The Amicus Curiae in International Criminal Justice

Sarah Williams, Hannah Woolaver, Emma Palmer

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509913336
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

The amicus curiae – or friend of the court – is the main mechanism for actors other than the parties, including civil society actors and states, to participate directly in proceedings in international criminal tribunals. Yet reliance on this mechanism raises a number of significant questions concerning: the functions performed by amici, which actors seek to intervene and why, and the influence of amicus interventions on judicial outcomes. Ultimately, the amicus curiae may have a significant impact on the fairness, representativeness and legitimacy of the tribunals' proceedings and decisions. This book provides a comprehensive examination of the amicus curiae practice of the International Criminal Court and other major international criminal tribunals and offers suggestions for the role of the amicus curiae. In doing so, the authors develop a framework to augment the potential contributions of amicus participation in respect of the legitimacy of international criminal tribunals and their decisions, while minimising interference with the core judicial competence of the tribunal and the right of the accused to a fair and expeditious trial.

1

International Criminal Tribunals, Legitimacy and the Amicus Curiae

I.INTRODUCTION

The International Criminal Court (ICC; the Court) faces a crisis of legitimacy. As we write in May 2019, the Court faces challenges on several fronts. The rate of ratification of and accession to the Rome Statute has slowed. The Court’s focus on African situations has led to continued accusations of bias and selectivity, leading to calls for states to withdraw from the Rome Statute and not to cooperate with the institution.¹ Several states² have announced their intention to withdraw from the Rome Statute, although only Burundi and the Philippines have followed through on this threat.³ The decision not to authorise an investigation into the situation in Afghanistan,⁴ in the face of US pressure,⁵ has been criticised by many.⁶ Critics point to the low rate of ‘successful’ trials, judging the ICC on its convictions as the primary measure of success: as at May 2019, only six trials have been completed, leading to three convictions.⁷ The Court is struggling to give effect to its victim participation regime, the challenges of which were brought into stark relief when the Appeals Chamber overturned the conviction of Jean-Pierre Bemba in 2018,⁸ thus signalling the end of participation and any prospect of reparations.⁹ The enthusiasm and support the Court has enjoyed from its creation and establishment has been replaced by growing criticism, frustration and alarm. This has led to calls, including by former Presidents of the Assembly of States Parties, for an independent assessment of the Court and its functioning.¹⁰

The ICC is not the first international criminal tribunal to face criticism from a diverse range of actors and across a number of issues. Its predecessors, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), were certainly not immune. Earlier institutions, such as the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE), were also criticised, often with justification. Other tribunals, including the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL), have their detractors. However, as the first permanent international criminal tribunal, the criticism directed at the ICC is concerning, potentially threatening the belief that the institution can achieve its aspiration of ending impunity for international crimes. What is also significant is that much of the criticism directed against the ICC (and other international criminal tribunals) is expressed in terms of the impact of certain actions or actors on the legitimacy of the Court’s decisions and on the legitimacy of the institution itself.

As we will explore in section III below, legitimacy is one framework for assessing the performance of an international institution.¹¹ Scholars have considered the ICC and other international criminal tribunals within this broader critical approach. This book furthers this trend by exploring how the amicus curiae mechanism may enhance – or undermine – the legitimacy of international criminal tribunals, and the ICC in particular. Historically, as detailed in chapter two, the amicus curiae or ‘friend of the court’ acted within the common law as an impartial adviser to the court whose role was simply to inform and not to advocate.¹² This filled a lacuna by permitting the representation of interests beyond those of the primary parties to the case. This is, on first glance, a narrow procedural issue with little apparent relevance to the legitimacy of the ICC or any other international institution. However, we argue that this is too simplistic a view of the amicus curiae function. Instead, we suggest that the amicus curiae mechanism offers a significant avenue for participation in formal proceedings. As such, the amicus curiae mechanism is important for building and maintaining the legitimacy of any international criminal tribunal, but especially for a permanent tribunal such as the ICC. Yet, despite its potential contribution to legitimacy, there has not been a comprehensive study of the amicus curiae practice of international criminal tribunals. Our primary aim in this study is to explore the legal framework and practice of various international criminal tribunals concerning the amicus curiae mechanism. We use the terms amicus curiae, amici curiae and amici to refer to submissions formally identified as amicus submissions as well as to refer to submissions by non-parties (ie, not prosecution or defence) where the participant does not have a separate formal right to participate. In particular, we focus on the ways in which and under what circumstances the amicus curiae mechanism may contribute to – or undermine – the legitimacy of an institution and its decisions. Our study thus goes beyond existing scholarship both in the comprehensiveness of its analysis and in its normative focus.

