The ICC in Action: Using Plea-with-Cooperation Agreements to Bring Government Leaders to Justice

Abstract

After almost two decades in action, states and other commentators have begun to question whether the International Criminal Court (ICC) will ever achieve its lofty goals of ending impunity for the perpetrators of the most serious crimes of concern to the international community. At present, the ICC‘s Office of the Prosecutor (OTP) has successfully convicted only four defendants of crimes against humanity or war crimes charges. Further, none of the ICC‘s four convictions has been against a government actor—much less, a high-level government leader. The OTP has not ignored its mandate to prosecute government leaders who have committed serious international crimes (including Kenya’s president and deputy president), but its efforts to bring that category of defendant to justice have, thus far, resulted in well-publicized defeats. This Article suggests that one way for the OTP to increase its chances of successfully prosecuting government leaders is to begin entering into plea-with-cooperation agreements with some lower-and middle-level defendants. As the OTP has acknowledged, in these complex cases, higher-level perpetrators typically keep “distance between themselves and the crimes committed using different mechanisms to hide their role.” Moreover, high-level government leaders not only control state machinery, but they also have powerful allies both in-and out-of-state who can help them frustrate the ICC‘s efforts to obtain custody over them or to gather sufficient evidence to prove their involvement in criminal activity. By entering into plea-with-cooperation agreements with some of these lower-and mid-level defendants, the OTP will have a better chance of having sufficient evidence and a stable of available witnesses that will be available to testify at trial against the leaders who orchestrate violence against their victims. Although this proposal is not uncontroversial, this Article argues that plea bargaining in this context is both ethical and necessary. States did not create the ICC so that it could pursue only rebels, and an ICC with a better “track record” cannot be the goal. The ICC must be able to bring justice to the many victims who suffer atrocities at the hands of their leaders when those same leaders are unwilling to prosecute their own.