NYU JILP Symposium: The Rhetoric of Remedies

by Kevin Jon Heller

[Kevin Jon Heller is currently Associate Professor & Reader at Melbourne 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.

I appreciate the opportunity to respond to Jenia’s excellent article. I always learn from her scholarship, and this article is no exception. That said, I find myself in an unusual quandary. When asked to critique an article, I normally take issue with its substance. There is very little substance in Jenia’s article, however, with which I disagree. Indeed, if she and I were both ICC judges, I imagine that we would almost always agree on the appropriate remedy or sanction for a violation of a defendant’s rights.

That said, I find the rhetoric of Jenia’s article very problematic. To begin with, I think her distinction between “absolutist” and “balancing” approaches to remedies misleads more than it enlightens. Like my friend Meg DeGuzman, I don’t believe that the ICC has ever engaged in the “absolutist” approach, selecting remedies for misconduct without reference to the consequences for victims, the penological rationales of international criminal law (ICL), etc. When the Court has selected a drastic remedy for a violation of the defendant’s rights, it has done so only when the violation seriously compromised the Court’s ability to accurately determine the defendant’s guilt or innocence. The Trial Chamber initially stayed the proceedings in Lubanga, for example, only when it lost faith in the OTP’s ability to identify (much less disclose) exculpatory evidence. In Jenia’s own words (p. 188), “[w]ithout examining the documents at issue, the Chamber would be unable to ensure that the verdict in the case was fair and accurate.” The Appeals Chamber, in turn, only lifted the stay once it became clear that the OTP would, in fact, disclose any and all exculpatory evidence to the defendant.

I don’t like describing the approach of the Trial Chamber and the Appeals Chamber in this situation as “absolutist” – at least insofar as that term is given a negative connotation. Unfortunately, I think Jenia views “absolutist” as an epithet, as indicated by the following passage (p. 184):

The early decisions of ICC trial chambers favored an absolutist approach to remedies. Under this approach, once the court concludes that a violation of certain rights has occurred, it has to order a full and effective remedy, regardless of its costs.

The problem I have with this statement is this: it implies that it is acceptable to not “fully and effectively” remedy a violation of a defendant’s rights whenever such a remedy imposes too great of a burden on ICL’s non-adjudicative goals. If that is what Jenia means by “balancing,” then I think her proposal is both theoretically indefensible and inconsistent with longstanding principles of international criminal law. As she herself notes (p. 185), “[t]he international criminal tribunals for Rwanda and the former Yugoslavia have ‘treated the right to an effective remedy as an absolute right, or nearly so’ and have refused to limit remedies ‘on the basis of countervailing interests, such as the public interest in punishing major crimes or other social welfare concerns’.”

In fact, I don’t think that is what Jenia means. I think she is trying to make the perfectly valid point that because violations of a defendant’s rights are not all equally serious, judges should tailor a remedy to the seriousness of a violation, not imposing a more serious remedy when a less serious remedy would be as effective. If so, she and I agree completely – but such tailoring does not countenance providing the defendant with something less than a “full and effective remedy.” It simply acknowledges that providing a full and effective remedy does not always require the effective dismissal of the case.

I wish Jenia had made that point more clearly. More specifically, I wish she had avoided using the expression “unfair trial,” because “unfair” muddies the distinction between two very different categories of rights violations: those that make accurate adjudication impossible (such as failing to disclose exculpatory evidence); and those that do not (such as violating the defendant’s right to a speedy trial). Both categories of violations may render a trial unfair, but that does not mean that judges should respond to them similarly. On the contrary, although violations that do not affect the accuracy of adjudication should rarely (if ever) lead to dismissal of the defendant’s case, violations that make accurate adjudication impossible should rarely (if ever) lead to anything short of dismissal.

I would like to think that Jenia agree with me. But if she does, she should avoid making statements like this one (p. 204):

Through these functions, remedies and sanctions for prosecutorial misconduct help promote a central role of international criminal justice: to ensure fair trials and promote individual rights. But as this Section shows, promoting fair trials and individual rights is not the only goal of the International Criminal Court. The court also aims to punish international crimes effectively and to establish the truth about these crimes. The balancing approach to remedies can help the court accommodate these sometimes competing goals.

This is very dangerous rhetoric, because it implies that non-adjudicative goals such as effectively punishing international crimes and creating a historical record can sometimes justify giving a defendant an unfair trial. Insofar as the unfairness of a trial is caused by a violation of the defendant’s rights that does not make accurate adjudication impossible, Jenia’s argument makes sense. But as Sonja Starr points out in her response to the article, no non-adjudicative goal can ever justify countenancing an unfair trial that is unfair because a violation of the defendant’s rights prevents accurate adjudication. A fair trial may be only one of many goals of international criminal law, but an accurate trial has to be the foremost goal.

Indeed, an accurate trial is the necessary, if not sufficient, condition of all of the other goals that Jenia identifies. If the wrong person is convicted of an international crime, that crime is not punished effectively, the truth of that crime is not established, and the interests of the crime’s victims are not honored. An “absolutist” approach to violations of a defendant’s rights that make accurate adjudication impossible thus seems wholly warranted – as I hope Jenia will agree.


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