. Beth Kampschror, Bosnia to Try Its War Criminals, But Is New Court Up to the
Job?, Christian Science Monitor, Dec. 23, 2003.
767. Bosnian Women’s Association Calls Serb Camp Guard Sentence “Insult,” BBC
Worldwide Monitoring, Oct. 29, 2003; Bosnian Muslims Protest “Shameful” War Crimes
Sentence, Agence France-Presse, Oct. 29, 2003; Jelacić & Stephen, supra note 12.
768. The ICTR imposed life sentences on Akayesu, Kajelijeli, Kamuhanda, Kayish-
ema, Musema, Nahimana, Ngeze, Niyitegeka, and Rutaganda.
769. Organic Law No. 16/2004 Establishing the Organisation, Competence, and Func-
tioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the
Crime of Genocide and Other Crimes against Humanity Committed between October 1,
1990 and December 31, 1994, arts. 72–73 [hereinafter 2004 Revised Gacaca Law].
770. Prosecutor v. Stakić, Case No. IT-97-24-A, Judgement, at Disposition (Mar. 22,
2006).
771. The ICTY sentenced Goran Jelisić to forty years’ imprisonment, Jelisić Judgement,
supra note 319, at para. 139; the ICTY sentenced Tihomir Blaškić to forty-five years’ im-
prisonment, Blaškić Judgement, supra note 136, at Disposition, and it sentenced Radislav
Krstić to forty-six years’ imprisonment, Krstić Judgement, supra note 327, at para. 727.
772. The Appeals Chamber reduced Blaškić’s sentence from forty-five to nine years’
imprisonment after finding for Blaškić on several of his grounds for appeal, see Prosecu-
tor v. Blaškić, Case No. IT-95-14-A, Appeal Judgement, at Disposition (July 29, 2004), and
it reduced Krstić’s sentence from forty-six to thirty-five years’ imprisonment, Krstić Ap-
peal, supra note 357, at Disposition.
773. Bosnian Serb “Monster” Todorović to Be Released from Prison, Agence France-
Presse, June 29, 2005; Blaškić’s Sentence Cut Down from 45 to 9 Years in Prison, SENSE
S3857.indb 284 10/4/06 6:47:21 AM

News Agency, July 29, 2004. The ICTY’s practice is in keeping with that of the Western
European countries in which ICTY defendants are serving their sentences.
774. Donald P. Kommers, The Constitutional Jurisprudence of the Federal
Republic of Germany 314–20 (1989); William A. Schabas, Sentencing by International
Tribunals: A Human Rights Approach, 7 Duke J. Comp. & Int’l L. 461, 480 (1997). Indeed,
concerns were raised during the Rome Conference that some states would be unable to
transfer indictees to the ICC because it can sentence defendants to life imprisonment.
William A. Schabas, Follow up to Rome: Preparing for Entry into Force of the International
Criminal Court Statute, 20 Hum. Rts. L.J. 157, 158 (1999).
775. Some defendants, like the seventy-two-year-old Plavšić, are of such an advanced
age that only the most lenient of sentences will motivate them to plead guilty because they
will likely die before they can serve a justifiable sentence. A disproportionate number of
these defendants are apt to be high-level offenders, since people generally do not obtain
high-level positions until they are middle-aged or older.
Chapter 8
776. A sampling of the literature focusing on various aspects of restorative justice in-
cludes John Braithwaite, Restorative Justice and Responsive Regulation (2002);
Michael Braswell et al., Corrections, Peacemaking and Restorative Justice
(2001); Elizabeth Elliott, New Directions in Restorative Justice: Issues, Prac-
tice, Evaluation (2005); Roger Graef, Why Restorative Justice? Repairing the
Harm Caused by Crime (2000); Johnstone, supra note 17; Declan Roche, Account-
ability in Restorative Justice (2003); Heather Strang, Repair or Revenge:
Victims and Restorative Justice (2002); Heather Strang, Restorative Justice:
Philosophy to Practice (2000); Dennis Sullivan & Larry Tifft, Restorative Jus-
tice: Healing the Foundations of our Everyday Lives (2001); Mark S. Umbreit
et al., Victim Meets Offender: The Impact of Restorative Justice and Media-
tion (1994); Lode Walgrave, Restorative Justice and the Law (2002); Critical
Issues in Restorative Justice (Howard Zehr & Barbara Toews eds., 2004); Restor-
ative Justice & Criminal Justice: Competing or Reconcilable Paradigms? (An-
drew von Hirsch et al. eds., 2003); Victim-Offender Mediation in Europe: Making
Restorative Justice Work (The European Forum for Victim-Offender Mediation and
Restorative Justice ed., 2000).
777. David Cayley, The Expanding Prison: The Crisis in Crime and Punish-
ment and the Search for Alternatives 32 (1998) (quoting D. Faulkner).
778. Johnstone, supra note 17, at 1. The most popular restorative-justice processes
are victim-offender mediation and family group conferencing. McCarney, supra note 16,
at 6; Joanna Shapland, Restorative Justice and Criminal Justice: Just Responses to Crime?
in Restorative Justice & Criminal Justice: Competing or Reconcilable Para-
digms? 195, 197 (Andrew von Hirsch et al. eds., 2003) (also describing sentencing circles).
Victim-offender mediation brings “victims and offenders face-to-face in a safe, struc-
tured facilitated dialogue.” Mara Schiff, Models, Challenges and the Promise of Restor-
ative Conference Strategies, in Restorative Justice & Criminal Justice: Competing
S3857.indb 285 10/4/06 6:47:22 AM

or Reconcilable Paradigms? 315, 318 (Andrew von Hirsch et al. eds., 2003). Family
group conferencing comprises a number of distinctive models, including the New Zea-
land model, the Wagga model, neighborhood sanctioning boards, and circle sentencing.
McCarney, supra note 16, at 6. Family group conferences are similar to victim-offender
mediations but are attended by a larger group of people, including interested community
members and those concerned about the well-being of either the victims or offender. All
of the participants are invited to contribute to the problem-solving process. Id. at 6; Schiff,
supra at 320.
779. John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or Uto-
pian?, 46 UCLA L. Rev. 1727, 1744 (1999)) [hereinafter Braithwaite, A Future Where Pun-
ishment Is Marginalized].
780. See Barton Poulson, A Third Voice: A Review of Empirical Research on the Psy-
chological Outcomes of Restorative Justice, 2003 Utah L. Rev. 167, 180. See also Umbreit,
supra note 776, at 21–23, 75–82; Umbreit et al., The Impact of Victim-Offender Mediation,
781. Umbreit, supra note 776, at 10–13; John Braithwaite, Restorative Justice: Assessing
Optimistic and Pessimistic Accounts, 25 Crime & Just. 1, 24 (1999) [hereinafter Braith-
waite, Restorative Justice]. Roger Graef reports that “[o]f victims taking part in media-
tion, 73 wanted an apology, 80 said they wanted answers, and 90 wanted to tell the
offender about the impact of the crime. The number of victims who wanted restitution
was much lower: 65.” Graef, supra note 776, at 27.
782. Poulson, supra note 780, at 184–85.
783. Umbreit et al., The Impact of Victim-Offender Mediation, supra note 17, at 31.
784. Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Re-
storative Justice, 2003 Utah L. Rev. 15, 29–31; Poulson, supra note 780, at 195–98. For
further discussions of anger and fear reductions in victims following restorative-justice
processes, see Braithwaite, supra note 776, at 52; see also Kathleen Daly, Mind the Gap:
Restorative Justice in Theory and Practice, in Restorative Justice & Criminal Justice:
Competing or Reconcilable Paradigms? 219, 230 (Andrew von Hirsch et al. eds.,
2003).
785. Poulson reports that “offenders were 6.9 times more likely to apologize to the
victim in restorative justice settings than in court,” Poulson, supra note 780, at 189, while
Strang and Sherman report that “[e]ighty-six percent of Canberra victims attending
restorative justice conferences received apologies from their offenders, in comparison to
only 16 of victims whose cases were disposed of in court.” Strang & Sherman, supra
note 784, at 28.
786. Braithwaite, supra note 776, at 52; Stephanos Bibas & Richard A. Bierschbach,
Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 90 (2004).
Tort victims likewise desire apologies and indeed are more likely to initiate lawsuits when
they have not received apologies. See Erin Ann O’Hara & Douglas Yarn, On Apology and
Consilience, 77 Wash. L. Rev. 1121, 1122–25 (2002).
787. Graef, supra note 776, at 27, 47.
788. Braithwaite, Restorative Justice, supra note 781, at 26–27; Poulson, supra note 780,
at 193.
S3857.indb 286 10/4/06 6:47:22 AM

789. Poulson, supra note 780, at 182–85.

790. Johnstone, supra note 17, at 99–102; Paul H. Robinson, The Virtues of Restorative
Processes, the Vices of “Restorative Justice,” 2003 Utah L. Rev. 375, 375; Robert F. Cochran,
Jr., The Criminal Defense Attorney: Roadblock or Bridge to Restorative Justice, 14 J. L. &
Religion 211, 212 (1999–2000). Restorative-justice proponents maintain that offenders
gain other benefits from restorative processes, including “an increased sense of respect.”
Strang & Sherman, supra note 784, at 37.
791. Howard Zehr, Changing Lenses: A New Focus for Crime and Justice 40–
41 (1990); Braithwaite, Restorative Justice, supra note 781, at 47.
792. See Braithwaite, supra note 776, at 55–66; Umbreit, supra note 776, at 24; Bush,
supra note 289, at 441; Barbara Hudson, Victims and Offenders, in Restorative Justice
& Criminal Justice: Competing or Reconcilable Paradigms? 177, 189 (Andrew von
Hirsch et al. eds., 2003) (discussing studies); William R. Nugent et al., Participation in
Victim-Offender Mediation and the Prevalence and Severity of Subsequent Delinquent Be-
havior: A Meta-Analysis, 2003 Utah L. Rev. 137, 163; Poulson, supra note 780, at 199; Um-
breit et al., The Impact of Victim-Offender Mediation, supra note 17, at 32. For a discussion
of recidivism reduction through restorative justice in Austria and the United Kingdom,
see Christa Pelikan, Victim-Offender Mediation in Austria, in Victim-Offender Media-
tion in Europe: Making Restorative Justice Work 125, 148–49 (The European Fo-
rum for Victim-Offender Mediation and Restorative Justice ed., 2000); Marian Liebmann
& Guy Masters, Victim-Offender Mediation in the UK, in Victim-Offender Mediation
in Europe: Making Restorative Justice Work 337, 365 (The European Forum for
Victim-Offender Mediation and Restorative Justice ed., 2000).
793. Umbreit et al., The Impact of Victim-Offender Mediation, supra note 17, at 33;
Mark S. Umbreit & Betty Vos, Homicide Survivors Meet the Offender prior to Execution:
Restorative Justice through Dialogue, 4 Homicide Stud. 63, 64 (2000); Mark S. Umbreit,
Violent Offenders and Their Victims, in Mediation and Criminal Justice 99 (Martin
Wright & Burt Galaway eds., 1989); Caren Flaten, Victim-Offender Mediation: Application
with Serious Offenses Committed by Juveniles, in Restorative Justice: International
Perspectives 387 (Burt Galaway & Joe Hudson eds., 1996).
794. Strang & Sherman, supra note 784, at 40.
795. Id.
796. Umbreit et al., Victim-Offender Dialogue in Crimes of Severe Violence: A Multi-Site
Study of Programs in Texas and Ohio, at 2, available at http://ssw.che.umn.edu/rjp/ [here-
inafter Umbreit et al., Victim-Offender Dialogue]; Umbreit & Vos, supra note 793, at 64.
797. Umbreit et al., Victim-Offender Dialogue, supra note 796, at 3, 9–10; Umbreit &
Vos, supra note 793, at 70–74.
798. Umbreit et al., Victim-Offender Dialogue, supra note 796, at 17–18.Another of-
fender indicated that the “forgiveness offered by his victim’s mother was central.” Umbreit
& Vos, supra note 793, at 82.
799. Umbreit et al., Victim-Offender Dialogue, supra note 796, at 21.
800. Umbreit & Vos, supra note 793, at 78.
802. Tag Evers, Blessed Are the Peacemakers, Isthmus, Apr. 10, 1998.
S3857.indb 287 10/4/06 6:47:22 AM


804. Braithwaite, A Future Where Punishment Is Marginalized, supra note 779, at
1738–44; Lode Walgrave, Imposing Restoration Instead of Inflicting Pain: Reflections on the
Judicial Reaction to Crime, in Restorative Justice & Criminal Justice: Competing
or Reconcilable Paradigms? 61, 63–67 (Andrew von Hirsch et al. eds., 2003).
805. Anthony Duff, Restoration and Retribution, in Restorative Justice & Crimi-
nal Justice: Competing or Reconcilable Paradigms? 43, 43 (Andrew von Hirsch
et al. eds., 2003); Wilson, supra note 116, at 546–47; see also Robinson, supra note 790, at
375; David Dolinko, Restorative Justice and the Justification of Punishment, 2003 Utah L.
Rev. 319, 321. As Elizabeth Kiss puts it, retributive and restorative processes largely overlap
in part because criminally punishing wrongdoers constitutes a powerful way to affi rm the
dignity of victims. Kiss, supra note 88, at 79, 83. See also Charles Villa-Vicencio, Restor-
ative Justice: Dealing with the Past Differently, in Looking Back, Reaching Forward:
Reflections on the Truth and Reconciliation Commission of South Africa
68, 69, 72 (Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000) [hereinafter Villa-
Vicencio, Restorative Justice].
806. Prosecutor v. Krstić, Case No. IT-98-33, Transcript, at 5818 (July 27, 2000).
807. Prosecutor v. Krstić, Case No. IT-98-33, Transcript, at 5769 (July 26, 2000) (testi-
mony of witness DD). Davor Strinović, a Croatian forensic pathologist who examined the
remains in the Ovcara massacre site, relates:
Dealing with the mothers has been the most painful part of my work. For nearly five
years, they waited for some kind of news. Is he alive? Is he dead? Some mothers ex-
pected a miracle to happen, something God-sent, which would magically return their
child. Then the day comes when the body’s been identified and I have to inform the
mother. . . . All those years of hope are shattered in a matter of seconds.
Eric Stover & Rachel Shigekane, Exhumation of Mass Graves: Balancing Legal and
Humanitarian Needs, in My Neighbor, My Enemy: Justice and Community in
the Aftermath of Mass Atrocity 85, 90 (Eric Stover & Harvey M. Weinstein eds.,
2004).
808. Nigel Biggar, Making Peace or Doing Justice: Must We Choose?, in Burying the
Past: Making Peace and Doing Justice after Civil Conflict 3, 9 (Nigel Biggar
ed., 2003).
810. Truth commission reports, for instance, are often sharply disputed. The report is-
sued from El Salvador was vehemently opposed by the Salvadoran government, and the
Guatemalan report was sharply criticized by right-wing groups. Rachel Sieder, War, Peace,
and the Politics of Memory in Guatemala, in Burying the Past: Making Peace and Do-
ing Justice after Civil Conflict 209, 219–20 (Nigel Biggar ed., 2003). In South Africa,
moreover, a last-minute lawsuit was fi led by the ANC and the National Party seeking to
prevent publication of the report. Richard J. Goldstone, For Humanity: Reflections
of a War Crimes Investigator 69-70 (2000).
811. Hudson, supra note 792, at 180.
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812. Community dissatisfaction with the amnesty granted to Jeff rey Benzien, for
instance, was particularly strong. See Mark Sanders, Renegotiating Responsibility after
Apartheid: Listening to Perpetrator Testimony, 10 Am. U. J. Gender Soc. Pol’y & L. 587,
589 (2002). Further, in the notorious “ANC 37” case, the Amnesty Commission granted
thirty-seven ANC leaders a collective amnesty without requiring specification of the acts
committed and without treating each application individually. The TRC challenged the
amnesties before the South African High Court, which overturned them. Lorna Mc-
Gregor, Individual Accountability in South Africa: Cultural Optimum or Political Façade,
95 Am. J. Int’l L. 32, 39–40 (2001); see generally Krog, supra note 104, at 360–63.
813. Graef, supra note 776, at 27, 47; see also Braithwaite, supra note 776, at 52.
814. Biljana Plavšić: Serbian Iron Lady, BBC News, Feb. 27, 2003.
815. Alissa J. Rubin, Former Serb Leader’s Admission of Guilt Alienates Compatriots,
L.A. Times, Dec. 16, 2002.
816. Prosecutor v. Plavšić, Case No. IT-00-39&40/1, Transcript, at 609–11 (Dec. 17,
2002).
817. Sito-Sucic, supra note 12. Sulejman Tihic, a Bosniak member of the Bosnian presi-
dency and a detainee in Serb detention centers, described Plavšić’s plea as “‘a highly moral
act’ which helps establish the truth about the kind of war that took place.” Kebo, supra
note 12.
818. See Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored toward Legal
Solutions, 81 B.U. L. Rev. 289, 302–05 (2001); Deborah L. Levi, The Role of Apology in Me-
diation, 72 N.Y.U. L. Rev. 1165, 1178 (1997).
819. Sim B. Sitkin & Robert J. Bies, Social Accounts in Conflict Situations: Using Expla-
nations to Manage Conflict, 46 Hum. Rel. 349, 359 (1993).
820. See generally Lee Taft, Apology Subverted: The Commidification of Apology, 109
Yale L.J. 1135 (2000).
821. “In Japan, offering apology and particularly letters of apology have been fre-
quently used as an alternative to filing criminal charges. . . . A defendant’s repentant and
apologetic attitude may induce the police not to refer the case for prosecution to the Public
Procurator’s Office, it may lead the procurator not to prosecute or to demand a more le-
nient level of punishment, and it may lead the judges to impose a milder sentence.” Hiro-
shi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan
and the United States, 20 Law & Soc’y Rev. 461, 482–83 (1986). See also John O. Haley, The
Implications of Apology, 20 Law & Soc’y Rev. 499, 501 (1986).
822. See Haley, supra note 821, at 499.
823. See Mark Bennett & Christopher Dewberry, “I’ve Said I’m Sorry, Haven’t I?” A
Study of the Identity Implications and Constraints That Apologies Create for Their Recipi-
ents, 13 Current Psychol. 10, 15–20 (1994).
824. O’Hara & Douglas Yarn, supra note 786, at 1147.
825. See Goodman, supra note 112, at 3. Cynthia Ngewu, the mother of another man
who was killed in the same massacre, expressed similar sentiments: “We don’t want [the
perpetrators] to go to jail, but we do think they should help support these children.” Id.;
Lansing & King, supra note 116, at 769.
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827. Telephone Interview with Lars Waldorf, former researcher, Human Rights Watch
(June 24, 2004).
828. The Argentine Truth Commission, for instance, sent questionnaires to former
state officials, but it received no response in some cases, and it reported that none of the
replies had been of use in clarifying the circumstances surrounding the disappearance
of people or in helping to trace them. See Argentina: Nunca Mas: Report of the
Argentine National Commission on the Disappeared, reprinted in 3 Transitional
Justice: How Emerging Democracies Reckon with Former Regimes, Laws, Rul-
ings and Reports 3, 17 (Neil J. Kritz ed., 1995) [hereinafter Nunca Mas]. But see Sierra
Leone TRC Report, supra note 101, at Vol. 2, Ch. 2, para. 568. William Schabas describes
perpetrators who voluntarily came before the Sierra Leone TRC to tell their stories and in
some cases to ask forgiveness. Schabas, The Relationship between Truth Commissions and
International Courts, supra note 210, at 1051.
829. See generally Kiss, supra note 88; Villa-Vicencio, Restorative Justice, supra
note 805, at 69; Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted, supra
note 107, at 205; McGregor, supra note 812, at 37; see also John M. Czarnetzy & Ronald J.
Rychlak, An Empire of Law, Legalism and the International Criminal Court, 79 Notre
Dame L. Rev. 55, 84–85 (2003). For a critical analysis of the TRC’s attempt to practice
restorative justice, see Wilson, supra note 116.
830. Bosnian TV Reports on Rajić Guilty Plea Fallout in Croatia, BBC Worldwide
Monitoring, Nov. 6, 2005.
831. Jeevan Vasagar, Body of Genocide Witness Found in River, The Guardian,
Dec. 24, 2005.
832. Prosecution Witness Assassinated in Rwanda, Hirondelle News Agency,
Oct. 20, 2004; Modestus Kessy, Genocide Witness Killed after Testifying, The Guard-
ian (Dar es Salam), Oct. 22, 2004; Nasser Ega-Musa, Another Failure of Justice in Africa,
Wash. Post, Mar. 6, 1997, at A21.
833. Antije Krog describes the psychiatric view that realizing that actions that one
perceived to be appropriate were in fact wrong requires a psychiatric breakthrough be-
cause “it is almost impossible to acknowledge that the central truth around which your
life has been built is a lie. At the risk of the disintegration of your self-image, you would
rather keep on denying any wrongdoing.” See Krog, supra note 104, at 120.
834. Minow, supra note 16, at 59; Justin M. Swartz, South Africa’s Truth and Recon-
ciliation Commission: A Functional Equivalent to Prosecution, 3 DePaul Dig. Int’l L. 13,
26 (1997). Similarly, Brigadier Cronje, testifying about certain murders, implicated Spe-
cial Forces commander Major General Joep Joube, South African Defence Forces Chief
of Staff Lieutenant-General Ian Gleeson, and two other officials in the cover-up of the
murders. Further, when Colonel Venter testified about the Pebco Three incident, victims’
lawyers asked him for the names of participants or those who had information about the
incident, and Venter supplied the names of four police officers, who were subsequently
subpoenaed. McCarthy, supra note 106, at 242–43.
835. Sikirica Sentencing Judgement, supra note 319, at paras. 118, 153, 200.
S3857.indb 290 10/4/06 6:47:23 AM

