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International Law
Reference:

Ethical standards of conduct of the Prosecutor of the International Criminal Court.

Nureeva Liaisan Rustamovna

Postgraduate Student, Department of Constitutional and International Law, TISBI University of Management

420012, Russia, respublika Tatarstan, g. Kazan', ul. Mushtari, 13

laisan4ik@yandex.ru

DOI:

10.25136/2644-5514.2022.2.37953

Received:

21-04-2022


Published:

28-04-2022


Abstract: The article examines normative documents that establish standards and requirements for ethical and professional behavior of prosecutors of the International Criminal Court. The history of the formation of the International Criminal Court is considered. The analysis of the procedural position of the prosecutor in the system of international justice is carried out. The requirements that persons recommended for appointment to the post of Prosecutor of the International Criminal Court should have are considered. The main ethical standards of behavior of the staff of the Office of the Prosecutor of the International Criminal Court have been identified. The main normative document of the International Criminal Court - the Rome Statute is considered. The main tasks and fundamental role of the Prosecutor's office in the investigation or prosecution of international crimes are investigated. The relevance of this work lies in the need to create a unified code regulating the ethical behavior of international prosecutors, as well as a strict selection of candidates appointed to the positions of international prosecutors. The rapidly changing situation in the world and in the system of international justice needs to update the previously existing requirements put forward to persons exercising international justice. The regulatory framework governing the activities of prosecutors is not so extensive. There are many areas of activity of persons exercising international justice where there are no normative standards of behavior, professionalism and independence. In the system of international justice, there is currently no specialized body regulating the activities and giving a legal assessment of the actions (inactions) of the Office of the Prosecutor.


Keywords:

international Criminal Court, duties, code of conduct, ethics, prosecutor, Office of the Prosecutor, The Rome Statute, standards, professionalism, independence of the prosecutor

This article is automatically translated. You can find original text of the article here.

The proposal to create an independent prosecutor with the right to initiate and investigate cases if there is sufficient evidence of serious violations received broad support during the negotiations at the Rome Conference. Although the Prosecutor has the right to initiate such investigations, the Rome Statute contains detailed provisions designed to ensure that this right is properly monitored.

Firstly, the prosecutor cannot conduct investigations if States are able and willing to conduct their own investigations. Before starting the investigation, the prosecutor must submit all the collected materials and obtain the permission of the Pre-Trial Chamber, which consists of three judges. Suspects and interested States have the right to appeal against the actions of the prosecutor at the investigation stage. States and defendants may also challenge the jurisdiction of the Court or the admissibility of the case at the trial stage. These measures provide an opportunity to ensure a sufficient evidence base for investigation and prosecution.

The Prosecutor is elected by the participating States by secret ballot and must meet strict requirements: he must have high moral qualities, high qualifications and have the necessary practical experience in prosecution or criminal proceedings. The Prosecutor may not participate in any case in respect of which there may be doubts about his impartiality. Any issue concerning the recusal of the Prosecutor is decided by the Appeals Chamber of the Court. The Assembly of States Parties may remove the Prosecutor from office if it is found that he is guilty of serious misconduct or has committed a serious violation of his duties.

In July 1998, world civil society held a meeting in Rome, successfully persuading Governments to hold a diplomatic conference on the establishment of an international criminal court.

The Rome Statute was adopted by an overwhelming majority of 120 countries. The powers of the Assembly of States Parties are to guarantee the independence of the court and its prosecutor, to protect the rights of victims.

The Assembly of States Parties is credited with some of the most important aspects of the Statute, such as its key provisions on victim participation, reparations, gender-based crimes and ensuring the independence of the prosecutor. The Steering Committee of the Community adopts the eleven principles of its work at the Rome Conference.

There are several provisions in the Rome Statute of the ICC, which, in the opinion of many, appeared thanks to significant efforts and support of civil society. Some of them include: independence from the prosecutor; automatic jurisdiction (the State must agree to become a party to the Statute by ratifying or acceding to it. By becoming a member of the Court, it accepts its jurisdiction); explicit references to gender aspects in international law; inclusion of war crimes committed in the context of internal armed conflict (the law of non-international armed conflicts); and respect for the rights and protection of victims and witnesses.

