Thank you. I would also like to add my thanks to the conference organizers for the invitation. This is my first time attending ASIL and it is a real privilege to be here.

As already indicated, Liz and I have divided our presentation so that we are covering different aspects of civil society engagement with the International Criminal Court. From my own research, this is linked to a project that is funded by the Australian Research Council, which is looking at the broader role of civil society and, in particular, the amicus curiae mechanism within international criminal tribunals. I would also like to acknowledge the support of the Australian Research Council. This made my presence here today possible.

I took as a starting point, in some ways, the possible high-water mark of the Rome Statute negotiations. If you have any textbook that talks about involvement of civil society and non-state actors in the negotiation of treaties it is usually that negotiation that is held up as the classic example. And obviously there is a role for non-state actors, in terms of encouraging ratification, encouraging implementation, and as Liz has just highlighted, increasingly needing to keep states linked to their commitments to the International Criminal Court and to support and reinforce cooperation.

My presentation switches direction a bit. What do they do within the formal mechanisms and processes of the Court itself? We see a huge amount of involvement when the Rome Statute was negotiated, but do we see a similarly high level of involvement in the Court's formal processes?

In the interest of time I am going to look at three formal mechanisms. The first one, as Liz has mentioned, is the ability to provide information to the prosecutor under Article 15 of the Rome Statute. The second is the ability to file, or to seek to file, an amicus curiae submission under Rule 103 of the Rules of Procedure and Evidence. And the third is the making of representations in reparations proceedings under Article 75(3) of the Statute.

Turning first to Article 15 communications, the ability of the ICC prosecutor to receive information on the commission of crimes within the jurisdiction of the Court, from NGOs, states and other organizations, provides an important opportunity for civil society to participate and to attempt to influence the Court's activities. The inclusion of that provision, Article 15, was a very hard-won victory for the negotiators at Rome. It related to the powers of the prosecutor to initiate an investigation independently from either a state referral or by a referral from the UN Security Council.

At that stage, as well, the Office of the Prosecutor does not enjoy its full investigative powers, so it really does provide a valuable opportunity to give that information to the Court and allows the prosecutor the power to consult with other actors, besides states, when working out what evidence is available.

There is no doubt as to the potential of this mechanism to influence the ICC's agenda. By drawing the prosecutor's attention to specific situations, and through providing material to substantiate allegations, civil society can prompt actions. However, from a civil society perspective, there is little guidance for those seeking to make submissions as to what information would be useful, and there is also limited transparency as to when and how the Office of the Prosecutor is relying on this evidence.

As the large number of communications—and so far we have 12,590, as of October of 2017, and that is from the start of the Court's activities in July of 2002—but yet we have relatively few cases actually under investigation, and that suggests that Article 15 communications are not guaranteed, or perhaps even likely, to have an impact on the ICC, particularly since the vast majority of those communications fall completely outside the scope of the prosecutor's remit.

Moreover, civil society actors have no standing to challenge any decisions made by the Office of the Prosecutor (OTP) in relation to opening an investigation, or not, under Article 15, and that is a particular bone of contention that many civil society actors have raised. But it is an expressed limit or an intended omission in the Statute, so I do not know how much prospect there is of changing that.

Now, I have mentioned the volume of communications, and that also raises issues of efficiency for the Office of the Prosecutor. The OTP has no discretion as to whether to accept a communication. At the moment it has an open-door policy and it accepts them all. The content, whether it is legal or factual, the quality of those communications varies significantly. Certainly, it is clear that not every communication is helpful to the prosecutor, and so the process also uses up considerable valuable prosecutorial resources. There is some anecdotal evidence that civil society groups seeking to put communications before the prosecutor are now lawyering up, and the prosecutor is more open to engaging in more of a dialogue with those actors to try and get at the best available information. It may be that the quality and the usefulness of the process will improve.

There is also evidence of what have become known as strategic communications, so those communications that are filed with the Office of the Prosecutor with no real prospect or expectation that any action will happen at the ICC. That may be because they know politically there will not be any response, it may be because the application falls outside the court's jurisdiction so the prosecutor cannot do anything. There may be a number of reasons why civil society actors would choose to put in a strategic communication. It might include triggering domestic processes, a shaming policy, or as part of a broader advocacy strategy about a particular campaign.

It is also clear that Article 15 is quite closely linked to domestic politics, more so than other mechanisms that we see in the court, and so there is a greater risk of those types of accusations being leveled. It does raise a risk for the ongoing legitimacy of the prosecutor, where the OTP is faced with communications about which it can do nothing, but there is a huge amount of hype and expectation generated.

The OTP also treats all communications as confidential, and that creates an enormous amount of challenges when you are trying to, as an academic or as an NGO, assess what the impact of those communications might be. Relying, obviously, on communications that are made public by the actors submitting those communications, of course, is going to skew any study. Basically, trying to do any independent analysis and verification of the evidence is impossible.

