NYU JILP Symposium: When Should International Criminal Tribunals Compromise on Remedies for Prosecutorial Misconduct?

[Sonja B. Starr is an Assistant Professor of Law at the University of Michigan Law School.]

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.

In Policing International Prosecutors, Jenia Iontcheva Turner offers a rich account of the competing interests at stake in cases involving international prosecutors’ misconduct, and advances a strong case that remedial doctrines should squarely acknowledge those competing interests. Because international law has often struggled to close the gap between rights and remedies, many might understandably be skeptical of proposals to explicitly recognize the validity of such gaps. Still, I agree with Turner that in some instances, a candid remedial interest-balancing approach is the best solution to intractable conflicts of legitimate interests. I have previously proposed remedial interest-balancing and the use of intermediate remedies (e.g., sentence reduction) in international criminal procedure on the grounds that it might improve the protection of defendants’ rights. Overly rigid remedial rules may perversely often result in no remedy at all, because if the only available remedies involve releasing defendants who may be perpetrators of atrocities or ordering a costly and lengthy retrial, tribunals may find ways to avoid recognizing rights violations in the first place. Turner offers a distinct, complementary argument: even assuming interest-balancing is not ultimately better for defendants, defendants’ rights are not the only important interest at stake. Holding the perpetrators of international crimes accountable and establishing a record of atrocities are vital international interests that sometimes should outweigh the defendant’s right to a remedy for misconduct.

Turner argues persuasively for this conclusion, develops the case for a range of alternative remedies, and proposes a nuanced approach designed to ensure that defendants’ rights are not compromised unnecessarily. In this regard, her proposal could be strengthened if it clearly drew one bright-line distinction: interest-balancing can never justifiably extend to permit courts to allow a conviction that is not based on a fair trial (or a valid guilty plea). By “fair trial,” I mean one that, whatever its failings, remains a legitimate test of whether the defendant’s guilt is established beyond reasonable doubt. If prosecutorial misconduct throws the validity of a conviction into doubt (or, ex ante, has rendered it impossible to ensure a fair trial even if lesser remedies are invoked), the tribunal’s obligation is not just remedial in nature—it is an obligation to cease a continuing violation of the defendant’s rights or to prevent a future one, namely the imposition of wrongful punishment.

The restriction I propose here may well be consistent with Turner’s view: for instance, she states that “a court cannot legitimately assert an interest in an unjust conviction.” But other parts of her analysis suggest that the extent to which trial fairness is compromised is merely one factor (albeit an important one) to weigh in a multi-factor interest-balancing test, a framing that might be read to imply that sufficiently strong countervailing interests could justify allowing a conviction despite fairness concerns that do put its factual validity in doubt.  It would be better to clarify that the prejudice inquiry is a threshold question that determines whether interest-balancing is appropriate at all.

Even with this restriction, Turner’s proposal is important—many of the serious procedural problems in international criminal cases have been of the sort that do not fundamentally undermine confidence in the conviction.  These include unlawful arrest procedures, searches, and seizures, initial detention without counsel or without charges, and undue delays in trial (provided the delays do not undermine the defense). Indeed, even withholding exculpatory evidence—misconduct that generally does threaten trial fairness—can be nonprejudicial in a particular case, for instance if the evidence turns out to be weak, or is eventually turned over in time for trial. In U.S. terminology, such errors would be deemed “harmless,” but this is a misnomer. Serious prosecutorial misconduct causes harm—to the defendant and to the tribunal’s credibility—albeit non-conviction-related harm.  Remedies in such cases are important to compensate the defendant, condemn the violation, and deter future violations. But such remedial interests, while serious, do not necessarily outweigh the punishment interests of atrocity victims and the international community. Courts routinely balance interests implicitly, but bringing this process to the surface and developing explicit legal principles can improve consistency and candor. Turner’s proposal offers such principles, and should be taken seriously by the ICC and other tribunals.