PUBLIC INTERNATIONAL LAW AND HUMAN RIGHTS

PROJECT
ROLE OF ETHICS IN PUBLIC
INTERNATIONAL LAW

Project By:
Name: Sreeja Pal
I.D. No.: 216112
During the Monsoon Semester 2018
I. INTRODUCTION:

Ethics, as understood in common parlance, is a set of moral principles serving as the fulcrum
of the natural law philosophy, in sharp contrast with positivist law philosophy. The
development of International Law owes greatly to ethics and morals without which, the
power struggle would have led the international community to manifestation of atrocities
beyond human imagination. To the benefit and good fortune of the international community
at large, shared ideas of morality in the international political actor’s social reality led them to
examine the means adopted in the international struggle for supremacy. Those in power of
world politics found themselves answerable to the national polity as well as the international
society. According to scholar McSweeny, “Moral reasoning and judgement about
normatively appropriate behaviour in a society is inherent to the constitutive process of
identity formation.”1 While some scholars find the superimposition of relations between
humans on States as problematic, some international relations scholars consider states ‘as if’
they are people, for at the end of the process, it is the individuals who are in charge of the
states.2 From this emanates the humane moral backing to international laws on armed
conflict.

When it comes to international law, the importance of ethics is accorded due to the difference
in binding power of international law unlike that of the domestic laws. Moreover, the role of
ethics in law leads one to the difficulty of prioritizing validity of a law on one hand and a
sense of justice on the other hand.

While ethics can be discussed on many different levels of intertwinement with international
law, the scope of the paper is limited to the contribution of ethics in the development of
International Humanitarian Law, the narrow realm of professional ethics of various actors of
international law in case of armed conflict and the role of the UN Ethics Office. This paper
aims to address how international actors understand and take responsibility for their activities
and roles within international institutions in order to acknowledge the implications of
deepening accounts of the ethical, moral and legal understanding of holding office.

1
DONALD EARL CHILDRESS, THE ROLE OF ETHICS IN INTERNATIONAL LAW 32 (2011).
2
DONALD EARL CHILDRESS, THE ROLE OF ETHICS IN INTERNATIONAL LAW 34 (2011).
II. RESEARCH QUESTIONS:

 How has Ethics influenced the development of International Humanitarian Law?

 What are ethical codes of conduct followed by various professionals under International
Law?

 What role does the United Nations Ethics Office play in regulating ethics in international
law?

III. ROLE OF ETHICS IN DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW:

Although there has been a shift away from the concept of war as a legitimate means of
dispute settlement between states since the United Nations Charter of 1945 made it clear that
inter-state disputes are now to be settled by peaceful means, use of armed forces are still
within the legitimate domain of international law. 3 In times of conflicts, the powerful forces
of destruction and the aim to establish ones prowess in the International arena leads them to
topple all forms of ethics in order to root for a win. Thus was felt the need for International
law of armed conflict, or International Humanitarian law to govern the domain of ‘war
crimes’, ‘prisoners of war’ and ‘acts of terror’. While the war against such aggressive means
can effectively garner and mobilize support from the international community at large, it was
important for ethics to keep such emotional evocations of war in check. Ethics forms the
core of humanitarian law in cases of international armed conflict. 4 The restraints established
by international law tries to keep violation of ethics in check in such times of conflict driven
humanitarian crisis. In the absence of these restraints put in place by international law, the
conduct of military hostilities would be much worse for the international community at
large.5

The ardent need for ethical treatment of active as well as passive actors of armed conflict led
to the adoption of the Geneva Conventions and their Additional Protocols, which are at the
core of international humanitarian law, the body of international law that regulates the
conduct of armed conflict and seeks to limit its effects. 6 To understand the role of ethics in

3
UN Charter, 1 UNTS XVI, October 24, 1945.
4
Oona A Hathaway, Between Power and Principle, THE ROLE OF ETHICS IN INTERNATIONAL LAW 73 (2011).
5
MANFRED BERG AND BERND SCHAEFER, HISTORICAL JUSTICE IN INTERNATIONAL PERSPECTIVE (2009).
6
ADREW CLAPHAM, PAOLA GAETA, MARCO SASSOLI , THE 1949 GENEVA CONVENTIONS A COMMENTARY 32
(2015).
international humanitarian law, one has to have empathy for diverse nature of the
international community while at the same time, carrying on a quest for common basic ethics
in humanity.

