by Nancy Amoury Combs. Stanford: Stanford University Press, 2007. 384pp. Cloth. $75.00. ISBN: 0804753512. Paper. $29.95. ISBN: 0804753520.
Reviewed by Andrew Vincent, School of Historical and European Studies, La Trobe University, Australia. Email a.vincent [at] latrobe.edu.au.
In this formidable work on guilty pleas in international criminal law, Nancy Amoury Combs examines the integration of restorative justice principles into the plea-bargaining process, focusing primarily on guilty pleas in the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) the International Criminal Court (ICC), the Special Panels in East Timor. In recent years there has been a great deal of excellent work on plea bargaining in the domestic arena and little in the area of international criminal law. This monograph is the result of doctoral research conducted by Combs and submitted in 2005 to the Faculty of Law at the University of Leiden. This book is the latest in an expanding body of work on restorative justice and international criminal law and is a welcome addition.
Combs begins with a discussion of the foundation of international criminal law and the bodies instituted to prosecute transgressors. Importantly, non-prosecutorial responses to mass atrocities are discussed, in particular reparation schemes and truth-telling commissions. One of the main benefits put forward by Combs for these methods is that victims are empowered and able to relate their stories rather than simply providing evidence. In the end though, she contends that as a response to mass atrocities, such schemes stand a poor second best to criminal prosecutions. This reviewer found the list of governmental apologies for wrongdoings in the past very interesting (pp.19-20), especially in light of the Australian government’s refusal to apologize for the extremely poor treatment of its indigenous people. Whether these express apologies carry any greater symbolic value over monetary or implicit apologies is difficult to evaluate, but as the discussion indicates, they provide a ‘cheap’ alternative.
The level of funding for the prosecuting agencies in the various war crime tribunals and special panels is somewhat staggering, and in the second chapter Combs indicates that the ICTY, before the spate of guilty pleas in 2003, had spent almost $650 million to dispose of eighteen cases, only four by plea. As it currently stands, the ICTY has spent almost $1.25 billion and concluded proceedings for one hundred and five accused, of whom, fifty-one were sentenced and only sixteen pleaded guilty. One hundred and sixty-one individuals have been indicted by the ICTY at a cost of $7.8 million each. The level of funding for the ICTY has certainly increased in the last few years, and since 2002/3 the organisation has received approximately $771 million. [*797] These trials are extremely expensive, lasting on average seventeen months and, as indicated above, cost millions of dollars. As an example of the costs involved, Combs highlights the Kordić and Čerkez trial, which lasted twenty months, comprised two hundred and forty-one witnesses, four thousand six hundred and sixty-five exhibits, and had twenty eight thousand pages of transcripts (p.28). Combs further relates the costs of ICTR, the Special Panels and even the cost of prosecuting war crimes in domestic settings. It is in the face of such huge costs that prosecutors seem to be more willing to engage in practices that encourage guilty pleas.
In the third chapter, Combs questions whether the goals of criminal prosecutions are best served by targeting high-level offenders and whether they might be better served by prosecuting low level offenders. Combs suggests that the “[p]rosection of international crimes are said to advance a variety of penological goals, including retribution, deterrence, incapacitation and rehabilitation” (p.45). The ends served by international criminal prosecutions are nominally the same as those usually identified as relevant for sentencing in domestic settings. I found this idea quite problematic given that the usual goal of a prosecutor is to achieve a conviction, whether by trial or plea. Combs seems to suggest that prosecutors should be considering penological goals as part of their raison d’être. This would likely undermine even further the discretionary role of the judge in these proceedings. A case could be made for prosecutors to be aware of penological goals, but Combs does not make this argument. A further discussion of this aspect would have been useful. Combs asserts that “[w]hether the prosecution of international crimes advances any or all of these goals has lately been subject to question” (p.45). Unfortunately, Combs provides no further discussion of this important aspect or even the sources of the questioning.
In Chapters 4 to 6, Combs describes in detail the plea bargaining practices in the ICTY, ICTR and Special Panels. In particular a close examination is made of the nature of the bargain, the various justifications and subsequent effect on the sentences. In Chapter 4, Combs discusses the development of both charge and sentence bargaining through a close examination of trial transcripts of the ICTY. She observes that where defendants are sentenced outside the recommendations made by a prosecutor following a sentence agreement, the number of defendants willing to risk trial rather than plead may increase. More than ever, defendants are required, as part of agreements, to cooperate with the prosecution and provide testimony against other parties where appropriate. In the ICTR the situation is very different and this is taken up in detail in Chapter 5. Combs suggests that guilty pleas are more difficult to extract from defendants in, for example, Rwanda, because of the nature of their crimes. Combs highlights the belief that on the whole, ICTR defendants were happy to receive sentence discounts but were not willing to accept a guilty plea to genocide. She further notes, “by and large, ICTR defendants deny that the Rwandan violence constituted a genocide . . . the violence took place in the context of the long-running war between the government of Rwanda and Ugandan Tutsi rebel[s]” (p.97). In Chapter 6, Combs discusses the practice [*798] of plea bargaining in the Special Panels, but for the entire chapter the running header “The ICTR and Special Panels” seems to be in error. One of the significant facts is acknowledged is the level of dependence on guilty pleas to secure convictions. Combs feels that they are likely to become a more pervasive feature of an international criminal justice system that seeks to prosecute and convict more offenders.
