The Disappearing Trial A. International Criminal Tribunals 136. The ICTY has substantial experience in administering trial waivers (known as “plea agreements”), which were codified into the Rules of Procedure and Evidence of the ICTY in 2001. Rule 62 lays out three possible agreements that can be made between a prosecutor and a defendant, including charge incentives (amending the indictment) and sentence incentives (requesting a specific sentence or sentencing range, or not opposing a request by the accused for a specific sentence).141 Any agreement reached between the two parties must be disclosed in an open session142 unless good cause can be shown for doing so in a closed session; however, the Trial Chamber is not bound to the terms and may sentence the defendant to any appropriate sentence. Even before formalising trial waivers, the Rules of Procedure and Evidence required a trial waiver to meet certain minimum procedural requirements. The Trial Chamber must be satisfied that: • the trial waiver has been made voluntarily; • the trial waiver is informed; • the trial waiver is not equivocal; and • there is a sufficient factual basis for the crime and the accuser’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case.143 137. In the first case involving a trial waiver at the ICTY, Prosecutor v. Dražen Erdemović,144 the defendant entered a guilty plea to a charge of murder as a crime of war, without any promise of benefit, and was sentenced to 10 years imprisonment. He later appealed his conviction, arguing that his guilty plea was invalid. The Court noted that no international authority existed that could help it interpret the meaning of a valid guilty plea.145 Despite the fact that Erdemović had, during the course of proceedings, affirmed his guilty plea on more than one occasion, the Appeals Chamber found that Erdemović had not fully understood the consequences of his plea, based on evidence of misleading communications from the judge and ineffective assistance of defence counsel in relation to the nature of the charges and the consequences of pleading guilty. At the rehearing, Erdemović and the prosecutor reached a more considered plea agreement as to the charges, facts, and recommended sentence with additional assistance from the Trial Chamber to ensure that the defendant fully understood the charges. Although the agreement requested a sentence of seven years, the Trial Chamber exercised its discretion to sentence Erdemović to only five years.146 138.  Some observers have been concerned about the lack of detailed and individualised analysis of the procedural requirements for trial waivers in the ICTY.147 In the high-stakes and public context of accusations of serious international crimes, pressures on defendants to make trial waivers may be particularly acute. These issues are especially important given the inequality of arms between prosecution and defence long noted in relation to international criminal tribunals including the ICTY.148 Nonetheless, the Erdemović case demonstrates that the ICTY is willing to probe the specific circumstances surrounding the guilty plea to make a meaningful determination of voluntariness of the trial waiver (and can therefore be contrasted with the approach of the ECtHR in Natsvlishvili), and to take an active role to ensure that sentencing is not excessive even when formally agreed upon by prosecution and defence. 141. “Rules of Procedure and Evidence”, ICTY, UN Doc. IT/32/Rev. 37 (Apr. 6, 2006), Rule 62 ter (A). Available at: http://www.icty.org/en/documents/rulesprocedure-evidence. 142. Ibid, at Rule 62 ter (C). 143. Ibid, at Rule 62 bis. 144. Prosecutor v. Drazen Erdemović, Case No. IT-96-22. Case documents available at: http://www.icty.org/case/erdemovic/4. 145. Prosecutor v. Erdemović, UN ICTY, Appeals Chamber Judgement, “Joint Separate Opinion of Judge McDonald and Judge Vohrah”, Case No. IT-96-22-A (appended) (Oct. 7, 1997), at paras. 3-6. Available at: http://www.icty.org/x/cases/erdemovic/acjug/en/erd-asojmcd971007e.pdf. 146. Ibid. 147. See Cook, J. A., “Plea Bargaining at The Hague”, Yale Journal of International Law, Vol. 30 (2005), p. 482. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=578581. See also Nicol, K., “Plea bargaining in international criminal courts: dealing with the devil”, LL.M(R) thesis, University of Glasgow (2016). Available at: http://theses.gla.ac.uk/7254/1/2016NicolLLM(R).pdf. 148. See, e.g., Starr, S. B., “Ensuring Defense Counsel Competence at International Criminal Tribunals”, UCLA Journal of International Law & Foreign Affairs, Vol. 14, No. 1 (2009). Available at: http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2187&context=articles. 67.