The Geneva Conventions and the Additional Protocols are aimed at protecting people who
are not taking part in the hostilities (civilians, health workers and aid workers) as well as
those who are no longer capable or participating in the hostilities, such as wounded, sick and
7
shipwrecked soldiers and prisoners of war. In case of ‘grave’ breaches, the Conventions
and their Protocols call for stringent measures to be taken against such parties, irrespective of
their nationality. The basic moral notion underlying the Geneva Conventions is the notion of
respect for the life and dignity of the individual.8

While the Geneva Conventions shed light on the conventional actors of an armed conflict and
their ethical treatment, other actors of international armed conflict whose ethical dilemma
goes into the oblivion are the healthcare personnel, lawyers, jurists and officers of the UN.
One of the legacies of the Nuremburg and Tokyo war crime trials was the recognition that
while the organs of the state are to be held responsible for the most appalling atrocities upon
humanity, the inhumane acts themselves are carried out not by the abstract entities or state
organs such as the police, the judiciary, the military, against ‘enemies of the state’, but by
individual men and women against other men, women and children. 9 The result of this
recognition led to the inquiry into the ethics of such individuals so as to impose and attribute
individual criminal responsibility to those guilty of some of the more egregious acts. 10 As the
Constitution of UNESCO reads, “Since wars begin in the minds of men, it is in the minds of
men that the defences of peace must be constructed”.11

As will be demonstrated, the way in which individual actors are treated in armed conflict is
one of the most highly regulated areas of international relation, with moral principles and
ethics reaching down to create obligations for these actors – whether states, organized armed
groups or individuals.

7
International Committee of the Red Cross, The Geneva Conventions of 12 August 1949, available at
https://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf (last visited on September 23, 2018).
8
DONALD EARL CHILDRESS III, THE ROLE OF ETHICS IN INTERNATIONAL LAW 13 (1 st ed. 2011).
9
NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 494 (3rd ed. 2009).
10
Id.
11
Constitution of the United Nations Educational, Scientific and Cultural Organization (November 16, 1945).
IV. ROLE OF ETHICS IN REGULATING HEALTHCARE PERSONNEL IN TIMES OF ARMED
CONFLICT:

In the context of ethical treatment at the time of armed conflicts, medical fraternity has an
impactful role to play in the protection of persons subjected to any form of detention or
imprisonment against torture and other cruel, inhuman or degrading treatment or punishment.
The discussion regarding role played by medical ethics surfaced at the international level in
1974 , as the UN General Assembly had invited the World Health Organization to draft an
outline of such principles.12 Meanwhile , the World Medical Association (WMA) had also
embarked on a similar project , as it ws concerned of the fact that, ‘If torture had become
inevitable, it was necessary to humanize it and have an attending physician to moderate it,
and even stop it, if in his medical opinion, it became physically dangerous.” 13 With this
thought in mind, the WMA adopted the ‘Declaration of Tokyo- Guidelines for Medical
Doctores Concerning Torture and other Cruel , Inhuman or Degrading Treatment or
Punishment in relation to Detention or Imprisonment’ at the 29th World Medical Assembly in
14
Tokyo, Japan. Post this, the UN General Assembly adopted the “Principles of Medical
Ethics relevant to the role of Health personnel, particularly physicians, in the protection of
prisoners and detainees against torture and other cruel, inhuman or degrading treatment or
15
punishment’ in December 1982. Though the WMA’s Tokyo Declaration addressed the
professional association of doctors, the UN Principles targeted a larger pool of addresses
since it recognised the fact that significant medical activities are performed by health
professionals not licensed or trained as physicians- such as assistants, paramedics, therapists
and nurse practitioners. 16