Each State in the Assembly of States Parties has one vote, and decisions are taken by a 2/3 majority.

International prosecutors play an important role in maintaining the rule of law and the effectiveness of the international criminal justice system (Advisory Council of European Prosecutors "Rome Charter", 2014 Explanatory Note, paragraphs 9-10). When making decisions on initiating or continuing proceedings on determining individual responsibility for international crimes (individual criminal responsibility), they must act in the public interest of the world community as a whole (public interest) and perform their functions impartially, objectively and fairly, taking into account fundamental human rights and due process of law.

From this point of view, it is especially important that international prosecutors observe the highest standards of ethics and professionalism enshrined in codes of conduct, respect the principles of justice and courtesy.

Consider the standards of professional conduct of prosecutors (prosecutors) acting in the International Criminal Tribunal of the International Criminal Court (ICC).

The task of the prosecutor in the international judicial system is to present the facts of the case under investigation, and not to do everything possible to convict, independence and impartiality may be required from prosecutors [7, p. 271]. Code of Conduct of the Prosecutor of the International Criminal Court.

As for the structure of the ICC, unlike the formal code of ethics for judges and defense lawyers, as of 2013, no basic code of ethics has been promulgated for the Office of the Prosecutor. The absence of a certain set of basic standards of professionalism that have been applicable to prosecutors for a long time represents a serious deviation from the practice of other international criminal tribunals [5, p. 17], which, as noted, have long had codes of conduct for defense lawyers, judges and lawyers representing the prosecutor's office.

In addition, as some scholars have noted, the role of the ICC prosecutor differs from that of the ICTY and ICTR prosecutors, who are required to disclose exculpatory information, but are not required to actively investigate a case that may acquit the accused. The ICC Prosecutor must perform the functions of an impartial body, a guarantor of justice. In this respect, the role of the ICC prosecutor can be compared with the role of an investigating judge or prosecutor in most civil law systems, and not with a typical prosecutor under common law [4, p. 214].

Despite the absence of a Code of Conduct for the Office of the Prosecutor, the ICC Prosecutor's Office stated that it has always been considered that the Prosecutor's Office is not completely exempt from ethical obligations and that the relevant provisions of the Rome Statute, the Statute of the Prosecutor's Office, the Code of Conduct for Investigators and the Core Values set out in section 1.2 of the Staff Regulations provide a sufficient regulatory framework for the ethical conduct of prosecutors (Prosecutor v. Gbagbo, 2013, p. 17).

The adoption in 2013 of the Prosecutor's Code of Conduct (ICC CPT) was a clear response to the growing need to clarify existing ethical standards [8, p. 301].

With regard to the scope of the Code, three elements must be observed: firstly, as a document on the rules of internal rules of staff conduct, it indicates the necessary level of self-control; secondly, it standardizes the legal framework governing the ethical behavior of all lawyers; and, finally, it is an attempt to fill in the explicit and alleged judicial restrictions for behavior of the prosecutor.

Despite the many regulations regarding the professionalism of ICC prosecutors, the ICC Prosecutor's Code of Conduct encourages uniformity and consistency of prosecutorial ethics. It improves the existing regulatory framework and clarifies some ethical issues that are not directly addressed in other legal documents, key changes affecting lawyers working in the ICC [5, p. 17]. In particular, the provisions of the 2013 Code partially reproduce (and directly refer to) existing ethical standards (for example, on independence, impartiality, objective pursuit of truth and unsatisfactory behavior) and partially resolve unresolved issues.

As for the content of the Code, there are five basic rules. The introduction recommends that prosecutors take into account, respect and comply with the provisions of the ICC Statute and the Rules of Procedure and Evidence; behave in accordance with the status of international civil servants and demonstrate the highest standards of honesty, independence, impartiality, professionalism and confidentiality; be aware of the purpose of the ICC and the fundamental role of the Prosecutor's Office in the investigation or prosecution of international crimes; respect human rights and fundamental freedoms, equality. As for the general provisions, the Prosecutor's Office and all its members are primarily guided by the principles of independence, professional ethics and integrity; fair, impartial, effective, and prompt investigation and prosecution; preservation of confidentiality of investigations and proceedings; respect for human rights and fundamental freedoms recognized by international law in accordance with the Statute; non-discrimination of any person or groups of persons (article 8 of the ICC CAT).

