Policing International Prosecutors

NYU Journal of International Law & Politics, Winter 2013

SMU Dedman School of Law Legal Studies Research Paper No. 118

74 Pages Posted: 23 Jan 2013 Last revised: 14 Feb 2013

See all articles by Jenia Iontcheva Turner

Jenia Iontcheva Turner

Southern Methodist University - Dedman School of Law

Date Written: January 22, 2013

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.

Keywords: international criminal law, international criminal procedure, prosecutors, International Criminal Court, prosecutorial misconduct, remedies, sanctions, balancing

JEL Classification: K14, K33, K42

Suggested Citation

Turner, Jenia Iontcheva, Policing International Prosecutors (January 22, 2013). NYU Journal of International Law & Politics, Winter 2013; SMU Dedman School of Law Legal Studies Research Paper No. 118. Available at SSRN: https://ssrn.com/abstract=2205536

Jenia Iontcheva Turner (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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