William and Mary Law School

New Book Explores Use of Plea Bargaining to Obtain Justice Against Perpetrators of International Crime

Associate Professor Nancy Combs, who teaches international criminal law, international human rights, and criminal law at William & Mary Law School, recently published a book with Stanford University Press titled Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach.

Combs notes in her book that prosecutions for international crimes, like genocide and other crimes against humanity, are both costly and time-consuming. Whereas Nuremburg prosecutors were able to try 22 defendants in less than a year, more recent international trials, such as those prosecuting the atrocities that took place in the former Yugoslavia and Rwanda, frequently lasted upwards of two years for a few defendants and cost millions of dollars. Budget cuts and pressure from the United Nations Security Council to adopt an expeditious completion strategy has led the Tribunals to adopt various plans to dispose of cases more efficiently. One of those strategies is the use of plea bargaining to obtain guilty pleas.

As a result of the high cost and long length of international criminal trials, few trials are undertaken. “The vast majority of perpetrators of international crimes will never be tried,” Combs said during an interview. It is this fact that can justify the use of plea bargaining, according to Combs, because plea bargaining can increase the proportion of international perpetrators brought to justice.

“The practice of plea bargaining in American courts is much maligned,” she said, “since the domestic criminal justice system is founded on the presumption that violent crime will be investigated and, if appropriate, prosecuted. It is this unstated presumption that gives force to the arguments of plea bargaining’s opponents in the domestic context,” Combs said. “Plea bargaining in the domestic context is considered a dilution of the full justice that a criminal justice system ought to provide.”

Institutions prosecuting international crimes must attend as well to these concerns. However, they take on entirely different contours because the presumption of prosecution that is so central to domestic criminal justice systems does not exist for international crimes. And it is precisely because most international offenders are not prosecuted that Combs believes that guilty pleas have the potential to play such a valuable role in efforts to end impunity.

Combs also thinks that guilty pleas have the potential to enhance reconciliation and truth-telling in countries that have recently been torn apart by widespread violence if those guilty pleas are obtained through restorative justice processes. In Guilty Pleas in International Criminal Law, Combs examines the optimal components for guilty plea processes for international crimes in Argentina, Bosnia, East Timor, and Rwanda.

“In the United States, guilty pleas are used to save money. In the international context, guilty pleas may also serve that purpose but, in addition, they can help to elucidate facts about the crimes that would otherwise not come to light,” Combs said. “In an American murder case, police will have a body and as a consequence will know the cause of death and other relevant facts about the crime. In the international context, the very existence of the crime is often disputed.”

Until very recently, for instance, Bosnian Serb officials categorically denied that the Bosnian Serb army had executed between 7,000 and 8,000 Bosnian Muslim men and boys at Srebrenica in 1995. They maintained, rather, that the killings were fabricated or insisted that, if Muslims were killed, they were killed in combat or by other Muslims. As a consequence, the guilty pleas lately tendered by Bosnian Serbs who had implemented the Srebrenica massacres were especially meaningful to victims because they provided much-needed acknowledgment that the crimes took place as well as details about the crimes.

“Guilty pleas can also enhance reconciliation if they are obtained through restorative-justice processes that emphasize meaningful interaction between victims and perpetrators, apologies and reparations,” Combs added. “Optimally, the elements of a guilty plea process will be tailored to fit the facts of the atrocities.”

Nancy A. Combs joined the Law School faculty in 2004. She graduated from the University of California at Berkeley School of Law (Boalt Hall), where she served as an articles editor on the California Law Review. She received the Thelin Marrin Prize for graduating first in her class. Following law school, Combs clerked for Judge Diarmuid O’Scannlain on the Ninth Circuit Court of Appeals as well as for Justice Anthony Kennedy on the United States Supreme Court. She earned her Ph.D. at Leiden University in international law and holds a certificate from the Hague Academy of International Law. Prior to joining the William & Mary Law School faculty, she served as legal advisor at the Iran-United States Claims Tribunal in the Hague, Netherlands.