The seventh chapter details the use of conventional plea bargaining techniques in order to increase the number of convictions for international crimes. Combs indicates that in the domestic setting there are various regulatory measures which can be adopted that might reduce some of the objections to plea bargaining, but in the end, trading a guilty plea for sentence leniency and financial saving still remains problematic. The general thrust of her argument is economic in nature; it is of fundamental importance to use plea-bargaining tactics to increase the overall number of convictions, or only a very small number of individuals will be held criminally accountable. Combs arugues that, “[t]he 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 imposed in the context of each mass atrocity” (p.131). It is the argument that, if you offer a large enough discount, everyone will buy.
Chapter 8 underpins the core of Combs’ contentions; she suggests that in effect we should reconceptualize the general notions of plea bargaining as an economic imperative and instead adopt the view that it can be underpinned with restorative justice elements. Combs believes that a guilty plea system that embodies restorative justice principles would bear little resemblance to the domestic processes. There are three areas that Combs identifies as crucial to effective integration of restorative justice principles into plea bargaining practices. The first revolves around truth telling, whereby defendants would be required to give a full accounting of their criminal activities. Secondly, victim participation is an important addition to Combs’ system. The level of participation that Combs envisages for victims is unclear, although she advocates that victim-offender interactions should be encouraged wherever possible. The final aspect of the guilty plea system is reparation, including apologies. This is distinguished as a vital aspect of restorative justice, and Combs rightly highlights the often mitigatory value of apology in the process of sentencing.
The final part of this pivotal chapter deals with potential obstacles inherent with guilty pleas in the international criminal justice context. There are two important obstacles that Combs feels are especially compelling. First, defendants may not be inclined to provide information regarding co-conspirators and collaborators, although, when considered as an aspect of truth-telling, it is quite significant. The second obstacle, and I feel, the most problematic, relates to defendant fears of conviction and sentence severity. If there is more likelihood of conviction at trial and lengthy sentence after trial, defendants may be more compelled to plead guilty for some type of concession, whether charge or sentence. If financial constraints diminish the likelihood of [*799] prosecution, it is difficult to envisage many defendants pleading guilty. This problem is especially magnified in the case of the ICTY and ICTR where closure dates have been announced. The other main problem, I feel with this approach is that it requires judges, in the particular case before them, to accept, more or less, the penal goals that the prosecution feels are necessary. It requires judges to accept sentence recommendations and not exercise their discretion. Prosecutors in effect become judges, and judges are relegated to interpreters of rules of evidence and procedure.
In the remaining chapters Combs contextualizes her restorative justice guilty-plea system and attempts to apply it, in the form of case studies, to Argentina, Bosnia, Rwanda and East Timor. She examines the difficulties of applying the three aspects of restorative justice in contexts of the different countries. In the final chapter the restorative justice features of Combs’ guilty plea system – namely victim participation, truth telling, and reparatory measures – are examined, with particular emphasis on the extent to which each is represented in the current plea bargaining processes of the ICTY, ITCR and Special Panels. In concluding, Combs is not optimistic about the international community’s response to future mass atrocities, especially given the failure of the current prosecutorial measures. It remains to be seen though whether a way forward can be found utilising Combs’ guilty plea model.
On the whole, this reviewer enjoyed Comb’s meticulously detailed work. I was, however, left feeling that Combs would want to move away from the adversarial process towards an inquisitorial model, as this would better facilitate embedding restorative justice principles into a guilty plea system. In the adversarial model, prosecution decisions need to be based on achieving convictions, and only secondarily concern themselves with penal goals. Penal goals need to remain the domain of sentencing judges.
As with many legal monographs, the inclusion of notes as endnotes is very frustrating; this reviewer prefers footnotes. There are some 1,232 endnotes, accounting for almost one-third of the book. The only other criticism of the layout is the manner in which the bibliography is organised. Dividing references into categories (books, books chapters, articles and such) makes utilising the bibliography very difficult and time consuming. It was also puzzling that there was not any reference to the work of Ralph Henham and Mark Findlay (2005) and their work on the transformation of international criminal justice and incorporating restorative justice into the trial process.
Findlay, Mark, and Ralph Henham. 2005. TRANSFORMING INTERNATIONAL CRIMINAL JUSTICE: RETRIBUTIVE AND RESTORATIVE JUSTICE IN THE TRIAL PROCESS. Devon: Willan.
© Copyright 2007 by the author, Andrew Vincent.