However, it should be emphasized that before starting work, members of the Prosecutor's Office solemnly swear to act honestly, impartially and in good faith, respecting the confidentiality of investigations and proceedings (article 6 of the ICC Prosecutor's Code of Conduct).

With regard to the autonomy of prosecutors working in the ICC, the Code defines that the Office of the Prosecutor should act independently, as a separate body from the court and, consequently, its members should exercise their functions without any external influence, inducement, pressure, threat or interference, directly or indirectly empowering the prosecutor to ensure the full independence of employees (article 21 of the ICC CAT). In addition, given that the Office of the Prosecutor is authorized to act objectively, investigating both accusatory and exculpatory circumstances, it is expected that the ICC Prosecutor will conduct investigations in order to establish the truth and in the interests of justice (Article 49 of the ICC CAT) and will behave impartially. It should also be noted that impartiality is a fundamental principle of the Prosecutor's Code of Conduct, which includes, among other things, respect for the presumption of innocence, refraining from expressing an opinion that could undermine the required impartiality, and full compliance with the rules of disclosure of evidence.

In the performance of their duties, ICC prosecutors must also comply with confidentiality requirements (which do not end with termination of service); in particular, they must not disclose confidential information or disclose the content of material that the ICC considers less confidential, unless authorized by the ICC.

Some provisions of the ICC Prosecutor's Code of Conduct also cover conflicts of interest, in particular requiring ICC prosecutors to refrain from any conduct that may directly or indirectly conflict with the performance of their official duties during their term of service or may jeopardize the independence and credibility of the Office of Prosecutors (article 42 of the ICC CAT).

With regard to disciplinary rules, the ICC CAT does not contain applicable rules on procedures and penalties for violations committed by the prosecutor and for misconduct against the administration of justice or generally unsatisfactory behavior. In this regard, it is interesting to note that in several cases where allegations of misconduct by ICC prosecutors and violations by ICC CPT members were made, ICC judges preferred to investigate the disqualification of members of the Prosecutor's Office by examining other ethical standards, explaining that the judiciary plays an important role in monitoring and supervising the prosecution. [8, p. 317].

International prosecutors and judges should be considered as an international judicial system as a whole, sharing a common goal of ensuring fair, impartial and effective justice. The Prosecutor is a party, but it is recognized that he represents the interests of the international community and must act objectively and fairly. In fact, when conducting investigations and supervising the first stage of criminal proceedings, prosecutors are the main defenders of human rights, and this important role should be carried out throughout the process, limiting the risk of undue political interference in the way they exercise their powers.

From this point of view, the independence of the Prosecutor's Office is a consequence of an independent judiciary (Rome Charter, 2014, paragraph IV), which should be strengthened and encouraged.

At the same time, compliance with the rule of law requires compliance with high ethical and professional standards in the conduct of prosecutors and judges at work and outside it in order to strengthen public confidence in the justice system.

These standards of conduct and ethical restrictions for international prosecutors are increasingly defined by law and take the form of ethical codes.

As it has already been established, there is no single code regulating the ethical conduct of international prosecutors, and the existing codes were developed not by one body, but by each Court separately and, therefore, without coordination among themselves.

A set of fundamental ethical values common to all international prosecutors can be defined as a tool that contributes to the proper functioning of the international justice system. These core ethical values include, for example, impartiality, objectivity, fairness and, above all, independence.

International case law, for example, supports the judicial trend, including from the point of view of ethical issues, emphasizing the role of judges as the main defenders of a fair and speedy trial, as well as giving them the inherent powers of ethical supervision and guidance of international prosecutors, ensuring that their central role in criminal justice meets the highest ethical standards and acts in the interests of justice [8, p. 322].

