International Prosecutors: Ethics and Accountability

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A number of incidents have of late brought attention on the problem of the standards to be followed by the prosecutors of international criminal tribunals. Ethical standards of the profession and ways to make prosecutors accountable seem essential to safeguard the legitimacy of international criminal justice. Domestically, prosecutors' work is often quite strictly bound within certain limits, but internationally it has taken longer for appropriate standards to emerge, and arguably even longer for them to be implemented. This working paper looks at how deontological norms apply to international prosecutors and what it means to describe them as "accountable". Accountability can be defined by reference to narrow professional standards, or broad political objectives, the two being potentially it tension. The paper charts the emergence of the issue as a significant one in the evolution of international criminal tribunals. The need for accountability of prosecutors is then justified from a normative point of view. It distinguishes between different "regulatory models" of accountability, and highlights the sources of ethical standards, to whom exactly they apply and how. Attention is drawn to a number of principles that are presented as particularly relevant such as independence and impartiality; fairness, integrity, propriety, and good faith; professionalism and competence; diligence and expeditiousness; and transparency. The challenge is to make prosecutors accountable in a way that is commensurate with the degree of their fault, and not risk unduly encroaching on their independence. This is achieved by making sure that the responsibilities for enforcing accountability are properly allocated, and by developing mechanisms that are adequate to the task. These can include requiring prosecutors to report on their work, or submitting it to a degree of judicial supervision leading, for example, to the award of remedies to those (typically the accused) who have suffered from prosecutorial wrongdoing. In exceptional circumstances, disciplinary proceedings up to removal may be the only option to guarantee the integrity of international criminal justice, possibly leading to reparations to victims of prosecutorial abuses.

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The prosecutor’s position within the criminal justice system cannot be overstated. Robert Jackson, former United States Attorney General, who gained worldwide reputation through his role as Chief United States Prosecutor at the International Military Tribunal in Nuremberg, remarked fully seventy-five years ago that: ‘The prosecutor has more control over life, liberty, and reputation than any other person in America.' Prosecutors are ‘the criminal justice system’s real lawmakers’ and ‘the gatekeepers to the justice system’ system’, insofar as they make the crucial decisions about which individuals enter the criminal justice system and under what conditions they move through it.
The International Criminal Court became operative in 2002. The first prosecutor of the Court faced the enormous challenge of setting up a series of policies addressing at the same time the backlog of overriding expectations. His task was daunting, and his prosecutorial choices triggered a series of controversies among a variety of relevant audiences, while the concept of legitimacy appeared to become the panacea to the debate. The current contribution purports to achieve a twofold goal using a doctrinal, descriptive and normative angle: (i) to provide an alternative normative theory of the thorny principle of prosecutorial discretion and particularly of the interests of justice reference, based on the fairness aspect of legitimacy and (ii) to recommend an alternative to today’s adopted prosecutorial policy with regard to the interests of justice reference in Article 53, emphasizing its long-term effect on the overall perception of the Court.
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