836. At trial, forty-one prosecution witnesses testified about Kolundžija’s efforts.

Prosecutor v. Sikirica, Case No. IT-95-8-T, Transcript, at 5773 (Oct. 9, 2001).
837. In a somewhat similar vein, after the ICTY convicted Radislav Krstić, deputy
commander of the Drina Corps, of genocide and sentenced him to forty-six years’ im-
prisonment for his role in the Srebrenica massacres, lower-level Bosnian Serb Army
officers Momir Nikolić and Dragan Obrenović saw fit to plead guilty to helping plan
those massacres once the prosecution agreed to withdraw the genocide charges pending
against them.
838. George P. Fletcher, With Justice for Some: Protecting Victims’ Rights
in Criminal Trials 191 (1996); LaFave et al., supra note 9, at 961.
839. Warren Burger, The State of the Judiciary—1970, 56 A.B.A. J. 929, 931 (1970).
840. Alschuler, Defense Attorney’s Role, supra note 752, at 1249–51.
841. Marlise Simons, In a Startling Plea, a Serbian Policeman Confesses to Atrocities,
N.Y. Times, July 27, 2003; Interview with Emir Suljagić, IWPR reporter and Srebrenica
survivor, The Hague (Sept. 12, 2003).
Chapter 9
842. For a discussion contrasting Japanese and Western views on apologies, see Nich-
olas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation 37–44
(1991). For a discussion contrasting Western and African views regarding apologies, see
McGregor, supra note 812, at 37–38. See also Letitia Hickson, The Social Context of Apol-
ogy in Dispute Settlement: A Cross-Cultural Study, 25 Ethnology 283 (1986); Shoshana
Blum-Kulka et al., Investigating Cross-Cultural Pragmatics: An Introductory Overview,
in Cross-Cultural Pragmatics: Requests and Apologies 1 (Shoshana Blum-Kulka
et al., eds. 1989).
843. Kipnis, supra note 750, at 103.
844. For a discussion of Argentine human-rights violations, see Nunca Mas, supra
note 828; Nino, supra note 14, at 53–66; Paul H. Lewis, Guerrillas and Generals
(2002); Luis Roniger & Mario Sznajder, The Legacy of Human-Rights Violations
in the Southern Cone: Argentina, Chile, and Uruguay 7–50 (1999).
845. Carlos Nino, for instance, describes the torture of Susan Caride, who was sub-
jected to “simulated execution, electric shocks, beatings, and the ‘cleansing’ of wounds
with salt water,” and he describes the especially harsh treatment meted out to Jews, who
were detained in rooms designated with Nazi insignia, forced to shout “I love Hitler,” and
paint their bodies with swastikas. Nino, supra note 14, at 55–56.
846. For a detailed description of these flights, see Verbitsky, supra note 60, at 24–25,
48–52 (1996). For a victim’s account of the fear inspired by those flights, see id. at 85–89.
847. Paula K. Speck, The Trial of the Argentine Junta, 18 Inter-Am. L. Rev. 491, 498
(1984).
848. In December 1977, military president Jorge Rafael Videla asserted, “I categori-
cally deny that there exist in Argentina any concentration camps or prisoners being held
in military establishments beyond the time absolutely necessary for the investigation of
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a person captured in an operation before they are transferred to a penal establishment.”

Nine months later, General Roberto Viola reiterated: “There are no political prisoners
in Argentina, except for a few persons who may have been detained under government
emergency legislation and who are really being detained because of their political activity.
There are no prisoners being held merely for being political, or because they do not share
the ideas held by the Government.” Nunca Mas, supra note 828, at 10.
849. Id. at 31–32. Indeed, lawyers became reluctant even to present habeas corpus
appeals after a number who dared to do so were themselves disappeared. Roniger &
Sznajder, supra note 844, at 25.
850. Jaime Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democra-
cies: The Case of Argentina, in Impunity and Human Rights in International Law
and Practice 160, 161 (Naomi Roht-Arriaza ed., 1995); Roniger & Sznajder, supra note
844, at 21.
851. Nunca Mas, supra note 828, at 22. Ten percent of the women who were disap-
peared were pregnant. The babies born to these women before their murders were given
to other families. Id. at 23; Roniger & Sznajder, supra note 844, at 205.
852. Nunca Mas, supra note 828, at 22; see also Roniger & Sznajder, supra note 844,
at 21–24.
853. “[M]any [victims] were merely relatives or friends of those involved in [left-wing]
activity. Others were lawyers who fi led habeas corpus petitions for those illegally de-
tained, journalists who complained of the regime’s abuses, psychoanalysts and writers
considered dangerous, members of human rights groups, trade unionists . . . who opposed
the regime’s economic policy, and politicians who were deemed dangerous.” Nino, supra
note 14, at 57; see also Roniger & Sznajder, supra note 844, at 21. As General Ramon put
it: “‘First, we will kill the guerrillas. Then, we will kill the guerrillas’ families. Then we
will kill the friends of their families, and the friends of their friends, so that there will be
no one left to remember who the guerrillas were.’” Thomas C. Wright, Human Rights in
Latin America: History and Projections for the Twenty-First Century, 30 Cal. W. Int’l L.J.
303, 311 (2000).
854. Nino, supra note 14, at 80; Larry Rohter, Argentina Nears Repeal of “Dirty War”
Amnesty, Int’l Herald Trib., Aug. 21, 2003.
855. Nunca Mas, supra note 828, at 13.
856. Roniger & Sznajder, supra note 844, at 112 (quoting Emilio Mignone).
858. For a discussion of the trial, see generally Speck, supra note 847. For a discussion
of the unrest and the pardons that followed, see Nino, supra note 14, at 90–104; Malamud-
Goti, supra note 850, at 162; Naomi Roht-Arriaza, State Responsibility to Investigate and
Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 459
(1990).
859. Human Rights Watch, Truth and Partial Justice in Argentina: An Update, 1991, at
69; see also Verbitsky, supra note 60, at 7.
860. See Andrew S. Brown, Note, Adios Amnesty: Prosecutorial Discretion and Mili-
tary Trials in Argentina, 37 Tex. Int’l L.J. 203, 206 (2002).
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861. For a discussion of the history of ethnic violence in the Balkans, see Tom Galla-
gher, Outcast Europe: The Balkans, 1789–1989: From the Ottomans to Milošević
(2001); Scharf, supra note 2, at 21–24; Bassiouni & Manikas, supra note 48, at 5-25.
862. Tadić Judgement, supra note 297, at para. 65. But see Susan L. Woodward, Bal-
kan Tragedy: Chaos and Dissolution after the Cold War 21–22 (1995). The people
of the former Yugoslavia were also united in their fear of a Soviet invasion. Tito devel-
oped a new military doctrine, termed “Total National Defense,” that was designed to
defeat a Soviet invasion by mobilizing all of the nation’s cultural, societal, and military
resources. Bassiouni & Manikas, supra note 48, at 15; Delalić Judgement, supra note 281,
at para. 93.
863. Krstić Judgement, supra note 327, at para. 9; Bassiouni & Manikas, supra
note 48, at 26–32, 39–41; Zimmermann, supra note 42, at 140–46, 152–61.
864. For a discussion of the war and the atrocities that took place during the war, see
generally Final Report of the Commission of Experts Established Pursuant to Security Coun-
cil Resolution 780, U.N. Doc. S/1994/674 (1994); Bassiouni & Manikas, supra note 48, at
25–63; Steven L. Burg & Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic
Conflict and International Intervention 3–127 (1999); Lenard J. Cohen, Broken
Bonds: Yugoslavia’s Disintegration and Balkan Politics in Transition (1993);
Tom Gallagher, The Balkans after the Cold War: From Tyranny to Tragedy
(2003); Century of Genocide: Critical Essays and Eyewitness Accounts 415–47
(Samuel Totten et al. eds., 2004).
865. In Bosnia, the prewar population consisted of approximately 44 percent Muslim,
31 percent Serb, and 17 percent Croat. Krstić Judgement, supra note 327, at para. 7.
866. Bassiouni & Manikas, supra note 48, at 33. For a discussion of the goal of a
“Greater Serbia” and the propaganda campaign to realize it, see Tadić Judgement, supra
note 297, at paras. 85–96. On the basis of the observations of his special envoy, then sec-
retary-general of the U.N. Boutros Boutros-Ghali reported to the U.N. Security Council
that the Bosnian Serbs, with help from the JNA (Yugoslav People’s Army), were making
“a concerted effort . . . to create ‘ethnically pure regions’ ” by seizing “territory by mili-
tary force and intimidation of the non-Serb population.” Further Report of the Secretary-
General Pursuant to Security Council Resolution 749, para. 5. U.N. Doc. S/23900 (May 12,
1992).
867. Bassiouni & Manikas, supra note 48, at 51.
868. See Delalić Judgement, supra note 281, at paras. 146–57; Blaškić Judgement, supra
note 136, at paras. 384–428.
869. For detailed treatments of the Dayton Peace Accords, see Paola Gaeta, The Day-
ton Agreements and International Law, 7 Eur. J. Int’l L. 147 (1996); John R. W. D. Jones,
The Implications of the Peace Agreements for the International Criminal Tribunal for the
former Yugoslavia, 7 Eur. J. Int’l L. 226 (1996).
870. For a discussion of rapes during the Bosnian war, see generally Beverly Al-
len, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia
(1996).
871. Power, supra note 20, at 251.
S3857.indb 293 10/4/06 6:47:24 AM

872. Memorandum to the High Representative, supra note 164.

873. For a discussion of the conditions prevailing in these camps, see Tadić Judge-
ment, supra note 297, at paras. 154–79; Kvočka Judgement, supra note 405, at paras. 443–67;
Stakić Judgement, supra note 343, at paras. 159–200; Dragan Nikolić Sentencing Judge-
ment, supra note 11, at paras. 57–59; Sikirica Sentencing Judgement, supra note 319, at
paras. 52–78; Banović Sentencing Judgement, supra note 285, at paras. 23–25.
874. Tadić Judgement, supra note 297, at para. 160.
875. For a discussion of the violence perpetrated against camp prisoners, see Dragan
Nikolić Sentencing Judgement, supra note 11, at para. 60; Banović Sentencing Judgement,
supra note 285, at paras. 26–27; Tadić Judgement, supra note 297, at paras. 163–67, 171, 175;
Stakić Judgement, supra note 343, at paras. 201–50; Sikirica Sentencing Judgement, supra
note 319, at paras. 79–103; Kvočka Judgement, supra note 405, at paras. 49–50, 68–109,
114–17.
876. Tadić Judgement, supra note 297, at para. 164.
877. Stakić Judgement, supra note 343, at paras. 203–06; Sikirica Sentencing Judge-
ment, supra note 319, at paras. 101–03.
878. Stakić Judgement, supra note 343, at paras. 208–09.
879. For a detailed description of the siege of Sarajevo, see Galić Judgement, supra
note 343; Tom Gjelten, Sarajevo Daily 124–25 (1995); Janine Di Giovanni, The Quick
and the Dead: Under Siege in Sarajevo (1995); Zlatko Dizdarević, Sarajevo: A
War Journal (1993).
880. Galić Judgement, supra note 343, at para. 230.
881. Gjelten, supra note 879, at 124–25.
882. Galić Judgement, supra note 343, at paras. 219–20.
883. See Mark R. von Sternberg, Per Humanitatem ad Pacem: International Humani-
tarian Norms as a Jurisprudence of Peace in the Former Yugoslavia 3 Cardozo J. Int’l &
Comp. L. 357, 372 (1995).
884. Galić Judgement, supra note 343, at para. 215 (quoting Morten Hvall, a Norwe-
gian journalist who covered the conflict from September 1992 to August 1994).
885. Galić Judgement, supra note 343, at para. 222. Janine Di Giovanni describes ten
elderly people who froze to death in an abandoned nursing home and whose bodies could
not be removed for fear of sniper fire. Di Giovanni, supra note 879, at 9–19.
886. Adam LeBor, 20 Years for Sarajevo Siege General, The Times (London), Dec. 6,
2003; Charles J. Russo, Religion and Education in Bosnia: Integration not Segregation?,
2000 BYU L. Rev. 945, 953.
887. For a detailed description of the fall of Srebrenica and the subsequent massa-
cres, see Jan Willem Honig & Norbert Both, Srebrenica: Record of a War Crime
(1996); David Rohde, Endgame: The Betrayal and Fall of Srebrenica, Europe’s
Worst Massacre Since World War II (1997).
888. Krstić Judgement, supra note 327, at paras. 233–34; Honig & Both, supra note 887,
at 48–66.
889. Prosecution v. Momir Nikolić, Case No. IT-02-60/1-PT, Joint Motion for Consid-
S3857.indb 294 10/4/06 6:47:25 AM

eration of Plea Agreement between Momir Nikolić and the Office of the Prosecutor at Tab
A to Annex A, Statement of Facts and Acceptance of Responsibility, para. 13 (May 7, 2003).
890. Samir Krilic, Report Finds Massacre Planned, A.P., Nov. 8, 2004.
891. Prosecutor v. Deronjić, Case No. IT-02-61-S, Transcript, 206–07 (Jan. 28, 2004);
Deronjić Sentencing Judgement, supra note 319, at para. 257; see also Prosecutor v. Deron-
jić, Case No. IT-02-61-S, Transcript, 208–10 (Jan. 28, 2004).
892. Krilic, supra note 890; Daria Sito-Sucic, West Wants Serb Action after Srebrenica
Report, Reuters, Nov. 8, 2004.
893. Gordana Katana, Bosnian Serb “Forced” into Atrocity Admission, IWPR’s Tribu-
nal Update, No. 363, June 18, 2004; see also Ashdown Sacks Bosnian Serb Army Chief for
Obstructing Srebrenica Probe, Agence France-Presse, Apr. 16, 2004; Gordana Katana,
Bosnian Serbs Still in Denial over Srebrenica, IWPR’s Tribunal Update, No. 354, April 23,
2004. Srebrenica represents the latest in a long history of denials in the Balkans. During
World War II, Croatia’s fascist regime established the Jasenovac concentration camp at
which Serbs, Jews, and Gypsies were murdered. Serbia puts the death toll at 750,000,
while some Croatian historians claim that only 50,000 were killed. Sanander Condemns
“Croatia’s Auschwitz,” Agence France-Presse, Mar. 16, 2004.
894. Comprehensive histories of the Rwandan genocide, its causes and it after-
math can be found in Leave None to Tell the Story, supra note 286; Prunier, supra
note 283; Melvern, supra note 52. See also Romeo Dallaire, Shake Hands with the
Devil: The Failure of Humanity in Rwanda (2003); Paul J. Magnarella, Justice
in Africa: Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (2000);
Morris & Scharf, ICTR, supra note 52, at 47–73.
895. Leave None to Tell the Story, supra note 286, at 78.
896. Id. at 88. Mark Drumbl, in addition, tells of a “staged attack on Kigali, in which
Habyarimana soldiers fired into the air to create the illusion of an attack.” Drumbl, Rule
of Law, supra note 283, at 559.
897. For a comprehensive treatment of Hutu hate propaganda, see Leave None to
Tell the Story, supra note 286, at 65–95; see also Melvern, supra note 52, at 204–09.
As Prunier put it, the radio station RTLM “poured out a torrent of propaganda, mix-
ing constant harping on the old themes of ‘majority democracy,’ fears of ‘Tutsi feudalist
enslavement’ and ambiguous ‘calls to action.’ ” Prunier, supra note 283, at 200. The so-
called Media Trial, which convicted radio and newspaper officials of genocide and direct
and public incitement to commit genocide, also discusses in detail the substantial role
of the media in inciting the population to genocide. See generally Nahimana Judgement,
supra note 3.
899. Akayesu Judgement, supra note 137, at para. 126; Leave None to Tell the Story,
900. Gourevitch, supra note 287, at 18.
901. Statement of Mr. Bicamumpaka (Rwanda) at 4, U.N. Doc. S/PV.3377 (May 16,
1994). Some foreign observers, however, believe that President Habyarimana was killed by
S3857.indb 295 10/4/06 6:47:25 AM

