Legal Professionalism and International Criminal Proceedings

Abstract

In criminal practice before international tribunals, the boundaries between lack of professionalism (serious misconduct) by prosecution and taking an erroneous position on the law (procedural error) are particularly blurred, if only because the backgrounds and expectations of all persons involved in the proceedings are profoundly different and the playing field is still insufficiently defined. This is illustrated by the Furundžija case brought before an International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber in 1998. In that case the Chamber held that the prosecution, by failing to disclose a document to the defence, had both engaged in serious misconduct and made a serious procedural error. Instead, the Lord Advocate and the Crown Agent of Scotland, later consulted by the ICTY Prosecutor, concluded that there had only been an error of judgment. National case law, for instance that of Canadian courts, makes it clear that a good faith decision not to disclose a document, made in the exercise of professional judgment on a difficult and novel issue, may constitute an error of judgment, but certainly does not amount to misconduct.