B. International Criminal Court 139.  The founding document of the ICC, the Rome Statute,149 establishes a trial waiver system (known as “plea agreement”).150 The ICC has stated that an effort was made in drafting the Rome Statute to blend civil and common law traditions in relation to admissions of guilt.151 The ‘third avenue’ between the traditional common law and civil law approaches reflected in Article 65 of the Rome Statute permits the accused to admit guilt and waive the right to a trial at the commencement of the trial, similar to the common law guilty plea, and may engage in negotiations with the prosecution as to the benefits to be received in exchange. However, the Trial Chamber is required to ensure that the trial waiver is supported by the facts of the case, similar to summary or abbreviated procedure traditionally associated with civil law systems.152 In addition to that requirement, the Trial Chamber must also satisfy itself that “(a) [t]he accused understands the nature and consequences of the admission of guilt; and (b) [t]he admission is voluntarily made by the accused after sufficient consultation with defence counsel.” Where such safeguards are not met, the trial waiver is not effective and the case proceeds to trial. The Rome Statute permits the Trial Chamber a substantial level of discretion over trial waivers. For example, it may request additional evidence or reject the trial waiver in the interests of justice (in particular the interests of the victims), and is not bound by agreements made between prosecutors and defendants as to the penalty to be imposed.153 140. These provisions however have not been much tested in practice. The ICC ratified its first trial waiver in August 2016. Ahmad Al-Faqi Al-Mahdi entered a plea of guilty in relation to a war crime consisting of the destruction of historical and religious monuments in Mali. This happened in a proceeding the ICC termed a “trial”, in which Mr Al-Mahdi admitted guilt and the prosecution subsequently presented its evidence and called three witnesses. The judgment and sentencing took place on 27 September 2016, in which the Trial Chamber recognised the mitigating value of his admission of guilt and expression of remorse and examined the voluntary nature of his waivers of rights pursuant to the agreement.154 141. The use of trial waivers in the ICC offers the possibility of another venue in which the normative framework around this practice is likely to develop, which, in turn, allows for an increase in acceptance of trial waivers on the international stage. Commentators have suggested various frameworks for ensuring that plea agreements at the ICC are conducted coherently and predictably, on the grounds that without strong prosecutorial guidelines, the judicial discretion afforded to the Trial Chamber may disincentivise defendants from entering into plea agreements that may not be upheld at court.155 These suggestions include: (a) the prosecution refusing to enter into plea agreements with the most culpable defendants, or in relation to charges for which there is strong evidence; (b) a sentence discount that incentivises defendants without inviting rejection by the Trial Chamber; (c) an insistence on cooperation and the provision of truthful information by the defendant in order to receive a benefit; (d) consultation with victims prior to finalising an agreement; and (e) transparency with respect to the factors that lead to the agreement in each case.156 149. Rome Statute of the International Criminal Court, A/CONF.183/9 (Jul. 17, 1998). Available at: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be940a655eb30e16/0/rome_statute_english.pdf. 150. Ibid, Article 65. 151. The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (Sept. 27, 2016), para. 24. Available at: https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF. 152. Ibid, para 27. 153. Rome Statute of the International Criminal Court, supra at n. 149. 154. See The Prosecutor v. Ahmad Al Faqi Al Mahdi, supra at n. 151, para. 109. See also the ICC’s press release, available at: https://www.icc-cpi.int/mali/al-mahdi/ Documents/AlMahdiEng.pdf. See also the public sentencing hearing, available at: https://www.youtube.com/watch?v=wy2RJW8v-Xg. 155. Whiting, A., “Encouraging the acceptance of guilty pleas at the ICC”, Post-Conflict Justice (Feb. 11, 2015). Available at: http://postconflictjustice.com/encouragingthe-acceptance-of-guilty-pleas-at-the-icc/. 156. Ibid. 68.