A number of persons indicted by the Tribunal have pleaded guilty to directly committing or being responsible for specific crimes during the wars in the former Yugoslavia. In nearly all such instances, clear facts surrounding crimes are established, the truth about events is made public and the suffering of victims is recognised.
Often statements accompanying guilty pleas contain information or evidence that was previously unknown to communities or the families of victims. In some instances those who plead guilty further clarify events by testifying against their co-perpetrators. Most guilty pleas are accompanied by statements of remorse by the guilty party. They frequently include expressions of hope that their remorse will contribute to reconciliation among the peoples of the former Yugoslavia.
Since the first guilty plea was entered at the Tribunal in 1996, as many as 20 persons* charged with crimes have pleaded guilty to specific crimes.
“All the victims… trust... that the people will muster enough courage, including victims, to tell the story of what happened. Those who did it, that they too will be able to speak out so that we all can have a basis for a common life together one day. ”
Teufika Ibrahimefendić, a witness in the Krstić trial, 27 July 2000
Under the Tribunal’s rules, an accused can enter into what is called a plea agreement in which he or she expresses their admission of guilt to all or certain charges brought by the Prosecution. Such an agreement is negotiated between the Prosecution and the accused. The Trial Chamber is not involved in the negotiation of the plea agreement, but it has to accept it in order for the agreement to come into force.
To accept a plea of guilty, the Trial Chamber has to be satisfied that it is voluntary, informed, unequivocal, and that the facts point to the accused’s responsibility for the crime or crimes he is charged with. Where the accused pleads guilty only to certain charges, the Prosecution may withdraw the other charges and apply to the Trial Chamber to amend the indictment accordingly.
Guilty pleas render a trial unnecessary and lead directly to a sentencing hearing and the imposition of a sentence. As part of the plea agreement, both parties may ask for a specific sentence. However, the Trial Chamber is not bound by the proposal’s the prosecution and defence submit, and can use its discretion in determining the sentence.
Considering the debate on the subject of guilty pleas, it is relevant to highlight some of their benefits. For the Prosecution, guilty pleas are seen as an important time and resource-saving tool which is particularly important given the financial and temporal constraints the Tribunal works under. Guilty pleas are also considered an invaluable litigation tool, as a plea agreement may involve the accused testifying against higher-ranking individuals, and can thereby help secure convictions against the most serious perpetrators. Also, guilty pleas may also spare witnesses from having to undergo the sometimes stressful experience of testifying in court.
A guilty plea is usually considered by a Chamber as a mitigating circumstance leading to a reduction in the sentence a convicted person would otherwise have received. However, in weighing the sentencing factors, the Trial Chamber will always consider that the penalty imposed must be proportionate to the gravity of the crime, the harm caused to victims, and the degree of responsibility of the offender.
* Goran Jelisić pleaded guilty to parts of his indictment. However, he made no statement and there was no plea agreement.