An amicus curiae before the ICTR:

Two schools of thought, one document, one imperfect method

By Gaëlle Breton-Le Goff and Anne Saris

McGill Doctoral Affiliates Working Group on International Justice

The amicus curiae (“friend of the Court”) brief is an important tool in terms of the expertise and information it provides judges on a given issue as well as the indirect opportunity it affords victims to make their voices heard. The NGO Coalition for Women's Human Rights in Conflict Situations had previously gained experience with this technique in the Akayesu case.

Thus, when the Coalition’s members approved our proposal to write an amicus curiae brief in the Cyangugu case ¹, we were enthused about the prospect of working for a cause as just as that of encouraging the International Criminal Tribunal for Rwanda (ICTR) to recognize the crime of violence against women.

We spent four months tracking down the facts, gathering evidence, identifying witnesses, crimes, places and victims, and of course, elaborating and developing our legal arguments. Determinedly, we established causal links between the accused and the crimes of sexual violence committed in the commune of Cyangugu, and with a rigour characteristic of civil law scholarship, we strove to develop the arguments of law, at times pushing them to extremes; after all, are the judges not themselves to some extent makers of law? Although skeptical as to how our arguments on jus cogens would be received, we were nonetheless convinced that only a sound legal demonstration could convince the judges of the ICTR’s Chamber III. Indeed, based on certain of their decisions we knew them to be strict interpreters of the law.

Although our brief was submitted numerous times to all the members of the Coalition, it was only late in the day that we received their reactions. Our work, as it then became apparent, did not coincide on all points with the common law jurists’ approach to the use of the amicus curiae. Thus, at the last minute and in great haste, a new version was written based on the facts and arguments developed in its predecessor document. It was reorganized to separate fact from law, and it partially reiterated the arguments of law.

In fact, beyond the differences of structure and content, our divergences resided in the choice of strategy. We had sought to make the amicus curiae an instrument of legal expertise, whereas they saw it primarily as an instrument of legal lobbying. The second version made up in terms of activism what the first lost in terms of legal argumentation.

The final document is a savvy compromise between the arguments of law, the spirit of common law and the lobbying strategy. Like all compromises, the result is mitigated: it is both a record of personal dissatisfactions and a collective victory in terms of its result. It is one of the rare instances where defence lawyers, the prosecutor’s office and the judges have all made a point of responding to a request for authorization to file an amicus curiae. And even though the brief was rejected by Chamber III, which did not find it necessary to admit it, the prosecution did announce its intention to amend the indictment to include crimes of sexual violence, thereby achieving the objective the Coalition had set out.

Our purpose here is not to elaborate on the difficulties encountered in drafting the amicus curiae but to propose alternatives for improving our future work. To gain time and efficiency, and to avoid squandering personal energies (the majority of the Coalition’s members are volunteers), we feel that the Coalition would gain by improved communication and coordination among its members around the items on its agenda; by clearly and swiftly defining its objectives and working methods, and by respecting agendas, deadlines and commitments undertaken.

Resolutions to this effect were in fact passed at the last Coalition meeting in September 2000, but the experience with the Cyangugu case shows that much remains to be done to improve our organization.

The Coalition’s partial success in the Cyangugu case demonstrates that the two schools of thought are reconcilable—in fact even better, that the members of the Coalition can be stimulated and enriched by their respective differences. As former ICTR prosecutor Me Luc Côté stressed in a recent interview, these differences should not be seen as obstacles but rather as opportunities. Thus, it is within a still-imperfect framework that we will learn from one another to be more effective and—be it hoped—more successful.

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