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Scientific Evidence on Climate Change Clinic in Africa (May 2024-May 2025)

CILPA has received funding from the Foundation for International Law for the Environment (FILE) for a one-year project (May 2024-May 2025) Scientific Evidence on Climate Change Clinic in Africa. This project focuses on providing localized scientific evidence on climate change to support African States in the International Court of Justice (ICJ) climate change advisory proceedings. It addresses the barrier of insufficient continent and region-specific scientific knowledge by identifying local scientific experts and collaborating with institutions across Africa to assist in providing that evidence to the States which in turn can use that to assist the Court. Scientists representing the various regions of Africa will be a) identified; and b) convened to assist the legal advisors of African States partaking in the ICJ advisory opinion proceedings in reviewing their first written submissions, drafting written comments on how scientific evidence could be better used in the second round of submissions, and preparing for the oral hearings.

The latest report from the Intergovernmental Panel on Climate Change (IPCC) highlights the particular vulnerabilities of African States in relation to climate change. The IPCC has noted that while Africa has contributed negligibly to the changing climate, with just about 3% percent of global emissions, it stands out disproportionately as the most vulnerable region in the world. It is already experiencing widespread effects attributable to human-induced climate change, including “bio-diversity loss, water shortages, reduced food production, loss of lives and reduced economic growth.” Among the overarching conclusions are that the continent has high exposure and vulnerability with multidimensional socio-economic, political and environmental factors intersecting with each other to paint a bleak scenario. This is especially so given also the limited funding available to African States for adaptation and mitigation measures.

Due to Africa’s particular vulnerability to climate change, which has an impact on the continent’s stability, security, and social and economic development, the climate change advisory opinion proceedings at the ICJ provide a significant opportunity for African positionalities and views to help shape the development of international law.

But unfortunately, far too often, African States lack the capacity to fully participate in such proceedings due, inter alia, to resource constraints. And they often are not able to put their best arguments forward due to paucity of resources. One of the barriers to African State participation is the lack of continent and region-specific scientific knowledge on climate change and its impacts. States, in their submissions, have relied on the “best available science” to support their arguments, which was mostly drawn from the IPCC Reports and the Union for Concerned Scientists research. While this research is authoritative and the best, current, and reliable information in terms of general scientific research, it could be supplemented with greater specificity for individual African States and regions by bringing in the local knowledge of African scientists based in the countries concerned. Localised research from scientists and institutions in Africa will likely serve to complement the science currently available to African States, especially in order to demonstrate their particular vulnerability to climate change and its impacts in the ICJ advisory opinion proceedings.

Hence, CILPA has been trying to play an active role in supporting African States and bringing awareness to African perspectives on Climate Change. This has led to our being contracted to represent an array of African States to put forth their arguments on a pro bono basis.

International Law-Based Framework For Reparations for Historical Injustices Suffered by People of African Descent (October 2023-October 2025)

CILPA obtained funding from the Open Society Foundation to convene a research project aimed at scientifically assessing the legal basis for reparations under international law for historical injustice suffered by people of African descent. The key added value of the project will be a conscious effort to influence the current global narrative about reparations which is predominantly rooted in claims about international morality rather than international law. It is proposed that the project take place in various stages, with different collaborators at each stage, over 2 years, to build a solid foundation for a longer-term project in this area. The research project, which will seek to offer a new international law-based framework for reparations for historic wrongs, will rely on a well- tested three-part approach that would be executed in three distinct phases.

It would open with independent research and be followed by workshops at which the initial research results will be tested in a rigorous peer review driven process, and thereafter, the finalization of the research and the dissemination of the research results.

As to the scope of historical injustices to be explored in this project, it will focus on historic injustices suffered by people of African descent as a result of slavery, the slave trade, and colonialism, while considering interrelated issues of gender, environmental damage, and systemic economic disparity. The added value centers on clarifying, to the extent possible, the state of the law applicable at the time. This project will run from October 2023 to October 2025.

