The Disappearing Trial
142.
As trial waiver practice develops in international
criminal courts and tribunals, it may provide examples
of approaches to trial waivers that combine useful
elements from national jurisdictions around the world,
as well as contributing to the corpus of law which
might form the basis of a normative framework for
regulating trial waivers. Trial waivers in international
tribunals present unique challenges in terms of
human rights protection, particularly in relation to
addressing the interests of justice and establishing
and preserving an accurate historical record of mass
atrocities.157 The broad public interest in retribution
following mass murder, genocide, or similar atrocities
means that reductions in sentence following
admissions of guilt are not always accepted by
victims and other stakeholders.158 Charge incentives
and fact incentives can distort the historical record
and downplay the involvement of certain actors.159
The experience of international criminal courts in
administering trial waivers may be a useful example
in particular for other highly visible prosecutions with
strong public interest, such as public corruption cases.
157. Rauxloh, “Plea bargaining in national and international law”, supra at n. 67, pp. 16–18. See also Clark, J. N., “Plea Bargaining at the ICTY: Guilty Pleas and
Reconciliation”, The European Journal of International Law, Vol. 20, No. 2 (2009) (citing Forsberg, T., “The Philosophy and Practice of Dealing with the Past: Some
Conceptual and Normative Issues”, from Biggar, N., ed., Burying the Past: Making Peace and Doing Justice after Civil Conflict (2003), p. 73).
158. Rauxloh, R. E., “Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining”, International Criminal Law Review, Vol. 10, No. 5
(2010), pp. 12–14. See also Nicol, “Plea bargaining in international criminal courts”, supra at n. 147, pp. 66–67.
159. See Nicol, “Plea bargaining in international criminal courts”, supra at n. 147, pp. 66–67.
69.
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