Chicago Journal of International Law


I argue that distinctive features of international criminal courts and prosecutions suggest a more flexible approach to the ethical norms governing defense advocacy, closer to that embodied by the Model Rules. Moreover, I suggest that international criminal courts should promulgate guidelines which convey to defense attorneys that particular aggressive practices are not required by ethical duties and that such practices may be more inconsistent than consistent with good defense lawyering. I do not propose additional rules that would absolutely prohibit such practices in international courts. Nor do I suggest that defense attorneys should ever fail to diligently and zealously represent their clients, or that any ethical guideline should permit such a failure. I do, however, argue that in some of the areas that lie on the far reaches of aggressive representation, international defense attorneys should be permitted greater latitude than would be countenanced by the view that advocacy must always be pursued to the very limits of legality.