International Criminal Court in Africa Project (November 2021-March 2024)

CILPA developed an International Criminal Court in Africa Project as one of the central aspects of its research mission. The main objectives of the ICC and Africa project were as follows. First, the project generated new knowledge in an independent and non-partisan way, since CILPA is not an advocacy organization but rather a think tank. Second, the development of new knowledge, which could be used by other African civil society organizations to direct their advocacy on ICC reform, entailed the preparation of expert papers; the holding of expert workshops, virtual and or in person, to provide the authors and invited participants the opportunity to engage in a focused dialogue that generates recommendations on reforming the ICC from an African perspective; and lastly, disseminating the research results to key stakeholders, including the ICC States parties and African governments and African civil society organizations.

The crux of the ICC in Africa grant is Bringing the African Perspective to the ICC Reform Discussion, and entails a three-pronged project:

A. Research Consultancy.

In June of 2022, CILPA officially commissioned three pan-African expert consultants to write papers on The Missing Link in the ICC Reform Report and Follow-up Process, that seek to highlight the African State party concerns for reform and how they could be addressed and integrated going forward.

iMr. Sètondji Roland Adjovi: Background Paper on the Relationship between African States and the ICC
ii. Mr. Geoffrey Kevins Lugano: Examining the Role of African States in Supporting ICC Investigations, and Issues of Cooperation and Complementarity under the Rome Statute

iii. Ms. Lorraine Smith van Lin: Examining the Domestic Legal Framework in the African States that Today Form Part of the Situational Docket of the ICC.

B. Workshop

A successful 2-day Workshop on Bringing the African Perspective to the ICC Reform Discussion was hosted by CILPA, with the assistance of our institutional partner, the Center for Accountability and the Rule of Law in Sierra Leone (CARL), on Friday, October 7, and Saturday, October 8, 2022, at the Radisson Blu Mammy Yoko Hotel, 17 Lumley Beach Road, in Freetown, Sierra Leone. The research and analysis carried out by the consultants during the first part of the project formed the basis of a comprehensive analysis of the success and limitations encountered by the ICC in its ongoing reform process. Bringing together the consultants and invited legal experts, the Workshop was a working session with a detailed examination of specific themes and provisions identified by the consultants.

A lead discussant was assigned to each consultant to provide substantive feedback on the papers which were shared in advance of the Workshop) before opening the floor to the approximately 25 experts who attended in person and online. The Workshop was also attended and reported on by local media.

Over the course of the workshop, the expert invitees provided feedback and input to the consultants’ papers. It provided an opportunity for participants to express views on how the reforms could be carried out to ensure more transparency and inclusivity of African concerns. The expert participants reassessed, and as necessary, helped provide ideas for revision and finalization of the draft papers. Based on these contributions the consultants were able to make the relevant adjustments to their respective papers before their various reform recommendations were published by CILPA.

C. Publication and Dissemination

Based on the feedback received during the Workshop and comments provided by the Founder of CILPA, Prof. Charles Jalloh, on the consultant’s work, the consultants updated their papers and delivered the same to CILPA during December 2022 to February 2023. As the papers were received, they underwent an internal review as well as an external peer review by an expert in the field, after which the consultants were paid the remainder of the consultancy fee.

After an internal editing process the three papers were published as open-source Occasional Papers on CILPA’s website on 28 September 2023, which can be viewed and downloaded here.

The three papers, along with a paper written by Prof. Charles Jalloh on The ICC Reform Process and the Failure to Address the African State Concerns on the Sequencing of Peace with Criminal Justice Under Article 53 of the Rome Statute, were published by CILPA in two successive special issues of the African Journal of International Criminal Justice, a peer- reviewed academic journal focusing on human rights and rule of law issues in Africa, co-published in collaboration with Eleven International Journals.

First issue

Mr. Sètondji Roland Adjovi – Background Paper on the Relationship between African States and the ICC
Mr. Geoffrey Kevins Lugano – Examining the Domestic Legal Framework in the African States that Today Form Part of the Situational Docket of the ICC

Second Issue

Ms. Lorraine Smith van Lin – Examining the Role of African States in Supporting ICC Investigations, and Issues of Cooperation and Complementarity under the Rome Statute.