Hutu extremists in his own military who were disgruntled by his entering into the Arusha
Accords. For a discussion of various hypotheses regarding the culprits, see Prunier, su-
pra note 283, at 213–29; Leave None to Tell the Story, supra note 286, at 181–85. Former
RPF leader, and current Rwandan president Paul Kagame was again accused in 1994 of the
assassination. Kagame Accused over Plane Attack, BBC News, Mar. 10, 2004.
902. Akayesu Judgement, supra note 137, at para. 110; Leave None to Tell the Story,
903. “The use of machetes often resulted in a long and painful agony and many people,
when they had some money, paid their killers to be fi nished off quickly with a bullet rather
than being slowly hacked to death.” Prunier, supra note 283, at 255–56.
904. Id. at 254–55.
905. Id. at 141, 245. Not all scholars agree. Lars Waldorf calls the authoritarian thesis
into question by pointing to, for instance, “instances of disobedience and resistance to
state authority under a succession of regimes.” Lars Waldorf, Mass Justice for Mass Atroc-
ity, Rethinking Local Justice as Transitional Justice, Temp. L. Rev. (forthcoming 2006).
907. Id. at 231–34; see also Prunier, supra note 283, at 244.
908. “When the national authorities ordered the extermination of Tutsi, tens of thou-
sands of Hutu responded quickly, ruthlessly and persistently. They killed without scruple
and sometimes with pleasure.” Leave None to Tell the Story, supra note 286, at 260.
909. Prunier, supra note 283, at 247.
910. Leave None to Tell the Story, supra note 286, at 237, 11; Prunier, supra
note 283, at 248.
911. Leave None to Tell the Story, supra note 286, at 7–8, 10–11, 214, 236, 251, 265.
912. Id. at 262; Prunier, supra note 283, at 259.
913. Morris & Scharf, ICTR, supra note 52, at 58; Madeline H. Morris, The Trials
of Concurrent Jurisdiction: The Case of Rwanda, 7 Duke J. Comp. & Int’l L. 349, 350–52
(1997).
914. For a discussion of the East Timorese colonial period, see Fox, supra note 247,
at 8–23.
915. See Report of the International Commission of Inquiry on East Timor to the
Secretary-General, para. 5, U.N. Doc. A/54/726-S/2000/59 (Jan. 31, 2000) [hereinafter
Commission of Inquiry on East Timor].
916. Joseph Nevins, The Making of “Ground Zero” in East Timor in 1999, 42 Asian
Survey 623, 626 (2002); see also Carsten Stahn, Accommodating Individual Criminal Re-
sponsibility and National Reconciliation: The UN Truth Commission for East Timor, 95
Am. J. Int’l L. 952, 952 (2001); Situation of Human Rights in East Timor: Note by the Sec-
retary-General, para. 16, U.N. Doc A/54/660 (Dec. 10, 1999) [hereinafter U.N. 1999 Human
Rights Report on East Timor].
917. Dionísio Babo-Soares, Political Developments Leading to the Referendum, in
Out of the Ashes: Destruction and Reconstruction of East Timor 53, 60–62
(James J. Fox & Dionísio Babo-Soares eds., 2003) [hereinafter Babo-Soares, Political De-
velopments]; see generally Grayson J. Lloyd, The Diplomacy on East Timor: Indonesia, the
S3857.indb 296 10/4/06 6:47:25 AM

United Nations and the International Community, in Out of the Ashes: Destruction
and Reconstruction of East Timor 74, 79–86 (James J. Fox & Dionísio Babo-Soares
eds., 2003).
918. Commission of Inquiry on East Timor, supra note 915, at paras. 135–41; U.N. 1999
Human Rights Report on East Timor, supra note 916, at paras. 26, 63; see also Chandra
Lekha Sriram, Revolution in Accountability: New Approaches to Past Abuses, 19 Am. U.
Int’l L. Rev. 301, 401 (2003). The Leite case described the more than twenty-five militia
groups operating in East Timor and the support given to them by the Indonesian mili-
tary. Prosecutor v. Sabino Gouveia Leite, Dili District Court, Special Panels for Serious
Crimes, Case No. 04b/2001, Judgement, paras. 82–83 (Dec. 7, 2002) [hereinafter Sabino
Leite Judgement].
919. U.N. 1999 Human Rights Report on East Timor, supra note 916, at para. 26; Com-
mission of Inquiry on East Timor, supra note 915, at paras. 41–42; Babo-Soares, Political
Developments, supra note 917, at 64.
920. Suzannah Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice
System in East Timor, 25 Melb. U. L. Rev. 122, 128–29 (2001) [hereinafter Linton, Rising
from the Ashes].
921. Justice for Timor-Leste, supra note 204, at § 2.1; Linton, Rising from the Ashes,
supra note 920, at 129; Strohmeyer, Collapse and Reconstruction of a Judicial System, supra
note 213, at 50.
922. See Sabino Leite Judgement, supra note 918, at para. 101; see also Prosecutor v. João
Franca da Silva et al., Case No. B0-06.1-99-SC, Indictment, para. 36 (May 25, 2001).
923. Commission of Inquiry on East Timor, supra note 915, at para. 130.
924. Hansjöerg Strohmeyer, Policing the Peace: Post Conflict Judicial System Recon-
struction in East Timor, 24 U. New South Wales L.J. 171, 172 (2001); Dionísio Babo-
Soares, Law and Order: Judiciary Development in East Timor, at 9, Conference Paper
for Conference on Comparing Experiences with Post-Conflict State Building
in Asia and Europe, Denpasar, Bali-Indonesia, Oct. 15–17, 2001.
925. Linton, Rising from the Ashes, supra note 920, at 130. Indonesia agreed to permit
the entry of this force only after the United States threatened to withhold billions of dol-
lars in loans and aid. Id.
927. Tanja Hohe & Rod Nixon, Reconciling Justice: “Traditional” Law and State Judi-
ciary in East Timor, Paper prepared for the United States Institute of Peace and delivered
at the workshop on the Working of Non-State Justice Systems, held at the Development
Institute, Brighton U.K., at 32 (Mar. 6–7, 2003).
928. Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 213, at
54, 57; UNTAET Regulation 1999/3 on the Establishment of a Transitional Judicial Service
Commission (Dec. 3, 1999).
929. The Baucau District Court closed for three months, for instance, when judges
and prosecutors failed to return from Dili because their houses in Baucau had no furnish-
ings. Judicial System Monitoring Programme, Justice in the Districts 2003, at 15 (December
2003), available at http://www.jsmp.minihub.org/Reports/jsmpreports/Justice20in20
S3857.indb 297 10/4/06 6:47:26 AM

District20Reports/Justice20in20Districts20_E_.pdf [hereinafter Justice in the Dis-

tricts 2003].
930. Id. at 18.
931. Press Release, JSMP, Results of Judges’ Evaluations Released, Jan. 26, 2005.
932. David Mearns, Looking Both Ways: Models for Justice in East Timor, Austra-
lian Legal Resources International Publication at 69–70 (Nov. 2002) (on fi le with
author).
933. Justice in the Districts 2003, supra note 929, at 42.
934. UNTAET Regulation 2000/11, supra note 215, at § 7.
935. Shane Marshall, Speech, The East Timorese Judiciary: At the Threshold of Self-
Sufficiency?, Conference of Supreme and Federal Court Judges, Darwin, Australia, Janu-
ary 2005. An amendment to Regulation 14 of 2000 reduced the number of district Courts
to four.
936. Justice in the Districts 2003, supra note 929, at 16.
937. Mearns, supra note 932, at 41.
938. Dionísio Babo-Soares, Nahe Biti: The Philosophy and Process of Grassroots Rec-
onciliation (and Justice) in East Timor, 5 Asia Pac. J. Anthropology 15, 30 (2004) [here-
inafter Babo-Soares, Nahe Biti].
939. United Nations Development Programme, Report, The Community Reconcilia-
tion Process of the Commission for Reception, Truth and Reconciliation, at 24 (April 2004),
available at http://www.undp.east-timor.org/documentsreports/governance_capacity
development/Piers20report20Final.pdf [hereinafter UNDP Report on the Commu-
nity Reconciliation Process]; Hohe & Nixon, supra note 927, at 7.
940. Dionísio Babo-Soares, Challenges for the Future, in Out of the Ashes: De-
struction and Reconstruction of East Timor 262, 267 (James J. Fox & Dionísio
Babo-Soares eds., 2003); Mearns, supra note 932, at 28–30; Hohe & Nixon, supra note 927,
at 45–46; UNDP Report on the Community Reconciliation Process, supra note 939, at 26.
941. Fox, supra note 247, at 1; Babo-Soares, Nahe Biti, supra note 938, at 23. Space con-
straints prevent me from providing anything more than a bare-bones summary here.
942. Hohe & Nixon, supra note 927, at 13. The Wife Taker gives cattle, buffalo, and
money to the Wife Giver while the Wife Giver gives gold weavings and pigs to the Wife
Taker. Each of these goods symbolizes certain desirable attributes that the one family
gives the other through marriage. Id. For more on the relationship between Wife Givers
and Wife Takers, see Elizabeth G. Traube, Cosmology and Social Life: Ritual Ex-
change among the Mambai of East Timor 13 (1986); Brigitte Clamagirand, The Social
Organization of the Ema of Timor, in The Flow of Life: Essays on Eastern Indonesia
134, 140 (James J. Fox ed., 1980).
943. Hohe & Nixon, supra note 927, at 14.
944. Id. at 18, 24; Mearns, supra note 932, at 39; Babo-Soares, Nahe Biti, supra
note 938, at 21.
945. Hohe & Nixon, supra note 927, at 24. In some communities, the liurai takes the
final decision, while in others the final decision is taken by the ritual authority. Id.
946. UNDP Report on the Community Reconciliation Process, supra note 939, at 26.
S3857.indb 298 10/4/06 6:47:26 AM

948. Mearns, supra note 932, at 43; Hohe & Nixon, supra note 927, at 23.
950. Mearns, supra note 932, at 44–45; Babo-Soares, Nahe Biti, supra note 938, at 22.
952. Babo-Soares, Nahe Biti, supra note 938, at 15–16.
953. Mearns, supra note 932, at 43, 54; UNDP Report on the Community Reconcilia-
tion Process, supra note 939, at 11, 28.
955. UNDP Report on the Community Reconciliation Process, supra note 939, at
26–27.
956. Hohe & Nixon, supra note 927, at 22–23. The East Timorese consider the commu-
nal meal so important that a portion of the limited budget of East Timor’s Community
Reconciliation Process, which will be discussed in further detail in Chapter 8, had to be
set aside for food and drink, despite the fact that many international observers consid-
ered these expenditures extravagant. UNDP Report on the Community Reconciliation
Process, supra note 939, at 63.
957. Hohe & Nixon, supra note 927, at 64. During the Indonesian period, for instance,
serious matters were supposed to be handled by state courts, but these were not regarded
as legitimate bodies to resolve disputes: “These courts remained inaccessible and alien,
as they did not involve traditional leaders or the conflicting parties, they were not cost
effective or time efficient, and did not result in ‘appropriate’ sanctions or incorporate the
important notion of compensation.” UNDP Report on the Community Reconciliation
Process, supra note 939, at 25.
958. Isabelle Wesselingh & Arnaud Vaulerin, Speech, Eleven Years after Ethnic Cleans-
ing and Four Trials by the ICTY Later, Life between Denial and Hope in Prijedor (Bosnia),
Feb. 5, 2004, T.C.M. Asser Institute, The Hague. The denial is quite understandable be-
cause little freedom of press exists in many parts of Bosnia; thus, evidence of Serb crimes
is not well-publicized. Id.
959. See generally Verbitsky, supra note 60, at 17–64, 152–57 (reproducing transcripts
of interviews between a journalist and a navy officer who threw live prisoners from air-
planes); id. at 13 (describing the confessions of two navy officers before the Argentine
Senate).
960. Id. at 70; Speck, supra note 847, at 502–03.
961. Fury over Pinochet “Angel” Claim, BBC Online News Report, Nov. 25, 2003,
available at http://news.bbc.co.uk/1/hi/world/americas/3237740.stm; Brett, supra note 4;
Jonas, supra note 265, at 36; see also Alexandra Barahona de Brito, Passion, Constraint,
Law, and Fortuna, in Burying the Past: Making Peace and Doing Justice after
Civil Conflict 177, 199 (Nigel Biggar ed., 2003) (observing that “the Chilean armed
forces remain unapologetic”).
962. Juan Forero, Ex Generals and Others Protest Peru Report on Rebel Conflict, N.Y.
Times, Sept. 8, 2003, at A4.
963. Jean Ruremesha, Rwanda: Should the Bones Be Silenced?, Inter-Press Service
(Johannesburg), Aug. 5, 2004; Marc Lacey, 10 Years Later in Rwanda, the Dead Are Ever
Present, N.Y. Times, Feb. 26, 2004, at A8.
S3857.indb 299 10/4/06 6:47:26 AM

964. Delalić Judgement, supra note 281, at para. 686.

965. Kvočka Judgement, supra note 405, at para. 439.
966. See Witnesses from the “Other Side,” SENSE News Agency, Mar. 1, 2004; A Sus-
pect Speaks Out, SENSE News Agency, Feb. 24, 2004. Sometimes, subordinates do not
testify as planned. In the Milošević case, the prosecutor attempted to cross-examine his
own witness, Dragan Vasilković, after Vasilković changed his story under Milošević’s
cross-examination and disavowed a written statement. Prosecutor v. Milošević, Case No.
IT-02-54, Transcript, at 16727 (Feb. 21, 2003).
967. In the judgment convicting high-level junta members, the “court pointed to the
organized and uniform methods used in the kidnappings . . . [and] observed that subor-
dinates could not have carried out such widespread operations without logistic support,
cooperation from civilian authorities, and, most importantly, assurance of impunity.”
Speck, supra note 847, at 505.
968. Verbitsky, supra note 60, at 27.
969. Speck, supra note 847, at 502 and n.67.
970. Nahimana Judgement, supra note 3, at paras. 429, 431, 444, 446–48; William A.
Schabas, International Decision, Barayagwiza v. Prosecutor, 94 Am. J. Int’l L. 563, 564
(2000).
971. See Prunier, supra note 283, at 358; Gabriel Gabiro, Confronting Genocide with
Country’s Regular Courts, Hirondelle News Agency, Sept. 17, 2003, available at http://
allafrica.com/stories/200309170501.html.
972. The value of such participation would probably be limited as well because crimes
featuring a high victim-perpetrator ratio are usually carried out quickly, efficiently, and
without much personal contact. For the reasons discussed below, then, neither victims
nor society would benefit greatly from a substantial number of such interactions. The
participation of a few token victims, by contrast, may usefully highlight the importance
of victim concerns and serve as symbolic empowerment.
973. A small number of Bosnian men targeted for execution at Srebrenica survived
when the bodies of those killed fell on them and concealed the fact that they were still
alive. Krstić Judgement, supra note 327, at para. 69; Momir Nikolić Sentencing Judgement,
974. Bosnian prisoners and guards often lived in the same communities before the
conflict. Prosecutor v. Češić, Case No. IT-95-10/1-S, Transcript, at 118–19 (Nov. 27, 2003);
Češić Sentencing Judgement, supra note 319, at para. 14; Prosecution v. Dragan Nikolić,
Case No. IT-94-2-S, Transcript, at 257, 268, 278–79 (Nov. 3, 2003); Milan Simić Sentencing
Judgement, supra note 319, at para. 70.
975. See, e.g., Prosecutor v. Krstić, Case No. IT-98-33, Transcript, at 5759–60 (July 26,
2000); Momir Nikolić Sentencing Judgement, supra note 282, at paras. 112, 121.
976. John Carlin reported on a Hutu offender who allegedly killed approximately
seven thousand people. See John Carlin, Could You Share a Pint with a Man Who Killed
Your Family?, New Statesman, Sept. 15, 2003.
977. While domestic restorative-justice programs do aim at community restoration,
they target their reconciliatory efforts at the individual victim and perpetrator. Because
international crimes typically are committed on a society-wide scale pursuant to a hate-
S3857.indb 300 10/4/06 6:47:27 AM

