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Defense Perspectives on Fairness and Efficiency at the International Criminal Court

Oxford Handbook On International Criminal Law (Kevin Jon Heller et al. eds., 2017, Forthcoming)

SMU Dedman School of Law Legal Studies Research Paper No. 349

35 Pages Posted: 28 Mar 2017 Last revised: 6 Apr 2017

Jenia Iontcheva Turner

Southern Methodist University - Dedman School of Law

Date Written: March 24, 2017

Abstract

Over the last several years, states parties of the International Criminal Court (ICC) have put increasing pressure on the court to become more efficient. Proceedings are seen as unduly slow, and judges have been urged to rein in the parties and expedite the process.

The emphasis on efficiency can advance important goals of the ICC. It can help ensure defendants’ right to a speedy trial, promote victims’ interests in closure, and allow the court to process more cases with limited resources. But as the experience of earlier international criminal tribunals shows, an unrelenting pursuit of efficiency could also interfere with other values of the criminal process, such as the protection of individual rights and the search for truth.

This book chapter examines how the sharper focus on expediting proceedings at the ICC has affected defense rights and interests. Have judges, in an effort to increase the court’s efficiency, limited defense opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have concerns about cost led the court to impose unwarranted restrictions on defense investigations? Have judges urged the defense to disclose its case early on or to settle any aspects of the case with the prosecution?

To begin an exploration of these questions, the chapter analyzes the findings of a survey of international criminal defense attorneys about their views of ICC procedures. While survey respondents expressed some concerns about procedural unfairness at the court, they did not believe that judges’ preoccupation with efficiency was the cause of the unfairness. Likewise, while they complained about insufficient financial and institutional support for defense work, respondents tended to place responsibility for these decisions on the Registry and States Parties, not on judges. Perhaps most surprisingly, respondents stated that certain judicial efforts to expedite proceedings—demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favor defense rights. Defense attorneys could therefore leverage the court’s emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.

Keywords: international criminal law, international criminal procedure, International Criminal Court, defense attorneys, efficiency, managerial judging, fairness, survey

JEL Classification: K14, K33, K42

Suggested Citation

Turner, Jenia Iontcheva, Defense Perspectives on Fairness and Efficiency at the International Criminal Court (March 24, 2017). Oxford Handbook On International Criminal Law (Kevin Jon Heller et al. eds., 2017, Forthcoming); SMU Dedman School of Law Legal Studies Research Paper No. 349. Available at SSRN: https://ssrn.com/abstract=2940483 or http://dx.doi.org/10.2139/ssrn.2940483

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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