On 29 June 2023, the International Committee of the Inner Temple organized a short training session for aspiring barristers on legal professional ethics before the international criminal tribunals. The Honourable Society of the Inner Temple has been in existence since the 14th Century. It is one of the four unincorporated, not-for-profit membership associations for barristers and judges in the UK, known as the Inns of Court. Together, they provide high-quality legal education and training for the barrister profession, delivered by senior members of the Bar and other key partners on a pro bono basis, and have the exclusive right to call students to the Bar of England and Wales.
Participating in the seminar were an ICC Judge (Kimberly Prost), an ICC Deputy Prosecutor (Nazhat Khan), and a defence counsel (yours truly). The program was moderated by ICC Judge Joanna Korner CMG KC – who, as an exceptionally experienced Queen’s Counsel, served two stints as a senior trial lawyer before the ICTY prior to becoming a judge of the Crown Court of England and Wales. The event was informative, engaging, and collegially lively. But there was something more to it, something important that is generally absent in most training seminars, especially on ethics: the inclusion of three pillars of criminal proceedings (missing only a representative of victims counsel) on a panel, so they and the audience can hear about each other, from each other, with their different perspectives being aired, considered, debated, appreciated, and/or rejected.
Elementary as this may be (even without Sherlock’s inductive reasoning powers), the importance of having all sides discussing professional ethics as it relates to judges, prosecutors, and counsel (defence and victims) seems to be either overlooked or simply rebuffed. Yes, there is the issue of mistrust between prosecution and defence, fostering a why bother attitude. But there is also the issue of judicial haughtiness. Too many judges find it beneath them to interact (not to be confused with downstream-lecturing from the Olympian – physical and intellectual – heights to which a few presume to lay claim) with prosecutors and especially defence counsel, where all are on equal footing, and where unvarnished criticisms (truth-to-power telling) by all, to all, are encouraged and tolerated.
For the past couple of decades, I have been shouting into the wilderness on the merits of having trainings on ethics which include judges, prosecutors, and counsel (defence and victims). Although each have a separate code of conduct, when considering that their functions are so intertwined, that national codes of conduct vary, that legal traditions place different emphasis on what may or may not be appropriate, and that the overarching aim by all is that justice be achieved through the highest of ethical standards, it makes sense that ethics seminars be held together.
On ethics for defence counsel, I recently wrote to the ICC Counsel Support Section (CSS), suggesting a revision of the annual training offered, which, as I see it, tends to be rather hodgepodge and somewhat thematic as opposed to concrete. Aside from advocacy training, I recommended that a half-day (3-4 hours) be devoted to ethics, which, in my opinion should be mandatory. I have yet to hear back.
Irrespective of what CSS decides to do, I would welcome, indeed encourage, the Inner Temple to consider organizing a half-day or even a full-day symposium in The Hague to tackle some of the peskiest ethical issues that generally arise at the international(ized) criminal tribunals. The issues are mostly common – as are the respective codes of conduct. While the symposium should be open to law students as well, the targeted audience should be judges, prosecutors, and defence and victims counsel. There may be pushback by some judges and prosecutors who would find such a seminar / symposium beneath them (and judges once sworn in, often tend to wax on their independence) since defence and victims counsel would be at equal footing with them. So be it. The color of the robe should make no difference, just as it does not necessarily reflect a hierarchical level of actual knowledge or experience or sophistication or appreciation of the law, procedure, or ethics.
I’ll leave it to others to speak for the judges’ and prosecutors’ need for continuing ethics training, but here are some reasons why we on the defence side should embrace an annual ethics training seminar/symposium and why consideration should be given to making it a requirement for counsel on the list to be in good standing. With virtual / remote training and e-course capabilities, there would be no excuse for anyone on the list, no matter where located, for failing to fulfil this modest obligation (along with other Continuing Legal Education (CLE) requirements, such as an annual review of the past year’s jurisprudence).
Defence counsel appearing before international criminal tribunals representing suspects, accused, witnesses, victims, acting for a state, and appearing as amici curiae play just as vital a role in ensuring their client’s fair trial rights – just as they do in domestic criminal proceedings. Counsel, with some exceptions (e.g., law professors without a Bar licence) must be members of a domestic Bar in good standing, must meet certain requirements, and must abide by applicable code(s) of conduct: i.e., their domestic code of conduct and any code adopted by the international criminal tribunal. Principally, counsel’s ethical and professional obligations before international criminal tribunals are no different from their ethical and professional obligations before the domestic courts in which they are licensed to practice.
As in domestic courts, the codes of conduct at the international criminal tribunals do not operate in a vacuum. Defence counsel’s professional responsibilities are informed by the tribunal’s adopted legal framework — the Statute, Rules of Procedure and Evidence, Regulations, Directives, and jurisprudence. With the international criminal tribunals having adopted sui generis hybrid proceedings with procedural modalities from both common law and civil law systems, counsel’s ethical duties and professional responsibilities are appreciated within this wider context. And therein lies the rub.