based ideology, the restoration to be sought must extend beyond the particular individu-
als involved to society at large. The value of restorative measures will diminish over time
only with respect to societal restoration. By contrast, the individuals involved in the last
crime to be prosecuted are apt to gain nearly as much from restorative procedures as did
those involved in the first crime to be prosecuted.
978. Galić Judgement, supra note 343, at paras. 565–66.
979. Defendant Blagojević was born in Bratunac municipality while Jokić was born
in the Zvornik municipality. See Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case
No. IT-02-60-T, Amended Joinder Indictment, paras. 1, 12 (May 26, 2003). Obrenović was
born in Rogatica. Obrenović Sentencing Judgement, supra note 319, at para. 1. Deronjić,
who was not charged with crimes at Srebrenica but who admitted to participating in their
coordination, was born in Bratunac municipality. Deronjić Sentencing Judgement, supra
note 319, at para. 5.
980. Momir Nikolić Sentencing Judgment, supra note 282, at para. 2; Comment of
Munira Subašić, supra note 272.
981. Assuming, that is, that minimum standards of due process are observed. As
Chapter 9 will describe, Rwanda’s Tutsi-led government made an early attempt to prose-
cute every last offender, but its efforts were characterized by grave due-process violations,
including arbitrary and lengthy detention of defendants without charge.
982. Gourevitch, supra note 287, at 123.
983. Id. at 47.
984. See generally Verbitsky, supra note 60.
985. See Weitekamp, supra note 271, at 99; but see Douglas J. Sylvester, Myth in Restor-
ative Justice History, 2003 Utah L. Rev. 471, 474–75 (accusing restorative-justice propo-
nents of distorting history).
987. U.N. 1999 Human Rights Report on East Timor, supra note 916, at paras. 29,
33, 35.
988. See David Hicks, Tetum Ghosts and Kin: Fieldwork in an Indonesian
Community 114–16 (1988).
989. Nevins, supra note 916, at 624–25.
990. Press Release, Serious Crimes Unit, Crimes against Humanity Charges for For-
mer Indonesian Minister of Defense, Top Indonesian Military Commanders and East
Timor Governor, Feb. 25, 2003.
991. Los Palos Judgement, supra note 702, at para. 688; UNDP Report on the Com-
munity Reconciliation Process, supra note 939, at 73.
992. Mearns, supra note 932, at 49.
Chapter 10
993. See Erdemović, Joint Separate Opinion of Judge McDonald and Judge Vohrah,
supra note 311, at para. 2; see also Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate
and Dissenting Opinion of Judge Cassese, para. 8 (Oct. 7, 1997). The Sikirica panel like-
wise observed that “by entering a plea of guilt before the commencement of his trial, an
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accused will save the International Tribunal the time and effort of a lengthy investigation
and trial.” Sikirica Sentencing Judgement, supra note 319, at para. 149.
994. Todorović Sentencing Judgement, supra note 319, at para. 81; Sikirica Sentencing
Judgement, supra note 319, at para. 149.
995. Erdemović, Joint Separate Opinion of Judge McDonald and Judge Vohrah, supra
note 311, at para. 2; Todorović Sentencing Judgement, supra note 319, at para. 80.
996. Erdemović Second Sentencing Judgement, supra note 321, at para. 16(ii).
997. Momir Nikolić Sentencing Judgement, supra note 282, at para. 67. The Obrenović
panel reaffirmed these views. See Obrenović Sentencing Judgement, supra note 319, at
para. 118.
998. Deronjić Sentencing Judgement, supra note 319, at para. 236.
999. Obrenović Sentencing Judgement, supra note 319, at para. 111 (“The Trial Cham-
ber finds that Dragan Obrenović’s guilty plea is indeed significant and can contribute
to fulfi lling the Tribunal’s mandate of restoring peace and promoting reconciliation”);
Momir Nikolić Sentencing Judgement, supra note 282, at para. 145 (“The Trial Chamber
finds that Momir Nikolić’s guilty plea is significant and can contribute to fulfi lling the
Tribunal’s mandate of restoring peace and promoting reconciliation”).
1000. Plavšić Prosecution’s Sentencing Brief, supra note 360, at para. 24.
1001. The two joint witnesses were Madeleine Albright, U.S. secretary of state during
President Clinton’s administration, and Dr. Alex Boraine, deputy chairman of the South
African TRC. Both witnesses, like the prosecution, praised Plavšić’s guilty plea for the
contribution it made to reconciliation in Bosnia. See Prosecutor v. Plavšić, Case No. IT-
00-39&40/1-S, Transcript, at 520–22, 562–66 (Dec. 17, 2002).
1002. Prosecution v. Obrenović, Case No. IT-02-60/2-S, Prosecutor’s Brief on the Sen-
tencing of Dragan Obrenović, para. 28 (July 30, 2003) (on fi le with author) [hereinafter
Obrenović, Prosecutor’s Sentencing Brief].
1003. See Prosecutor v. Obrenović, Case No. IT-02-60/2-S, Transcript, at 1531–36
(Oct. 30, 2003); Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Transcript, at 1642–
48 (Oct. 29, 2003). See also Češić, Prosecution’s Sentencing Brief, supra note 449, at paras.
51–54 . In Banović, the prosecution asserted that Banović’s guilty plea “serves as a catharsis
for victims and all people impacted by the war to start the healing process and to halt the
cycle of personal or group retaliation in the area of conflict, thereby promoting reconcili-
ation between the warring factions.” Prosecutor v. Banović, Case No. IT-02-65/1-S, Tran-
script, at 112 (Sept. 3, 2003). Prosecution v. Miodrag Jokić, Case No. IT-01-42/1-S, Tran-
script, at 206 (Dec. 4, 2003) (“The fact of the plea is very significant for reconciliation.”).
1004. How to Punish Crime and Reward Guilty Pleas and Cooperation, SENSE News
Agency, Apr. 2, 2004.
1005. Rachel S. Taylor, Babić May Get Off Lightly, IWPR’s Tribunal Update, No. 351,
Apr. 2, 2004.
1006. Prosecution v. Babić, Case No. IT-03-72-S, Transcript, at 234 (Apr. 2, 2004).
Babić’s defense counsel quoted prosecutor Alex Whiting’s statement that “[i]t is an un-
comfortable reality . . . that only by hearing the testimony of those who were on the inside,
those who played a role in the crimes themselves that the full truth of what happened and
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who was responsible will be known.” Id. at 244. The prosecution’s sentencing brief like-
wise so praised Babić that it reads, rather, like a defense sentencing brief.
1007. These are Banović, Deronjić, Momir Nikolić, Obrenović, Češić, Jokić, Babić,
Bralo, and Rajić. The prosecution did, however, include some victim-impact statements
with its sentencing brief in Češić and Bralo. Prosecutor v. Češić, Case No. IT-95-10/1-S,
Prosecution’s Sentencing Brief, at Annexes A–D (Nov. 12, 2003); Bralo Prosecution’s Sen-
tencing Brief, supra note 485, at Attachments G–M, and it provided some background
information about the victims in the Jokić case, Prosecution v. Miodrag Jokić, Case No.
IT-01-42/1-S, Transcript, at 238–41 (Dec. 4, 2003). The sentencing hearings of Mrd̄a and
Dragan Nikolić did feature victim testimony. See Chris Stephen, What Price Justice?,
IWPR’s Tribunal Update, No. 332, Nov. 7, 2003; see also Prosecution v. Banović, Case
No. IT-02-65/1, Transcript (Sept. 3, 2003). In the Momir Nikolić sentencing hearing, pros-
ecutors called no witnesses at all. Momir Nikolić Sentencing Judgement, supra note 282,
at para. 22.
1008. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-S, Transcript, at 239–40 (Nov. 3,
2003).
1009. Id. at 247.
1010. Id. at 257; see also Emir Suljagić, Sušica Camp Chief Names Mass Grave Site,
IWPR’s Tribunal Update, No. 332, Nov. 7, 2003.
1011. See Sikirica Plea Agreement, supra note 398; Kolundžija Plea Agreement, supra
note 398; Došen Plea Agreement, supra note 398; Sikirica Sentencing Judgement, supra
note 319, at para. 111.
1012. Babić Plea Agreement, supra note 319, at para. 8; Momir Nikolić Plea Agreement,
supra note 11, at para. 9; Obrenović Plea Agreement, supra note 11, at para. 9; Deronjić
Plea Agreement, supra note 11, at para. 12; Češić Plea Agreement, supra note 11, at para.
10; Banović Plea Agreement, supra note 11, at Annex 2; Jokić Sentencing Judgement, supra
note 11, at para. 9; Mrd̄a Sentencing Judgement, supra note 11, at para. 69.
1013. Babić Plea Agreement, supra note 319, at para. 8; Momir Nikolić Plea Agreement,
supra note 11, at para. 9; Obrenović Plea Agreement, supra note 11, at para. 9; Deronjić Plea
Agreement, supra note 11, at para. 12; Rajić Plea Agreement, supra note 319, at para. 17.
1014. Babić Plea Agreement, supra note 319, at para. 8; Banović Plea Agreement, su-
pra note 11, at Annex 2; Momir Nikolić Plea Agreement, supra note 11, at para. 9; Obre-
nović Plea Agreement, supra note 11, at para. 9; Deronjić Plea Agreement, supra note 11, at
para. 12; Češić Plea Agreement, supra note 11, at para. 10.
1015. Momir Nikolić Plea Agreement, supra note 11, at para. 10; Obrenović Plea Agree-
ment, supra note 11, at para. 10.
1016. Prosecutor v. Momir Nikolić, Case No. IT-02-60/1, Prosecutor’s Brief on the Sen-
tencing of Momir Nikolić, paras. 30, 39 (July 14, 2003) (on fi le with author); Obrenović,
Prosecutor’s Sentencing Brief, supra note 1002, at para. 40.
1017. Momir Nikolić Sentencing Judgement, supra note 282, at 156; Interview with FF,
Dec. 5, 2003.
1018. Goran Jungvirth, Bosnian Croat Insider Awaits Sentence, IWPR’s Tribunal Up-
date, No. 448, Apr. 13, 2006.
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1019. Nikolić testified on September 22, 23, 25, 26, 29, 31 and October 1, 2003, while
Obrenović testified on October 1, 2, 6–9, and 10, 2003.
1020. Prosecution v. Krstić, Case No. IT-98-33-A, Transcript, at 173–80 (Nov. 21,
2003).
1021. Jokić testified on March 22 through 25 and on March 29.
1022. Prosecutor v. Milošević, Case No. IT-02-54, Transcript (Nov. 18–22, 25, 26, 2002,
and Dec. 2–4, 6, 9, 2002).
1023. Prosecution v. Deronjić, Case No. IT-02-61-S, Transcript, at 237 (Jan. 28, 2004).
1024. Deronjić testified in the Krstić appeal, see Prosecutor v. Krstić, Case No. IT-
98-33-A, Transcript, at 101–71 (Nov. 21, 2003), in the Milošević trial, see Prosecution v.
Milošević, Case No. IT-02-54, Transcript (Nov. 26–27, 2003), in the Blagojević trial, Pros-
ecutor v. Blagojević & Jokić, Case No. IT-02-60-T, Transcript, at 6305–92 (Jan. 21, 2004),
and in the Krajišnik trial, Prosecutor v. Krajišnik, Case No. IT-00-39-Transcript (Feb. 12,
13, 16, 18, 19, 2004).
1025. Insider Links Milošević to War in Croatia, CIJ Report, Nov. 20, 2002.
1026. Prosecution v. Milošević, Case No. IT-02-54, Transcript, at 13166–67 (Nov. 20,
2002); Prosecution v. Milošević, Case No. IT-02-54, Transcript, at 13168–70 (Nov. 21,
2002).
1027. The Case Is Almost Proved: Insider Says Milošević Was Responsible, CIJ Report,
Nov. 27, 2002.
1028. See generally Prosecution v. Milošević, Case No. IT-02-54, Transcript (Nov. 26–
27, 2003); see also Prosecutor v. Krajišnik, Case No. IT-00-39-T, Transcript (Feb. 12–13,
2004).
1029. See generally Prosecutor v. Krajišnik, Case No. IT-00-39-T, Transcript (Feb. 12–
13, 2004).
1030. Bosnian TV Reports on Rajić Guilty Plea Fallout in Croatia, BBC Worldwide
Monitoring, Nov. 6, 2005.
1031. Rajić asserts, for instance, that his superior Slobodan Praljak ordered Rajić and
others to “[s]ort out the situation in Vareš showing no mercy towards anyone,” Rajić Fac-
tual Basis, supra note 497, at para. 16, and that during 1993, a state of international armed
conflict existed in Bosnia involving “the Republic of Croatia and its government, armed
forces, and representatives in an armed conflict against Bosnian Muslims on the territory
of” Bosnia, id. at para. 43(b).
1032. Id. at paras. 32–38.
1033. Prosecution v. Blagojević, Case No. IT-02-60-T, Transcript, at 2126–31 (Sept. 29,
2003); Chris Stephen, Key Srebrenica Witness Apologises for Lies, IWPR’s Tribunal Up-
date, No. 327, Oct. 4, 2003. As part of his false statement, Nikolić asserted that another
ICTY suspect—Ljubomir Borovcanin—was present at the executions with him; even after
admitting his lie, Nikolić continued to maintain that he had heard of Borovcanin’s pres-
ence through other sources. Prosecution v. Blagojević, Case No. IT-02-60-T, Transcript,
at 2138–42 (Sept. 29, 2003).
1034. Prosecution v. Blagojević, Case No. IT-02-60-T, Transcript, at 2126–27 (Sept.
29, 2003).
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1035. Prosecution v. Blagojević, Case No. IT-02-60-T, Transcript, at 6405–07 (Jan. 22,
2004).
1036. Karen Meirik, Srebrenica Prosecution Blow, IWPR’s Tribunal Update, No. 340,
Jan. 23, 2004; Stacy Sullivan, Krajišnik “Helped Mastermind” Serb Crimes, IWPR’s Tribu-
nal Update, No. 342, Feb. 9, 2004.
1037. 18 U.S.C.A. § 3553(e) (West Supp. 2003); U.S. Sentencing Guidelines Manual §
5K1.1 (2003).
1038. See Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of
Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 929 (1999). See also Timothy
Hollis, Note, An Offer You Can’t Refuse? United States v. Singleton and the Effects of Wit-
ness/Prosecutorial Agreements, 9 B.U. Pub. Int. L.J. 433, 446 (2000).
1039. Ellen Yaroshefsky concluded that “prosecutors’ reliance on inaccurate cooperator
testimony is a problem within the criminal justice system,” Yaroshefsky, supra note 1038,
at 921, and she set forth nine “bases for prosecutors’ false beliefs in cooperator truth-
fulness”: (1) insufficient corroboration, (2) lack of investigation, (3) insufficient evidence,
(4) trust of cooperators, (5) rigid theory of guilt, (6) cultural barriers, (7) attitudes of indi-
vidual assistants, (8) lack of prosecutorial experience, and (9) problems related to proffer
sessions, id. at 931–62. See also United States v. Singleton, 144 F.3d 1343, 1360 (1998) (noting
that the “temptation, even if unconscious, is to color or falsify one’s testimony in favor
of the donor”); United States v. Kimble, 719 F.2d 1253, 1255 (5th Cir. 1983) (noting that the
cooperator “candidly stated that he was testifying only because of the lenient nature of the
sentence he was to receive in return for his cooperation”).
1040. Prosecutor v. Todorović, Case No. IT-95-9/1, Transcript, at 801–03, 805–06,
812–14 (Jan. 19, 2001).
1041. Prosecutor v. Momir Nikolić, Case No. IT-02-60-PT, Transcript (May 6, 2003).
In response to this objection, the prosecution agreed to withdraw the genocide charges
upon the acceptance of the guilty plea. Id.
1042. Prosecutor v. Krajišnik, Case No. IT-00-39-T, Transcript (Feb. 12, 2004). Inter-
estingly, although the Special Panels in the Dili District Court in East Timor were gener-
ally far less rigorous than the ICTY in adhering to due-process norms, even the Special
Panels were unwilling to admit the testimony of a guilty-plea defendant against codefen-
dants before the defendant pleading guilty had been sentenced. The Lolotoe Case: A
Small Step Forward, supra note 232, at § 2.5.2.1.
1043. Prosecutor v. Češić, Case No. IT-95-10-PT, Transcript, at 74 (Oct. 8, 2003); Dra-
gan Nikolić Sentencing Judgement, supra note 11, at para. 259.
1044. Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Transcript, at 1479 (Oct. 27,
2003).
1045. See Deronjić Plea Agreement, supra note 11.
1046. See Prosecution v. Deronjić, Case No. IT-02-61-PT, Transcript, at 196–204
(Jan. 28, 2004); Chris Stephen, Deronjić Plea-Bargain Claims, IWPR’s Tribunal Update,
No. 335, Nov. 28, 2003.
1047. Interview with SW, The Hague, Sept. 26, 2003.
1048. See Prosecutor v. Češić, Case No. IT-95-10/1-PT, Third Amended Indictment,
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para. 17 (Nov. 26, 2002); Prosecutor v. Češić, Case No. IT-95-10/1-PT, Factual Basis, para.
18 (Oct. 8, 2003).
1049. Prosecutor v. Češić, Case No. IT-95-10/1-S, Transcript, at 98 (Nov. 27, 2003).
1050. Id. at 97–106.
1051. Banović Plea Agreement, supra note 11, at paras. 15–17.
1052. See Suljagić & Kebo, supra note 12.
1053. Association “Women from Podrinje” Disappointed with Deronjić’s Sentence, NTV
Hayat (Sarajevo Radio Station), Mar. 31, 2004 (translation provided by Tuzla Night Owl,
available at http://www.tfeagle.army.mil/tfeno/Feature_Story.asp?Article=81109).
1054. See Prosecution v. Dragan Nikolić, Case No. IT-94-2-PT, Transcript, at 176–96
(Sept. 4, 2003); Prosecution v. Deronjić, Case No. IT-02-61-PT, Transcript, at 47–64 (Sept.
30, 2003). Other Trial Chambers have not generally placed so high a value on publiciz-
ing the facts, but Judge Orie, presiding judge of Chamber I, did read out most of Ranko
Češić’s factual basis. Prosecutor v. Češić, Case No. IT-95-10/1-PT, Transcript, at 64–67
(Oct. 8, 2003).
1055. Prosecution v. Deronjić, Case No. IT-02-61-PT, Transcript, at 64–83 (Sept. 30,
2003).
1056. Prosecution v. Deronjić, Case No. IT-02-61-S, Transcript, at 131–71 (Jan. 27,
2004). For instance, the factual basis states that Deronjić “took positive and concrete ac-
tions, including affirmative actions, and related to the use of force to remove non-Serbs
from Serb-designated territories,” and Judge Schomburg asked Deronjić to explain ex-
actly what he meant by “use of force.” Id. at 134–39. Similarly, Judge Schomburg pressed
Deronjić to explicate his role in the disarming of the Muslim community in Glogova, id.
at 142–43, and in the decision to shell the houses of Muslims, id. at 145–49.
1057. Prosecution v. Deronjić, Case No. IT-02-61-PT, Transcript, at 248–50 (Mar. 5,
2004).
1058. Prosecutor v. Banović, IT-02-65/1, Transcript, at 111 (Sept. 3, 2003). Judge Schom-
burg concurred in this view, stating that “it is of high importance and relevance that the
names of those killed at that time are mentioned in open court.” Prosecution v. Deronjić,
Case No. IT-02-61-PT, Transcript, at 79 (Sept. 30, 2003).
1059. Prosecutor v. Rajić, Case No. IT-95-12-PT, Defence Sentencing Brief, para. 18
(Mar. 6, 2006) [hereinafter Rajić Sentencing Brief]; Prosecutor v. Rajić, Case No. IT-95-
12-S, Transcript, at 228 (Apr. 7. 2006). The plea agreement in fact refers to thirty-seven
murder victims. Rajić Factual Basis, supra note 497, at para. 26.
1060. Rajić Factual Basis, supra note 497, at para. 26.
1061. Prosecutor v. Rajić, Case No. IT-95-12-S, Transcript, at 228 (Apr. 7. 2006).
1062. Rajić Factual Basis, supra note 497, at para. 34.
1063. Prosecutor v. Rajić, Case No. IT-95-12-S, Transcript, at 232 (Apr. 7. 2006); Rajić
Sentencing Brief, supra note 1059, at para. 29.
1064. Prosecution v. Češić, Case No. IT-95-10/1-S, Ranko Češić’s Sentencing Brief, pa-
ras. 42–43 (Nov. 12, 2003); Češić Sentencing Judgement, supra note 319, at para. 95. The
Trial Chamber rejected this assertion as a mitigating circumstance on a balance of the
probabilities. See id. at para. 97.
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1065. Mrd̄a’s Sentencing Brief, supra note 386, at para. 84.