II.WHY INTERNATIONAL CRIMINAL TRIBUNALS? AND WHICH ONES?

This project emerged from an article co-authored by two of us in 2006,¹³ at a time when the ICC had yet substantially to commence operations and other tribunals studied were at an early stage of their practice. Our preliminary study revealed some interesting trends. We concluded that further research would be warranted once the amicus curiae practice had developed. During the following decade or so, we have monitored this practice in various tribunals. Securing funding from the Australian Research Council in 2014 allowed us to embark on an updated and more comprehensive study. By that point, there was a considerable body of practice to examine across a number of institutions. Moreover, despite the significant literature concerning civil society engagement with international criminal tribunals,¹⁴ which occasionally examines notable uses of amicus curiae briefs, there has not yet been a systematic empirical examination of the use of amicus curiae briefs in international criminal tribunals.

Our focus on international criminal tribunals – rather than a broader range of international institutions – is both principled and pragmatic. The decision to limit our focus was principled in the sense that we view international criminal tribunals as distinct in important ways from their international counterparts, creating key legal, structural and institutional differences that are relevant to their amicus curiae practice. While these differences are addressed in more detail in this study, particularly in chapter two, it is evident almost immediately that international criminal tribunals do not conform to the traditional model of international adjudication of a single issue between states. International criminal trials are different to other international proceedings in that they are concerned with individual criminal responsibility rather than with determining a particular dispute between or involving states. Instead, the primary actors – the parties to the proceedings – are the prosecution and the defence. States, normally the primary actors in international adjudication are, to an extent, excluded as participants. Given these differences, a separate and focused study of the amicus curiae in international criminal tribunals is required. The decision was also pragmatic as there is an increasing number of international criminal tribunals, including the establishment of a permanent institution, with the extent and variation in the amicus curiae practice of those tribunals significant. We recognised that locating, collating and analysing that practice would be a significant undertaking and extending our data collection to other international institutions would have made the project too large and impractical with the time and resources available to us. That is not to say that we do not consider comparative analysis of other international institutions relevant. International criminal tribunals remain creatures of international law, albeit to varying extents. However, we have relied largely on existing studies and literature for the comparative dimension instead of creating our own data set of amicus curiae practice.

In addition to other international institutions, we also considered whether and how the amicus curiae features in national legal systems. The amicus curiae is found in several legal systems, mainly common law systems such as the US and the United Kingdom (UK). However, the mechanism has a different scope even within traditional common law systems, with the functions we identified that are performed by the amicus curiae in international criminal tribunals (see section IV) performed by other mechanisms in some systems. Despite the key differences between national courts and international criminal tribunals, we decided to include some comparative material from national systems, focusing in particular on two aspects of the amicus curiae (or similar mechanisms): (1) its use in domestic proceedings concerning the commission of international crimes (not necessarily criminal trials), and (2) its use in criminal proceedings. The methodological approach we adopt, and its limits, are explored in section V and in Annex A.

Thus our study primarily considers six international criminal tribunals: the ICC; the ICTY; the ICTR; the SCSL; the STL; and the ECCC. For ease, we have referred to them collectively and individually as international criminal tribunals (the Tribunals), although we appreciate that there are different ways of classifying such tribunals (international, hybrid, internationalised).¹⁵ We have also captured the legal framework and practice of the United Nations International Residual Mechanism for Criminal Tribunals (the MICT) and the Residual Special Court for Sierra Leone (SCSL Residual Mechanism), as the successor institutions to the ICTY, the ICTR and the SCSL.¹⁶ Having selected the focus of the study, we then gathered relevant documents and analysed them (see Annex A). We also identified a normative framework for our study: legitimacy.

III.LEGITIMACY IN INTERNATIONAL CRIMINAL JUSTICE

Over the past two decades or so, scholars have established a body of literature addressing the legitimacy of international law and international institutions.¹⁷ Studies have focused on particular areas of law, for example, environmental law,¹⁸ or specific institutions, such as the World Trade Organisation¹⁹ or the Security Council.²⁰ There are many definitions of legitimacy, but we use the term legitimacy to refer to ‘the justification of authority – the authority, for example, of legislatures to prescribe legal rules or of courts to decide cases’.²¹ For international institutions, legitimacy ...