Markovic on Prosecutorial Ethics

by Kevin Jon Heller

I want to call readers’ attention to a very interesting new essay by Milan Markovic, forthcoming in the Texas International Law Journal, that urges the ICC to adopt a code of conduct for prosecutors in the OTP.  Here is the abstract:

A largely unexamined area of law is the intersection between legal ethics and international criminal law. This article addresses this topic by focusing on certain controversial actions taken by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in connection with the Lubanga and Al-Bashir cases.

Although the ICC has adopted codes of conduct for judges and defense counsel, the OTP has no specific ethics code. This is problematic because the ICC Statute imposes conflicting obligations on the ICC Prosecutor, and as this article will show, the Prosecutor has resolved his conflicting obligations in the Lubanga and Al-Bashir cases in ways that have arguably undermined the ICC’s credibility.

A code of conduct cannot eliminate prosecutorial discretion. Nor can it ensure that ICC prosecutors will always act ethically. Nevertheless, this article contends that the approach of relying on Chambers to determine whether the Prosecutor has acted appropriately in resolving his conflicting duties under the ICC Statute has delayed proceedings and provides insufficient guidance to the OTP. A preferable approach would be to provide prospective guidance to the OTP in managing its conflicting duties through a code of conduct. This article also proposes specific rules that may mitigate some of the conflicts that have already arisen in the ICC’s first cases.

This strikes me as an excellent proposal — and timely, given that Moreno-Ocampo’s tenure ends next June.  The essay is available on SSRN here.

http://opiniojuris.org/2011/09/23/markovic-on-prosecutorial-ethics/

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