1066. Prosecutor v. Banović, IT-02-65/1, Transcript, at 97 (Sept. 3, 2003).
1067. Id.
1068. Prosecution v. Mrd̄a, Case No. IT-02-59-S, Transcript, at 104 (Oct. 22, 2003).
1069. Id. at 105.
1070. Id. at 106–07.
1071. Prosecutor v. Banović, IT-02-65/1, Transcript, at 102 (Sept. 3, 2003).
1072. Prosecutor v. Rajić, Case No. IT-95-12-S, Transcript, at 235–36 (Apr. 7, 2006).
1073. Prosecutor v. Todorović, Case No. IT-95-9/1, Transcript, at 59 (May 4, 2001).
1074. Id. at 59–60.
1075. Prosecution v. Sikirica, Case No. IT-95-8-T, Transcript, at 5718–19 (Oct. 8, 2001).
See id. at 5736–37 (Došen’s statement of remorse).
1076. Immediately after apologizing to victims, Mrd̄a asserted: “I did not commit this
because I wanted to commit this or I enjoyed doing this. I did not hate these people. I did
it because I was ordered to do so. My commander, who enjoyed great respect and had a lot
of authority, was present personally and issued these orders. In those moments, I could
not muster up enough courage to disobey the order. I can tell you now what would have
happened had I refused to carry out the order; I assure you that they would have killed me
right then.” Prosecution v. Mrd̄a, Case No. IT-02-59-S, Transcript, at 137 (Oct. 22, 2003). He
went on to tell the judges of the dignified way that he behaved at other battlefields. Id. at 138.
1077. Prosecutor v. Rajić, Case No. IT-95-12-S, Transcript, at 244, 246 (Apr. 7, 2006).
1078. Prosecutor v. Češić, Case No. 95-10/1-S, Transcript, at 114–15 (Nov. 27, 2003).
1079. Dragan Nikolić Sentencing Judgement, supra note 11, at para. 241. Other defen-
dants have issued similar statements. Momir Nikolić stated in part:
I sincerely wish before this Chamber and before the public, especially the Bosniak
public, to express my deep and sincere remorse and regret because of the crime that
occurred and to apologise to the victims, their families, and the Bosniak people for my
participation in this crime. I am aware that I cannot bring back the dead, that I cannot
mitigate the pain of the families by my confession, but I wish to contribute to the full
truth being established about Srebrenica and the victims there and for the government
organs of Republika Srpska, and all the individuals who took part in these crimes
should follow in my footsteps and admit to their participation and their guilt, that they
should give themselves in and be held responsible for what they have done.
Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Transcript, at 1677 (Oct. 29,
2003).
1080. Mrd̄a Sentencing Judgement, supra note 11, at para. 87; Češić Sentencing Judge-
ment, supra note 319, at para. 66; Obrenović Sentencing Judgement, supra note 319, at para.
121; Dragan Nikolić Sentencing Judgement, supra note 11, at paras. 241–42; Momir Nikolić
Sentencing Judgement, supra note 282, at para. 161; Jokić Sentencing Judgement, supra
note 11, at paras. 89–92; Deronjić Sentencing Judgement, supra note 319, at para. 263.
1081. Banović Sentencing Judgement, supra note 285, at paras. 71–72.
1082. See, e.g., Prosecution v. Dragan Nikolić, Case No. IT-94-2-A, Transcript, at 55–57
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(Nov. 29, 2004); Prosecution v. Jokić, Case No. IT-01-42/1-A, Transcript, at 365–66 (Apr. 26,
2005).
1083. Predrag Banović stated:
Your Honours, I have pleaded unequivocally as guilty. My guilty plea was an expres-
sion of sincere remorse concerning the events in Prijedor, and especially the Keraterm
camp. I gave an interview about my role in this to the investigators of the Tribunal.
Today, I wish to add only the following: My arrest and transfer to The Hague, as well
as that of my brother, was something I experienced with great fear, mostly because the
propaganda was always that The Hague was a place for the quiet murder of the Serbs.
Fortunately, very soon, I came to the conclusion that this propaganda was a lie.
Through the proceedings up to this point, I have experienced enlightenment. I have
gathered the strength to face the truth and myself. This is why I made the decision to
change my plea. I deplore the period of war and hatred, and I regret that I did not find
a way to avoid mobilisation and my role in the camp. I feel sorry for all the victims, and
I curse my own hands for having inflicted pain in any way on innocent people. I wish
my sincere words to be understood as a balm for those wounds and as a contribution
to the reconciliation of all people in Prijedor and the restoration of the situation that
existed before the war.
Prosecution v. Banović, Case No. IT-02-65/1-S, Transcript, at 128–29 (Sept. 3, 2003).
1084. Telephone Interview with Refi k Hodzić, formerly ICTY Outreach Program di-
rector for Bosnia (July 28, 2004).
1085. See Pleading Repentance, Balkan Reconstruction Report, Feb. 2, 2004.
1086. Telephone Interview with Refi k Hodzić, formerly ICTY Outreach Program di-
rector for Bosnia (July 28, 2004).
1087. Mark A. Drumbl, Law and Atrocity: Settling Accounts in Rwanda, 31 Ohio
N.U. L. Rev. 41, 47 (2005).
1088. Samantha Power, Rwanda: The Two Faces of Justice, 50 N.Y. Rev. Books No. 1,
Jan. 16, 2003.
1089. Id.
1090. See Bisengimana Judgement, supra note 597, at para. 127; Prosecutor v. Ruta-
ganira, Case No. ICTR-95-1C-T, Transcript, at 29 (Jan. 17, 2005).
1091. Prosecutor v. Rugambarara, Case No. ICTR-2000-59-I, Indictment, para. 2.3
(July 10, 2000).
1092. Rugambarara’s indictment, for instance, alleges that Rugambarara, Bisengi-
mana, and Semanza attended various meetings at which the audience was encouraged
to exterminate the Tutsi. Id. at paras. 3.13, 3.14(i), 3.14(ii). Rugambarara is also alleged to
have worked with Bisengimana and Semanza to recruit youths for Rwandan militias, id.
at para. 3.15, to transport soldiers and militia to massacre Tutsi at the Musha church, id. at
para. 3.28, to personally kill victims, id. at 3.29, and to organize mass burials, id. at 3.31(ii).
1093. Prosecutor v. Semanza, Case No. ICTR-97-20-I, Transcript, at 14 (Oct. 16, 2000).
1094. ICTR/Serugendo—Serugendo’s Guilty Plea Bargain Settled on a Prison Sentence
S3857.indb 308 10/4/06 6:47:29 AM

of 6 to 10 Years, Hirondelle News Agency, June. 1, 2006; Serugendo Press Release, supra
note 650.
1095. Serushago Plea Agreement, supra note 558, at paras. 18–23, 25, 28–28, 31–33.
1096. Serushago Sentence, supra note 554, at para. 25(iii); see also id. at paras. 25(vii),
(xv)–(xvii).
1097. Id. at para. 25(vi).
1098. Id. at para. 25(xxiv).
1099. Id. at para. 41.
1100. Serushago also testified in the Military I trial. See Prosecutor v. Serushago, Case
No. ICTR-98-39-A, Order for the Continued Detention of Omar Serushago in the ICTR
Detention Facility in Arusha (Apr. 3, 2001). See Mary Kimani, Media Trial: “Hassan Ngeze
Did Not Want Me to Testify,” Genocide Convict Claims, Internews, Nov. 15, 2001, avail-
able at http://www.internews.org/activities/ICTR_Reports/ICTRNewsNov01.html1115a.
1101. For a discussion of Serushago’s credibility problems, see generally Nahimana
Judgement, supra note 3, at paras. 817–24.
1102. Lars Waldorf, Silent Partner, Diplomatie Judiciaire, Nov. 27, 2001.
1103. Nahimana Judgement, supra note 3, at para. 821.
1104. Id. at para. 824.
1105. Ruggiu Plea Agreement, supra note 573, at paras. 2–24.
1106. Ruggiu Judgement, supra note 568, at para. 44(i).
1107. Ruggiu Plea Agreement, supra note 573, at paras. 210–12.
1108. Nahimana Judgement, supra note 3, at para. 549; Convicted Ex-Radio Presenter
Has Mental Problems, Defence Suggests, Hirondelle News Agency, Mar. 5, 2002.
1109. Nahimana Judgement, supra note 3, at paras. 548–49.
1110. Kambanda Prosecutor’s Pre-Sentencing Brief, supra note 542, at 23.
1111. Id. at 22–23.
1112. See, e.g., Melvern, supra note 52, at 172, 191–92, 194–95.
1113. ICTR/Karemera—MRND Leaders Want Uwilingiyimana’s Statements Made
Public, Hirondelle News Agency, Feb. 23, 2006.
1114. Palmer, supra note 666.
1115. Melvern, supra note 52, at 2.
1116. Kambanda Judgement, supra note 276, at paras. 51–52.
1117. Prosecutor v. Bisengimana, Case No. ICTR-2000-60-S, Transcript, at 45–46
(Jan. 19, 2006).
1118. Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T, Sentencing Judgement, para.
157 (Mar. 14, 2005) (author’s translation from the French version of the judgment).
1119. Ruggiu Transcript, supra note 568, at 250.
1120. Serushago Transcript, supra note 555, at 38–44; ICTR/Former Rwandan Militia
Leader Asks for the Forgiveness of Rwanda, Internews, Jan. 29, 1998; Militia Leader Who
Confessed to Genocide Gets Fifteen Years in Prison, Internews, Feb. 5, 1998.
1121. Helena Cobban, Healing Rwanda: Can an International Court Deliver Justice?,
Boston Review 10, 16 (Dec. 2003/Jan. 2003).
1122. See The Lolotoe Case: A Small Step Forward, supra note 232, at 3, n.5.
S3857.indb 309 10/4/06 6:47:29 AM

1123. Judicial System Monitoring Programme, Case Summary, available at http://www

.jsmp.minihub.org/courtmonitoring/spsccaseinformation2000.htm.
1124. Telephone Interview with Essa Faal, chief of prosecutions, Special Panels for
Serious Crimes (July 30, 2004).
1125. Telephone Interview with Mohamed Othman, former prosecutor general for
East Timor (Aug. 4, 2004).
1126. The Judicial System Monitoring Programme opined, for instance, that “to date
there has been little if any communal involvement in a process whose main function is to
bring healing and reconciliation to the people of Timor Leste.” Press Release, JSMP, Con-
ference on the Future of the Serious Crimes Process for Timor-Leste (Sept. 22, 2004).
1127. See Fausto Belo Ximenes, The Unique Contribution of the Community-Based Rec-
onciliation Process in East Timor at 14 (May 28, 2004) available at http://www.easttimor-
reconciliation.org/jsmpReport-prk-summary.html.
1128. Telephone Interview with Alan Gutman, defense counsel, Special Panels for Se-
rious Crimes (July 30, 2004).
1129. JSMP, The Los Palos Case Report, supra note 223, at § 3.2.3.
1130. Judicial System Monitoring Programme, The Continuation of the Final Closing
Statement in the Case of Carlos Soares, Nov. 17, 2003.
1131. The Lolotoe Case: A Small Step Forward, supra note 232, at § 3.4.
1132. Los Palos Judgement, supra note 702, at para. 1121.
1133. Augusto Dos Santos Judgement, supra note 731, at para. 56(b).
1134. Sabino Leite Trial Notes, Nov. 18, 2002 (on fi le with author).
1135. Jhoni Franca Trial Notes, Oct. 24, 2002 (on fi le with author).
1136. Agustinho Atolan Judgement, supra note 733, at 7–8.
1137. Drumbl, Rule of Law, supra note 283, at 571; Penal Reform International, PRI Re-
search Team on Gacaca: Report IV, at 3 (Jan. 2003), available at http://www.penalreform
.org/download/Gacaca/Jan2003.pdf [hereinafter PRI Report IV]. The arrests were widely
condemned as arbitrary. “In the months immediately following the installation of the new
government in July 1994, primarily soldiers, but also local authorities (sometimes issued
blank warrants by their public prosecutor’s offices), unlawfully detained thousands of in-
dividuals on the basis of uninvestigated oral accusations. There were few arrest warrants,
individuals were detained for longer than the lawful period of police custody and persons
released by judicial authorities for lack of evidence were frequently rearrested by soldiers.”
Amnesty International, Gacaca: A Question of Justice, Dec. 17, 2002, at III, avail-
able at http://web.amnesty.org/library/Index/ENGAFR470072002?open&of=ENG-RWA
[hereinafter Gacaca: A Question of Justice]. Drumbl also reports that some Rwandan
prisoners “were randomly rounded up, even at refugee camps. . . . Sometimes the original
arrest took the form of a minor offense (for example, not having a driver’s license) and,
once in custody, the detainees were simply not released.” Drumbl, Rule of Law, supra
note 283, at 608–09.
1138. Organic Law No. 08/96 of August 30, 1996, on the Organization of Prosecutions
for Offences Constituting the Crime of Genocide or Crimes against Humanity committed
S3857.indb 310 10/4/06 6:47:30 AM

since October 1, 1996, art. 2, available at http://www.preventgenocide.org/law/domestic/

rwanda.htm.
1139. Id. at art. 6. Category 1 perpetrators are eligible for a sentence reduction only
when the perpetrator offers a legally valid confession before his or her name appears on a
list of Category 1 offenders.
1140. Id. at arts. 14(b), 15(a), 16(a).
1141. Id. at art. 6(a) and (b).
1142. Id. at art. 6(c).
1143. William A. Schabas, Genocide Trials and Gacaca Courts, 3 J. Int’l Crim. Just.
879, 889 (2005) [hereinafter Schabas, Genocide Trials].
1144. Gabiro, supra note 971.
1145. Drumbl, Rule of Law, supra note 283, at 589–90. Defendants were not the only
ones who lacked familiarity with the guilty-plea procedure. Major Peter H. Sennett,
whose work with the International Training Detachment brought him to Rwanda in
1996, reported that, as a result of their civil-law background, Rwandan prosecutors also
lacked adequate familiarity with “the guilty plea, and how it aids the justice system” and at
times engaged in “guilty plea interrogations (or providence inquiries) that were almost as
lengthy as full-blown trials.” Peter H. Sennett, Working with Rwanda toward the Domestic
Prosecution of Genocide Crimes, 12 St. John’s J. Legal Comment. 425, 443 (1997).
1146. Carla J. Ferstman, Domestic Trials for Genocide and Crimes Against Humanity:
The Example of Rwanda, 9 Afr. J. Int’l & Comp. L. 857, 870 n.38 (1997); see also William
A. Schabas, Justice, Democracy, and Impunity in Post Genocide Rwanda: Searching for
Solutions to Impossible Problems, 1996 Crim. L.F. 523, 533 (1996); Gacaca: A Question
of Justice, supra note 1137, at V(1).
1147. Mark Drumbl, who provided legal representation to Rwandan prisoners through
Legal Aid Rwanda, observed that “[m]ost of the lesser educated prisoners had never met
with the Prosecution, had no idea with what they were charged, and did not even know
whether a dossier had been prepared. . . . In total, about 40 of the prisoners with whom
I personally met knew some or all of the charges against them, 10 did not know of any
charges but knew that they had a dossier, and 50 claimed they knew neither whether
there were any charges nor whether a dossier had been prepared.” Drumbl, Rule of Law,
1148. Id. at 591. Fear of retaliation is not unfounded since witnesses have been killed
to prevent their giving testimony or retaliation for it. See Prunier, supra note 283, at 358;
Alan Zarembo, Rwanda’s Genocide Witnesses Are Killed as Wheels of Justice Slowly Begin
Turning, Christian Science monitor, Jan. 23, 1997, at 7; see also Hit Squad Kills Man
Who Laid Trap against Genocide Suspect, The Nation (Nairobi), Jan. 21, 2003.
1149. Gacaca: A Question of Justice, supra note 1137, at V(1); Ferstman, supra
note 1146, at 872.
1150. See Drumbl, Rule of Law, supra note 283, at 591.
1151. Id. at 591, 607.
1152. Schabas, Genocide Trials, supra note 1143, at 9.
S3857.indb 311 10/4/06 6:47:30 AM

1153. U.N. Economic and Social Council, Commission on Human Rights, E/CN.4/
1999/33, Report on the Situation of Human Rights in Rwanda Submitted by the Special Rep-
resentative, Mr. Michel Moussalli, pursuant to Resolution 1998/69, para. 42.
1154. Gacaca: A Question of Justice, supra note 1137, at 18.
1155. United Nations High Commissioner for Human Rights Field Operation in
Rwanda (UNHRFOR), Genocide Trials to 30 June 1997 status report as at 15 July 1997.
1156. Gabiro, supra note 971. Human Rights Watch reported in 2001 that the Rwan-
dan government had “some 119,000 persons in jail, fewer than 4000 of them tried and
convicted.” Human Rights Watch, Press Release, Rwanda, Feb. 1, 2001, available at http://
www.hrw.org/backgrounder/africa/rwanda-bck-0131.htm.
1157. Organic Law No. 40/2000 of 26 January 2001 Establishing Gacaca Jurisdictions
for the Prosecution of Genocide Offences and Crimes against Humanity Committed be-
tween 1 October 1990 and 31 December 1994.
1158. Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, Hum. Rts.
Brief, Vol. 8, No. 3, at 15, 15 (2001).
1159. 2004 Revised Gacaca Law, supra note 769, at arts. 34(7), 41, 42, 43, 51.
1160. Id. at art. 34(1); Penal Reform International, Research on the Gacaca: Report V,
at 47 (Sept. 2003) (table documenting the lists), available at http://www.penalreform.org/
download/Gacaca/september2003.pdf [hereinafter PRI Report V ].
1161. 2004 Revised Gacaca Law, supra note 769, at art. 34(6); Penal Reform Inter-
national, PRI Research Team on Gacaca Report III, at 4 (Apr.–June 2002), available
at http://www.penalreform.org/download/Gacaca/Apr-Jun2002.pdf [hereinafter PRI Re-
port III ].
1162. Waldorf, Mass Justice for Mass Atrocity, supra note 905.
1163. 2004 Revised Gacaca Law, supra note 769, at arts. 72–73.
1164. Id. at art. 73. Defendants performing community-service work will work three
days a week in such enterprises as construction and repair of roads, bridges, and schools.
Presidential Order, No. 26/01 of 10/12/2001 Relating to the Substitution of the Penalty of
Imprisonment for Community Service, arts. 25, 32. Lars Waldorf reports, however, that by
July 2005 the government had done very little to establish a community-service adminis-
tration. Waldorf, Mass Justice for Mass Atrocity, supra note 905.
1165. 2004 Revised Gacaca Law, supra note 769, at art. 54.
1166. Id. at arts. 6, 8, 12.
1167. Schabas, Genocide Trials, supra note 1143, at 16.
1168. 2004 Revised Gacaca Law, supra note 769, at arts. 18, 23.
1169. PRI Report III, supra note 1161, at 12.
1170. Id. More recently, gacaca officials have compiled lists before the meetings, and
those lists are discussed during the meetings. Telephone Interview with Lars Waldorf,
former researcher, Human Rights Watch (Oct. 10, 2005).
1171. Victoria Brittain, Letter from Rwanda, The Nation, Aug. 14, 2003.
1172. PRI Report V, supra note 1160, at 46.
1173. See Brittain, supra note 1171.
S3857.indb 312 10/4/06 6:47:30 AM

