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International Criminal Review 5: 601–607, 2005. 601 © 2005 Koninklijke Brill NV. Printed in the Netherlands.

Plea Bargaining and the Legitimacy of International : Some Observations on the Dragan Nikolic Sentencing Judgement of the ICTY

RALPH HENHAM*

The Sentencing Judgement in the case of v Dragan Nikolic1 is highly significant in that it represents the first occasion that the ICTY Trial Chamber specifically commissioned expert research reports2 on the compar- ative law and practice of sentencing which were subsequently taken into account in its deliberations.3 This note considers a number of issues con- cerning the use made of this research and its broader significance in terms of legitimising the ICTY’s penality.

I. Emphasis on the

I would argue that the judgement fails to provide a considered evaluation of the aims of punishment in the context of international . In its discussion of Principles and Purposes,4 the ICTY Trial Chamber makes no real attempt to take the issue of rationality further than it has in previous cases. It provides a very circumscribed and one-dimensional view of its penality, dominated by the perception that the objectives of punishment are somehow achievable through simple enforcement of the rule of law. This is most apparent in its discussion of deterrence:5 “One of the main purposes of a sentence imposed by an international tri- bunal is to influence the legal awareness of the accused, the surviving

* Professor of Criminal Justice, Centre for , Nottingham , Nottingham Trent University, UK. 1 (Case No. IT-94–2-S), Sentencing Judgement, 18 December 2003. 2 U. Sieber (ed) The Punishment of Serious Crimes: A comparative analysis of sentencing law and practice Volume 1: Expert Report and Volume 2: Country Reports (Freiburg: Max Planck Institute for Foreign and , 2004) 3 See also comments by T. Meron ‘Procedural Evolution in the ICTY’ (2004) 2 Journal of International Criminal Justice, pp. 520, 524. 4 Supra, note 1, paras. 127–140. 5 Ibid, para. 139. ICLA_03_Ralph 11/25/05 8:09 PM Page 602

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victims, their relatives, the witnesses and the general public in order to reassure them that the legal system is implemented and enforced. Additionally, the process of sentencing is intended to convey the mes- sage that globally accepted and rules have to be obeyed by every- body. “All persons shall be equal before the and .” This fundamental rule fosters the internalisation of these laws and rules in the minds of legislators and the general public.” This passage implicitly acknowledges the symbolic importance of denuncia- tion as an aspect of deterrence, invoking the Durkheimian notion that the uni- versally accepted morality of the ’s mission (and its underlying rationality) is sufficient to justify punishment in terms capable of identifying, reconciling and satisfying demands for global and local justice.

II. Broader Questions of Legitimacy

However, this assumption is flawed and raises some fundamental questions which go to the core of the legitimacy issue in international criminal justice. For example, is it realistic to suggest that law (or more specifically punish- ment norms) effectively influence the internalisation of morals? Similarly, can universally accepted moral values be transformed into normatively effec- tive principles for action through sentencing? The answers to these questions are by no means clear.6 What does seem certain, however, is the need for legal and processual norms to be perceived as legitimate by those who are significantly affected by their operation. The fact that such norms exist to give effect to universally held moral principles may be sufficient for both to be regarded as legitimate in the eyes of the wider international community. However, it is important to distinguish the fact that, for victims and others affected by social conflict, legitimacy also depends on whether international punishment actually resonates with understandings of local penality. The case of Dragan Nikolic raises the issue of legitimacy in a specific and very significant way by linking its discussion of plea agreements with the potential for reconciliation.7 The Trial Chamber explicitly accepted that acceptance of responsibility by admitting guilt is an important factor in the process of reconciliation, particularly the notion that it could lead to a more widespread acceptance of responsibility among others who had been

6 See further R. Henham ‘Reflections on the Legitimacy of International Criminal Justice’ (forthcoming). 7 Ibid, paras. 243–252.