Journal Article

Negotiated Justice in International Criminal Courts

Mirjan Damaška

in Journal of International Criminal Justice

Volume 2, issue 4, pages 1018-1039
Published in print December 2004 | ISSN: 1478-1387
Published online December 2004 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/2.4.1018
Negotiated Justice in International Criminal Courts

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The article begins with the historical review of different attitudes toward bargained justice in countries belonging to the Continental European tradition, and those belonging to the tradition deriving from England. The last century has led to the rapprochement of these attitudes, but residual differences remain, and the author focuses on the most prominent among them. He then discusses arguments in favour and against negotiated outcomes of criminal cases, irrespective of the form of these negotiations. He concludes that the only persuasive arguments in favour of the practice are those of practical necessity – the over-burdening of courts, and evidentiary difficulties in piercing the veil of organized crime. Leaving the context of national systems, the author then examines those special features of international crimes, and the context in which they occur, that have a bearing on the desirability of bargaining with the accused. He argues that these special features reinforce the view that the practice can persuasively be justified only on the ground of practical utility. There follows a brief review of bargaining as practiced by ICTY, a court with a limited life-span, and bargaining as structured under the ICC normative scheme. The last section of the article is devoted to the question of which model of bargaining is better suited to the environment of international criminal proceedings - the continental one of in-court confession, or the Anglo-American one of guilty pleas. Whatever model seems most appropriate, the author concludes, it would be desirable to hold as many trials as possible, and take recourse to bargaining only when absolutely necessary.

Journal Article.  0 words. 

Subjects: Criminal Law ; International Law

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