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Opinio Juris Online Symposium for Vol. 45, No. 1

The NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics is proud to once again part­ner with Opinio Juris for an online sym­po­sium around Jenia Iontche­va Turner’s arti­cle, Polic­ing Inter­na­tion­al Pros­e­cu­tors. Over the next two days, a num­ber of schol­ars will be respond­ing to Pro­fes­sor Turner’s arti­cle that was pub­lished in our Vol­ume 45, No. 1 issue.

To fol­low that dia­logue, please vis­it to Opinio Juris.

The abstract for her 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.

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