Prof. Charles C. Jalloh – The ICC Reform Process and the Failure to Address the African State Concerns on the Sequencing of Peace with Criminal Justice Under Article 53 of the Rome Statute.

CILPA, with the co-sponsorship of the Permanent Mission of the Republic of Sierra Leone to the United Nations also held a side event to the twenty-second session of the Assembly of States Parties to the International Criminal Court (ICC) providing an opportunity for the consultants to present their research and analysis in conjunction with a discussion with the State representative members of the Review Mechanism with the aim of bringing African perspectives to the ongoing ICC reform discourse, and determining the extent to which previous African State proposals were addressed by the IER. The Consultants were also invited to present their research at CILPA’s office grand opening in Freetown, Sierra Leone, in March 2024.

The African Court Research Initiative (2018-2022)

Building on the success of a project convened by the Founder of CILPA, with the institutional support of West Africa Civil Society Institute (WACSI) and a grant from the Open Society Foundation, the Technical Assistance for the AU’s Criminal Chamber for the African Court of Justice and Human and Peoples’ Rights (African Court Research Initiative), CILPA convened an Independent Experts Meeting in The Hague, from the 13th to 14th of May 2022.

The overall project goal was to offer research- based analysis that will provide technical assistance to the African Union’s Office of Legal Counsel (OLC) through which to achieve the operationalization of the African Court of Justice and Human and People’s Rights (African Court) – especially its international criminal jurisdiction as provided for under the “Malabo Protocol”.

The African Research Initiative (ACRCI) prepared draft Rules of Procedure and Evidence and draft Elements of Crimes. These documents were drafted as working documents, with the goal of providing a working basis for the judges of the future court with a possible framework for application of the Court’s governing instruments. The documents were subject to expert discussion at Geneva in early May 2019. As a core deliverable of the project, a compilation of an African Court volume, The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges, was published by Cambridge University Press in May 2019.

The book provides the most comprehensive and in-depth analysis of the articles of the Malabo Protocol to date by a group of leading scholars and practitioners from Africa and around the world. It will be used as resource for the African Union legal office as well as academics, legal professionals, members of government, policy makers, key officials, especially its future judges. The compendium, in book form and as an open-source on-line resource, has involved over 40 distinguished academicss, authors and practitioners who have offered a nuanced view on the challenges that the future African court might face and how to recognize and address these challenges

In July 2021, ACRI commissioned Ms. Lorraine Smith-van Lin, an independent international law expert, to carry out a comprehensive review and finalization of the full draft Rules of Procedure and Evidence and the Elements of Crime, under the general supervision and guidance of Professor Charles Jalloh, Principal Investigator (PI) of the ACRI. The consultant was requested to provide high-level legal research and consultancy services to assist the PI to conclude the ACRI-Phase III research, including the review of expert comments from previous roundtables, harmonisation and consolidation of the full draft of the Rules of Procedure and Evidence and the Elements of Crimes. The consultant’s review was carried out between July and December 2021.

The purpose of the Expert Meeting, which was held under the framework of the CILPA was to discuss the expert review and to finalise Phase-III of the research and drafting process. The meeting brought together the legal experts who prepared the first drafts of the documents, the consultant reviewer, and select expert practitioners with relevant experience on the African Court and issues of international dispute settlement. The meeting provided an opportunity for all expert participants to reassess, and as necessary, to help provide ideas for revision and finalization of the draft instruments.

The consultant presented general findings of the review and analysis of the draft documents and facilitated feedback and commentary by the legal drafters and expert participants. The closed meeting was a working session with detailed examination of specific themes and provisions identified by the consultant, close consideration of the harmonisation of each of the draft rules and real-time edits to the documents. Based on the discussions in the expert meeting, the independent consultant was able to deliver a complete and consolidated Rules of Procedure and Evidence and the Elements of Crime, as well as an Annex.

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