The code aims to be more than a declaration of good intentions. It describes a health
personnel’s involvement in torture and other ill-treatment as a ‘gross contravention of
medical ethics” and favours a health professional who refuses to compromise medical ethics
even under authorization from institutional heads.17 According to the Tokyo Declaration, the
instructions are more precise in nature. It lays down what a doctor ‘shall’ and ‘shall not do’,
12
NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 512 (3rd ed. 2009).; G.A.
Res. 3218 (XXIX) (November 6, 1974)
13
Wynen, The Physician and Torture, 18 WORLD MEDICAL JOURNAL 28(2) (1981).
14
29th World Medical Assembly, Guidelines for Medical Doctors Concerning Torture and other Cruel , Inhuman
or Degrading Treatment or Punishment in relation to Detention or Imprisonment, Declaration of Tokyo,(October
1975).
15
G.A. Res. 37/194 (December 15, 1982).
16
G.A. Res. 17/194 (December 18, 1975).
17
Id.; Human Rights Council Res. 10/24 (March 27, 2009).
in light of the doctor’s fundamental role to alleviate the distress of his/her fellow human
beings, from which the personnel shall not be deterred due to personal, collective or political
reasons.18 Similar to this is the development of the ethical code of conduct for Nurses in times
of international armed conflict- that culminated with the adoption of the resolution in 1975 by
the International Council of Nurses.19 It strictly upholds the nurse’s primary duty towards the
patient, irrespective of considerations of national security and interest. 20

In 2002 the Commission on Human Rights created the mandate of the Special Rapporteur on
the right to health which was devised to serve as the instrument for implementation of the UN
Principles of Medical Ethics.21 Along with addressing complaints on active breaches of
medical ethics by healthcare personnel in the form of infliction of torture, the Special
Rapporteur was also authorized to receive complaints with regard to breaching confidentiality
of the patients, disclosing health information for purposes of interrogation, participation in
interrogations, and engagement in non-consensual treatment such as drugging and force-
feeding. 22

Recent development in ethical principles of healthcare in times of armed conflict and other
emergencies has been the adoption of the "Ethical Principles of Health Care in Times of
Armed Conflict and Other Emergencies” by a joint declaration of the World Medical
Association (WMA), the International Committee of Military Medicine (ICMM), the
International Council of Nurses (ICN), and the International Pharmaceutical Federation (FIP),
in association with the Red Cross and the Red crescent organizations have adopted in June
2015.23 With the adoption of the Ethical Principles of Health Care in Times of Armed
Conflict and Other Emergencies, the associations re-establish the significance of regard of
ethical principles of health care for the effective implementation of International
Humanitarian Law and the medicinal services. This document was adopted in recognition of
the fact that in armed conflict and other emergencies, health–care personnel are victimised

18
29th World Medical Assembly, Guidelines for Medical Doctors Concerning Torture and other Cruel , Inhuman
or Degrading Treatment or Punishment in relation to Detention or Imprisonment, Declaration of Tokyo,(October
1975).
19
NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 519 (3rd ed. 2009);
International Council of Nurses, Position Statement, Role of the Nurse in the Care of Detainees and Prisoners,
1975.
20
Id.
21
Commission on Human Rights Res. 2002/31 (April 22, 2002).
22
U.N. Doc. E/CN.4/2006/120,  ¶75.; NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER
INTERNATIONAL LAW 521 (3rd ed. 2009);
23
65th General Assembly of the WMA, Durban (South Africa), October 2014. 
and coerced to act against health-care ethics, or are subjected to deprivation of liberty for
acting according to the ethics of medical profession. 24