1174. Allison Corey & Sandra F. Joireman, Retributive Justice: The Gacaca Courts in
Rwanda, 103 Afr. Aff. 73, 84 (2004).
1175. See Waldorf, Mass Justice for Mass Atrocity, supra note 905. Waldorf not only
points out gacaca’s practical problems and structural weaknesses but also questions more
fundamentally whether Western-style truth can emerge in the “small face-to-face com-
munities” that characterize Rwanda, where “cultural constraints and ‘the micropolitics of
local standing’ ” impede the willingness of participants to provide truthful testimony.
1176. Approximately 50 percent of the judges in many districts are illiterate, and in
some districts only 10 percent know how to read and write correctly. Gacaca Justice,
1177. For complaints about the quality of the instruction, see id. at 7; PRI Report III,
1178. Rwanda/Gacaca: Over 1000 Gacaca Judges Have Resigned over Genocide Allega-
tions, Hirondelle News Agency, June 24, 2005; see also Penal Reform International, Re-
search Report on the Gacaca, Report VI: From Camp to Hill, the Reintegration of Released
Prisoners 56 (May 2004).
1179. Gacaca Justice, supra note 290, at 22, 30–33.
1180. Filip Reyntjens, Rwanda, Ten Years On: From Genocide to Dictatorship, 103 Afr.
Aff. 177, 194 (2004).
1181. Waldorf notes that some amendments to the 2001 gacaca law were inspired by
the desire to prevent discussion of RPF crimes during gacaca proceedings. Waldorf also
describes the consequent frustration of Hutu victims of RPF crimes. Waldorf, Mass Jus-
tice for Mass Atrocity, supra note 905.
1182. Catherine Honeyman et al., Gacaca Jurisdictions: Transitional Justice in Rwanda,
Interim Report of Observations, June 10–August 8, 2002, at IV(D), available at http://www
.angelfire.com/journal2/honeymandocs/PDF_Gacaca_Report.pdf [hereinafter Harvard
Gacaca Report]; PRI Report III, supra note 1161, at 8, 12. For a discussion of Inyangamu-
gayo’s resentment of gacaca’s jurisdictional one-sidedness, see Gacaca Justice, supra
note 290, at 28–30.
1183. Waldorf, Mass Justice for Mass Atrocity, supra note 905; PRI Report V, supra
note 1160, at 7–8.
1184. Harvard Gacaca Report, supra note 1182, at IV(A); Gacaca Justice, supra
note 290, at 53; PRI Report V, supra note 1160, at 24, 30, 31.
1185. Gacaca Exodus?, Internews, June 13, 2005; Mary Kimani, 600 Tried, Thousands
Flee, Int’l Just. Trib., May 23, 2005.
1187. PRI Report V, supra note 1160, at 23; Gacaca Justice, supra note 290, at 53; Waldorf,
Mass Justice for Mass Atrocity, supra note 905.
1188. 2004 Revised Gacaca Law, supra note 769, at art. 29.
1189. Telephone Interview with Lars Waldorf, researcher, Human Rights Watch (Oct. 2,
2003). Some prisoners have complained that their confessions were distorted and that
they were pressured to sign inaccurate statements. PRI Report IV, supra note 1137, at 4.
S3857.indb 313 10/4/06 6:47:31 AM

1191. Schabas, Genocide Trials, supra note 1143, at 4; see also Andrew Meldrum, One Mil-
lion Rwandans to Face Killing Charges in Village Courts, The Guardian, Jan. 15, 2005.
1192. Penal Reform International, Research Report on Gacaca Courts: Gacaca and
Reconciliation: Kibuye Case Study 12 (May 2004), available at http://www.penalreform
.org/download/Gacaca/Rapport20Kibuye20II_EN.pdf; PRI Report IV, supra note
1137, at 8.
1193. PRI Report III, supra note 1161, at 15; see also PRI Report IV, supra note 1137, at 4.
1194. Human Rights Watch, World Report 2003, Rwanda, available at http://www.hrw
.org/wr2k3/africa9.html; Gacaca: A Question of Justice, supra note 1137, at VIII; see
also Daly, supra note 286, at 356.
1195. See Alana Erin Tiemessen, After Arusha: Gacaca Justice in Post-Genocide
Rwanda, 8 Afr. Stud. Q. 57, 66 (2004); Reyntjens, supra note 1180; Waldorf, Mass Justice
for Mass Atrocity, supra note 905.
1196. UNDP Report on the Community Reconciliation Process, supra note 939, at 15,
20, 77; Babo-Soares, Nahe Biti, supra note 938, at 16.
1197. Babo-Soares, Nahe Biti, supra note 938, at 16.
1198. Id. at 20, 26–27.
1199. UNTAET Regulation No. 2001/10, On the Establishment of a Commission for
Reception, Truth and Reconciliation in East Timor (July 13, 2001) [hereinafter UNTAET
Regulation No. 2001/10].
1200. Id. at §§ 1(c), 3.1.
1201. Commission for Reception, Truth, and Reconciliation in Timor-Leste, CAVR
Update/Dec 2003–Jan 2004, at 8, available at http://www.easttimor-reconciliation.org/
cavrUpdate-Dec03Jan04-en.html [hereinafter CAVR Dec 2003–Jan 2004 Update].
1202. Id. at 1.
Update/June–July 2003, at 5, available at http://www.easttimor-reconciliation.org/cavr
Update-JunJuly2003-en.pdf.
Update/April–May 2003 at 1, available at http://www.easttimor-reconciliation.org/cavr
Update-AprilMay2003-eng.pdf.
1205. UNTAET Regulation No. 2001/10, supra note 1199, at §§ 13(c) and (d). CAVR’s
report was due in July 2005. At the time of this writing, in October 2005, the report had
not yet been released.
1206. Not all people who sought reconciliation through the CRP were “offenders”:
some chose to participate in the CRP because, although they did not commit any offenses,
they had some affi liation with militia groups that made them fearful of community re-
action. Id. at 79–80. Consequently, the UNTAET legislation neutrally labels the people
wishing to participate in the process “deponents.” UNTAET Regulation No. 2001/10, su-
pra note 1199, at § 23.1.
1207. UNTAET Regulation No. 2001/10, supra note 1199, at § 23.
S3857.indb 314 10/4/06 6:47:31 AM

1208. Id. at § 23.3. Schedule 1 of UNTAET Regulation No. 2001/10 provides guidance
in determining the types of offenses suitable for a Community Reconciliation Process.
For a discussion of the relationship between the CRP, the Serious Crimes Unit, and the
Office of the General Prosecutor, see UNDP Report on the Community Reconciliation
Process, supra note 939, at 33–39.
1209. UNTAET Regulation No. 2001/10 provides that the CRP panel shall hear from
the “deponent.” UNTAET Regulation No. 2001/10, supra note 1199, at § 27.1.
1211. Id. at 53–54.
1212. UNTAET Regulation No. 2001/10, supra note 1199, at § 27.
1214. Id. at 66.
1215. Id. at 73.
1216. See Ximenes, supra note 1127, at 17.
1217. UNDP Report on the Community Reconciliation Process, supra note 939, at
67–68.
Update/Oct–Nov 2003, at 3, available at http://www.easttimor-reconciliation.org/cavr
Update-OctNov2003-en.pdf [hereinafter CAVR Oct–Nov 2003 Update]. In another hear-
ing, offenders were required to pay $100 over three months to fund construction of a vil-
lage office. Commission for Reception, Truth, and Reconciliation in Timor-Leste, CAVR
Update/August–September 2003, at 7, available at http://www.easttimor-reconciliation.
org/cavrUpdate-AugSep2003-en.pdf [hereinafter CAVR August–September 2003 Update].
1219. CAVR Dec 2003–Jan 2004 Update, supra note 1201, at 7–8; CAVR August–
September 2003 Update, supra note 1218, at 7; CAVR Oct–Nov 2003 Update, supra note
1218, at 3.
1220. UNTAET Regulation No. 2001/10, supra note 1199, at § 27.8.
1221. The CRP staff had to conduct some 120 hearings, involving eight hundred of-
fenders, during the last three months of the program. CAVR Dec 2003–Jan 2004 Update,
1222. Beth S. Lyons, Getting Untrapped, Struggling for Truths: The Commission for Re-
ception, Truth, and Reconciliation (CAVR) in East Timor, in Internationalized Crimi-
nal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia 99, 111 (Cesare P. R.
Romano et al. eds., 2004).
1224. Id. at 82.
1225. For example, at one hearing in the Balibar Suco, “one of the victims was in the
full throes of malaria and had to be supported while he gave his testimony and raised his
questions. He explained how important it was for him to be able to look into the eyes of
the man he had suspected for so long and at last hear the truth.” Id. at 68.
1226. Id. at 82.
1227. UNTAET Regulation No. 2001/10, supra note 1199, at Schedule 1.
S3857.indb 315 10/4/06 6:47:31 AM

316 notes to conclusion
1228. UNDP Report on the Community Reconciliation Process, supra note 939,
at 35.
Conclusion
1229. Sanders, supra note 812, at 589.
1230. Thompson, supra note 64.
1231. See Ivković, supra note 2, at 323; Paul Roberts, Restoration and Retribution in
International Criminal Justice: An Exploratory Analysis, in Restorative Justice &
Criminal Justice: Competing or Reconcilable Paradigms? 115, 124–25 (Andrew von
Hirsch et al. eds., 2003).
S3857.indb 316 10/4/06 6:47:32 AM

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Cases, Case Summaries, and Documents

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Babić, Prosecutor v., Case No. IT-03-72-I, Indictment (November 6, 2003).
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———, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge
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———, Case No. IT-96-22-Tbis, Transcript (January 14, 1998).
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Fernandes, João, Prosecutor v., Dili District Court, Special Panels for Serious Crimes,
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Fernandes, João, Prosecutor v., Court of Appeal of East Timor, Criminal Appeal No.
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———, Court of Appeal of East Timor, Criminal Appeal No. 2001/02, Judgement of
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Fernandes, Julio, Prosecutor v., Dili District Court, Special Panels for Serious Crimes,
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1999/33 (1999).
S3857.indb 356 10/4/06 6:47:43 AM

Index
acknowledgment of crimes: by paying Timor, 211, 221; in Rwanda, 185, 208–9,

reparations, 19, 147; truth-telling, 163, 213
172; value of, 178, 183, 186, 187. See also appeals: in ICTY guilty-plea cases, 86–90
confessions Argentina: optimal restorative-justice
Adeogun-Phillips, Charles, 103–4, 105 guilty-plea system, 177–79; repara-
African National Congress (ANC), 23 tions, 17; summary of atrocities, 157–59;
aggression, defi ned, 233n22 Truth Commission, 158
Ahmići municipality, 70, 83, 131 Argentine forced disappearances: finan-
Akayesu, Jean-Paul, 106 cial burdens on victims, 175; restorative
akazu, inner circle in Rwanda, 108–10, 206 justice values, 172, 173, 174; summary
Akhavan, Payam, 229n1 of, 157–59
Aleksovski, Zlatko, 72–73 Argentine junta trial, creating collective
Allende, Salvador, 13 memory, 56
Alschuler, Albert, 127, 282n756 Argentine military junta: prosecutions us-
Alywin, Patricio, 13, 21 ing hierarchy of, 173; role in disappear-
Amin, Idi, 5, 12 ances, 157–59, 184; secrecy of crimes,
amnesty: in Argentina, 229n4; in Chile for 177
Pinochet, 13, 43–44, 230n4; disclosure arrest and surrender, 34, 35
requirements, 150–51; in Latin Ameri- Arusha, Tanzania, 94, 108, 112, 113, 203
can countries, 234n32, 235n38; in South Arusha Accords, 163
Africa, 23, 42, 52, 130, 150–51 Asian Women’s Fund, 20
Annan, Kofi, 36 Atolan, Agustinho, 123, 124–25, 212
apartheid, 17 Australian view of plea bargaining,
apologies, 6; in restorative-justice pro- 282n746
grams, 138, 144–48; as symbolic repara-
tions, 19–21, 175. See also confessions; Babić, Milan: apology of, 202; inculpating
statements of remorse other defendants, 82, 193; plea bargain,
apologies as restorative element in guilty- 81–83, 87, 88, 89, 90; reconciliation and
plea processes: in Argentina, 177–78; truth-telling of guilty plea, 190
in Bosnia, 180–82, 199–202; in East Babo-Soares, Dionísio, 169
S3857.indb 357 10/4/06 6:47:43 AM

358 index
Bagambiki, Emmanuel, 101, 105 Luka detention camp, 61; Plavšić apol-
Bagaragaza, Michel, 108–9, 112–13, 206 ogy, 144–45; at Srebenica massacres,
Banović, Predrag: no prior criminal 60, 76; at Stupni Do, 85
record, 257n285; plea bargain, 75, 87; Bosnian Serb Army, 78, 79
statement of remorse, 202; truth- Bosnian Serb Police Reserve Unit, 74–75
telling as restorative element, 196, 197, Bosnian Serbs: in Bosnian war, 160–61;
198–99; victim reaction to lenient sen- confronted by victims, 174; in ethnic-
tence, 132, 133 cleansing campaign, 73–74; in Jelisić
Barayagwiza, Jean-Bosco, 112 case, 61; Plavšić apology, 144–45; Ser-
Baruch, Chad, 128 bia’s arming of, 67, 193; siege of Sara-
Bassiouni, M. Cherif, 160, 236n47–48 jevo, 162; in Simić case, 63; at Srebenica
Basson, Dr. Wouter, 42 massacres, 60. See also ethnic-cleansing
Baucau District Court, 168, 297n929 campaigns in Bosnian war
Belgian canal death, 109 Bosnian war: deterrence goal of ICTY,
Benzien, Jeff rey, 24, 289n812 47–48; numbers of victims, 161; role in
Berbić, Saha, 70 international justice, 14. See also Sre-
Bere, Manuel, 121 brenica massacres
Bigogwe military camp, 164 Botha, P. W., 24, 42, 151
Bikumbi commune, 102, 204 Braithwaite, John, 49, 137, 140
Bisengimana, Paul: plea bargain, 101–6, Bralo, Miroslav, 70–71, 83–85, 131
111, 112; restorative elements in guilty- Bratunac Brigade, 76
plea process, 203–4, 208 Bratunac municipality, 67–68, 88, 195
Blagojević, Vidoje, 78, 192, 193 Brazil amnesty, 234n32
Blair, Tony, 19 Brćko, Bosnia, 61
Blaškić, Tihomir, 28, 83 Brćko Police Station, 75
Bobonaro, 222 Brđanin case, 28
Borovcanin, Ljubomir, 304n1033 bride price in East Timor, 168, 298n942
Bosanski Šamac, 63, 64, 71, 76 British view of plea bargaining, 282n746
Bosnia: acknowledgment of crimes, 172, Burger, Warren, 152
179; Federal Commission of Missing burials. See funerals
Persons, 83; optimal restorative-justice Bush, George H. W., 19
guilty-plea system, 179–82; refugee
returns, 132; summary of atrocities, Cambodia, 2, 5, 16, 40, 252n238
159–63 Canada, apologies to Aboriginals, 19
Bosnia-Herzegovina: and historical re- Cardoso, José, 209
cord, 54; special court, 30–31; steps to- Caride, Susan, 291n845
ward independence, 14, 159, 160, 161 Carvalho, Lino de, 120
Bosnian Croat army, 85, 193–94 Cassese, Antonio, 60
Bosnian Croat Defense Council, 70 Catholic apology, 19
Bosnian Croats: at Bosanski Šamac, 63, Čelebići prison camp, 73, 173
64; in Bosnian war, 160–61; in Bralo cell-level gacacas, 214–16
case, 83; in ethnic-cleansing campaign, census process in Rwanda, 215–16, 218
73–74; Plavšić apology, 144–45 ceremonial handover on Timorese border,
Bosnian Muslims: acknowledgment of 219
massacres, 179–80; at Bosanski Šamac, Češić, Ranko, 74–75, 80, 181, 196, 198, 201
63, 64; in Bosnian war, 160–61; in Bralo Chad, and Hissène Habré, 12
case, 70; in Deronjić case, 69, 88; in charge bargaining: Bisengimana case,
ethnic-cleansing campaign, 73–74; at 103–6; in East Timor, 119–20; at ICTY,
S3857.indb 358 10/4/06 6:47:43 AM

index 359
63–71; prosecutor abuses, 127–28; Ruta- cover-ups by governments, 74, 194, 197
ganira case, 99–101; in Rwanda, 97–110, crime, concept of in East Timor, 169–70
111–12 crimes against humanity, 11
Child-Friendly Version of truth commis- crimes against the peace, 11
sion report, 22 criminal accountability, 2, 16; in amnesty
child soldiers, 36 process, 24; and plea bargaining, 130;
Chile: domestic court system, 43–44; and political constraints, 176–77; in
financial constraints, 3; and Pino- restorative-justice guilty-plea system,
chet, 12–13, 43–44, 172; reparations, 17, 141–43. See also restorative justice,
237n59 model guilty-plea system; restorative
circle sentencing, 286n778 justice, optimal guilty-plea systems
claim of compulsion: in East Timor cases, Croatia: apology from, 20; domestic court
187, 211; in Rwandan cases, 184–85 transfers, 30; involvement in Bosnian
Clemente Noel, Roberto, 172 war, 193; secession declaration, 81; steps
Clinton, Bill, 19 toward independence, 159, 160, 161
Cobban, Helena, 208 Croatian Serbs, 81–82
code of international crimes, 11 Croats in Bosnia. See Bosnian Croats
Cold War, role in international justice, 14 Cronje, Brigadier, 290n834
collective memory, 55–56 culpability: Organic Law categories, 212.
comfort women, apology to, 20 See also inculpating other defendants
Commission for Reception, Truth, and Cvjetan, Sasa, 30
Reconciliation (CAVR), 186, 219–20 Czechoslovakia, restitution and repara-
community participation, in gacaca, tions, 17
217–18
Community Reconciliation Agreement, da Costa, Agustinho, 121
221 da Costa, João, 116, 122
Community Reconciliation Process da Costa, Paolo, 122–23
(CRP), 220–22, 299n956 Da Costa Nunes, Damiao, 125
community service, 147, 176, 185, 215, 221 Dayton Peace Accords, 30, 161
compensation: East Timorese obligation, Debelo Brdo, 192
175, 187, 221. See also reparations de Deus, Marcurious José, 119, 123
complementarity principle, 31–32 defendants: historical record and rights of,
compulsion, acting under. See claim of 54–55; untrue testimony, 194–95
compulsion defense attorneys: abusing the system,
confessions: in Rwanda, 183, 213–16, 218. 128; appointed vs. retained, 128; and
See also guilty pleas resource constraints, 38–39
context of domestic vs. international de Kock, Eugene, 20–21, 42, 253n249
crimes: plea bargaining in, 129–30; Delalić, Zejnil, 173
summary, 224–25 Delić, Hazim, 73
context of large-scale violence, 45, 131 Del Ponte, Carla, 31, 47, 112
Contreras, Manuel, 230n4 democratization: of Latin America, 12–13;
conventions on human rights, 11–12 and public reckoning of mass violence,
Corey, Allison, 216 55
Ćorić, Valentin, 193 De Morais, Dora Martins, 124
corporate crime, deterrence of, 49 deponents, 314n1206
Correia, Abilio Mendez, 120 Dergue regime in Ethiopia, 43
Counter-Reformation apology, 19 Deronjić, Miroslav: appeal of, 87; charge
courtroom morality plays, 55 bargaining, 67–69; restorative elements
S3857.indb 359 10/4/06 6:47:44 AM

