Alex Whiting

Professor of Practice

Biography

Alex Whiting is a Professor of Practice at Harvard Law School where he teaches, writes and consults on domestic and international criminal prosecution issues. From 2010 until 2013, he was in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague where he served first as the Investigations Coordinator, overseeing all of the investigations in the office, and then as Prosecutions Coordinator, overseeing all of the office’s ongoing prosecutions. Before going to the ICC, Whiting taught for more than three years as an Assistant Clinical Professor of Law at Harvard Law School, again with a focus on prosecution subjects. From 2002-2007, he was a Trial Attorney and then a Senior Trial Attorney with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. He was lead prosecution counsel in Prosecutor v. Fatmir Limaj, Isak Musliu, and Haradin Bala; Prosecutor v. Milan Martic; and Prosecutor v. Dragomir Miloševic. Before going to the ICTY, he was a U.S. federal prosecutor for ten years, first with the Criminal Section of the Civil Rights Division in Washington, D.C., and then with the U.S. Attorney’s Office in Boston where he focused on organized crime and corruption cases. Whiting attended Yale College and Yale Law School, and clerked for Judge Eugene H. Nickerson of the Eastern District of New York. His publications include Dynamic Investigative Practice at the International Criminal Court, 76 Law and Contemporary Problems 163 (2014), INTERNATIONAL CRIMINAL LAW: CASES AND COMMENTARY (2011), co-authored with Antonio Cassese and two other authors, and In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L. J. 323 (2009).

Areas of Interest

Alex Whiting, Disclosure Challenges at the International Criminal Court, in The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements (Carsten Stahn ed., 2015).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Alex Whiting, Investigations and Institutional Imperatives at the International Criminal Court, in The First Global Prosecutor: Promise and Constraints 128 (Alex Whiting, Martha Minow & C. Cora True-Frost eds., Univ. Mich. Press 2015).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 Law & Contemp. Probs. 163 (2013).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Article
Guénaël Mettraux, Shireen Fisher, Dermot Groome, Alex Whiting, Gabrielle McIntyre, Jerome de Hemptinne & Goran Sluiter, Expert Initiative on Promoting Effectiveness at the International Criminal Court (Dec.16, 2014).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Other
Abstract
The raison d’être of the present paper is to identify, from the point of view primarily of practitioners, the principal problems of effectiveness affecting the work of the Court with a view to offer practical and realistic solutions intended to improve upon the quality, cost and expeditiousness of ICC proceedings. The following recommendations are made in order to enhance the effectiveness of the Court while, at the same time, preserving the fairness of the proceedings. This study is also intended to serve a spurring function by moving the debate over the performance of the ICC to a place where shortcomings affecting the Court are called by their name and where fresh ideas and possible solutions are being discussed openly and candidly to try to resolve those challenges. The difficulties affecting the Court’s effective fulfillment of its mandate are of different types. The present paper has focused on those thought to have the greatest prejudicial effect on the ability of the Court to operate at the level expected of a permanent international criminal court. These primary areas of concern have been identified by clusters as follows: Investigations at the ICC; The Confirmation Process; Disclosure at the ICC; Presentation and Admission of Evidence; Interlocutory Appeals; Orality; Victim’s Participation before the ICC; Defense before the ICC and Issues of Effectiveness; Institution Building and Administration; and Cooperation and Witness Protection.
Alex Whiting, The ICTY as a Laboratory of International Criminal Procedure, in The Legacy of the International Criminal Tribunal for the Former Yugoslovia 83 (Bert Swart, Alexander Zahar & Goran Sluiter eds., 2011).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Abstract
In this book a group of leading experts take stock of its performance and legacy.
Antonio Cassese, Guido Acquaviva, Mary De Ming Fan & Alex Whiting, International Criminal Law: Cases and Commentary (Oxford Univ. Press 2011).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
International Law
,
Legal Education
Type: Book
Abstract
The decisions presented in the book are helpfully accompanied by short introductions setting out the circumstances of each case and brief commentaries on the importance of the decision and principles illustrated.
Alex Whiting, In International Criminal Law, Justice Delayed Can be Justice Delivered, 50 Harv. Int'l L.J. 323 (2009).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Sentencing & Punishment
,
International Law
Type: Article
Alex Whiting, How Prosecutors Should Exercise Their Discretion Now that the Sentencing Guidelines are Advisory, 8 Issues in Legal Scholarship art. 2 (2009).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Sentencing & Punishment
Type: Article
Abstract
Since shortly after the implementation of the Sentencing Guidelines, the Department of Justice has sought to constrain the discretion of prosecutors at the charging, plea-bargain and sentencing phases in order to ensure the faithful application of the Guidelines. The latest manifestation of this policy is the so-called "Ashcroft Memorandum," which requires prosecutors to charge and pursue the most serious, readily provable offense and advocate a Guideline sentence in nearly all cases. Although this policy arguably made sense when the Guidelines were mandatory, it makes less sense now that they are advisory. This article argues that the Department should revisit this policy and return some limited discretion to line prosecutors, particularly at sentencing. Under an advisory Guidelines regime, the Department's current policy of strict adherence to the Guidelines takes prosecutors out of the sentencing process, perpetuates some of the failings of the mandatory Guidelines approach, and prevents line prosecutors from participating in the formulation of sentencing policy. If the Department departs from its current approach, however, the challenge is to determine how much discretion to grant prosecutors. This article suggests various substantive and procedural mechanisms to cabin the discretion exercised by line prosecutors and to ensure uniformity and transparency in sentencing.
Alex Whiting, Lead Evidence and Discovery before the International Criminal Court: The Lubanga Case, 14 UCLA J. Int'l L. & Foreign Aff. 207 (2009).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Criminal Evidence
,
International Law
Type: Article
Abstract
In this article, the author uses the case of The Prosecutor v. Thomas Lubanga Dyilo, the first trial of the International Criminal Court, to discuss the conflict between the Prosecution's right to obtain confidential "lead" evidence as stated in ICC Article 54(3) (e) and its responsibility to disclose potentially exculpatory evidence under Article 67(2). None of the statutes or rules of ICC tribunals provide clear guidance on how this conflict is to be resolved or articulate remedies when it cannot be. The author argues that the conflict will continue to be prominent at the ICC, that the Prosecution must have should adopt an approach to resolve the conflict in the rules that maximizes the Prosecution's ability to obtain lead evidence while protecting the rights of the accused.
Alex Whiting, Controlling Tin Cup Diplomacy: Note, 99 Yale L.J. 2043 (1990).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Foreign Relations
Type: Article
Alex Whiting, Covert Operations and the Democratic Process: The Implications of the Iran-Contra Affair (Ctr. for Nat'l Security Stud., Washington, D.C. 1987).
Categories:
Government & Politics
Sub-Categories:
National Security Law
Type: Book

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