On 25th October 2017, the International Criminal Court (ICC) Prosecutor was authorized by the court to open proprio motu investigations into the Situation in the Republic of Burundi. Burundi becomes the latest of the sizable number of African states with situations before the ICC. With the inclusion of Burundi, the ICC has investigated 11 Situations, 10 of which relate to offences alleged to have been committed in African States thus possibly lending credence to the widespread believe that the ICC is selectively targeting African States. Whether these allegations of bias are true or untrue remains debatable, but there are substantial reasons to believe that this may not be the case.
Nonetheless, the Situation in Burundi poses many challenges to the ICC from the onset. Firstly, Burundi became a State Party to the Rome Statute of the International Criminal Court by ratification on 21st September 2004, but later became the first country to withdraw from membership, following increasing international agitation with the plummeting human rights situation in the country. The withdrawal took effect on 27th October 2017. Accordingly, under the Rome Statute, the ICC has jurisdiction over International Crimes alleged to have been committed in and outside the territory of Burundi while it was still a State Party, that is, from 1st December 2004 (when the Rome Statute entered into effect for Burundi) to 26th October 2017 (a day before the withdrawal took effect). In the Situation at hand, the ICC has elected to focus on the period between 26th April, 2015 to 26th October, 2017. There are those who are of the view that the ICC may not have jurisdiction over the crimes alleged to have occurred in Burundi based on the country’s withdrawal. Others are of the view that the ICC does not have jurisdiction based on the complementary principle that asserts Burundi’s judicial sovereignty over the ICC. According to Burundi’s Justice Minister Laurentine Kanyana, Burundi’s “competent judiciary is competent and capable of punishing perpetrators of crime”.
Secondly, the crimes alleged to have been committed in Burundi namely murder, attempted murder, imprisonment or severe deprivation of liberty, torture, rape, enforced disappearance and persecution take a political dimension because ICC is of the view that there is reasonable cause to believe that “State agents and groups implementing State policies, together with members of the “Imbonerakure” [an alleged terror group comprising of the youth wing of the ruling party] launched a widespread and systematic attack against the Burundian civilian population” since April 2015, following the declaration that the incumbent President of Burundi, Pierre Nkurunziza, was going to run for a third term in office. Therefore, according to the ICC, there is reason to believe that state machinery was employed by the Government of Burundi to suppress those opposed to the declaration. In effect, the ICC is investigating state officials and possibly President Pierre Nkurunziza himself, hence directly challenging the notions of presidential immunity and, to some extent, State Sovereignty, which has not been taken kindly by Burundi and neighboring states, Uganda and Tanzania. It is reasonably anticipated that further dissent may come from the other members of the East African Community namely Kenya, Rwanda and South Sudan considering their respective stained relationships with the ICC.
Thirdly, the Situation in Burundi is as a result of a decision by the ICC itself to permit its Prosecutor to launch the investigations proprio motu. This is unlike many of the Situations before the ICC that are as a result of self-referrals or requests for assistance, including the Situations in Central African Republic, the Republic of Uganda, the Democratic Republic of Congo, the Republic of Mali and Côte d’Ivoire (Ivory Coast). The only other situation that culminated from a proprio motu investigation by the ICC Prosecutor was the Situation in Kenya. But even so, the Situation in Kenya was peculiar in that it emanated out of a legal process, namely a local Commission of Inquiry (The Waki Commission of Inquiry on Post Election Violence) and a Parliamentary process that voted for ICC intervention. The Situation in Kenya hence involved a considerable degree of acquiescence by Kenya’s government machinery at the time which saw the matter being taken up by the ICC Prosecutor on instigation by Kofi Annan, the then UN Security General and Chief Mediator following the 2007-2008 political impasse in Kenya. Of course support for the ICC later waned after top government officials including Uhuru Muigai Kenyatta and William Samoei Ruto, the President and Vice President of Kenya respectively were charged by the ICC for International Crimes. The only African Situations where the respective governments did not consent to ICC’s jurisdiction are the Situations of Sudan and Libya both of which culminated due to a referral by the United Nations Security Council (UNSC) to the ICC. Notably, at the time of the UNSC referrals, neither Sudan nor Libya were State Parties to the Rome Statute. Arguably, the Situation in Burundi falls in this category of states that have not consent to ICC’s intervention. Accordingly, ICC is bound to have a difficult time in investigating and prosecuting the crimes alleged to have been committed in the Situation in Burundi.
Fourthly, the Rome Statute does not grant the ICC police powers in pursuing its mandate. The ICC relies solely on a State co-operation mechanism where all State Parties are legally required to assist the ICC in every way to fulfill its mandate. Article 127 of the Rome Statute makes it clear that a withdrawal does not discharge a former State Party from its obligations to cooperate with the ICC with respect to crimes falling within the court’s jurisdiction. Unfortunately, Burundi has made it very clear that it will not cooperate with the ICC. Uganda and Tanzania have already expressed their disapproval of the ICC’s probe into Burundi and are therefore unlikely to offer any assistance to ICC. Given their tumultuous relationship with the ICC, it is only a matter of time before Kenya, South Sudan and Rwanda distance themselves from the probe. In effect, the lack of political will throughout the East African region to bring the perpetrators of human rights violations in Burundi to justice will provide a safe haven to those found culpable as was the case in the Situation in Kenya and the Situation in Sudan. It will be very difficult for the ICC Prosecutor to gather evidence or bring the perpetrators to justice. Another great challenge will be protecting witnesses from State persecution which was a major cause of the collapse of the Situation in Kenya. Ultimately, there is a lot to suggest that the Situation in Burundi is one that is dead on arrival.