360 index
in guilty-plea process, 190, 193, 194–95, East Timorese militias: organization and
196, 197; sentence bargaining, 80–81 direction of, 173; violence of, 167, 186
detention: East Timorese view of, 170; of East Timor hybrid court, 37–40, 41, 42
Rwandan suspects, 153 Egonda-Ntende, 115–16
detention centers in Argentina, 158 Eichmann trial, creating collective mem-
deterrence, 47–49, 131 ory, 56
Di Giovanni, Janine, 294n885 El Salvador: amnesty, 234n32; Commis-
Dili, East Timor, 167 sion on the Truth, 22
Dili District Court, East Timor, 37–40, 210 Ena, Umbertus, 281n741
disappearances: in Argentina, 157–59, 172, Erdemović, Dražen, 58, 60–61, 85, 86, 189
173, 174; in Latin America, 24, 130 Ethiopia: domestic court system, 43; and
disclosure requirements: of amnesty, Mengistu Haile Miriam, 12
23–24; in restorative-justice programs, ethnic-cleansing campaigns in Bosnian
149–51 war: of Ahmići village, 70; Babić’s role
do Carmo, Antonio Helder Viera, 124 in Krajina region, 81, 88; of Bosanski
domestic courts: transfer of cases in Bos- Šamac and Odžak, 71; in Bratunac
nia-Herzegovina, 83, 153; transfer of municipality, 195; financial burdens
cases in Rwanda, 30, 108–9. See also on victims, 175; pattern of, 160–63;
hybrid international-domestic courts Plavšić’s role, 73, 144–45; prison camps
domestic criminal justice system: and in Bosnia, 161–62; and refugee returns,
restorative-justice programs, 138–41; 132; by Serbs, 67–68
threat of prosecution, 152–53 extradition, 34
domestic prosecutions, 41–44; and plea Extraordinary Chambers in Cambodia,
bargaining, 129 2, 16, 40
domestic rehabilitation, 51–52
Došen, Damir, 72, 75, 151 Faal, Essa, 280n714
Dos Santos, Augusto, 119, 123, 211 family group conferencing, 286n778
Drina Corps, 75 fear of retaliation, 149–50, 213, 217
Drina River incident, 265n425 Federal Republic of Yugoslavia, 160
Drumbl, Mark, 311n1147 Fernandes, João, 115–16, 117, 119, 121, 124
Dubrovnik, Croatia, 66–67 financial compensation, as reparations,
16–17, 18, 19, 147, 175–76
Eastern Europe, restitution and repara- financial realities, 27–44; Cambodia
tions, 17 courts, 40–41; domestic prosecutions,
East Timor: Community Reconciliation 41–44; funding of tribunals, 2, 15,
Process (CRP), 220–22, 299n956; fi nan- 247n165; guilty pleas in ICTY, 189–90;
cial burdens on victims, 175; judicial ICC, 31–35; ICTY and ICTR, 27–31; for
system, 167–68; local justice system, judicial system in East Timor, 167–68;
168–70, 175, 185, 219, 222; optimal re- obstacle in guilty-plea system, 152–54;
storative-justice guilty-plea system, Special Court for Sierra Leone, 35–37;
185–87; summary of atrocities, 166–70; Special Panels in East Timor, 37–40,
vote of independence, 16, 114, 166. See 209
also plea bargaining at Special Panels Fisse, Brent, 49
in East Timor; Special Panels in East Florit, Francesco, 124
Timor Foca municipality, 73
East Timorese defendants: confronted by Franca, Jhoni, 118, 120, 211
victims, 174; guilty pleas of, 224 France, 109
S3857.indb 360 10/4/06 6:47:44 AM

index 361
funerals: desired by victims’ relatives, 186, current prosecutions: in East Timor’s

192; in siege of Sarajevo, 162 CAVR, 219–22; in East Timor Special
Panels, 209–12; in ICTR, 202–9; in
gacaca courts in Rwanda: compared to ICTY, 188–202; in Rwandan domestic
ICTR victim participation, 203; de- and gacaca courts, 212–19
scription of, 214–19; motivating guilty Gutman, Alan, 280n715, 280n718
pleas, 133, 153–54; reason to establish, 43
general strikes, 152 Habibie, B. J., 166
Geneva Conventions, 11, 41, 98, 232n18, Habré, Hissène, 12, 234n30
232n21 Habyarimana, Juvénal, 95, 108, 163–64,
genocide, charges of: in Rwanda, 96, 295n901
97–98, 111–12; in Srebenica massacres, Hadzić, Habiba, 191–92
74; of Timorese by Indonesia, 166; The Hague, 1, 189
withdrawn in ICTY cases, 65 The Hague detention facilities, 108, 113
Genocide Convention, 11, 15 The Hague Peace Conferences, 232n18
Germany, 237n58; reparations, 17; unifi- Hampton, Jean, 255n270
cation of East and West, 17. See also Haradinaj, Ramush, 257n284
Nuremburg tribunal hate propaganda in Rwanda, 50, 52, 164,
Gikoro commune, 101–6 165, 184
Gisenyi prefecture massacres, 204 Hayner, Priscilla, 23, 239n92
Gleeson, Ian, 290n834 healing of society, 26
Glogova village, 68, 88, 195 Hecter, Jacques, 241n115
goals of prosecutions, 45–56; deterrence, Herman, Judith, 147
47–49; incapacitation, 49–51; reha- hierarchical structures of mass violence,
bilitation, 51–53; retribution, 46–47; 173, 179
specific to societies emerging from high-level perpetrators: implicated by
violence, 53–56 ICTR defendants, 204; incapacitating
Gobodo-Madikizela, Pumla, 20 hostile conduct of, 49–50; in Indonesia,
Goldstone, Richard, 229n1 115; plea agreements and truth-telling,
Gonçalves, Domingos, 120, 124 196; prosecuted by testimony of sub-
Gorbachev, Mikhail, 233n26 ordinates, 173; retribution desired by
Gourevitch, Philip, 51, 164, 183 victims, 46–47; victims’ wrath at, 54.
Graybill, Lyn, 21 See also offenders
Guatemala: amnesty, 235n38; inability historical record: distortions of, 66, 207;
to prosecute, 13; Truth Commission, established by Rwandan gacacas, 215;
21–22, 238n70 established by truth-telling commis-
guilty pleas: and compensation caps, 128; sions and trials, 24, 54–55; failure to
completion strategy of ICTY, 29; his- develop at Special Panels, 209; and plea
tory of, 127; role of, 4–6; and truth tell- bargaining, 77
ing, 130–31; and victim dissatisfaction, Hrastov case, 30
74, 132–35. See also confessions; plea human-rights prosecutions. See prosecu-
bargaining at ICTR; plea bargaining at tions of international crimes
ICTY; plea bargaining at Special Pan- human-rights treaties, 11
els in East Timor; restorative justice, Human Rights Watch, 43
model guilty-plea system; restorative Hunt, David, 194–95
justice, optimal guilty-plea systems Hutu, 15; close relationships to Tutsi, 183–
guilty pleas and restorative elements in 85; community-service requirements,
S3857.indb 361 10/4/06 6:47:44 AM

362 index
147–48; disillusionment of gacaca plea bargains, 142; completion strategy,

justice, 217; executions of convicts, 214; 29; deterrence goal, 47–48; domestic
historical summary, 163–66; incapaci- court transfers, 30; embrace of plea
tation of perpetrators, 50; incarcera- bargaining, 4; enforcement coopera-
tion of, 52; incitement in genocide, 101, tion, 33–34; establishment of, 1, 14–15,
164, 165, 205; numbers of perpetrators, 27–28; Evidence and Procedure rules,
48–49, 212 58, 84; funding of, 27–31; and historical
hybrid international-domestic courts, record, 54; insider testimony, 192–95;
35–41; in Cambodia, 40; in East Timor, public expectations of guilty-plea
37–40, 41; in Sierra Leone, 35–37, 41 system, 134–35; restorative elements in
guilty-plea process, 188–202; retalia-
Ibrahimefendić, Teufi ka, 142 tion against truth-telling defendants,
ICC. See International Criminal Court 149; and rule of law, 53; sentencing le-
ICTR. See International Criminal Tribu- niency, 132, 133–34; statute articles 7(1)
nal for Rwanda and 7(3), 87; summary, 224. See also
ICTY. See International Criminal Tribu- plea bargaining at ICTY
nal for Yugoslavia International Law Commission (ILC),
Ilomska River, 257n285 232n22
impunity, 11–14 international tribunals. See tribunals
incapacitation, 49–51 interpreters/translators, 33, 38, 41, 168,
inculpating other defendants: insider 211
testimony in ICTR cases, 204–7; in- Inyangamugayo village elders, 214
sider testimony in ICTY cases, 179, 181, Ivković, Sanja, 46
192–95; value of truth-telling, 173 Izetbegović, Alija, 235n42
Indonesia: domestic prosecutions,
251n216; East Timor vote of indepen- Japan apologies, 19–20
dence, 37, 114, 166–67; invasion of East Japanese American internments, 18, 19
Timor, 166 Japanese criminal justice system, and
Indonesian Criminal Code, 38, 114 apologies, 146, 289n821
Indonesian military (TNI), 166, 186 Jasenovac concentration camp, 295n893
insider testimony. See testimony Jelisić, Goran, 61–62, 63, 75, 86
Interahamwe militia: in Bisengimana case Jews, harsh treatment of, 291n845
at Musha church, 101, 103, 104, 106; in Jim Crow laws, 18
Ruggiu case, 205; in Serugendo case, John Paul II, Pope, 19
106–7, 108; in Serushago case, 94 Joireman, Sandra, 216
intergenerational justice, 18 Jokers special-forces unit, 70
International Criminal Court (ICC), 1, 16, Jokić, Miodrag, 66–67, 80, 87, 88–89, 193
31–35 Joube, Joep, 290n834
International Criminal Tribunal for judges: East Timor shortage of, 167; and
Rwanda (ICTR): domestic court trans- resource constraints, 39
fers, 30; establishment of, 1, 15–16, 27– justice: East Timorese concept of, 168–70;
28; funding of, 27–31; procedural rules establishing tribunals, 14–16; impunity
for guilty pleas, 58; restorative elements norms, 11–14; in plea bargaining, 129,
in guilty-plea process, 202–9; retalia- 130; reparations schemes, 16–21; in
tion against truth-telling defendants, restorative-justice programs, 148;
150. See also plea bargaining at ICTR truth-telling commissions, 21–26
International Criminal Tribunal for Yugo- just sentence, defined by Alschuler,
slavia (ICTY): accounting of crimes in 282n756
S3857.indb 362 10/4/06 6:47:45 AM

index 363
Kambanda, Jean: plea bargain, 92–94, 110, Leite, Sabino, 211

113; restorative elements of case, 202, Leki, Gaspar, 116, 279n699
208, 209 Leki, Joseph, 121
Kampala, Uganda, 203 lian nain, 169
Kangara newspaper, 164 Liberia. See Taylor, Charles
Kaonik prison, 73 life sentences, 93, 133, 134
Karadžić, Radovan, 73 Lille, France, 109
Karemera et al., 207 Liquica church, 166
Karlshoven, Fritz, 236n48 Liu Daqun, 77
Keller, Andrew, 22 liurai, 169
Keraterm detention camp: in Banović local justice in East Timor, 168–70, 219,
case, 75, 196, 197; mass execution at, 222
162; in Sikirica case, 72–73, 151, 200 Lolotoe case, 39, 117
Khmer Rouge, 5, 16, 40, 252n238 Los Palos case, 279n702; guilty pleas, 116,
Khrushchev, Nikita, 233n26 117; lack of resources, 38, 39, 209, 210;
Kigali, Rwanda, 107, 203 sentences imposed, 121–23
Kigese, Rwanda, 216 low-level perpetrators: Bralo and
Kinyarwanda language, 203 Erdemović, 85; custody of, in East
Kipnis, Kenneth, 157 Timor, 115, 210; deterrence of, 48–49;
Kirchner, Néstor, 229n4 incapacitating hostile conduct of, 50;
Kiss, Elizabeth, 21, 283n764, 288n805 plea agreements and truth-telling, 196;
Knin, industrial town, 81 retribution desired by victims, 46–47;
Kolundžija, Dragan, 72, 73, 75, 151 using testimony to prosecute high-
Kordić & Čerkez trial, 28 level offenders, 173; victims’ wrath at,
Koricanske Stijene, 69–70, 196 54. See also offenders
Kosovar Albania, 48 Ludji & Pereira case, 119–20
Koumjian, Nicholas, 119, 280n716 Luka detention camp, 61, 75
Kovacević, Vladimir, 66–67
Krajina region, 81, 193 Macedonia, 159, 160
Krajišnik, Momčilo, 73, 193, 195 machetes, 164, 165, 167, 187, 296n903
Kratine village, 70 Malan, Magnus, 42, 253n246
Kravica warehouse executions, 194 Mali imprisonment, 93, 109
Krog, Antije, 290n833 Manikas, Peter, 160
Krstić, Radislav, 66, 75, 142, 193 Marques, Joni, 119, 121–23
Kvočka case, 173 Martins, Anastacio, 124
Martins & Gonçalves case, 120, 124
Lagos, Ricardo, 44, 237n59, 255n268 martyrs, creation of, 54
Land Claims Court, 18 massacre, determination of in Rwanda,
language translation: in East Timor, 38, 41, 97–98
168, 210–11; at ICTY and ICTR, 33; in mass atrocities, 3; difficulty of prosecut-
Rwanda, 203 ing, 12–13
Latin America: democratization of, 12–13; mass executions: in Argentine disappear-
forced disappearances, 24, 130, 172. See ances, 158; in Bosnian prison camps,
also Argentine forced disappearances 162; in Rwanda, 165
laws of war, 11 mass graves, 163, 172
left ist guerrillas, 178 Max Planck Institute, 79–80
legal counsel, lack of in Rwanda, 43, 213, Mayan genocides, 22
218 Mbeki, Thabo, 17
S3857.indb 363 10/4/06 6:47:45 AM

364 index
McDonald, Gabrielle Kirk, 189 national security and enforcement coop-

media coverage, 23 eration, 34
Media Trial, 1, 94, 205–6, 295n897 NATO in Bosnia-Herzegovina (SFOR),
Medina, Hugo, 234n32 Todorović case, 62
Melvern, Linda, 206 neighborhood sanctioning boards,
Mengistu Haile Miriam, 12 286n778
Mesić, Stjepan, 20 New Zealand model of family group con-
mid-level perpetrators: deterrence of, ferencing, 286n778
48–49; incapacitating hostile conduct Ngewu, Cynthia, 289n825
of, 51; using testimony of to prosecute NGO reports, 117
high-level offenders, 173; victims’ Nice, Geoff rey, 193
wrath at, 54. See also offenders Nikolić, Dragan: appeal of, 86, 87, 89–90;
Mignone, Emilio, 159 charge bargain, 70; indictment read by
militias. See paramilitary groups judge, 197; no prior criminal record,
Milošević, Slobodan, 1; and Babić case, 81; 257n285; sentence bargain, 79–80, 83;
incapacitating hostile conduct of, 50; statement of remorse, 201; victim-of-
lack of deterrence of ICTY, 48; rise to fender interaction, 191–92
power, 160; testimony of other defen- Nikolić, Momir: appeal of, 86, 89–90;
dants, 193; witnesses giving informa- charge bargain, 65–66; familiarity with
tion, 49 victims, 180; guilty plea and truth tell-
mine-clearing, 83 ing, 131; restorative elements in guilty-
Minow, Martha, 20, 21, 25, 54 plea process, 189, 190, 192, 193, 194, 195;
Missing Persons, Federal Commission, in sentence bargain, 75, 76–79, 83
Bosnia, 83 Nino, Carlos, 12, 291n845
missing persons in Argentina. See Argen- no-fly zone over Bosnia, 14
tine forced disappearances nonprosecutorial mechanisms: repara-
Miya, Eunice, 147 tions schemes, 16–21; truth-telling
monetary payments, as reparations, 16–17, commissions, 21–26
18, 19 Norway, courts of, 108–9, 113
Montenegro, 159 Nuremburg tribunal, 11, 49, 55–56, 258n298
monuments in Bosnia and Croatia, 160–61
Mothers of Srebrenica and Zepa, 255n272 Obrenović, Dragan: appeal of, 86; charge
Mrđa, Darko: appeal of, 87; charge bar- bargain, 65–66; guilty plea and truth
gain, 69–70; no prior criminal record, telling, 131; inculpating other defen-
257n285; plea bargain, 196; sentence dants, 193; reconciliation and truth-
bargain, 80, 198–99; statement of re- telling of guilty plea, 190, 195; sentence
morse, 200 bargain, 75, 78–79
Mthimkulu, Joyce, 143 Odžak, ethnic cleansing of, 71
Mubuga church massacre, 98–100 Oecusse court, 168
Mubuga sector, 98 offenders: benefits of reparations, 147; de-
Murayama, Tomiichi, apology by, 19–20 nying their crimes, 163, 172, 181; guilty
Musha church massacre, 101–6 pleas and truth-telling, 143; refugees
Muslims, in Bosnia. See Bosnian Muslims returning to East Timor, 219, 222; in
restorative-justice systems, 136–39. See
Nairobi, Kenya, 94, 203 also high-level perpetrators; low-level
naming names in truth-telling commis- perpetrators; mid-level perpetrators
sions, 22 O’Hara, Erin Ann, 146
S3857.indb 364 10/4/06 6:47:45 AM

index 365
Ohio study of victim-offender mediation, formation, 108–10; Ruggiu case, 95–97;

139–40 Rutaganira case, 98–101; sentence bar-
Omarska camp, 73, 162, 173 gaining, 97–110; Serugendo case, 106–8;
Opstina Prijedor conflict, 54 Serushago case, 94–95; summary of,
Organic Law, Rwanda, 212, 215 110–13, 125–26
Osiel, Mark, 3, 55 plea bargaining at ICTY, 4, 57–90; appeals
Ovcara massacre, 288n807 in guilty-plea cases, 86–90; charge
bargaining, 63–71; completion strategy,
paramilitary groups: Argentine military 29; early guilty pleas, 59–62; guilty-plea
junta, 157–59; in Bosnia, 161; in East procedures, 58–59; sentence bargain-
Timor, 167, 173 ing, 71–86; summary of, 125–26
Pebco Three incident, 290n834 plea bargaining at Special Panels in East
Penal Reform International Report, 216, Timor, 114–26; early guilty pleas,
218 114–18; evolution of, 119–25; restorative
penological goals. See goals of elements in process, 209–11; summary
prosecutions of, 125–26
Pereira, José, 120 political constraints and criminal ac-
Perón, Isabel, 157 countability, 176–77
perpetrators. See offenders Pol Pot, 5
persecution as crime against humanity, Portugal, 166, 167
63–64 Portuguese language, 211
Peru, 172, 234n32 potato famine, in Ireland, 19
Petković, Milivoj, 193 Poulson, Barton, 137
Pinochet, Augusto, 12–13, 43–44, 172, Power, Samantha, 203
230n4, 234n34 Praljak, Slobodan, 193, 304n1031
Plavšić, Biljana: apology, value of, 144–45; Prcać, Dragoljub, 73, 173
factual agreement of plea agreement, Presidential Guard, 164
196; guilty plea, 65–66, 73–74, 84; reac- pretrial detention, 28, 39
tion to lenient sentence, 74, 132, 133; Prijedor municipality, 73, 200
reconciliation and truth-telling of Prijedor Police “Intervention Squad,”
guilty plea, 21, 92, 131, 190; summary, 69–70
224 prison camps in Bosnia, 161–62; denial by
plea bargaining: completion strategy of Serbs, 172, 180–81
ICTY, 29; criticisms of, 129, 132; domes- Prlić, Jadranko, 193
tic vs. international use of, 5; in East propaganda in Rwanda, 50, 52, 164, 165,
Timor, 39, 119–25; in Ethiopia, 43; in- 184
creasing criminal prosecutions, 127–35; prosecutions of international crimes:
pros and cons of, 77; and rehabilitation difficulty of, 12–13; establishment of
of defendants, 52; summary, 223–26; tribunals, 14–16; financial obstacles to
use of in common-law vs. civil-law threat of prosecution, 152; introduc-
states, 4. See also restorative justice, tion to, 1–6; Osiel’s theory of collective
model guilty-plea system; restorative memory, 55–56; reparations schemes,
justice, optimal guilty-plea systems 16–21; in restorative-justice programs,
plea bargaining at ICTR, 91–113; Bisengi- 148; truth-telling commissions, 21–26;
mana case, 101–6; charge bargaining, using plea bargaining to increase num-
97–110; early guilty pleas, 92–97; Kam- bers, 127–35. See also goals of prosecu-
banda case, 92–94; negotiations for in- tions; inculpating other defendants;
S3857.indb 365 10/4/06 6:47:46 AM

