‘Approver’ is a common phenomenon in many jurisdictions where domestic criminal law allows an individual who is believed to be implicated in a crime, whether directly or as an accomplice, to be granted a pardon in exchange for their testimony usually as a prosecution witness, with an aim to acquiring deposition against other accused’s guilty of the offence. While sentences are meant to match the crime’s gravity and the offender’s guilt, a pardon can simply bypass this carefully balanced judicial process. Therefore, there is a vital legal question whether an individual accused of international crimes can turn into an approver admitting their guilt, providing deposition against the main individual accused, so that the court can subsequently consider awarding lenient punishment or acquittal for the cooperation of that person.

Domestic criminal law in countries like Bangladesh, India, and Pakistan permit this process to ensure trial of principal accused through the evidence of their accomplice, so that the trial is not hindered due to lack of evidence in complex and crucial cases. National criminal law usually sets conditions for such pardon including i) full, ii) true and iii) whole disclosure about the circumstances. If the approver does not fulfil the conditions, then the pardon will be revoked. The approver can be tried for the original offence for which they were pardoned, and their own confession can be used against them in that trial. Thus, the pardon initially offered to the approver does not provide blanket immunity.

Article 65 of the Rome Statute of the International Criminal Court (ICC) outlines a framework comparable to the provision of an approver. It governs proceedings based on an admission of guilt. Under this framework, the Chamber is not bound by the admission and must instead satisfy itself of several conditions. First, the accused must understand the nature and consequences of the admission. Second, the admission must be made voluntarily following sufficient consultation with defence counsel. Finally, the admission must also be supported by the facts of the case. This assessment is based on the charges, evidence presented by the prosecutor, and any other materials provided by the accused.

Nevertheless, it is clear in the Rome Statute that the accused remains accused and does not turn into a prosecution witness like in domestic law, and the Chamber may convict the accused even if the accused satisfies the above requirements. Hence, there is no scope for a predetermined or lenient sentence for an admission under Article 78 of the Rome Statute. This is because of the jus cogens character of international crimes. Consequently, pardon for such crimes should not merely be a domestic policy choice.

Additionally, the Guidelines for Agreements Regarding Admission of Guilt adopted by the ICC heavily emphasize the Court’s independent duty to establish the truth. Judges must examine not just the agreement between the parties, but also other evidence presented by the prosecutor and any other evidence, which can include victim representations and other sources, to ensure the facts are complete. Besides, the Guidelines explicitly recognize the need for victims to be informed of the proceedings and to be able to present their views and concerns, ensuring the process does not overlook their interests.

In contrast, the statutes and rules of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) contained provisions for formal plea agreements. An accused could plead guilty to specific charges, often after negotiations with the prosecutor, who might agree to drop other counts or recommend a sentence. Although the Trial Chamber was not bound by the agreement. Judges had to verify that the plea was voluntary, informed, and unequivocal and that a sufficient factual basis for the crimes existed. In these cases, a convicted person received a sentence determined by the judges, with a guilty plea being a significant mitigating factor, often leading to a substantially reduced term.

Nevertheless, the primary goals of international criminal law and tribunals are not just to punish, but to establish a historical record of atrocities, promote reconciliation, deter future crimes, whereas a unilateral pardon could undermine these goals by appearing to offer impunity. Sentences are meant to reflect the individual’s guilt and the gravity of the crime, while a pardon would circumvent this carefully calibrated judicial process