What we have done is go through and look at the decisions of the documents filed by the prosecutor and issued by the pretrial chamber, based on whatever evidence you have at that stage, and they very, very rarely, if ever, refer to any communications. It actually suggests that what is more useful is not to be filing communications but to be performing a more fact-finding function and having open-source, publicly available documents—I will mention here the human rights work of Amnesty International—and that is what the prosecutor seems to be relying on for the evidence at this stage. They may well have more influence with the prosecutor in the chamber than with communications. That may be because those communications are confidential, but it is hard to say at this point.

The second mechanism I wanted to look at is the amicus curiae. As with other international criminal tribunals, the Rome Statute and the Rules of Procedure and Evidence allow the submission of amicus curiae submissions, a friend of the court, but where this will assist the chamber in the determination of any issue before it. Civil societies have and are taking advantage of this mechanism. However, there has been a higher rate of rejection of amicus curiae applications at the ICC than other international criminal tribunals. Up until recently, very recently, last week, we have not had any open calls. This has changed with an open call around, as Liz mentioned, the al-Bashir arrest warrant issue.

The decisions that reject a particular amicus submission are not usually detailed and do not usually give clear reasons as to why. Most of those decisions suggest that there is a high threshold for the submission of amicus briefs supporting the International Criminal Court. Chambers are quick to dismiss applications where the information is already before the court, where it would duplicate submissions by other parties, or the amicus is not considered sufficiently expert in the issues to be canvassed by those submissions.

One interesting decision actually pointed to the advocacy function of a particular civil society organization as an express reason for rejecting that submission. On the one hand, the civil society actor has to demonstrate their expertise. On the other hand, if that expertise is also linked to advocacy, that can be used to count against their submission. Chambers are also quick to consider the stage of the proceedings and the potential impact of receiving an amicus brief in light of the principle of expeditiousness and to avoid delays or unfairness to the accused.

There are a number of limits of the amicus, as you will all be familiar with. They are not a party and they have limited rights. Most importantly, the chamber is under absolutely no obligation to have any regard to the submissions they have accepted on behalf of an amicus. This means that with the exception of a few kind of high-profile instances, it is very difficult to actually assess the influence of those submissions. But the decisions do confirm that it is discretionary and that the Court is using a fairly strict test in managing that right of participation very closely.

The third process I want to talk about briefly, and this is the one where we are seeing civil society have perhaps more evident success, is under Article 75 of the Rome Statute. As some of you may be aware, that establishes a reparations framework for the Court, which is a novel process. It is certainly the first international criminal court to be really dealing with questions of reparations. It also allows a right for the trial chamber to invite representations from a range of actors, and it is quite a broad range, in addition to submissions from institutional actors like the trust fund or from victims.

Now, the key difference, that this is not an amicus submission, the Court, if it does invite these representations, must have regard to them. They have to look at them. They have to incorporate what those representations are saying into their decision-making process. From the first case, in Lubanga, five organizations were given leave to make written representations, and that trend has continued, with several NGOs appearing in all the reparations phases we have had to date.

And there is evidence that those submissions are having quite a considerable impact on the ICC decisions and processes in this particular area of reparations. Many are directly referred to and incorporated into the Court's practice in their entirety.

Here the role of Article 75 really seems to be providing the Court with extra expertise that it would not normally have, recognizing this is a novel area. And it is clear that the influence of NGOs, and academics in particular, in this area, is greater than it is at any other stage of proceedings in the ICC. It is probably significant that this stage of proceeding of the accused has already been convicted, so the risks to the defense are much lower than if you were to have someone participate at the trial phase.

One thing that has been raised is there is a limited number of often repeat NGO players, the large international NGOs, and certain academic institutions, who are regularly making submissions and therefore seem to be having quite a strong level of influence, and that raises questions about whether it is a plural or a privileged role for certain NGOs.

In conclusion, despite the kind of promise that was raised at Rome of greater involvement of NGO and other civil society actors, the reality in terms of the Court's formal practice is far more restrained. Why is that so? One way to approach that question is to think, well, what role does civil society engagement with the Court in its formal processes play? Usually it is argued that civil society participation increases the court's legitimacy by allowing for the representation of a broader set of interests and more voices, and in enhancing the legality of the quality of those decisions.

The representation argument explains involvement in the negotiations. It also explains, partly, the role of civil society in Article 15 communications and in providing information around reparations processes. But where we see the chamber is much less willing is where it would be allowing intervention directly in trials, and where we have concerns about fairness to the accused. It could also be that the relatively low reliance is a sign of international criminal law maturing. We have judges who were appointed with expertise, we have a wide range of jurisprudence to draw upon, and the court is usually better staffed with research assistants, so perhaps there is no need for external advice.

But finally, it might also be that civil society is placing less priority on pursuing their goals through formal processes. It might be, that as Liz has been highlighting, the actual issues are not legal. The issues may be political and diplomatic. In an era of reduced funding they are turning their attention to processes outside the formal legal processes and using more diplomatic and political advocacy campaigns.

Thank you.