[Margaret deGuzman is an Associate Professor of Law Temple University Beasley 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.
Thanks to Opinio Juris for inviting me to comment on Jenia Turner’s article and to Professor Turner for her excellent and thought-provoking work.
Professor Turner’s article tackles an important problem that has plagued the ICC in its early days. When the ICC Trial Chamber ordered the release of the the Court’s first defendant due to the prosecutor’s procedural violations, it sent shock waves through the international community. Was the ICC’s first case to be derailed by prosecutorial misconduct? Reactions were mixed. Some commentators felt the Trial Chamber was overreacting. Professor Bill Schabas
invited the defendant to dinner.
Professor Schabas’ dinner did not come to pass, however, because the Appeals Chamber rejected what Professor Turner terms the Trial Chamber’s “absolutist” approach to remedying the prosecutor’s errors. The case proceeded, resulting in a conviction and a fourteen-year sentence.
Professor Turner’s article endorses the Appeals Chamber’s more moderate approach to identifying the appropriate remedy for prosecutorial errors and misconduct. Indeed, she urges international courts to go further and develop a balancing test that explicitly pits the interests of victims and the international community in prosecuting international crimes against the values of deterring misconduct and promoting fair trials. The article makes an important contribution to the growing literature on remedies at international criminal courts. Professor Turner provides both a detailed analysis of existing jurisprudence and a compelling normative argument, complete with proposed factors for courts to consider in performing the requisite balancing. The article will thus be extremely useful to scholars and judges alike.