Defence counsel in representing accused are ethically permitted (if not bound) to press for every conceivable advantage to the client’s benefit, short of knowingly presenting false evidence or making false representations to the tribunal. When necessary to advance the client’s case, defence counsel should unhesitatingly advocate unpopular positions and may even engage in conduct that is seemingly immoral, unethical, or contrary to the interests of justice, such as legitimately attempting to impeach a witness on a matter where counsel might reasonably believes that the witness has told the truth. While defence counsel should remain detached and refrain from endorsing the client’s political, economic, social, or moral views or activities, they should not shy away from vigorously attacking the prosecution evidence in raising reasonable doubt. Of course, strategic thinking and common sense, as well as experience, the code of conduct, and relevant jurisprudence and practice directives should guide defence counsel when and to what extent they should press a point or adopt a particular tactic. Just because you can, doesn’t mean you should.
Considering defence counsel’s role in pursuing the client’s case while also pressing for the client’s maximum enjoyment of constitutionally or statutory guaranteed fair trial rights (generally articulated in Article 14 of the International Covenant on Civil and Political Rights), on occasion, there is bound to be friction between the fidelity owed to the client and other duties arising from the relevant code(s) of conduct. Counsel are expected to do things in their professional capacity that may blur the line between what is ethical and what is not.
Zealous, effective, and ethical counsel, by virtue of their unique role in criminal proceedings, may be permitted, within limits, to engage in situational or discretionary ethics. However, it is up to defence counsel to appreciate the discrete circumstance permitting nuanced discretionary ethical decision-making even if the applicable code of conduct does not provide an explicit answer. While the degree or definition of defence counsel’s independence may vary depending on legal traditions or domestic jurisdictions, defence counsel are expected to be free from external influences and undue pressures. While the codes of conduct do not explicitly define the contours of acceptable limits, to what extent counsel will push these limits, risking any disciplinary repercussions, is entirely their own decision.
Logically, defence counsel’s fidelity to the client is not unconstrained (over)zealous advocacy; it is confined by the contours of the applicable code(s) of conduct, none of which countenance unethical behavior. This is not to say that in pursuing their client’s interest by aggressively challenging the facts and the law defence counsel should balance competing interests, such as balancing robustly representing their client against pursuing the objective material truth or victims’ justice. Indeed, when necessary, counsel must exploit every strategic and tactical advantage to their client’s benefit. But it bears repeating that it is not advisable to simply press for every advantage when restraint and measure based on strategy and tactics are likely to yield better results in furtherance of the theory (and theme) of the defence case.
Sounds simple. But is it?
Whether we like it or not, reflexively, we tend to read the applicable statutes, rules, regulations, and codes of conduct through the prism of our domestic legal training, traditions, and experiences, inadvertently inducing unintended ethical consequences.
This is most pronounced when observing judges from a common law background (who understand the essence of adversarial proceedings even if hybrid) versus judges with a civil law background (who insist on judge-controlled proceedings, excessively intervening in questioning witnesses, and who are incapable of accepting the adversarial nature of the adopted procedure). Defence counsel, as well as prosecutors and victims counsel, are no different. And when it comes to professional ethics and codes of conduct here is why it matters.
In common law systems, codes of conduct are generally drafted as concrete legal rules and may be accompanied by extensive commentary providing detailed advice and situational examples as to how counsel should resolve particular ethical dilemmas in practice (see e.g., commentary to Rule 1.7 of the American Bar Association Model Rules of Professional Conduct). In civil law systems, codes of conduct are generally drafted as broad-brush principles intended to guide counsel in exercising professional discretion. Principally, most of the modern codes of conduct combine these two drafting styles, with some provisions drafted as concrete legal rules that restrict or regulate counsel’s conduct in specific scenarios, while others are merely aspirational and intended to guide counsel’s professional discretion. This can be problematic for counsel seeking guidance concerning their ethical duties and professional responsibilities in situations where even experience may be insufficient to provide ready and unambiguous answers.
The codes of conduct at the international criminal tribunals are just as prescriptive as in domestic codes of conduct. Defence counsel’s professional responsibilities and ethical obligations tend to be interpreted and understood by defence counsel within the context of the peculiarities associated with their own domestic legal systems (just as judges and prosecutors do, whether they admit to it or not).
With defence counsel at international criminal tribunals coming from different legal traditions with different standards, procedures, practices, and codes of conduct, situations arise in which the standards and obligations articulated in an international criminal tribunals’ code of conduct become subject to differing interpretations. This can result in uninvited ethical transgressions for the uninformed and unwary: what may be acceptable in one domestic common law/adversarial procedure may not be acceptable in another domestic civil law/inquisitorial procedure.
Terms of art such as independence or due diligence or even zealousness may be understood and appreciated differently. Also, since the codes of conduct at the international criminal tribunals lack specificity in reconciling differences in professional conduct among the different legal traditions as reflected in domestic codes, discerning what may be acceptable conduct in a domestic tribunal but unacceptable in an international criminal tribunal may be challenging.