366 index
restorative justice, minimal role in remorse of defendants, 90

current prosecutions reparations: in Bosnia, 180–82; in East
prosecutors: abusing the system, 127–28; Timor, 187, 211, 221; government-
threatening prosecution, 152–53 funded, 6; in restorative-justice pro-
public condemnation, 24, 216, 221 grams, value of, 144–48; in Rwanda,
public defenders: in America, and general 185; symbolic, 6, 19; value in different
strikes, 152; in Indonesia, and resource factual contexts, 175–76
constraints, 38–39 reparations schemes, 16–21; in Argentina,
public expectations of guilty-plea system, 17; in Chile, 17; in Germany, 17; results
134–35 of, 19; in South Africa, 17–18
Public Prosecution Department, Rwanda, Republika Srpska Bureau of Government,
214 163
punishment: in restorative-justice pro- Resolution 764, 235n43
grams, 140–41 Resolution 771, 235n43
Pušić, Berislav, 193 Resolution 780, 14
Resolution 955, 15, 236n56
radio broadcasts in Rwanda, 50, 95–96, Resolution 1272, 37
106–7, 164, 173, 205 Resolution 1315, 249n195
radios, distribution of, 164 Resolution 1534, 31
Radio Television Libre des Mille Collines restitution: in domestic restorative-justice
(RTLM), 95–96, 106–7, 205 programs, 147; in reparations schemes,
Rajić, Ivica: facing retaliation back home, 17–18
149; government cover-up of crimes, Restitution of Land Rights Act, 17–18
194; guilty plea, 83, 85–86, 87; incon- restorative justice, 6–7, 136, 231n16
sistent assertions, 197, 199; inculpating restorative justice, applying principles
other defendants, 193; statement of in aftermath, 155–87; optimal guilty-
remorse, 200 plea systems, 176–87; summary of
Ramon, General, 292n853 atrocities, balancing retribution and
rape. See sexual assaults restoration, 157–70; values in different
Reagan, Ronald, 19 contexts, 170–76. See also retribution
recidivism, 51, 139 balanced with restoration
reconciliation: in amnesty process, 24; restorative justice, minimal role in current
and Argentine disappearances, 159; prosecutions, 188–222; in East Timor’s
and guilty pleas, 131; in ICTY cases, CAVR, 219–22; in East Timor Special
190–91; of offenders in Rwanda, 214– Panels, 209–12; in ICTR, 202–9; in
15; in restorative-justice programs, ICTY, 188–202; in Rwandan domestic
138; restoring social order in East and gacaca courts, 209–19
Timor, 169–70, 187; summary, 223, 224; restorative justice, model guilty-plea
through East Timor’s CAVR, 219–22; system, 136–54; apologies, 144–46;
through Rwanda’s domestic courts, potential obstacles, 149–53; programs
212–19; value of apologies, 21, 144–46, described, 137; reparations, 144–48;
175; value of material reparations, 175– theory of, 136–41; truth-telling, 141–43;
76. See also restorative justice, model values combined, 148–49; victim par-
guilty-plea system; restorative justice, ticipation, 144
optimal guilty-plea systems restorative justice, optimal guilty-plea sys-
refugees: returning to Bosnia, 132, 147; re- tems, 156, 176–87; in Argentina, 177–79;
turning to East Timor, 219, 222 in Bosnia, 179–82; in East Timor, 185–
rehabilitation, 51–53 87; in Rwanda, 182–85
S3857.indb 366 10/4/06 6:47:46 AM

index 367
retaliation, fear of, 149–50, 213, 217 Rwandan genocide: importance of testi-
retribution: as penological goal, 46–47; in mony of subordinates, 173; incapacitat-
restorative-justice programs, 140–41; ing hostile conduct of perpetrators, 50;
in Rwanda gacacas, 215; through repa- numbers of perpetrators, 48–49, 212;
rations, 19 rehabilitation goal, 51–52
retribution balanced with restoration, Rwandan government: acknowledgment
157–70; in Argentina, 157–59; in Bos- of crimes, 172; community-service re-
nia, 159–63; in East Timor, 166–70; in quirements on Hutu, 147–48; military
Rwanda, 163–66 clashes, 163–66; opposition to transfer-
revictimization, 138 ring cases to Norway, 108–9, 113
Robinson, Peter, 207 Rwandan Patriotic Front (RPF), 95, 96,
Rome Statute: deterrence as goal, 47; and 163, 166, 205, 217
establishment of ICC, 2–3, 16; and ICC, Rwendeye, Colonel, 205
32, 33, 34, 35
RPF. See Rwandan Patriotic Front sacred house in East Timor, 169
RTLM radio station, 95–96, 106–7, 205, Sandici executions, 194
295n897 Sankoh, Foday, 250n200
Rugambarara, Juvénal, 204 Sarajevo, siege of, 162, 179
Ruggiu, Georges: arrest of, 94; plea bar- Sarmento, Benjamin, 117–18, 120
gain, 95–97, 111, 113; restorative ele- Saudi Arabia, 12
ments of case, 202, 204, 205–6, 208 Schomburg, Wolfgang, 68–69, 80–81,
Ruhanga Protestant church and school, 196–97
102, 103 Scilingo, Adolfo, 184
rule of law, in societies emerging from scorched earth campaign in East Timor,
violence, 53 37, 167
Rusanganwa (Tutsi man), 102, 103, 104 search and seizure powers, 22
Rutaganira, Mrs. Vinccent, 100 secret police in Yugoslavia, 160
Rutaganira, Vincent: plea bargain, 98–101, Semanza, Laurent, 102, 104–5, 204
103, 111; restorative elements in guilty- Senegal, 12, 234n30
plea process, 202, 203, 208 Sennett, Peter H., 311n1145
Rwanda: establishment of tribunal, 15–16; sentence bargaining: in East Timor,
financial constraints, 3; genocide de- 119–23; at ICTY, 71–86; leniency and
termination, 97–98; guilty pleas and severity of, 132–34
sentencing, 133; imprisonment after sentence discounts: 50 percent reduc-
genocide, 50; Office of Tourism and tion, 124–25; Rutaganira case, 99; in
National Parks, 109; optimal restor- Rwanda, 97–110; summary, 224, 225;
ative-justice guilty-plea system, 182–85; Todorović case, 62
Organic Law, 212, 215; summary of Serb Crisis Staff and War Presidency,
atrocities, 163–66. See also Interna- 63
tional Criminal Tribunal for Rwanda Serbia: domestic court transfers, 30; as
(ICTR); plea bargaining at ICTR republic in Yugoslavia, 159
Rwanda domestic justice system: deten- Serbian Autonomous Region of Krajina in
tion and guilty pleas, 153–54; disrepair Croatia, 193
after mass violence, 43; government Serbian Communist Party, 160
prosecutions, 100–101, 105, 106; recon- Serbian Croats, 81–82
ciliation and restoration in guilty-plea Serbian Democratic Party in Croatia, 81
procedures, 212–19; transfers, 30, 109. Serbian Democratic Party of Bosnia and
See also gacaca courts in Rwanda Herzegovina, 67
S3857.indb 367 10/4/06 6:47:46 AM

368 index
Serbian Republic of Bosnia and Herze- gies by amnesty applicants, 20–21, 145;
govina, 73, 160 victim participation, 144
Serious Crimes Unit, 114–15, 119, 186, 209 Special Court for Sierra Leone: establish-
Serugendo, Joseph, 106–8, 204 ment of, 2, 16, 249n195; gaining infor-
Serushago, Omar: plea bargain, 94–95, 110, mation from witnesses, 49; procedural
113; restorative elements of case, 204–5, rules for guilty pleas, 59; Truth and
207, 208 Reconciliation Commission, 22; war-
Šešelj, Vojislav, 50, 256n282, 256n284 rant on Charles Taylor, 48
sexual assaults in prison camps in Bosnia, Special Panels in East Timor: establish-
161–62 ment of, 2, 16; financial constraints,
Shahabuddeen, Mohamed, 90 37–40, 168; procedural rules for guilty
Sherman, Lawrence, 139 pleas, 59; restorative elements in
siege of Sarajevo, 162, 179 guilty-plea process, 186, 209–12; Seri-
Sierra Leone: hybrid court, 35–37, 41; ous Crimes Unit, 114–15, 119, 186, 209.
Truth and Reconciliation Commission See also plea bargaining at Special Pan-
(TRC), 22. See also Special Court for els in East Timor
Sierra Leone Special War Crimes Court in Sarajevo,
Sikirica, Duško, 72–73, 75, 151, 200 85
Simić, Milan, 63–65, 71–72, 76, 86 Srebrenica massacres: acknowledgment
Simón, Julio “El Turco Julian,” 159 of crimes, 179, 180; constituted geno-
slavery, 11–12, 18, 20, 239n81 cide, 65; defendants in, 67–68, 74, 75,
Slovenia, 159, 160 76, 78; denial by Serbs, 163, 172, 180;
Soares, Carlos, 121, 210 Erdemović case, 58, 60–61; fi nancial
Soares, Marcelino, 281n741 burdens on victims, 175; guilty pleas
social order in East Timor, 168–70 and truth-telling, 130–31; history of,
South Africa: amnesty requirements, 52, 162–63; lack of deterrence of ICTY, 48;
150–51; domestic prosecutions and psychologist testimony, 142; testimony
amnesty, 42–43; financial constraints, of Momir Nikolić, 194, 195. See also
3; historical account of apartheid, Bosnian war
24; Land Claims Court, 18; language staffing issues, 33
translations, 41–42; Promotion of Na- Stalin’s purges, 12, 233n26
tional Unity and Reconciliation Act, statements of remorse: in East Timor
17, 23; reparations, 17–18; Restitution Special Panels, 211; in ICTR cases,
of Land Rights Act, 17–18; victim testi- 208–9; in ICTY cases, 199–202. See also
mony, 25–26 apologies
South Africa Truth and Reconcilia- Stojić, Bruno, 193
tion Commission (TRC): Amnesty Strang, Heather, 139
Committee, 149; apartheid victims Strinović, Davor, 288n807
confronted tormentors, 174; fi nancial Strugar, Pavle, 66–67, 193
constraints, 42; plea bargaining and Stupni Do (Bosnian Muslim town), 85,
prosecutions, 130; public expectations 194, 197
of guilty-plea system, 134–35; Repara- Suai District Court, 168
tion and Rehabilitation Committee, Subašić, Munira, 255n272
149, 238n70; reparations recommenda- subpoena powers, 22, 35
tions, 17; restorative-justice practices, survivors. See victims
148–49; truth-telling of guilty-plea Sušica detention camp, 70, 79, 191, 201
defendants, 22–26, 143; value of apolo- Swedish imprisonment, 74
S3857.indb 368 10/4/06 6:47:47 AM

index 369
symbolic reparations, 6, 19, 144, 175 guilty-plea systems: in Argentina,

symbolism of apologies, 20 177–79; in Bosnia, 179–82, 190, 192–99;
syphilis study apology, 19 in East Timor, 186; in Rwanda, 182–83,
203–7
Taba commune, 106 truth-telling commissions: in Chile, 13;
Tadić, Duško, 1, 54, 71 described, 21–26; value of, 6, 143, 148
Taft, Lee, 146 Tutsi, 15; close relationships to Hutu, 183–
Tavares, Augusto, 121 85; community-service requirements
Taylor, Charles, 48 on Hutu, 148; government-organized
tea industry in Rwanda, 108 genocide, 182–84; historical summary,
Team Alfa militia, 121 163–66; incapacitation of perpetrators,
Teitel, Ruti, 26, 53 50; incitements to kill, 92, 95, 106–7,
testimony: inconsistencies in ICTR cases, 205; Mubuga church massacre, 98–100;
206; inconsistencies in ICTY cases, Musha church massacre, 101–6; num-
197–99; inculpating other defendants bers of victims, 48–49; roadblocks to
in ICTR cases, 204–7; inculpating capture, 92, 94
other defendants in ICTY cases, 192–95 Tutu, Desmond, 21, 26
Texas study of victim-offender mediation,
139–40 Uganda: and Idi Amin, 5, 12; numbers of
Tihic, Sulejman, 289n817 victims, 233n27
Tilman, Romeiro, 118 Umbreit, Mark, 137
Timor: West Timor, 219. See also East U.N. Commission on Human Rights, 15
Timor UNESCO World Cultural Heritage, 67
Tito, Josip Broz, 160, 293n862 United States: Alien Tort Claims Act, 19;
Todorović, Stevan: charge bargain, 63; Public Health Service study on syphi-
plea bargain, 62; sentence bargain, 71, lis, 19; Todorović case, 62
86; statement of remorse, 199–200; tes- U.N. peacekeeping forces, 15
timony and plea bargain, 194–95 U.N. Security Council: completion pres-
Tokyo tribunal, 11, 56 sure, 91, 125, 207; completion strategies,
Tomuschat, Christian, 22 29, 31; deterrence goal, 47–48; domestic
torture: in Argentine disappearances, 158; court transfers, 30; enforcement coop-
in prison camps in Bosnia, 161–62 eration, 33–34; establishment of ad hoc
translators/interpreters, 33, 38, 41, 168, 211 tribunals, 1, 14–16; establishment of
tribunals: establishment of, 14–16; finan- UNTAET, 167; financial support of tri-
cial obstacles to threat of prosecution, bunals, 2; hybrid courts and funding,
152, 153; financial support of, 1, 2; in- 36–37. See also resolutions
troduction to, 1–10; jurisdiction over U.N. Transitional Administration in East
crimes, 11; length and cost of, 28–29; Timor (UNTAET): and CAVR, 219,
revising procedural rules, 245n142. See 220, 222; establishment of, 37, 114, 167;
also financial realities establishment of Special Panels, 57;
truth-telling: and guilty pleas, 130; and Regulation 2000/11, district courts, 168
historical record, 24, 54; obstacle of Uruguay amnesty, 234n32
disclosure requirement, 149–51; in Uwilingiyimana, Juvénal, 108, 109–10, 150,
restorative-justice guilty-plea systems, 206–7
141–43; value in different factual con-
texts, 171–73 Valente, Jose, 121
truth-telling as restorative element in van der Merwe, Johan, 21, 151
S3857.indb 369 10/4/06 6:47:47 AM

370 index
Vareš (town), 85 Waldorf, Lars, 313n1189

Vasiljević, Mitar, 76 war crimes, 11
Vasilković, Dragan, 300n966 West Timor, 219
vengeance. See retribution Wilson, Stuart, 283n764
Venter, Colonel, 290n834 Wippman, David, 5
Verbitsky, Hector, 159 Wiranto, General, 186
victim involvement as restorative element Wisconsin restorative-justice program,
in guilty-plea processes: in Argentine 139
disappearances, 177–78; in East Timor witnesses, motivations to give informa-
Special Panels, 187, 210–11; in ICTR, tion, 49
202–3; in ICTY, 180–82, 191–92 witness-protection program, 22–23, 42,
victim-offender mediation study in Texas 213
and Ohio, 139–40 women: Asian Women’s Fund, 20; Japa-
victim participation: in restorative-jus- nese comfort women, 20; Mothers of
tice programs, 144; restorative role of Srebrenica and Zepa, 255n272; Muslim
dialogue in Rwanda, 183–85; value in widows, 175, 180; as victims of Ar-
different factual contexts, 174; victim- gentine disappearances, 158, 292n851;
offender interactions, 144 Women from Podrinje, 196
victims: in Argentine disappearances, 158; World War II: German reparations, 17;
desire for retribution, 46–47; dissatis- prosecutions compared to ICTY, 53;
faction of, 223; empowerment of, 24, tribunals of, 11
25; financial burdens of, 175, 180, 181;
individualizing justice, 54; informa- Yarn, Douglas, 146
tion for families, 195–96; perception of Yaroshefsky, Ellen, 305n1039
sentence leniency, 132, 133; protection Yugoslav Army, 81
of, 42; public expectations of guilty- Yugoslavia: composition of republics,
plea system, 134–35; reactions to plea 159; deterrence goal of ICTY, 47–48;
agreements, 196; refugees returning domestic court transfers, 30; establish-
home, 132, 147; restitution value, 147; ment of tribunal, 14–15; and histori-
in restorative-justice programs, 137–38; cal record, 54. See also International
testimonies of, 25 Criminal Tribunal for Yugoslavia
Videla, Jorge Rafael, 159, 172, 291n848 (ICTY); plea bargaining at ICTY
Vincent, Robin, 37 Yugoslav National Army, 160
Viola, Roberto, 292n848 Yugoslav People’s Army (JNA), 160
Vohrah, Lal Chand, 189
Zimbabwe, 12
Wagga model of family group conferenc- Zvornik Brigade, 79, 80
ing, 286n778
S3857.indb 370 10/4/06 6:47:47 AM

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Guilty Pleas in

Nancy Amoury Combs

Stanford University Press

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Stanford, California 2007

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No part of this book may be reproduced or transmitted in any form

Library of Congress Cataloging-in-Publication Data

Combs, Nancy Amoury.

Printed in the United States of America on acid-free, archival-quality

Typeset by G&S Book Services in 10/14.5 Minion

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I am grateful to the many individuals who read and commented on previous

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I am speechless. I cannot talk at all, I am shivering. I am completely

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fundamentally on the undesirability of trading leniency for financial savings; a

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tic sphere, but rather must be understood as presenting a potent opportunity to

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prosecution of many offenders no matter what criminal procedures are utilized.

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so will create a credible threat of sanctions, particularly if arrests are immediately

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International Criminal Justice Then and Now

The Norms of Impunity

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deposed Salvador Allende’s democratic government in 1973 and established a

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By the early 1990s, then, impunity appeared to reign. No international forum

Tentative Steps: Establishing the Ad Hoc Tribunals and Other

Bosnia-Herzegovina’s declaration of independence in March 1992 gave rise

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Nonprosecutorial Mechanisms: Reparations Schemes

In the past few decades, reparatory and truth-telling mechanisms have

Reparations seek to redress victims’ suffering through such measures as fi-

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an international crime—for the rape, the torture, the disappeared child—many

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1994, which allowed a Land Claims Court to purchase or expropriate a piece of

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had communicated to them something he felt deeply and had acknowledged

Truth commissions—bodies charged with investigating and publicizing

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