By: Tamerick Gilyard
The success of international courts, and our domestic courts, depends to a large extent upon the integrity and impartiality of those who decide the cases that come before them.[1] For the institutional integrity of all courts, judicial ethics is of the utmost importance and vital for both the international and domestic courts.[2] Most recently, the United States Supreme Court has come under fire because of the lack of ethical rules to guide or govern the justices’ behavior.[3] The Supreme Court members are granted lifetime appointments, but are not subject to mandatory ethical rules.[4] Alternatively, lower federal court judges do have strict ethical requirements.[5] Thus, domestically, there is a yearning for ethical reform for the nation’s highest court.
Internationally, many countries allow themes of independence, impartiality, integrity, propriety, transparency, and fairness to be the guide for their judiciaries.[6] For example, the International Criminal Court imposes strict ethical guidelines for judges in its Code of Judicial Ethics.[7] Article 11 of the Code states: “[j]udges shall not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the Court, or that may affect or may reasonably appear to affect their independence or impartiality”[8] and “[j]udges shall not exercise any political function.”[9] While the International Criminal Court’s Code of Judicial Ethics is not a comprehensive guide for the international or domestic community, Article 11 provides some clarity for judges and expressly states that judges may not exercise any political function.[10] Article 11 is important because it would likely not allow judges to join certain political affinity groups or engage in activity that is in contention with their judicial function. Therefore, while Article 11 governs the International Criminal Court,[11] it would be interesting to see whether domestically we could learn from the international community on ethical reform for domestic courts.
Furthermore, China is an example of a country with a judicial system that does not formally, or structurally permit an independent judiciary.[12] Haiti, Bulgaria, and many other countries’ judges are subject to the will of different government actors because of the lack of separation of the judiciary from other branches.[13] This creates a structural problem for some international courts. Conversely, domestic federal court judges largely function independently unless they are impeached for high crimes and misdemeanors,[14] but not for unpopular decisions. Therefore, while many countries' courts may need ethical or structural reform, there will always be room amid the globalization of the judiciary to learn from our international neighbors.
Just recently, the Supreme Court of the United States formally announced it would adopt a new code of conduct amid a host of ethical issues.[15] The Court issued a fourteen-page document that involves canons of conduct on issues such as when justices should recuse themselves and activities that they should not engage in.[16] However, the formal rules for the Supreme Court have not appeared out of thin air, but they also have never been formally announced on paper, therefore, this step is significant.[17] This formal step of adopting a code of conduct illustrates two things: first, that the Supreme Court is cognizant that ethical rules are very important for the continuous operation of the Court, and second, that the Court is aware that ethical rules anchor its institutional legitimacy, integrity, and impartiality. At the same time, this action by the Supreme Court likely signals to the international community that United States’ domestic courts are learning the importance of judicial ethics.
Alternatively, the code of conduct proposed by the Supreme Court obviously has gathered its fair share of criticism largely because there is no formal enforcement mechanism.[18] Put simply, the Supreme Court justices will be enforcing the code of conduct against themselves. This is significant because it parallels the international community. For example, China does not have truly independent judges, thus, the actions of Chinese judges are for the most part, subject to some form of external control.[19] Conversely, there is public sentiment that both the code of conduct proposed by the Supreme Court and the International Criminal Court’s Article 11 are essentially rendered moot because they lack proper enforcement mechanisms.[20] Nonetheless, while there may be some public skepticism to ethical codes being enforced against the Court, there is also public agreement internationally and domestically that the code of conduct was long overdue.[21]
So, Article 11 of the International Criminal Court’s Code of Judicial Ethics and the Supreme Court’s Code of Conduct will likely not remedy all future ethical dilemmas. However, they are definitely a step in the proper direction for courts globally.
Tamerick Gilyard is a Staff Editor at CICLR.
[1] See Nan Aron, An Ethics Code for the High Court, Wash. Post (Mar. 13, 2011, 7:50 PM), https://www.washingtonpost.com/opinions/an-ethics-code-for-the-high-court/2011/03/11/ABILNzT_story.html [https://perma.cc/W63P-UESW].
[2] See Id.
[3] Id.
[4] Id.
[5] Id.
[6] International Criminal Court, Code of Judicial Ethics art. 11, ICC-BD/02-03-22 (Oct. 7, 2022).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See Keith E. Henderson, Halfway Home and a Long Way to Go, in Judicial Independence in China: Lessons for Global Rule of Law Promotion 23 (Randall Peerenboom ed., 2010).
[13] See Id.
[14] See U.S. Const. art. II, § 4; U.S. Const. art. III, § 1; James E. Pfander, Removing Federal Judges, 74 U. CHI. L. REV. 1227, 1230 (2007).
[15] See Andrew Chung & John Kruzel, Under Fire, US Supreme Court Unveils Ethics Code for Justices, Reuters (Nov. 14, 2023, 12:56 AM), https://www.reuters.com/legal/us-supreme-court-announces-formal-ethics-code-justices-2023-11-13.
[16] Code of Conduct for Justices of the Supreme Court of the United States, Sup. Ct. of the U.S. (Nov. 13, 2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf [https://perma.cc/MJ8F-ZAR7].
[17] Chung & Kruzel, supra note 15.
[18] Id.
[19] See Graig R. Avino, China's Judiciary: An Instrument of Democratic Change, 22 Penn State Int’l L. Rev. 369, 389-90 (2003).
[20] Lawrence Hurley, Supreme Court Adopts Code of Conduct Amid Ethics Scrutiny, NBC (Nov. 13, 2023), https://www.nbcnews.com/politics/supreme-court/supreme-court-code-of-conduct-rcna124951[https://perma.cc/UX5Z-S6XK].
[21] Id.