Challenges and Opportunities for African State and Civil Society Engagement in the ICC Review Process

Wednesday, 12 January 2022, 10:00 – 12:15 EDT , on Zoom

The Center for International Law and Policy in Africa (CILPA), with the co-sponsorship of the American Society of International Law (ASIL) and the International Nuremberg Principles Academy (INPA) hosted a  roundtable discussion exploring the International Criminal Court’s ongoing review and reform process.

The International Criminal Court (ICC) has faced mounting criticism over the past few years as it struggles to fulfill its ambitious mandate in the Rome Statute. Poor quality investigations and prosecutions, controversial judicial decisions, institutional infighting, and a seeming lack of accountability for poor performance appear to have compounded mounting internal and external problems, including low budgets, limited state cooperation and political backlash from powerful States.

In response and based on a proposal of the ICC principals in a May 2019 letter, the Bureau of the ICC Assembly of State Parties (ASP) adopted a resolution on 6 December 2019 in which the States Parties recognized the multifaceted challenges currently facing the ICC and established an Independent Expert Review (IER) process. The IER was billed as an “inclusive State-Party driven process for identifying and implementing measures to strengthen the Court and improve its performance.” Under the terms of reference, the IER which was comprised of a representative group of nine independent experts was mandated to carry out a thorough review of the ICC under the three thematic clusters of 1) governance; 2) the judiciary and 3) investigations and prosecutions so as to find “ways to strengthen the ICC and the Rome Statute System in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning”. The ASP also identified four priority issues for the States Parties to directly address through their working groups, i.e. 1) strengthening cooperation; 2) addressing non-cooperation; 3) complementarity and the relationship between national jurisdictions and 4) equitable geographical representation and gender balance. The experts were asked to present “concrete, achievable and actionable recommendations” that would enhance “performance, efficiency and effectiveness.” The IER presented its report in September 2020, containing 384 recommendations, some of which were intended for short term implementation while others were proposed for the long-term.

On 18 December 2020, the ASP adopted a resolution on the review of the ICC and the Rome Statute system, inter alia, establishing a “Review Mechanism.” The Mechanism was tasked with following up on the IER report in terms of planning, coordinating, tracking, and assessing the recommendations with the overarching goal of suggesting ways forward for their implementation. Organs of the ICC were asked to submit a formal response to the IER report. In February 2021, States Parties selected two state co-facilitators from the Netherlands and Sierra Leone to lead the mechanism process, supported by ad hoc regional focal points from Bangladesh, Chile, and Poland, to develop categorization of the IER recommendations and an action plan for implementation. NGO input was sought alongside the input of States Parties and relevant ICC organs.