NEW RELEASES – Since April 2015, alleged crimes under the International Criminal Court’s jurisdiction – namely genocide, crimes against humanity and war crimes committed on the territory or by nationals - have been committed in Burundi. Thus, the Court announced that a preliminary examination of the situation in Burundi would have been carried out. The country, in fact, had signed and ratified the Rome Statue in 2004. However, the Burundian Government has recently announced that the country will withdraw from the Rome Statue: what human rights implications does this decision carry?
Preliminary examination of the ICC on Burundi
The situation in Burundi has been critical since the President, Pierre Nkurunziza, stated that he was running for a third presidential mandate, hence possibly undermining the Constitution of Burundi itself. Since then, as The New York Times’ journalist Gettleman stated, “Burundi has been racked by bloodshed, torture, death squads and chaos.”1 Moreover, as the ICC clearly reported: “more than 430 persons had reportedly been killed, at least 3,400 people arrested and over 230,000 Burundians forced to seek refuge in neighbouring countries.”2
Facing such serious and human rights threatening events, the ICC announced preliminary examination of the situation in Burundi in April 2016. Specifically, the preliminary examination focused on “acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances that have been allegedly committed since April 2015”3 since these acts appeared to fall within the jurisdiction of the ICC. Importantly, the Prosecutor of the ICC specified that a preliminary investigation is only a process of examining the information available “in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.”4
On 12 October 2016, the Parliament of the Republic of Burundi voted in support of a plan to withdraw from the Rome Statue. The reactions were numerous.
The President of the Assembly of States Parties to the Rome Statute of the ICC, H.E. Mr. Sidiki Kaba, worryingly noted that "withdrawal from the Statute by a State Party would represent a setback in the fight against impunity and the efforts towards the objective of universality of the Statute."5
On the other hand, the Burundian Ambassador to Washington Ernest Ndabashinze told Foreign Policy that his government is “very happy” about this decision. He then added: “It sounds like the ICC was created just for Africans when there are other cases in the world, but no one is working on that.”6
Finally, the US State Department spokesman John Kirby said that the United States is “concerned by recent developments with regard to Burundi’s human rights situation.” Moreover, according to Mr Kirby, withdrawal from the ICC would “isolate Burundi from its neighbors and the international community at a time when accountability, transparency, and engaged dialogue are most needed.”7 Nevertheless, notably, the US itself is not a member of the ICC since the Rome Statue was signed by the United States, but never ratified.
Importantly, it needs to be pointed out that the withdrawal process won’t start until the UN Secretary-General Ban Ki-moon will receive a letter from the Burundian Government stating official the intention to leave the ICC. The letter has not been delivered yet.
Paving the way for an “African Court”?
Burundi is one of a number of African states to express concern over the fact that the only ongoing cases of the ICC involve Africans.8 Other countries had threatened withdrawal from the Rome State before accusing the ICC of disproportionately targeting the African continent, whilst human rights abuses occur everywhere in the world.9 Specifically, “African leaders have repeatedly called the court a biased postcolonial tool for Europe to beat up on Africa.”10 In July 2016, members of the African Union discussed the possibility of withdrawing as a bloc and creating a new, independent court for the Union.11 Now Burundi has taken the first step.
As The New York times reported, Edouard Nduwimana, a Burundian legislator who voted to withdraw, said: “The importance of justice is to reconcile people, the importance of justice is to solidify peace. If you look at how the I.C.C. is working now, and say that we want to let them implement what they want, do you think Burundi would be very peaceful?”12
As much as the ICC can be strongly criticised as a flawed international mechanism, the focus needs to be brought back to the particular situation of Burundi. What are the implications on a human rights level for Burundian civilians? Param-Preet Singh, an associate director at Human Rights Watch, said that Burundi’s decision “says less about the I.C.C. and more about Burundi and its political posturing and disregard for justice.”13
Moreover, André Ndayizamba, one of the Burundian lawmakers to oppose the withdrawal, powerfully stated: “It is known in all of the world that the great predators of human rights are the governments. The I.C.C. is not the problem. The problem is, we the Africans, we don’t know how to protect human rights.”14
Ultimately, the decision to withdraw seems highly problematic and threatening a correct implementation of fundamental rights in Burundi. The statements of the two lawmakers reported above should be taken into account in this debate. However, the final remark of this article will be the one of a Burundian human rights activist, Vital Nshimirimana, who urged the United Nations to challenge the decision of the government: “Already, we have information that intelligence agents are torturing, killing Burundians behind closed doors. The world ought to rescue the people of Burundi.”15
1GETTLEMAN Jeffrey (2016) “Raising Fears of a Flight from International Criminal Court, Burundi Heads for Exit”, The New York Times. Available at: http://www.nytimes.com/2016/10/13/world/africa/burundi-moves-to-quit-int...
2International Criminal Court, “Burundi”, The Hague. Available at: https://www.icc-cpi.int/burundi
3 Office of the Prosecutor of the ICC (2016) “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening a Preliminary Examination into the situation in Burundi”, The Hague. Available at: https://www.icc-cpi.int//Pages/item.aspx?name=otp-stat-25-04-2016
5Assembly of States Parties, ICC (2016) “Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi”, The Hague. Available at: https://www.icc-cpi.int//Pages/item.aspx?name=pr1244
6O’GRADY Siobhán (2016) “Washington Is Unhappy that Burundi Is ‘Very Happy’ to Be Leaving the ICC”, Foreign Policy. Available at: http://foreignpolicy.com/2016/10/12/washington-is-unhappy-that-burundi-i...
9Al Jazeera (2016) “Burundi moves to quit the International Criminal Court”. Available at: http://www.aljazeera.com/news/2016/10/burundi-moves-quit-international-c...
10 GETTLEMAN, Op.Cit.
11 Associated Press in Kigali (2016) “Burundi politicians back international criminal court withdrawal”, the Guardian. Available at: https://www.theguardian.com/world/2016/oct/12/burundi-politicians-back-i...
12 GETTLEMAN, Op.Cit.
15 Associated Press in Kigali, Op.Cit.
MR - Research Assistant at CIPADH
Al Jazeera (2016) “Burundi moves to quit the International Criminal Court”. Available at: http://www.aljazeera.com/news/2016/10/burundi-moves-quit-international-c...
Assembly of States Parties, ICC (2016) “Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi”, The Hague. Available at: https://www.icc-cpi.int//Pages/item.aspx?name=pr1244
Associated Press in Kigali (2016) “Burundi politicians back international criminal court withdrawal”, the Guardian. Available at: https://www.theguardian.com/world/2016/oct/12/burundi-politicians-back-i...
Burundi's Constitution of 2005. Available at: https://www.constituteproject.org/constitution/Burundi_2005.pdf
GETTLEMAN Jeffrey (2016) “Raising Fears of a Flight from International Criminal Court, Burundi Heads for Exit”, The New York Times. Available at: http://www.nytimes.com/2016/10/13/world/africa/burundi-moves-to-quit-int...
International Criminal Court, “Burundi”, The Hague. Available at: https://www.icc-cpi.int/burundi
Office of the Prosecutor of the ICC (2016) “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening a Preliminary Examination into the situation in Burundi”, The Hague. Available at: https://www.icc-cpi.int//Pages/item.aspx?name=otp-stat-25-04-2016
O’GRADY Siobhán (2016) “Washington Is Unhappy that Burundi Is ‘Very Happy’ to Be Leaving the ICC”, Foreign Policy. Available at: http://foreignpolicy.com/2016/10/12/washington-is-unhappy-that-burundi-i...
Rome Statue 2001, ICC. Available at: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e1...