In response to a possible trend of governments seeking to escape the jurisdiction of the International Criminal Court (ICC) by withdrawing from the 1998 Rome Statute of the International Criminal Court, the ICC has confirmed that it retains jurisdiction over crimes committed during the time when a state is party to the Rome Statute.
The judges of the ICC’s Pre-Trial Chamber III were responding to a request filed by ICC prosecutor Fatou Bensouda prior to the October 27, 2017 withdrawal of Burundi from the Rome Statute. In their ruling, which came as “a surprise move for everyone, including the government of Burundi,” the judges confirmed that the ICC retained “jurisdiction over crimes allegedly committed while Burundi was a state party to the ICC Rome Statute,” and more generally that the jurisdiction of the ICC “remains unaffected by a withdrawal of a State Party from the Statute.”
With the new ruling, the ICC has raised its investigation of alleged crimes against humanity in Burundi from a “preliminary examination” to a formal investigation which could lead to “indictments and arrest warrants being issued.” The ICC ruling also confirmed that Burundi remains “obliged to cooperate with the ICC despite its withdrawal. If it fails do so, the UN Security Council could in theory impose sanctions.”
The Burundian government had withdrawn from the ICC in the expectation of avoiding the ICC’s investigation into human rights abuses committed by the state following the April 2015 antigovernment street protests “against President Pierre Nkurunziza’s decision to run for a third term in office.” The violent government crackdown on the political opposition following these protests allegedly involved “extrajudicial executions, arbitrary arrests and detention, torture, sexual violence, cruel, inhuman or degrading treatment, and enforced disappearances,” and human rights investigators have estimated that “at least 1,200 persons were allegedly killed, thousands illegally detained, thousands reportedly tortured and hundreds disappeared.”
In September, a month before Burundi’s withdrawal from the Rome Statute, the UN Commission of Inquiry on Burundi released the findings of its investigation into the alleged human rights abuses in Burundi, which included “interviews with more than 500 witnesses.” The Commission found that “crimes against humanity have been committed and continue to be committed,” with the perpetrators being “members, including high level officials, of the National Intelligence Services and the national police force, military officials, and members of the youth league of the ruling party.”
Given the position of the alleged perpetrators in the structure of government, the Commission made it a point to note the “lack of will on the part of the Burundian authorities to fight against impunity and guarantee the independence of the judiciary,” and the “strong likelihood that the perpetrators of these crimes will remain unpunished.” The Commission also highlighted the “climate of pervasive fear in Burundi. Victims have been threatened, even in exile.”
Not surprisingly, the Burundian government has denounced the ICC decision and pledged its refusal to cooperate with the investigation. Burundian Justice Minister Aimee Laurentine Kanyana argued that Burundi was “not bound” by the ICC decision as it had not been “notified of the ICC’s decision to investigate Burundi before its effective departure,” and the minister further described the ICC decision as an act that exemplified the ICC’s “politicisation of human rights and international justice, as well as the attempt to destabilise African countries.”
The ICC decision to investigate Burundi has drawn criticism from Tanzania and Uganda, whose leaders are leading a separate initiative by the East African Community to help resolve the crisis.
Kanyana also warned that if the ICC investigators did come to Burundi, “Burundians will defend themselves as Ntare Rugamba did.” Ntare Rugamba, a famous historical figure in Burundi, was “a 19th century king who battled neighbouring states to double the size of the country.” The refusal of the Burundian government to cooperate with the ICC could doom the investigation, as is shown by the parallel ICC cases in Kenya and Sudan: “The collapse of ICC cases against prominent Kenyans, including President Uhuru Kenyatta, and the moribund state of the case against President Omar al-Bashir of Sudan, illustrate how hard it is to prosecute incumbent leaders.”
As Gladstone and Simons recall: “It was Mr. Bashir who began a campaign in the African Union to undermine the court, which was joined several years later by other presidents: Mr. Kenyatta of Kenya, Jacob Zuma of South Africa, Yahya Jammeh of Gambia. Their efforts to organize a mass walkout from the ICC have so far failed. Kenya has so far not acted on its plans to leave. Gambia reversed course after Mr. Jammeh was voted out of office. South Africa remains a member because its high court ruled that the nation’s Parliament, not Mr. Zuma, had the last word.”
In addition, Uganda has “also threatened to leave, but not acted on it yet,” while Zambia “has held public consultations, with an overwhelming 93% of those who participated opting to stay within the court.”
The ICC decision to investigate Burundi has drawn criticism from Tanzania and Uganda, whose leaders are leading a separate initiative by the East African Community (EAC) to help resolve the Burundi crisis. Ugandan President Yoweri Museveni, who is the current EAC chairman, “said the ICC is interfering in EAC affairs without consulting regional leaders, which is a wrong move that undermines previous peacemaking efforts in Burundi.” However, the EAC’s own diplomatic efforts at peacemaking in Burundi have themselves seen “little progress.”
Tanzanian president John Magufuli, whose country is currently hosting “thousands of Burundian refugees,” has argued that “security concerns in Burundi have been exaggerated, citing a recent voluntary repatriation of Burundian refugees from Tanzania.” However, human rights monitors have criticized the governments of Tanzania and Uganda for ending their automatic granting of “refugee status to Burundian asylum seekers,” and for assisting the Burundian government in pressuring Burundian refugees into returning to Burundi despite the “risk of torture and killings” there. These human rights monitors have called on the governments of Tanzania and Uganda to “continue to provide a safe haven for Burundian refugees in line with international law,” and have also called on the international community to “provide adequate funding to the seriously underfunded Burundi refugee response.”
Tragically, the situation for Burundian refugees elsewhere can be far worse. In the Democratic Republic of the Congo (DRC), which is hosting 44,000 Burundian refugees, 39 refugees, “including 15 women and a 10-year-old girl,” were killed when Congolese security forces “fired live fire indiscriminately” into a crowd of peaceful protestors. The incident highlights the desperate plight of the refugees, as the violent insecurity within the DRC makes their search for safe haven there akin to “jumping from the frying pan and into the fire.” Indeed, the UN estimates that a violent rebellion in the DRC’s Kasai region will eventually lead to 50,000 Congolese refugees seeking safe haven in neighboring Angola by the end of the year. The intersecting human toll of these crises highlights the urgent need for instruments of international justice like the ICC to help restore order in dangerously disordered regions.
Burundi becomes first nation to leave international criminal court. (2017, October 28). AFP.
Burundi: Commission of inquiry calls on the International Criminal Court to investigate possible crimes against humanity. (2017, September 4). Office of the UN High Commissioner for Human Rights.
Burundi says it will ‘never’ collaborate with ICC probe. (2017, November 11). AFP.
Burundi: Thousands of refugees under pressure to return despite risk of torture and killings. (2017, September 29). Amnesty International.
Essa, A. and Wembi, S. (2017, September 19). Why were 39 Burundian refugees shot dead in the DRC? Al Jazeera.
Gladstone, R., and Simons, M. (2017, November 9). We’re not done yet, Hague court tells Burundi’s leaders. New York Times.
Lim, A. C. H. (2017, August 7). The Kasai crisis in the Democratic Republic of the Congo. IPP Review.
Morland, A. (2017, November 10). A shot across the bows from The Hague as ICC investigates Burundi. IRIN.
Ng’wanakilala, F. (2017, November 12). Head of East Africa’s regional bloc condemns ICC Burundi investigation. Reuters.