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NYU JILP Symposium: Policing International Prosecutors Concluding Remarks

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. We would like to once again extend our deepest gratitude to Opinio Juris for providing us with such a wonderful forum to host this symposium. Thank you to all of the scholars who...

NYU JILP Symposium: Response to the Commentary on Policing International Prosecutors

[Jenia Iontcheva Turner is a Professor at SMU Dedman 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. Many thanks to Opinio Juris and the NYU Journal of International Law and Politics for hosting the symposium and to Margaret deGuzman, Alex Whiting, Sonja Starr, James Stewart, and Kevin Heller for agreeing to read and comment on my article. I would like to use this opportunity to address briefly several key points raised by the commentators.   1) The balancing approach and the ICC’s competing purposes In the article, I argue that the ICC pursues multiple and sometimes competing goals—protecting defendants’ rights, promoting respect for the rule of law, holding perpetrators of international crimes responsible, and establishing a record of the atrocities. While the first two goals generally tend to favor stricter remedies for prosecutorial misconduct, the last two goals call for a more tempered approach. Meg deGuzman agrees that the balancing approach is necessary to accommodate the competing goals of the ICC, but she argues that the goal of promoting global norms takes precedence. To attain this goal, the court should err on the side of defendants’ rights when addressing prosecutorial misconduct. This would help spread respect for the highest standards of procedural fairness.

NYU JILP Symposium: The Rhetoric of Remedies

[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.

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.

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.