 

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Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

A REVIEW of an article on the topic "Ethical standards of conduct of the prosecutor of the International Criminal Court". The subject of the study. The article proposed for review is devoted to topical issues of compliance by the prosecutor with ethical standards in the international criminal court. The issues of determining the powers and the procedure for the actions of the prosecutor in the International Criminal Court are being established. The subject of the study was international acts, as well as the opinions of scientists. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of compliance by the prosecutor with ethical standards in the international criminal court. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from documents and international acts. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (primarily the norms of international acts). For example, the following conclusion of the author: "As for the content of the Code, there are five basic rules. The introduction recommends that prosecutors take into account, respect and comply with the provisions of the ICC Statute and the Rules of Procedure and Evidence; behave in accordance with the status of international civil servants and demonstrate the highest standards of honesty, independence, impartiality, professionalism and confidentiality; be aware of the purpose of the ICC and the fundamental role of the Prosecutor's Office in the investigation or prosecution of international crimes; respect human rights and fundamental freedoms, equality. As for the general provisions, the Prosecutor's Office and all its members are primarily guided by the principles of independence, professional ethics and integrity; fair, impartial, effective, and prompt investigation and prosecution; maintaining the confidentiality of investigations and proceedings; respect for human rights and fundamental freedoms recognized by international law in accordance with the Statute; non-discrimination of any person or groups of persons (article 8 of the ICC CAT)." At the same time, in some cases, the author does not indicate the place of citation (a scientific source or an international act), which creates difficulties in perceiving where the material is taken from. In particular, at the very beginning of the article, the author points out the requirements imposed on the prosecutor. It is not known from the article where they are indicated. The author further notes that "In July 1998, world civil society held a meeting in Rome, successfully persuading Governments to hold a diplomatic conference on the establishment of an international criminal court. The Rome Statute was adopted by an overwhelming majority of 120 countries. The powers of the Assembly of States Parties are to guarantee the independence of the court and its prosecutor and to protect the rights of victims." There is also no link here, therefore, it is difficult to determine the source. Thus, the methodology chosen by the author is generally adequate to the purpose of the study, but it is not always used correctly. The author's failure to indicate references to specific sources in certain places of the article is not correct from the point of view of using scientific methodology. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of the prosecutor's participation and his activities in the international Criminal court is a complex issue that requires resolution from the point of view of scientific methods and theory. The issues of ethics of such participation are all the more difficult, since ethical issues are certainly important when solving legal problems, but it is very difficult to define them clearly in the law. On the practical side, it should be recognized that clarifications and generalizations of the norms of international acts are needed, which could give clear guidelines to the subjects of international relations. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article requires clarification. Firstly, its novelty is expressed in the author's conclusions, which require clarification precisely from the point of view of the presence of novelty in them. Among them, for example, is the following conclusion: "A set of fundamental ethical values common to all international prosecutors can be defined as a tool that contributes to the proper functioning of the international justice system. These core ethical values include, for example, impartiality, objectivity, fairness and, above all, independence." However, this conclusion directly follows from the international acts that the author analyzed. What is the scientific novelty and the individual approach of the author of the article? Of course, these conclusions can be used in further scientific research, but the author should determine exactly what new he has introduced into science in the conclusion of the article. Secondly, the author draws the following conclusion from the article: "International case law, for example, supports the judicial trend, including from the point of view of ethical issues, emphasizing the role of judges as the main defenders of a fair and prompt trial, as well as giving them the inalienable powers of ethical supervision and guidance of international prosecutors, ensuring that their The central role in criminal justice meets the highest ethical standards and acts in the interests of justice." At the same time, the conclusion of the article is uploaded with a footnote to the opinion of a foreign author. The question arises whether this conclusion is a scientific conclusion of the author, possessing novelty or not. Thus, the materials of the article may be of particular interest to the scientific community from the point of view of developing a contribution to the development of science, however, the author should accurately separate the positions of other authors from his position, show clearly and concretely what is the novelty of his position and approach. Style, structure, content. The subject of the article corresponds to the specialization of the International Law journal, as it is devoted to legal problems related to determining the legal status of a prosecutor in the activities of the international criminal court. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia and abroad (Kopylova E.A., Lazutin L. A., Likhachev M. A., Tolstykh V.L., Varlamov Yu.E., Dolzhikov A.V., Jones J., Oriolo A. and others). Many of the cited scientists are recognized scientists in the field of international law. I would like to note the author's use of foreign sources, which is important in the context of the chosen purpose of the study. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article.
The article may be accepted for publication. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"