The ‘Prosecutor Amicus Curiae’ at the International Criminal Tribunals

Abstract

Abstract Offences against the administration of international criminal justice are a serious threat to the effective functioning of international criminal tribunals entrusted by the international community with the punishment of perpetrators of the worst atrocities that humanity experiences. That is why the mechanisms which prosecute these offences must be highly efficient. The concept of a ‘prosecutor amicus curiae’ was introduced at the International Criminal Tribunal for the former Yugoslavia (ICTY) after numerous failures in the previously applicable procedure. Since then, this procedural mechanism has spread to other ad hoc tribunals and has been successfully used to investigate and prosecute those responsible for interfering with the courts’ due functioning. To date, however, very little scholarly research has been devoted to it, partly because of an understanding that the term ‘amicus curiae’ is incorrectly applied in this context. We endeavour to demonstrate that, on the contrary, the special prosecutors are part of the amici family in international criminal law, as guarantors of the fairness of the criminal procedure. We examine the details of their appointment and termination of mandate, as well as the legal regime of privileges and immunities applicable to them in order to ensure the independence indispensable for the exercise of their functions. We further explore shortcomings arising from the lack of continuity among amicus curiae prosecutors’ activities, as well as standards that are lacking in the procedures, that highlight the need for a new mechanism to better serve the role of the amicus curiae prosecutor in managing offences against the administration of international justice.