Legal Ethics in International Criminal Defense
62 Pages Posted: 15 Dec 2009 Last revised: 18 Feb 2010
Date Written: December 14, 2009
This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.
Professional regulation of defense advocacy at the international courts should take account of these special features and goals of the international criminal justice system. The paper addresses how such a purposive approach to legal ethics would apply to four key decisions that international criminal defense attorneys may face: 1) whether to impeach victim-witnesses whom they know to be telling the truth; 2) how to respond to clients who want to testify falsely; 3) whether to allow clients whom the lawyer believes to be innocent to plead guilty; and 4) how to respond to a client’s request to boycott or disrupt the proceedings. In some cases, the purposive interpretation may result in less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, it may demand a more independent approach to making decisions about the client’s representation.
To implement the approach set out in this paper, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices, working within existing rules. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.
Keywords: legal ethics, international criminal law, criminal defense, defense attorney, international criminal trial, adversarial vs. inquisitorial, ICTY, ICTR, ICC
JEL Classification: K14, K33, K40, K42
Suggested Citation: Suggested Citation