Hannah Woolaver, Senior Lecturer in International Law, Faculty of Law, University of Cape Town, South Africa
Introduction
Unlike other international
institutions, international criminal tribunals use an adjudicative process to
determine individual criminal responsibility. Their key actors are not states,
but the prosecution and defence. The main way in which other actors (states,
international organisations, civil society actors and individuals) can
participate directly in proceedings before international criminal tribunals is
as an amicus curiae, or friend of the court.
The practice of allowing an amicus
curiae to participate in proceedings is included in the rules of procedure
and evidence of most international and internationalised criminal tribunals,
including the ICC. Practice suggests an increasing reliance on amicus curiae submissions to provide information to the court that may be otherwise
unavailable and to advocate certain objectives or views of how international
criminal law should develop or be interpreted.
However, over the past two decades a number
of challenges concerning the amicus curiae in international criminal
tribunals have arisen, reflecting larger issues in the representation,
integrity, and fairness of international criminal proceedings. The increasing
number of interventions by external actors through the amicus curiae mechanism
must be balanced against the already complex nature of the trial process
(especially where victims’ participation is also available) and the need to
ensure that the fair trial rights of the accused and the principle of equality
of arms are not undermined. There has also been an increase in States’
submission of amicus briefs to enable their intervention in
international criminal processes, where they do not otherwise have a right to
participate. In addition, there has been a growth in ‘non-traditional’ uses of
the institution of amicus curiae by parties in international crimes
trials, such as the amicus curiae acting as prosecutor during contempt
proceedings and as substitute defence counsel.
Each of these developments raises important
issues concerning the role of the amicus curiae in international
criminal proceedings. These include who is able to participate or be
represented in proceedings, why actors seek to directly intervene in trials,
whether the amicus curiae is an appropriate avenue for certain types of
submissions or for all parties and what obligations and responsibilities such
interveners might hold. Here I aim to provide an overview of these pressing
issues.
This research stems from an ongoing project
on which I am collaborating with Dr Sarah Williams, examining the role of the amicus
curiae in international criminal tribunals. We are in the process of collating
and analysing all amicus applications and submissions at the major international
criminal tribunals. We are also conducting interviews with stakeholders
involved in making and using amicus submissions in international crimes
trials, including representatives of civil society groups, states, and
practitioners. These interviews will be drawn on alongside the analysis of the amicus submissions to assess the role and impact of amicus interventions on
international criminal proceedings and the development of the law at these
tribunals, as well as to make proposals to guide the use of amicus submissions at international crimes proceedings in the future.
The Amicus Curiae in International
Courts and Tribunals
The amicus curiae was traditionally
admitted to domestic common law proceedings to act as an impartial adviser to
the court. While an advocacy function has increasingly been accepted in amici in some domestic jurisdictions, such as the United States, the traditional role
of the amicus was to inform, rather than to advocate. This allowed the
representation of interests beyond those of the parties, filling a gap in common
law judicial procedure.
Over time, the amicus curiae mechanism also became an accepted part of international judicial proceedings. Amicus
curiae interventions are now permitted before most of the major
international courts and tribunals, including the International Court of
Justice, the European Court of Human Rights, the Inter-American Court of Human
Rights, and the dispute settlement mechanisms of the World Trade Organisation.
While the criteria for admission as amici and the rules governing amicus submissions differ from tribunal to tribunal, there is a clear trend of
increased admission and reliance on amicus submissions in international courts.[1]
The Ad Hoc and Hybrid
International Criminal Tribunals
We can also find provision for the
admission of amici in the Rules of Procedure and Evidence in the major
international criminal tribunals, including the International Criminal
Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra
Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special
Tribunal for Lebanon. These rules allow for the admission of amici when
desirable for the proper determination of the case – a standard that provides
for considerable discretion on the part of the tribunal.
Having collated the amicus submissions at the ad hoc and hybrid tribunals, the practice shows a generally
welcoming stance to applications for admission as an amicus. Applications
for amicus status had a relatively high success rate at these tribunals
–approximately 60% of applications for amicus status at the ICTR were
successful, as were approximately 70% at the ICTY, 80% at the SCSL and 55% at
the ECCC. There were also several instances of different Chambers issuing open invitations
for amici. In addition, once admitted, the practice of these tribunals
indicates that the amici at times had a significant impact on the
proceedings and development of the law. This influence is seen in several key
decisions where amicus briefs were heavily relied on and cited,
including the decisions of the ICTY Trial Chamber and Appeals Chamber in the Blaskic subpoena decision, and the decision of the SCSL in the Taylor case concerning the validity of immunities before international criminal
tribunals. Amicus briefs also had a significant impact on important
decisions by the Prosecutor at these tribunals. For instance, the decision of
the ICTR Prosecutor to amend charges in the Akayesu case to include charges
of sexual violence was a direct result of an amicus curiae brief
submitted by the Coalition for Women’s Human Rights in Conflict Situations,
leading to the first conviction of rape as an act of genocide in international
criminal law. There were also several instances where comparison of amicus briefs with decisions of these tribunals indicated an influence on the content
thereof, though the court did not cite these briefs.
The amicus practice at these
tribunals allowed for wider participation beyond the parties to the case in the
proceedings, including by states and civil society actors. This enabled the
representation of interests and perspectives beyond those of the Prosecution
and Defence, which can be crucial in mass atrocity trials to properly
understand the context, character, and consequences of international crimes. Nonetheless,
the frequent use of amicus submissions and the significant impact of
such submissions on key decisions raises concerns relating to the legitimacy
and transparency of decision-making, and the impact of external actors at these
tribunals. These concerns are compounded by the inconsistent citation of amicus submissions in these decisions, even when we can detect the influence on
decision-making through more careful examination.
The Amicus Curiae at the
International Criminal Court
The Rules of Procedure and Evidence of the
International Criminal Court also provide for the admission of amici.
Rule 103 allows the Chambers to ‘invite or grant leave for a State, organisation or person