NYU JILP Symposium: New Thoughts about Barayagwiza: Reactions to Policing International Prosecutors

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

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 September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.^[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal.

At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.

Professor Turner’s treatment of the issue is sophisticated and convincing, so I limit my reactions to a set of minor suggestions at the peripheries of her piece. Let us begin with the idea of balancing fair trial rights. Professor Turner advocates for a balancing approach to remedies against prosecutors, that places fair trial rights on a scale with victims’ interests and those of the international community. Initially, this left me apprehensive. What limits should be imposed on this balancing process? Reluctantly, I wondered whether this approach leads us back to Nuremberg, where the prohibition against retroactive law was merely deemed to constitute a “principle of justice,”^[2] to be weighed against others such as the threat of impunity; not some categorical right that inheres in individuals by dint of their appearance in a criminal trial. Professor Turner appropriately shuts this parallel down quickly by repeatedly insisting that prosecutorial violations that “undermine the reliability of the conviction” cannot be simply weighed against net benefits. In other words, the weighing process presupposes that guilt is established.

And yet, I wonder if ascertaining what goes to guilt might be less than obvious in an international system, where a complex array of factors cross over and conflict. In many instances, lawyers admitted in different jurisdictions labor under different ethical codes, which complicate the process of international prosecution in a number of ways. For a contemporary example, recall the public row between Continental and Anglo-American judges at the International Criminal Court (ICC) and ICTY over witness proofing. In France, prosecutors bringing witnesses up to speed before their trial is considered an unconscionable attempt to tamper with evidence, whereas in the United States, failure to prepare witnesses would border on inadequate representation. What is ethical for international prosecutors in this scenario, and do violations render the verdict unsafe? Without established international standards, it seems difficult to answer this and other related questions in the abstract.

This raises questions about the role of bar associations in international criminal justice, which could have enjoyed greater consideration in Professor Turner’s excellent paper. I remember, for instance, discussions within the Office of the Prosecutor of one international tribunal about whether bar admission in any national jurisdiction was a prerequisite to representing the prosecutor internationally. Formally, the answer was no. This seems significant for present purposes since disciplinary proceedings against lawyers are often heard through their local bar associations, not before criminal courts within cases they are prosecuting. To compound this apparent regulatory gap, there is no obligatory international criminal bar, which means that standards remain disparate and enforcement inconsistent, even when prosecutors are admitted nationally. Thus, I wonder if these things should be added to the many sensible propositions Professor Turner puts forward.

Similarly, I have some reservations about whether naming prosecutors personally will always be adequate. Professor Turner rightly argues that declaratory relief by international courts that names and shames individual prosecutors might be important to bring the disapprobation of prosecutorial misconduct home to individuals, and that this might be especially valuable when prosecutors are “repeat players.” While I agree with this contention, my minor misgiving is that international prosecutors are probably “repeat players” less frequently than their domestic counterparts. For the latter, prosecutorial work is often a commitment over many years, sometimes a career, within a defined legal community. By contrast, I imagine that the turnover among international prosecutors is much greater, and I doubt that a bad international reputation necessarily trickles down into a domestic practice that is separate in geography, community, and law. In these circumstances, I might again give local bar associations a greater role.

This brings us to the practical problems with fines, in the context of apparent scarcity of resources for international criminal trials. After the Barayagwiza review decision was handed down promising financial compensation for basic fair trial rights upon acquittal (a promise that was rendered moot by Barayagwiza’s conviction), a friend in the Court’s registry confided that no one had much idea where this money could have come from. Was it a promise the Tribunal could not keep? If so, do these types of undertakings influence the decision-making process on issues of guilt and innocence at trial, making courts more susceptible to the political influence that I feared was a factor in Barayagwiza’s review? Perhaps these concerns are no longer operative within the ICC framework, but I still feel slightly ambivalent about the value of redirecting resources pegged for investigations to defendants as compensation for prosecutorial misadventure. Does this allow the Prosecutor to purchase unfair trials?

These, then, are my minor reactions to Professor Turner’s excellent piece, which will undoubtedly have a great impact on both scholarship and practice. My congratulations to her for such an important contribution to the field, and for changing my mind about Barayagwiza

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