Burundi's withdrawal from the ICC

Today marks a historic day for the International Criminal Court (ICC). After many years of political conflict between the Court and Africa, Burundi has today officially become the first state party to withdrawn from the Court.

In April 2015, widespread electoral violence erupted in Burundi when President Nkurunziza ran for a third term in office. The move was widely viewed as unconstitutional. The ensuing violence resulted in hundreds of killings and forced hundreds of thousands of persons to flee and/or seek refuge in neighbouring countries.

On 25 April 2016, the ICC Prosecutor opened a preliminary examination into the situation in Burundi since April 2015. In a statement accompanying the opening of the preliminary examination, ICC Chief Prosecutor, Fatou Bensouda, stated that: “There are no timelines provided in the Rome Statute for a decision on a preliminary examination. Depending on the facts and circumstances of each situation, the Office will decide whether to continue to collect information to establish a sufficient factual and legal basis to render a determination; initiate an investigation, subject to judicial review as appropriate; or decline to initiate an investigation if there is no reasonable basis to proceed.”

However, on 27 October 2016, things became a lot more complicated (and urgent) for the ICC when Burundi gave notice of its intention to withdraw from the Court, citing political bias and labelling the Court as a Western tool to target African governments. This notice of withdrawal came into effect exactly one year later on 28 October 2017.

Naturally, Burundi is now a non-member state, which means that the ICC no longer has jurisdiction as it would normally have in respect of crimes committed in the territory or by nationals of a member state (subject of course to the admissibility of subsequent cases to the Court in terms of Article 17 and 20(3) of the Rome Statute).

The ICC OTP is yet to issue a statement on Burundi's withdrawal. Ignoring obvious problems with regard to cooperation and investigation, there seems to be no legal reason why the Court would not have had jurisdiction in respect of crimes committed over the period of Burundi's membership if it had requested permission from the PTC to open a formal investigation into the matter before the date of Burundi's withdrawal. At this stage, it is not clear whether the OPT has made such a request, although it may have done so on a confidential basis.

Some will ask whether the lack of permission to open an investigation before the withdrawal affects the ICC's competence in Burundi. According to Article 127(2) of the Statute: "A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective."

At first glance then, it seems that the withdrawal will not affect the preliminary examination already underway. According to ICC spokesperson, Fadi El Abdallah, the preliminary examination is going ahead (see here). One would think that Court "processes" in Art. 127(2) would include preliminary investigation that were put into motion while Burundi was a member of the Court and that such investigation should not be affected by subsequent withdrawal of membership. That is to say, a state should accept all treaty-based legal ramifications arising from the period of its membership to the ICC.

What is clear is that victims will now be without any supranational legal recourse in respect of ongoing crimes in Burundi. In September 2017, the UN Commission of Inquiry on Burundi concluded in its report that various serious human rights violations, some of which may constitute crimes against humanity, have persisted in Burundi from April 2015 up to the release of the report. One can only conclude that the prospects for accountability and for victims in Burundi look very bleak. No doubt that political entities in Burundi are primarily to blame for the situation. It seems a very transparent effort to shield those in power. Reports have it that an constitutional amendment that could provide President Nkurunziza with another 14 years in office is being sought.

In its report, the UN Commission of Inquiry on Burundi urged the ICC to open an investigation as soon as possible. If the ICC could have done something, surely they should have. Anything else requires at the very least an official clarification from the OTP regarding the decision and the reasoning behind it.

So where does Burundi's withdrawal leave the ICC is Africa? The development has obviously chipped away further at the universality of the Rome Statute. A year or so ago, Burundi was one of three African states (also South Africa and The Gambia) to signal its intention to withdraw. A change of government in The Gambia has scuppered its plans to withdrawal. South Africa's withdrawal was thwarted in its courts on procedural grounds, though the ruling party, the African National Congress, reiterated its ongoing intention to withdraw South Africa from the Court at its last policy conference.

In light of the above, there seems to be no reason for the ICC to panic in the short term. It helps that the ICC is inching its way towards greater equity in terms of its geopolitical focus. However, Burundi's withdrawal does set a dangerous precedent. What has been up to now only the spectre of state withdrawal is now a reality. If emulated by political leaders in ICC member states when they find themselves in a similar boat (not highly unlikely in Africa), would be a severe setback for the ICC.

At the end of the day it is perhaps easier to speculate on lessons-learned from the Burundi withdrawal than it is to find a real solution that will ensure accountability. The latter is of course much more important and infinitely more pressing.