Pursuant to the ICCBA Constitution, the ICCBA Amicus Committee is responsible for:
1. considering and responding to requests from the ICC President or from an ICC Chamber for the submission of an ICCBA amicus curiae brief before the ICC; and
2. considering and responding to requests submitted to the ICCBA Executive Council from any third party, including, but not limited to, ICC counsel, governments, NGOs and individuals, for the submission of ICCBA amicus curiae briefs before the ICC or any other relevant forum.
Prior to submitting a formal request to the ICCBA Executive Council for the submission of an ICCBA amicus curiae brief, the Committee encourages the individual or entity in question to first consult with the Amicus Committee. Consultation requests may be submitted by email at the following address: email@example.com.
The Role of an Amicus Curiae
Traditionally an “amicus curiae”, or “friend of the court”, refers to a person or organisation that is not a party to the proceedings before the court and who assists the court by providing information, legal or factual expertise, or a unique point of view or insight that is relevant to the determination of issues before the court. The submission of amicus curiae briefs is a well-developed practice in many common law jurisdictions, as well as before international human rights tribunals (such as the European Court of Human Rights and Inter-American Court of Human Rights) and international criminal tribunals (including the ICTY, ICTR, SCSL, STL, ECCC).
Before the ICC, applications for authorisation to submit amicus curiae observations are governed by Rule 103 of the Rules of Procedure and Evidence. Applications are granted at the discretion of a Chamber if the Chamber finds that the proposed observations would be “desirable for the proper determination of the case”. A Chamber may also invite interested persons and entities – or specific categories of persons / entities (for example professors of international law) – to submit amicus curiae observations on a particular issue.
During the Reparations phase of proceedings, Article 75(3) of the Rome Statute additionally provides that, prior to making any order for reparations, “the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested states”.
The Committee has prepared a catalogue (periodically updated) of all Rule 103 and Article 75(3) applications and observations submitted before the ICC that fall into the category of ‘traditional’ amicus curiae observations, as well as in-depth analyses of a selection of amicus curiae interventions before the Court.
ICC Chambers have invited or authorised amicus curiae to submit observations on a variety of subjects, such as: the legal definitions of “conscription” and “enlistment” of children; the superior responsibility mode of criminal liability; the modalities of collective victim participation before the Court; gender as an element to be taken into account in drafting reparations orders; the status and capacity of the Libyan judiciary in 2011 and 2012; proposals for projects assisting former child soldiers in the Democratic Republic of the Congo in the context of reparations; the issue of immunities for heads of state or government and the obligation of States Parties to execute ICC arrest warrants.
This analysis focuses on 'classic' amici, and excludes applications from parties that are directly connected to parties or participants before the Chamber, or to the issues being addressed by the Chamber, parties or participants.