NYU JILP Symposium: The Challenge of Assessing Misconduct Allegations at an International Court

[Alex Whiting is the Prosecution Coordinator at the Office of the Prosecutor at the International Criminal Court. The views expressed are his own.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

I commend Jenia on her thoughtful and balanced analysis of remedies at the ICC for prosecutorial mistakes or misconduct. It is a topic that should be of interest and concern to all actors within the Court, as well as interested parties on the outside. I particularly appreciate that she clarifies that she is talking about both prosecutorial errors and misconduct. I can attest to the extremely high ethical commitment of the prosecutors within the Office of the Prosecutor, and the intense distress that is felt within the office when mistakes are made. Nonetheless, mistakes, and even misconduct, can occur, and therefore it is important to consider the appropriate remedial approach when it happens.

Speaking for myself only and not on behalf of the office, I agree with Jenia regarding the wisdom of the balancing approach, but there may be an additional hazard to the ones she identifies. Just as an absolutist approach might cause judges to avoid finding a violation of an accused’s rights – what Jenia and others refer to as “remedial deterrence” – the balancing approach, which offers the judges a range of remedial options, risks having the opposite effect, causing judges to be too willing to find prosecutorial violations or prejudice to the defense. If judges can impose only a small penalty on the prosecution for an alleged violation, will they be more likely to succumb to pressures to “even” the score or to appear balanced and fair in a high-profile and much-scrutinized case? This risk will be greatest when it is not an individual prosecutor but rather “the Prosecution” that is to be sanctioned. We all like to think that judges are immune to such pressures, but the premise of the remedial deterrence argument is precisely that they are not, that they are in fact human, and so we must also consider the danger of pressures pushing in the opposite direction.

Moreover, it has to be recognized that allegations of violations or misconduct by the prosecution can be litigation weapons in the hands of defense counsel, not always made with a basis in fact (shocking I know), and that they usually require judgment calls on the part of the judges, particularly when assessing intent or ensuing prejudice. In sum, judges have to make difficult assessments when faced with allegations of misconduct by the prosecution, and must therefore be sensitive to the pressures that may weigh on their decisions.

The dangers of getting it wrong are particularly acute at the ICC where there is a mix of litigation cultures. Prosecutors and defense lawyers play different roles in various systems and will also be accustomed to different practices and customs from their own jurisdictions. For example, some defense lawyers learn pretty quickly within their own systems how to escalate ordinary disputes into allegations of grave misconduct, while the judges within those systems learn just as quickly how to differentiate between overblown rhetoric and real prosecutorial violations. At the same time, a lawyer or judge from a different system, where another kind of culture prevails, might have real difficulty evaluating and piercing the very same claims. Therefore, in addition to all of the other challenges faced by the judges at the ICC, there is therefore the additional one of cutting through what may be unfamiliar litigation practices, language, and tactics to get to the truth behind allegations of prosecutorial violations.