The document bears in mind that the state of international humanitarian law, in particular the
1949 Geneva Conventions and their 1977 Additional Protocols, and of international human
rights law, specifically the Universal Declaration of Human Rights (1948) and the
International Covenants on Civil and Political Rights and on Economic, Social and Cultural
Rights (1966) in order to holistically address the issue of humanitarian crisis in face of
international armed conflicts which have complete disregard for civilians lives. It applies to
more than 30 million professionals, civilian and military, who may face ethical dilemmas in
times of armed conflict and other emergencies- for treating the state’s enemy necessarily
leads on to challenge the enemy paradigm that creates internal conflicts in the minds of a
health care professional. Indeed, delivering health services to victims of conflict by actively
devolving oneself of the distinction or discrimination that the other party is a compatriot or an
enemy is an increasingly complex challenges in armed conflicts. As Peter Maurer, President
of the ICRC states, “This set of principles is a great achievement and demonstrates the
capacity of a single sector to produce far-reaching ethical standards.”25

V. ROLE OF ETHICS IN REGULATING LAWYERS IN INTERNATIONAL ARMED CONFLICT:

Ethics has made the international system of criminal justice transcend the domestic criminal
law’s objectives such as retribution, prevention, rehabilitation and deterrence, to more
elaborate objectives of contribution to the restoration and maintenance of peace and rule of
26
law in those regions affected by armed conflict. International criminal justice plays an
important role in the having a moralising effect in an environment characterised by
exoneration and can have significant practical outcomes for the states.

The pursuit of individual ethical responsibility for serious violations of international

humanitarian law can be effective in dismantling hostility and creating conditions for peace
and reconciliation. Prosecutors have an important ethical role to play with respect to the way
in which an international tribunal or court addresses its mandate as the need to carefully

24
International Committee of the Red Cross, Health Care in Danger Report: The untold suffering, available at
https://www.icrc.org/en/document/health-care-danger-what-will-it-take (last visited on September 24, 2018).
25
Peter Maurer, Ethical Principles of Health Care in Conflict, available at
https://www.icrc.org/en/document/ethical-principles-health-care-conflict-and-other-emergencies, (Last visited
on September 24, 2018).
26
U.N. Doc. S/RES/808 (1993), February 22, 1993.
select one’s battles heightens the stakes of international criminal proceedings with significant
consequences for the region and the international community at large. 27

A lawyer may be faced with ethical dilemma while prosecuting, for example, in case of the
prosecuting lawyer who seeks to introduce into the trial proceedings evidence that can
reasonably be assumed to have been obtained by torture.28 Whether the lawyer should
prosecute the person alleged to have committed inhumane atrocities on masses relying on the
evidence obtained by way of torture, is an ethical dilemma that plagues the lawyers. It was
realized that an internationally recognized code of ethics for lawyers would help in affording
some protection from such ethical dilemmas. In the year 1975, Amnesty International, in
consultation with the International Commission for Jurists, presented for public consideration
a text of ‘Draft Principles for a Code of Ethics for lawyers, Relevant to Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment. 29 The United Nations took notice of
these draft principles at that 5th session of the UN Committee on Crime Prevention and
Control in 1978.30 Following this, in the year 1985, the 7 th UN Congress on the Prevention of
Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of
31
the Judiciary, Role of lawyers and guidelines on the Role of Prosecutors. These guidelines
purports to address the ethical concern stated above with regard to ethically objectionable
mode of obtaining evidence. It lays down that the when the prosecutors come across such
evidence, they should either not avail of those or inform the court of its origin. The Basic
Principles on the Role of Lawyers also stipulates that Lawyers in protecting the rights of their
clients and in promoting the cause of justice , shall seek to uphold human rights recognized
under international law by acting in due diligence to recognized standard of ethics of the legal
profession.32 Acknowledging the backlash that lawyers might face for upholding such ethical
stance, Paragraph 16 requires states to ensure that the identity of these professionals are not
correlated with that of their clients or clients’ causes merely because of adherence to ethical
standards such as these.33