In the context of zealous representation, a couple of vignettes that inform: In an ongoing case at the ICC, the presiding judge from a civil law tradition, when confronted with an objection by defence counsel that the posed question called for speculation (and invariably based on facts not in evidence) responded by agreeing with defence counsel but nonetheless wished to hear the answer anyway – never properly ruling on the objection for the sake of the trial transcript, or as we U.S. lawyers say, for the record. Presumably the judge wants to see where the answer will lead and perhaps used the speculative information for other purposes, such as a future line of questioning with this or another witness. This poses an ethics conundrum for defence counsel who must confront the judge and press for a formal ruling.
Another example arose at the Kosovo Specialist Chambers (KSC) -which, like the ICC has an adversarial procedure, albeit hybrid. The presiding judge, also from a civil law procedural background, disallowed leading questions on cross examination save for “in the interest of justice”, when in fact the statue permits leading questions, and when in another trial being held at the KSC leading questions are the norm. Considering that in adversarial proceedings leading questions are considered “beyond any doubt the greatest legal engine ever invented for the discovery of truth” as noted by the eminent legal expert on evidence, John Henry Wignore, denying defence counsel their right to properly confront the witness not only impinges on their ethical duties prescribed by the code of conduct and statutory provisions, but it also denies the accused their full enjoyment of all guaranteed fair trial rights. Here again, defence counsel must stand their ground and demand that the presiding judge specify the legal authority for the ruling, and also point out the disparity in treatment of this accused in comparison to other accused being tried before the same international criminal tribunal. Ethically compelled, but nonetheless situationally uncomfortable.
The codes of conduct applicable before any of the international criminal tribunals offer no guidance or commentary with explanations or examples for those who interpret, apply, judge, and sanction counsel’s conduct. Thus, unless some modalities are in place to contextualize defence counsel’s conduct based on their domestic code of conduct, procedural practices, and related jurisprudence of the specific international criminal tribunal, this can be problematic were defence counsel to be called before a disciplinary board composed of members from different legal systems with different understandings of what defence counsel’s ethical duties are or ought to be.
Relevant to the issue of defence counsel’s professional responsibility and code of conduct in representing accused before international criminal tribunals is whether defence counsel has an ethical obligation to tailor their representation of accused so as to meet certain aspirational goals generally expressed in a tribunal’s founding documents. Some academics, judges, prosecutors, non-governmental organizations, and some high-ranking officials place a high premium on ancillary goals deemed to be part of an international criminal tribunal’s raison d‘être. These include fostering peace and reconciliation, establishing a historical record, providing a forum for victims of the crimes and providing a sense of closure for them, and fostering the rule of law and respect for human rights.
While these ancillary goals may be of importance to the tribunals’ overarching duty in prosecuting those alleged to have committed serious international criminal offences, they should not be determinative factors as to whether the prosecution’s evidence proves that the alleged crimes were indeed committed beyond reasonable doubt by the accused. Neither the statutory frameworks nor the adopted codes of conduct expressly bind counsel to adjust their representation of their clients to these ancillary goals. Noble as these ancillary goals may be, contrary to held beliefs by some, defence counsel are only bound by the obligations to their clients and are not bound by other peripheral goals.
Defence counsel should not alter their theory of defence, their version of events, or their general conduct towards victims or witnesses as a means to adhere to any of the ancillary goals unless it is in the interests of their client. Fault for any injustices unanswered (whether perceived or otherwise), historical records left incomplete, or reconciliation being eluded, rests not with counsel. The goals of counsel are, among other things, to cast doubt on the case brought forth by the prosecution – who investigate, charge, and prosecute accused during the trial proceedings. Were defence counsel to act otherwise, they would risk breaching their clients’ fair trial rights.
The scope of this post is limited (for more on defence ethics see here and here), so I’ll wrap up here by reiterating the importance of training on ethics, and, ideally, jointly with judges and prosecutors. Defence counsel are expected to appreciate the ethical constraints and professional obligations imposed upon them through the codes of conduct of the international criminal tribunals (which have primacy) while also abiding by their domestic codes of conduct. The adopted procedures at the international criminal tribunals are an amalgamation of adversarial and inquisitorial modalities. Defence counsel come from different legal systems where what may be permissible in one domestic jurisdiction may not be permissible in another and considering the disparate meanings or understandings of certain common terms or principles found in the codes of conduct applicable to defence counsel.
With the code of conducts for judges, prosecutors, and counsel lacking commentaries – and thus potentially posing serious problems in interpreting what is and is not ethical conduct – does it not logically follow that joint ethics training held annually be considered? I think so. This would foster greater clarification of the obligations and duties applicable to defence and victims counsel, prosecutors, and judges at the international tribunals. Understanding each other’s respective role within and in relation to each other’s code of conduct (and within the wide scope of their professional obligations under the applicable statute), would, in my opinion, only enhance the overall quality of practice and proceedings at international criminal tribunals, giving greater confidence in the process and, as a consequence, in justice having been achieved – irrespective of the outcome.
The ICC and other international criminal tribunals should take a page out of the Inner Temple’s International Committee playbook.
About Author
