Do International Prosecutors Need Ethics Rules?

    In 2011, I wrote an article that urged the International Criminal Court ("ICC") to adopt a code of conduct for its prosecutors.  I noted that all other counsel that appear before the ICC are subject to a code of conduct, as are its judges.  The International Association of Prosecutors and Coalition for the ICC prepared a draft code of conduct for ICC prosecutors, but it has not been adopted even though the ICC has been operating since 2002.  One of my main arguments was that the ICC's prosecutors come from a variety of legal and ethical traditions and are likely to have very different conceptions of the prosecutor's role and what constitutes acceptable professional conduct.  

    This issue seems to now be coming to a head.  The defense team of Kenyan President-elect Uhuru Kenyatta recently motioned the ICC's Trial Chamber to provide the defense team with the bar membership information of each of the prosecutors involved in the case and to impose a code of conduct on the prosecution's lawyers.  The motion can be found here.  This passage in particular struck me:

[T]he Defence have reason to believe that several Prosecution lawyers in the present case are not members of any professional body, bar association or law society and thus it cannot be assumed that they have received any training regarding deontology or professional ethics.

    The ICC Prosecutor's response is here.  In effect, the Prosecutor argues that her office does not have to be subject to a code of conduct because it has internal procedures to discipline attorneys and Chambers can also sanction ICC prosecutors.  

    I'm less interested in the merits of this specific dispute than what this dispute says about legal ethics as a discipline.  Should it be of concern that a high profile body such as the ICC has not adopted a code of conduct for its prosecutors and that the ICC Prosecutor apparently feels that one is not needed? How widespread is the view that ethical rules act as an unnecessary constraint on prosecutors' offices rather than measures designed to protect their integrity (as well as the rights of suspects and defendants)? Does there need to be more interaction among legal ethics scholars internationally? 

    I have a great deal of respect for the current ICC Prosecutor, and I don't think her views are atypical.  

 

Comments

[Alice Woolley]

Milan,

I think these views are quite typical of prosecutors. In Canada there was a case called Krieger v. Law Society of Alberta in which a lawyer had failed to provide proper disclosure and a complaint was made to the law society of Alberta. When the Law Society sought to discipline the prosecutor this exact argument was made - we will deal with matters internally and, as well, it would violate prosecutorial independence to allow law societies to proceed in this way. The SCC disagreed but set out relatively narrow standards for when a law society can discipline lawyers. And in the end Canadian law societies have shown no appetite whatsoever for doing so - and then what happens is that it is only the internal mechanisms that do any work (and of course the mere members of the public have no knowledge about how that works or of its effects).

Alice

[Monroe Freedman]

I just published The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors, 52 Washburn L. Rev. 1. A criticism in a response to my article is that disciplinary actions against prosecutors "have increased more than 800 percent" than the statistics used in my article. If one examines the cases cited in support of that claim, however, one finds that the 30 disciplinary cases in eleven years, which are cited, include only 5 cases that involve abusing prosecutorial powers to obtain convictions, which is the subject of my article. The other 25 involve matters like embezzlement, stealing fine money, accepting bribes, and stealing drugs from an evidence locker. Five disciplinary actions in eleven years is not an improvement.