27
DAVID A BLUMENTHAL AND TIMOTHY LH MCCORMACK, THE LEGACY OF NUREMBERG: CIVILIZING
INFLUENCE OR INSTITUTIONALISED VENGEANCE? 49 (2008).
28
NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 523 (3rd ed. 2009)
29
UN Doc E/AC.57/NGO/2 (1978); Heijder, Codes of Professional Ethics Against Torture in Amnesty
International, CODES OF PROFESSIONAL ETHICS (1984).
30
UN Doc E/AC.57/NGO/2 (1978).
31
NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 525 (3rd ed. 2009)
32
Basic Principles on the Role of Lawyers, 8 th United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, September 7, 1990.
33
Id.
VI. ETHICAL CODES OF CONDUCT OF THE JUDICIARY:
Since the actors in international law are from a diverse set of cultures, exposed to different
nature of ethical and moral teaching, there invariably exists stark differences in the perception
of ethics in international law. This is applicable in case of the judiciary as well. To address
this concern, the European Court of Justice in the year 2007 and the European Court of
Human Rights in the year 2008 adopted codes on ethical behaviour to be followed by the
judiciary.

These introduce the ethical principles from the very basic that an international judge is not a
representative of his or her national state when appointed in the international forum. Further,
the principle that a judge is to decide matters on the basis of strict adherence to law, without
bias or prejudice towards his or her nation’s interest. Highlighting the aspect of judicial
interpretation, it is critical to maintain that in order for impartial and fair functioning of the
international courts- maintaining the international community’s faith in the Judiciary. Unlike
in domestic courts, where the citizens of that nation are aware of the credibility of the judge
through clear understanding of its eligibility and appointment, maintaining the international
community’s faith and confidence in the judiciary through these principles is of even greater
importance. Though the principles seem to be simple and formalistic, practising these is not
so. When seen from the institutional point of view, isolating a judge from his personal biases
might be theoretically simple, but it is difficult for a judge, even if his or her government
would never dream of making representations to that judge, to decide a case in a manner
adverse to the stated position of the government. Indeed, all sorts of incidents that arise in a
judge’s career are a test of the judge’s ethical probity.34

There has been attempts at codifying the principles of ethics ideally to be followed by the
Judges of international courts and tribunals. The United Nations had in the year 1985 , issued
its Basic Principles on the Independence of the Judiciary which was devoid of any explicit
ethical norms.35 Some years later, the International Association of Judges agreed on the
Universal Charter of the Judge, in Taipei in 1999 which was once again couched in general

34
Rosalyn Higgins, Ethics and International Law, LEIDEN JOURNAL OF INTERNATIONAL LAW 277-289 Vol. 23
June 2010.
35
 Basic Principles on the Independence of the Judiciary (Seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, endorsed by General Assembly resolution 40/32 of November 29, 1985
and welcomed by General Assembly resolution 40/146 of December 13, 1985),available
at www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx (last visited on September 24,
2018). 
terms such as exhortation for judges to refrain from other functions, public or private, that are
not compatible with their duties and status.7

One of the most significant steps adopted to codify the ethical standards of judges is found in
the Bangalore Principles of Judicial Conduct adopted at the Round-Table Meeting of Chief
Justices held in the Peace Palace in the Hague, in November 2002. 36 These were
internationally adopted guidelines for domestic judges, not those at the helm of international
courts or tribunals. Judge Christopher Weeramantry, former Vice President of the
International Court of Justice and chair of the international Judicial Integrity Group had
acknowledged the endorsement of the Bangalore Principles of Judicial Conduct by the
Member States at the 59th Session of the UN Commission on Human Rights, in Geneva.37

According him, as a member of the group that had developed the principles, the Bangalore
Principles of Judicial Conduct had the potential to strengthen and enhance levels of judicial
integrity and accountability in countries around the world, since it would render judicial
institutions ethically stronger.38

In a UN resolution passed today, Member States noted the Bangalore Principles of Judicial
Conduct adopted at the Round-Table Meeting of Chief Justices held in the Peace Palace in
The Hague on 25-26 November 2002, and brought the Principles to the attention of Member
States, the relevant United Nations organs and intergovernmental and non-governmental
organisations for their consideration.39

