04
Apr
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.