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Ethical Conduct in International Criminal Courts: Whose Ethics?

  • Elena Cima (a1) and Makane Moïse Mbengue (a2)

Extract

Ethics plays a crucial role in international adjudication, in particular in the context of international criminal proceedings where the liberty of the accused is at stake. Criminal courts have been trying to create an “international judicial culture” based on shared ethical standards. In doing so, however, they are constantly faced with an obstacle inherent in the very idea of ethics: the impossibility of defining what constitutes “ethical conduct” divorced from one's culture, tradition, legal system, or professional background. This contribution intends to explore the complexity of trying to define the contours of ethical standards in international criminal proceedings, in particular in the absence of precise written rules, by focusing on the Furundžija case. Even when rules are codified, however, they often remain open to divergent interpretations depending on one's cultural, social, and legal background. Ultimately, it is not simply a matter of codifying ethical rules but, more importantly, of agreeing on “whose ethics” these rules should reflect.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Int'l Criminal Court, Rules of Procedure and Evidence, UN Doc. IT/32, Rule 5.

2 Rosalyn Higgins, Ethics and International Law, 23 Leiden J. Int'l L. 283, 287 (2010).

3 Makane M. Mbengue, Challenges of Judges in International Criminal Courts and Tribunals, in Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals 183 (Chiara Giorgetti ed., 2015).

4 Id.

5 Higgins, supra note 2, at 288.

7 Int'l Criminical Court, Code of Judicial Ethics, ICC-BD/02-01-05 (2005).

8 Ruth Mackenzie & Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 Harv. Int'l L. J. 271, 275 (2003).

9 Int'l Criminal Court, Code of Professional Conduct for Counsel arts. 6 & 7, ICC-ASP/4/Res.1 (2005).

10 Higgins, supra note 2, at 287.

12 Anja Seibert-Fohr, International Judicial Ethics, in The Oxford Handbook of International Adjudication (Cesare Romano et al. eds, 2013).

13 Rome Statute of the International Criminal Court, UN Doc. A/CONF.189/9, 37 ILM 999 (July 17, 1998); Int'l Criminal Court, supra note 1; Int'l Criminal Court, supra note 7.

14 Int'l Crim. Trib. for the Former Yugoslavia, Code of Professional Conduct for Counsel Appearing before the International Tribunal (amended July 22, 2009); Int'l Crim. Trib. for Rwanda, Code of Professional Conduct for Defense Counsel (amended Mar. 14, 2008).

15 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Appeal Judgment, paras. 182, 189 (Int'l Crim. Trib. for the Former Yugoslavia, July 21, 2000).

16 See Prosecutor v. Karemera (Édouard), Case No. ICTR-98-44-T, Decision on Appeals Chamber Remand on the Right of the Accused to be Present at Trial (Nov. 28, 2007).

17 R v. Gough, [1993] A.C. 646 at 661, as quoted in Furundžija, Appeals Chamber Judgment, para. 184.

18 Int'l Crim. Ct., Code of Conduct for the Office of the Prosecutor (Sept. 5, 2013).

19 Arman Sarvarian, Professional Ethics at the International Bar 195, 203 (2013).

20 Id. at 195.

21 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-PT, Formal Complaint, para. 9 (Int'l Crim. Trib. for the Former Yugoslavia, June 5, 1998).

22 Id.

23 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Trial Judgment, paras. 39-43 (Int'l Crim. Trib. for the Former Yugoslavia, Dec. 10, 1998).

24 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-PT, Formal Complaint, para. 7 (Int'l Crim. Trib. for the Former Yugoslavia, June 5, 1998).

25 Id., paras. 5, 6.

26 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1, Prosecutor's Response to the Formal Complaint of the Trial Chamber, para. 13 (Int'l Crim. Trib. for the Former Yugoslavia, Dec. 11, 1998).

27 In September 1999, after the end of the trial, the ICTY Prosecutor issued the Standards of Professional Conduct for Prosecution Counsel.

28 Louise Arbour, Legal Professionalism and International Criminal Proceedings, 4 J. Int'l Crim. Just. 674, 682 (2006).

29 Jean-Paul Sartre, The Transcendence of the Ego (1957).

30 The accusations of neocolonialism were raised, e.g., in the Al Bashir case in front of the ICC.

31 Statement of objectives, as quoted in Arbour, supra note 28, at 685.

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