Moreover, some progress has been made with regard to a uniform ethical code for
international jurists where some international courts have themselves adopted codes of
conduct. An illustration in this regard is the Code of Judicial Ethics of the International
Criminal Court which specifically addresses the issues of Judicial independence, impartiality,
integrity, confidentiality, conduct during proceedings and conduct during proceedings.40
36
Commentary on The Bangalore Principles of Judicial Conduct September 2007, available at
https://www.unodc.org/documents/nigeria/publications/Otherpublications/Commentry_on_the_Bangalore_princ
iples_of_Judicial_Conduct.pdf (last visited on September 24, 2018)
37
The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial
Integrity, as revised at the Round Table Meeting of Chief Justices, the Peace Palace, The Hague, November 25-
26, 2002.
38
https://www.transparency.org/news/pressrelease/judges_welcome_un_endorsement_of_judicial_code_of_cond
uct
39
Id.
40
Code of Judicial Ethics, International Criminal Court, ICC-BD/02-01-05.
VII. OFFICE OF ETHICS OF THE UN:

Since the UN is looked upon as the standard bearer for ethical and humanitarian
behaviour, the UN’s ethical culture demands that they hold each officer to the same
standards of behaviour as an obligation to uphold that legacy.
UNDP’s Ethics Office is independent of all units, offices, and bureaux, and reports directly to
the Administrator. The stated objective of the Ethics Office is to ensure that the staff
members of the United Nations observe and perform their functions in accordance with the
highest standards of integrity envisaged by the UN Charter.41

The UNDP’s Ethic’s office is tasked with developing and communicating policies and
standards on ethics issues, and providing input to all policy development. It has to provide
training and education opportunities to staff and other personnel, on ethics, values and
standards in a bid to raise ethics awareness and strengthening the ethical culture. In
furtherance of its objective, it also offers confidential advice and guidance to staff,
management and contractors to help prevent conflicts of interest and other potential ethical
lapses. The Ethics Office also has in place a staff protection mechanism where they recognize
that their might be retataliation for upholding global standard of ethics, irrespective of the
staff’s nationality and authorization from superiors in office. 42 The UNDP Ethics Office was
established in 2007 in accordance with Article 101, paragraph 3, of the Charter of the United
Nations, taking into consideration paragraph 161 of the 2005 World Summit Outcome,1
pursuant to General Assembly resolution 60/248, and consistent with Secretary-General’s
bulletin ST/SGB/2005/22 of 30 December 2005, in order to advise UNDP staff, service
contractors, and other personnel including UN Volunteers working or assigned to UNDP
worldwide, on how to manage ethically challenging situations that arise in the UNDP
workplace.43

VIII. CONCLUSION:

The role of ethics in international law is undeniably significant. The developments in guiding
principles of professional ethics for the various actors such as the military, healthcare
professionals, lawyers, jurists, international bureaucrats alike, are an important recognition of
41
UN Ethics Office, Brochure, available at http://www.un.org/en/ethics/pdf/brochure.pdf (last visited on
September 24, 2018).
42
UNDP Ethics and Accountability, available at
http://www.undp.org/content/undp/en/home/accountability/ethics.html, (last visited on September 20, 2018).
43
Secretary-General’s Bulletin: United Nations System-wide Application of Ethics: Separately Administered
Organs and Programmes; available at https://undocs.org/ST/SGB/2007/11 (last visited on September 23, 2018).
the need for adherence to ethics by the international community for professional ethics
transcend borders and political interests to uphold principles that can be seen as an
articulation by individuals and civil society of what is acceptable and what is unacceptable
act irrespective of the diversity of the stakeholders. Ethics, at some point is universal and
preservation of unity in this regard would act as effective checks and balances – as
individuals are protected from higher authorities if they stick to their ethics. While the front
of implementation of the ethical guidelines would be desirable, the acknowledgment of ethics
serves as a self-restraint mechanism for actors, who are now made to perceive themselves as
independent of their post. Ethics thereby prevents the actors from blindly following the
instructions of political superiors, as they are now held individually accountable under the
codes of ethics.