In the wake of recent sexual harassment news, Prof. Bennett L. Gershman, of the Elisabeth Haub School of Law at Pace University, argues that private civil settlements that involve non-disclosure should be illegal.
To maintain transparency of the proceedings of the Prosecutor’s Office, Fatou Bensouda, announced the issuance of a Policy Paper on Case Selection and Prioritisation (in English and French). As mentioned in the policy paper, the resources available to the Office do not allow it to look into every possible alleged case or situation and as such, the OPT must prioritize while continue to carry out its mandate and ensure that the “exercise of [prosecutorial] discretion in all instances is guided by sound, fair, and transparent principles and criteria.” The purpose of this paper is to set out “considerations which guide the exercise of prosecutorial discretion in the selection and prioritisation of cases for investigation and prosecution.” Aside from the Security Council and State Party referrals, the Prosecutor may initiate investigation proprio motu in accordance with Art. 15.
This paper is intended to be an internal document without giving rise to legal rights, and thus is subject to revisions. It explains the distinction between situations and cases. It highlights the importance of preliminary examinations in deciding whether to open an official investigation. It identifies the “gravity” element, as defined in Art. 17(1)(d) of the Rome Statute, as one of the predominant case selection criteria. It reaffirms the importance of the Court’s cooperation with national jurisdictions in carrying out the principles articulated in the Preamble of the Rome Statute, especially in situations when cases are not selected for investigation or prosecution by the OTP.
Under the complementary criminal justice system, as defined in Art. 17 of the Rome Statute, the Office further states that it will “encourage genuine national proceedings … and seek to cooperate and provide assistance to States, upon request, with respect to conduct [constituting] crime under national law, such as the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or destruction of environment.” This adds to the Office’s commitments one protecting environment by ensuring that the destruction to natural environment does not go unpunished.
Among the many criteria to be considered when selecting cases for investigation by the Office are the already mentioned gravity in order to focus on the “most serious crimes within a given situation that are of concern to the international community as a whole”; the degree of responsibility of alleged perpetrators to ensure that “charges are brought against those persons who appear to be the most responsible for the identified crimes”; and the charges where the Office states to focus on “crimes that have been traditionally under-prosecuted, such as crimes against or affecting children, … rape and other sexual and gender-based crimes, … and attacks against cultural, religious, historical, and other protected objects as well as against humanitarian and peacekeeping personnel.”
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.
This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.
The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?
In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?
On December 5, 2014, as part of the HuffPost Live, Pace Professor of Law and Director of the Pace Criminal Justice Institute Lissa Griffin joined Roger Fairfax, Professor of Law at George Washington University, and the host Josh Zepps for a live discussion about the role and function of grand juries in the US justice system. Josh Zepps introduces the segment by saying that
[i]n the span of two weeks, two grand juries have failed to indict cops involved in the death of unarmed black men. Most counties don’t even have grand juries. Why do we? How do they work? And what can be done to fix our flawed legal system?
The two guests explain what grand jury is, how it operates, how it decides to indict, the role of the prosecutor during grand jury proceedings, and the lack of judicial involvement during this stage. The discussion further progressed to consider comparative perspectives, including the French, German, and English indictment procedures.