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 are excited to collaborate again this week with Opinio Juris for an online symposium. The symposium will be a discussion of Jenia Iontcheva Turner’s article Policing International Prosecutors published in our Volume 45, No. 1 issue. Professor Turner’s piece analyzes the complex issue about how to “how to ensure that prosecutors are held accountable for their errors and misconduct.”
A number of international criminal law scholars will offer their thoughts on the topic followed afterward by Professor Turner’s response.
Thursday, April 4th, 12pm – 2pm EDT
Friday, April 5th, 12pm – 2pm EDT
Below is the abstract from Professor Turner’s article:
A recurring question in international criminal procedure is how to ensure that prosecutors are held accountable for their errors and misconduct. When International Criminal Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber, the standoff between the judges and the prosecution highlighted the dilemmas that the ICC faces in these circumstances. To protect the integrity of its proceedings, the court must order remedies that effectively punish misconduct. At the same time, sweeping remedies may harm other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record.
In its more recent decisions, the ICC has acknowledged these competing interests and weighed them in determining remedies for prosecutorial misconduct. This Article argues that the court should fully and openly embrace a balancing approach to remedies. Because of the gravity and systematic nature of international crimes, it is essential to recognize and accommodate the significant interests of the international community and victims in preventing impunity and establishing an accurate record of the crimes.
The balancing approach is not without shortcomings—it can be unpredictable, and it risks weakening enforcement of defendants’ rights. To avoid these dangers, the court should take several concrete steps in conducting the balancing analysis: specify clearly the factors that will guide it; place special importance on the fair trial rights of the defendant; temper remedies only when a significant and legitimate goal of the international criminal justice system warrants it; and finally, develop a broader range of responses to prosecutorial misconduct, including sentence reductions, partial dismissals, fines, and disciplinary referrals. By applying a well-defined balancing analysis, the ICC can achieve an approach to prosecutorial misconduct that is both effective and able to accommodate the competing interests of international criminal justice.
We look forward to the discussion on this important subject over the next two days.