04 Apr NYU JILP Symposium: Policing International Prosecutors Introduction
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
- Margaret deGuzman, Temple University Beasley School of Law
- Alex Whiting, Office of the Prosecutor at the International Criminal Court
- Sonja B. Starr, University of Michigan Law School
Friday, April 5th, 12pm – 2pm EDT
- James G. Stewart, University of British Columbia Faculty of Law
- Kevin Jon Heller, Melbourne Law School
- Jenia Iontcheva Turner, SMU Dedman School of Law
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.
[…] These allegations, though unproven, raise the question of what remedies are available in the event that investigations reveal Prosecutorial misconduct. The defence teams tend to argue for an absolutist approach: dismissal of charges, acquittal, re-hearing of the case or full compensation. This position is understandable given that Defence counsel are protecting their clients’ interests. However, a recent academic article by Prof. Jenia Turner, ‘Policing International Prosecutors’, suggests that a more balanced approach by the court is possible. Such an approach might take more account of the needs of international justice, the rights of victims, the importance of ensuring a correct historical record and proportionality (the scale of the punishment should fit the scale of the misconduct). A discussion of the article and the matter of Prosecutorial Ethics is going on at Opinio Juris. […]