BURUNDI WITHDRAWAL FROM THE INTERNATIONAL CRIMINAL COURT: WHAT NEXT?

BURUNDI WITHDRAWAL FROM THE INTERNATIONAL CRIMINAL COURT: WHAT NEXT?

BURUNDI WITHDRAWAL FROM THE INTERNATIONAL CRIMINAL COURT: WHAT NEXT?

Photo credits: www.thestar.com

The Rome Statute of the International Criminal Court alias the International Criminal Court Statute or the Rome Statute is a treaty that established the International Criminal Court (ICC) which was adopted at a diplomatic conference in Rome on 17 July 1998 and entered into force on 1 July 2002. The court is based at The Hague in Netherlands and has jurisdiction on four core international crimes i.e. genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes are not subject to any statute of limitations and can only be investigated and prosecuted by the ICC in situations where states are unable or unwilling to do so themselves.

The formation of the court was a long process aimed at addressing the heinous crimes committed during World War I and II and in the years after. It became necessary to prosecute individuals responsible for crimes that were so grave that they were deemed to be against humanity. As of 2016, 124 out of the 195 countries in the world are have ratified or acceded to the Rome Statute. This means that the court has jurisdiction over crimes committed in the territory of the state parties or if they are committed by a national of a state party with the exception being that the ICC also has jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.

There has been a prevailing push over the recent years for withdrawal from the ICC spearheaded by African countries such as Kenya, South Africa and most recently Burundi although no country has withdrawn from the ICC since its inception. Several countries had presented a draft motion pushing for the mass withdrawal of African countries from the International Criminal Court which was blocked during the recent Africa Union summit in Kigali where it was to be endorsed. The core reason advocated by the countries that are pro-withdrawal is that the court is targeting African leaders and therefore carrying out an imperialist agenda.

The Rome Statute provides for two instances in which State Parties can withdraw from the statute in Article 121(6): “If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.” and Article 127: “A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 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.”

The case of Burundi’s motion to withdraw from the ICC is the latest out of a series of events following the report by the UN Independent Investigation in Burundi (UNIIB) which described evidence of gross human rights violations possibly amounting to crimes against humanity, by the Government of Burundi and people associated with it. The United Nations launched a probe into the country’s alleged systematic human rights abuses and the ICC prosecutor Fatou Bensouda said she was conducting a preliminary examination of the situation in Burundi looking into allegations including murder, torture, rape, and forced disappearances.

Burundi has since taken several measures in response to the UNIIB report including suspending its cooperation with the UN Human Rights Office and banning of the three UN investigators from entering the country after they accused the government of gross human rights violations in the report. This was followed by protests by thousands of Burundians in the capital Bujumbura and the most recent vote by the Members of Parliament in the Lower House to withdraw from the ICC. The vote was subsequently approved by the Senate and the president, Pierre Nkurunziza, signed it into law on October 18th 2016. The withdrawal procedure then requires written notification addressed to the Secretary-General of the United Nations from the state expressing intent to withdraw from the Statute after which the withdrawal takes effect one year after the date of receipt of the notification, unless the notification specifies a later date.

Although the process is still in its initial stages, there is need to assess the implications and effects of such a decision for the sake of justice for the hundreds who lost their lives and the more than 260,000 people who have fled in Burundi following the violent street protests, alleged forced disappearances and assassinations. It is important to note that according to the Statute the withdrawal of any state “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.”  This therefore means that the Court may still be within its jurisdiction to try the alleged perpetrators of the crimes against humanity depending on the level of “consideration” that had been initiated by the Office of the Public Prosecutor.

In the event that trying the cases at the ICC is not feasible, this means that the victims of the unrest will have to seek other means of getting their much needed justice. The African Court on Human and Peoples’ Rights is currently not a viable option for the victims in Burundi as the state has ratified the Protocol and Declaration of the African Court but it is yet to deposit it. This means that the citizens of Burundi cannot present their cases to the African Court. The East African Court of Justice is also not an option as yet due to the fact that the jurisdiction of the Court is yet to be extended to human rights at a suitable date to be determined by the Council. This leaves the national justice system in Burundi which is subject to various levels of critique, as in the case with any other nation, with regard to its impartiality in matters involving the state.

It is important to note that various national and international actors are working to resolve the ongoing situation in Burundi such as the United Nations (UN), the African Union (AU) and the East African Community (EAC) in partnership with the government of Burundi. The African Democracy Forum (ADF) urges all stakeholders involved to seriously consider the foremost priority in the aftermath of the unrest in Burundi which is justice for the victims. Justice will be the key factor in the process of recovery from the effects of the unrest and moving forward as a country towards the path of development and improvement of the lives of the citizens of Burundi. The ADF continues to monitor the situation and is looking forward to a speedy resolution of the areas of conflict for the benefit of Burundi and its citizens.

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