Turner: Policing International Prosecutors

Jenia Iontcheva Turner (Southern Methodist Univ. - Law) has posted Policing International Prosecutors (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

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.