Academic Amici and the Legitimacy of International Criminal Court: Some Reflections on the Al Bashir Appeal

On 11 December 2017, the Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) issued a decision finding that Jordan violated its obligation to arrest and surrender Omar Al-Bashir, the current president of Sudan who is wanted for crimes against humanity, war crimes, and genocide, to the Court. On 29 March 2018, in the proceedings of Jordan’s appeal, the ICC Appeals Chamber invited the participation of amici curiae. It accepted the request for leave of sixteen distinguished “Professors of international law”. In doing so, the Chamber expected the professors to “submit observations on the merits of the legal questions presented in the appeal”. This is not the first time the ICC invited law professors to act as amici to provide legal guidance. For example, the amicus brief submitted by Professors Robinson, deGuzman, Jalloh and Cryer previously advised the Appeals Chamber on the contextual element of crimes against humanity in the Gbagbo case. However, this is the first time where a chamber has accepted briefs by a large number of professors.

Scholars have written on civil society as amici (Williams and Palmer), the general role of amici before international tribunals (Williams and Woolaver; Bartholomeusz) and their influence on judgments (Chang). However, recent contributions to the analysis of amici curiae have left a specific issue untouched: the impact of academic amici on the legitimacy of the adjudication process (or “adjudicative legitimacy”). This gap in the literature begs the question to what extent academic amici in highly specialised international tribunals, in particular the ICC, are desirable or even necessary.

In this post, I will first provide an overview of the role of the amici in the Bashir appeal. I will then demonstrate why academic amici might be essential to the judicial function in certain circumstances, and how it may promote the Court’s adjudicative legitimacy. Finally, I will conclude with some remarks of caution.

The task of academic amici in the Bashir appeal

Amici curiae is a Latin term used in both common law and civil law jurisdictions, which was correctly referred to by Judge Eboe-Osuji as the “academic friends of the Court”. The traditional understanding is that amici curiae are tasked with informing the court on a matter of law which is doubtful, in order to arrive at a proper disposition of the case.

Rule 103 of the ICC Rules of Procedure and Evidence grants chambers a wide discretion:

At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate. (emphasis added)

Such an invitation or grant of leave is not absolute (“may”) but is dependent on the judicial desirability for a “proper determination of the case”. The provision closely tracks the language of the ICTY/R (Rule 74 of the ICTY/R Rules) and the MICT (Rule 83 of the MICT Rules).

Some professors present in the hearing alluded to the nature of their role as amici. For instance, Professor Kreß sought to address counter-arguments against his proposal for an exception to the rule of immunity ratione personae under customary international law “in order to be truthful to [his] role as amicus curiae”. Professor O’Keefe succinctly explained why amici curiae could fill the gap in the process of judicial determination:

[I]t is impossible for either of the two parties, each briefed by a client or employer to whom it owes a professional duty, to throw up its hands and publicly acknowledge the superior persuasiveness of the opposing argument. No such professional duty, however, constrains the professor of law, acting as the professor of law and, what is more, appearing as amicus curiae, a friend of the court. And the duty of the amicus curiae … is to draw the court’s attention to that more persuasive argument.

The significance of academic amici on adjudication

In his 2006 fragmentation report submitted to the International Law Commission, Martti Koskenniemi warned of the repercussions from “self-contained regimes” which – despite highly specialised law-making power – tend to ignore general principles and practices of international law. Here he alluded to “the regime of judicial cooperation between the International Criminal Court and States Parties under the Rome Statute” (also suggested by Göran Sluiter). The Rome Statute also diffusely asserts its “self-contained” character: in Article 1 (“The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute”); Article 4 (“The Court may exercise its functions and power, as provided in this Statute”); Article 21 (“The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence”).

Would treating the Rome Statute as a sui generis system necessarily displace relevant principles of general public international law, such as those in the law of treaties and immunities? I argue not. On a jurisprudential level, a systemic interpretation of the Rome Statute would see itself as part of the broader international legal order. To an extent, therefore, judges may be obligated to employ judicial techniques to harmonise international criminal law and other branches of international law.

Article 21(b) of the Statute makes this point clear. It directs the chambers to resort to “where appropriate … principles and rules of international law”. In the Confirmation Decision in Ruto and Sang, Pre-Trial Chamber II clarified that it could consider customary rules of international law in principle; but even then, the qualifier “where appropriate” limited such consideration “to cases where there is lacuna in the Statute”, i.e. where ICC instruments provided no answer. Since Jordan disputes the meaning and effect of Article 27 on immunity ratione personae and Article 98 on the obligation to arrest and surrender, and given that both articles have original import from (customary) international law, it is unlikely that the Appeals Chamber could properly adjudicate without resorting to the customary content. In this vein, the participation of academic amici was not only a manifestation of legal diversity, but also a bridge between fields of law by injecting their expertise on general public international law.

One may contend that judges are presumed to have such expertise when elected (Article 36(3)(b) of the Rome Statute). However, it should be noted that, first, under Rule 103 of the ICC Rules the grant of amicus participation remains at the disposal of chambers and, second, amicus appointment can entail implications beyond mere judicial desirability, where it is used as a means to fulfil broader legal obligations owed to the parties. One such obligation is the right to a fair trial, in accordance with Article 21(3) of the Statute. To guarantee a fair trial, a tribunal must not only be competent and impartial (General Comment No. 32), it must also be informed – using all judicial means at its disposal within the bounds of legality – so as to produce meaningful fairness.

Finally, when developing a culture of academic amicus participation, the ICC may wish to look to other ad hoc criminal tribunals, such as the ECCC (e.g. Professor Antonio Cassese et al. on joint criminal enterprise) and the SCSL (e.g. Professors Philippe Sands and Diane Orentlicher on the jurisdiction of an international criminal tribunal over a serving Head of State). In Nahimana et al. (the Media case), the ICTR considered that “the primary criterion [to grant leave to an amicus] is whether such submissions would assist the Appeals Chamber in its consideration of the questions at issues on appeal”. It may also be recalled that in Prosecutor v. Karadžić Radovan, the ICTY Appeals Chamber rejected the proposed amicus brief because it “is not limited to questions of law, but provides interpretations of evidence and repeats the task undertaken by the Trial Chamber and the parties in their submissions on appeal”. Perhaps for these reasons, the ICC Pre-Trial Chambers II, prior to the authorisation decision in the Situation in Kenya, rejected amicus participation of professors because it “would not assist in reaching a proper determination”.

Conclusion

The judicial reality is that questions of law before an international tribunal are too often caught in the phenomenon of the cross-fertilisation of international law – the practical implication being that a specialised tribunal would need to incidentally develop legal principles, at times beyond its expertise. The ICC Appeals Chamber’s invitation to law professors signified the beginning of a constructive legal approach in its relationship with academia, with much benefit to the quality of adjudication. Nonetheless, any judicial act of discretion must be a balancing act. Beyond fair trial rights, the chambers must also ensure judicial independence and efficient administration of justice, and meanwhile continue to engage with the “friends of the Court” in a constructive manner.

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