Understanding the concept of amicus curiae

By Judi Ajalo Erongot

Noting from the conservation I have listened to it sounds like the practice amicus in court was new and it seemed like it took some members of the public unaware but for every lawyer this was a practice that is known courts.

I shall much limit myself to the international tribunals to explain the practice of amicus which may not much differ from the national practice. The concept amicus curiae (or friend of the court) is derived from Roman law and was developed in the English common law as a means by which a court could receive expert, but impartial, advice on a usually technical issue that is believed to have been missed out by the court or both parties.

It is, however, not just a common law concept, recent trends towards ‘amicus briefs in civil law courts that historically have not been accepted' have started accepting amicus, as noted by Steven Kochevar (2013) Yale Law Journal.

Palma notes that the concept of Amicus has altered significantly and in some jurisdiction the amicus is now considered to be more ‘an advocate for a cause' than an impartial adviser.  The international criminal tribunals and institutions have included this concept in their rules.

Amicus curiae briefs may be submitted to many international human rights institutions and in investment arbitration like in the case of Tullio Treves and others, Civil Society, international courts, and compliance bodies, Project on International Courts and Tribunal and Eric De Brabandere, ‘NGOs and the "Public Interest": The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes' Chicago Journal of International Law.

Amicus has been used successfully in national proceedings concerning international criminal law; one of the most recent was amicus before the South African Constitutional Court, National Commissioner of the South African Police Service v Southern African Human Rights Litigation Center and another. Notwithstanding the powers of tribunals or courts, Civil Society Organizations can participate in proceeding through application of amicus curiae, there have been cases where some tribunals have not or have no provision for amicus curiae like the Nuremberg and Tokyo tribunals did not allow participation other than witnesses, the Rules of Procedure and Evidence later tribunals allowed a possible avenue for amicus.

Each tribunal recognizes the power of a chamber to appoint amicus curiae, a person to appear before and to make submissions on any case  where the Chamber considers it desirable for the proper determination of the case Rule 74, ICTY RPE, Rule 74 ICTR, Rule 33 ECCC, Rule 74 SCSL, Rule 103 ICC. The provisions recognize a considerable discretion on the part of a Chamber to receive amicus submissions.

The land mark amicus application was the Akayesu proceedings in the ICTR, in this case the Prosecution amended the indictment after the Coalition for Women' Human Rights in Conflict Situation submitted an amicus brief contending that the Prosecution should include sexual violence charges, which recognized for the first time that acts of sexual violence could constitute genocide "Prosecutor v Akayesu," Case No. ICTR-96, Chamber 1, Judgment, 2 September 1998.

The practice on amicus has come to be used in context other than that in which it originally appeared; the ICTY   initiated the practice of appointing an amicus as a substitute for defence counsel in the Milosevic proceedings.

A number of tribunals have incorporated a role for an ‘amicus curiae' in bringing contempt proceedings on behalf of the tribunal as it was seen in the practice of ICTY and the Special Tribunal for Lebanon though these practices have far departed from the concept of amicus but they have supported the court' work in its proceedings and contributed to justice process.

In the ICC Rules of Procedure and Evidence Rule 103 provides that at any stage of the proceeding, a Chamber may, if considers desirable for the determination of the case, invite or grant leave to a state, organization or person to submit, in writing or orally, any observation on any issue that the Chamber seems appropriate……" the ICC frame work does not provide details as to the content of an application for admission as an amicus on the contrary ICTY practices direction requires the amicus curiae to state the interest in the case.

That notwithstanding the ICC Chambers expect an applicant to provide sufficient details to enable the Chambers determine whether the proposed submissions would assist the Chamber. Rule 103 recognizes the right of the prosecution and the defence to respond to the observations submitted by an amicus.

This has generally been the practice in other courts including domestic courts which extends to the right to respond to an application to submit observations, not just observations themselves.  Amicus have caused spirited contention  from the Defence Counsel  challenging the admission of an amicus submission, raising its potential impact on the rights of the defence, as well as the principle that ‘proceedings should not be used by the organization or individuals to disseminate their objectives and views.

However courts have generally appeared unimpressed by such contentions, pointing out that, once a chamber has considered the observations, it is free to disregard any part of them which are inconsistent with the court's obligations to ensure fairness for the conviction or persons or administration of justice. Suffice to note is there are number of limits for an amicus, they are not considered to be party to the proceedings and cannot question witnesses, suggest to witnesses or provide evidence directly.

Generally, submissions of amicus do not form part of the record of the court unless and until the Chamber has accepted the application to be admitted; that is, if the application is rejected, there is often no record of the substance of what the amicus sought to argue unless the organization or individuals themselves publish or promote the brief.

Interestingly there is no right of appeal from a decision to reject an amicus submission moreover an amicus is not a party to the proceedings, the fact that an amicus is accepted to participate at one stage of the proceeding does not mean that the amicus is entitled to appear at any subsequent stage of proceeding, note this is within the discretion of the Chamber concerned.

An amicus is not eligible to file an appeal from the proceedings in which it has participated. Paramount to note the Chambers or court is not obliged to take into account the submissions made by an amicus.

There three ways an amicus can submit unprompted voluntary submission, submission in response of a call for submission on a particular issue or an invited submission. At the ICC there has been a higher rejection rate which may be attributed to absence of open calls or invited submission, it has also been said that there is a high threshold for the submission of amicus briefs before the ICC.

Rule 103 provides that the Chamber of the ICC will resort to, its discretion, to amicus observation only on an exceptional basis, on specific expertise when needed on particular topic. Chambers have been quick to dismiss applications where the information is already before it, the information provided in the application is insufficient or the amicus is not considered sufficiently expert in the issues.

Most an NGO have suffered a setback because of their advocacy nature while as others their amicus have been accepted because of their expertise in the local issues that may not be knowledgeable to court.

In the case of Lubanga, the Special Rapporteur for Children provided written and oral submissions on child enlistments and recruitment in 2008, the judgment partly relied on these submissions and made frequent references to the written brief and the oral testimony regarding the inability of child soldiers to provide informed consent.

The writer is a human rights lawyer and a promoter of gender equality and women young girl' empowerment