NYU JILP Symposium: How Much Weight Should Courts give to Defendants’ Rights in Determining Remedies for Prosecutorial Violations?

[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.

I agree with Professor Turner’s endorsement of a balancing approach to prosecutorial errors and misconduct. Much of judging is about balancing competing interests and this area is no exception. That said, I am not sure the Lubanga Trial Chamber wasn’t engaging in such balancing, albeit implicitly and without the level of detail Professor Turner rightly urges on judges. The Trial Chamber notes the interests being sacrificed, both those of the victims and of the international community. However, because it concludes that a fair trial is not possible in light of the prosecutor’s actions, it privileges the defendant’s rights over the competing interests.  Professor Turner reads the decision as valuing fairness to the defendant alone without regard for competing values. I am not convinced the decision is quite so “absolutist.”  The decision’s analysis of the competing values is not fully satisfying and the balance struck may have been wrong.  Nonetheless, I read the decision as engaging in a primitive form of the balancing test Professor Turner endorses and concluding that the defendant’s interests in a fair trial prevailed.

Moreover, I think there are at least two good reasons for international criminal courts to err on the side of defendants’ rights in performing such balancing.  The first reason, paradoxically, is that international courts are tasked with adjudicating what the Rome Statute calls “the most serious crimes of concern to the international community.”  Professor Turner, as well as the courts themselves, rely on the notion that international crimes are characterized by special gravity to argue that the interests of victims and the international community should be given particular weight. For example, Professor Turner quotes an ICC Trial Chamber as stating that in determining a remedy, it “must weigh the nature of the alleged abuse of process against the fact that only the most serious crimes of concern for the international community as a whole fall under the jurisdiction of the Court.”  This idea concerns me.  As I have elaborated elsewhere, the gravity rhetoric that pervades international criminal law does not always reflect the reality of the harms inflicted or the defendants’ culpability for those harms. My concern is that in balancing defendants’ rights against the interest in prosecuting “grave” international crimes, judges will be unduly swayed by the gravity rhetoric, resulting in injustice to defendants.

This leads to my second reason to prefer that judges err in favor of defendants’ rights:  my view of the goals of international criminal prosecution. Professor Turner focuses on three goals: punishing international crimes, offering relief to victims, and compiling an accurate historical record. In the burgeoning literature on the legitimate purposes of international prosecution, these are consistently listed among the most important. My view, however, is that international prosecution is largely aimed at promulgating global norms. International courts do not have the resources to have much impact in terms of punishing perpetrators or assisting the victims of mass crimes, nor are they well suited to the task of elaborating an historical record of atrocities. On the other hand, the visibility and stature of such courts makes them an excellent platform for the promotion of global norms of conduct. Thomas Lubanga’s conviction, for instance, was arguably of limited value for the victims of his crimes or for the historical record but sent a strong message that the international community condemns the use of child soldiers.

In light of my view that international courts are really about norm promotion, it seems to me more important as a general matter that such courts be seen as abiding by the highest standards of human rights rather than that they complete prosecutions in particular cases.  Professor Turner writes that “[i]f promoting a fair trial and spreading a culture of procedural fairness were the only goals of international criminal justice, then the absolutist approach to remedies might well be the optimal one.” I would not go so far.  Promoting global norms, including those pertaining to the rights of criminal defendants, is not the only goal of international criminal justice. Nonetheless, I would generally prefer to see international courts privilege that goal over the other goals Professor Turner discusses. As such, while I agree with Professor Turner that a balancing approach to prosecutorial error is appropriate, I would urge international courts to err in favor of defendants’ rights in performing such balancing.

I look forward to the debate about this important article and hope that Professor Turner’s analysis and reasoning will have a significant impact on judicial decision making in this area.