A shot across the bows from The Hague as ICC investigates Burundi

Court rules that countries can remain under its jurisdiction even after they withdraw

Anthony Morland

Rédacteur du projet

By authorising a full-scale investigation into alleged crimes against humanity committed by state actors in Burundi, judges of the International Criminal Court want to send a clear message to perpetrators of such crimes across the world: If you think pulling out of this tribunal will let you off the hook, think again.

On 27 October, Burundi became the first party to withdraw from the Rome Statue, the ICC’s legal foundation.

But in response to an unpublicised 5 September request from the court’s prosecutor, Fatou Bensouda, the judges of Pre-Trial Chamber III ruled that the court still “has jurisdiction over crimes allegedly committed while Burundi was a state party to the ICC Rome Statute”.

The judges handed down the ruling on 25 October but kept it under seal in order to protect witnesses until a redacted version was released on Thursday.

In a crucial interpretation of the statue, which sets an important precedent, they determined that the ICC’s jurisdiction “remains unaffected by a withdrawal of a State Party from the Statute”.

“It was a surprise move for everyone, including the government of Burundi,” international law expert Benjamin Dürr told IRIN.

Step forward

By elevating its engagement with Burundi from the “preliminary examination” started in March 2016 – a process that simply determines issues of jurisdiction and admissibility – to an “investigation”, the judges have now opened the door to indictments and arrest warrants being issued.

This is precisely what a UN Commission of Enquiry urged the court to do in a September report that detailed crimes allegedly committed by people at “the highest level of the state” and within the security services in Burundi since April 2015, when protests against President Pierre Nkurunziza’s decision to run for a third term in office prompted protests met with a very harsh response.

Crimes allegedly include “extrajudicial executions, arbitrary arrests and detention, torture, sexual violence, cruel, inhuman or degrading treatment, and enforced disappearances”.

In their ruling, the judges referred to estimates that “at least 1,200 persons were allegedly killed, thousands illegally detained, thousands reportedly tortured and hundreds disappeared”.

Roadblocks

However, the ruling doesn’t mean international prosecutions of these crimes are now inevitable, let alone imminent.

Burundi has the right to ask the ICC prosecutor to defer the investigation on the grounds that the crimes in question are being investigated by domestic courts. Even if this claim lacks much foundation (the ICC judges deemed Burundian authorities “inactive” in this regard), such a move would oblige the prosecutor to issue a fresh request to the judges to open an investigation. Both Burundi and the prosecutor would then be allowed to appeal the judges’ response to such a request. This process could take years.

Another caveat: 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.

The judges also ruled that Burundi is still obliged to cooperate with the ICC despite its withdrawal. If it fails do so, the UN Security Council could in theory impose sanctions, as it already threatened to do in August amid worsening security.

Those in power unmoved

The response from the country’s government and Nkurunziza’s ruling CNDD-FDD party was vitriolic.

The country’s ambassador to the UN, Albert Shingiro, tweeted that the judges’ ruling was a “non-event” and described it as “another attempt to destabilise Burundi that will fail as its previous [attempts did]”.

Government spokesman Willy Nyamitwe was equally strident, saying on Twitter: “As usual, the @IntlCrimCourt plunges into outrageous lies to implement Westerners’ hidden agenda to destabilise #Africa.”

Justice Minister Aimée Laurentine Kanyana went as far as challenging the legality of the ruling and insisted her country – which has already prevented the UN commission of enquiry from entering Burundi and blocked the deployment of 228 police authorised by the UN Security Council – would not cooperate with any ICC investigations.

“If they [the investigators] come here by force, Burundians will defend themselves as Ntare Rugamba did,” she said. A household name in Burundi, Ntare Rugamba was a 19th century king who battled neighbouring states to double the size of the country.

François-Xavier Ndaruzaniye, a prominent supporter of the government, said demonstrations against the judges’ ruling would be held across the country on Saturday.

Opposition delighted

Meanwhile, opponents of Nkurunziza’s government, mostly living in exile, welcomed the judge’s decision.

Anicet Niyonkuru, executive secretary of CNARED, the main opposition alliance, said he was now confident that Burundi’s worst perpetrators would finally be brought to justice.

“They will be plucked like ripe fruit,” he said on Facebook.

Pacifique Nininahazwe, a leading civil society activist, told IRIN by phone that it was “a great day for the families of victims” and said justice would sooner or later catch up with people who have been so far protected by the government.

But on the streets of the Bujumbura, even as they welomced the judges’ decision, some worried that it might worsen the security situation.

“I’m really happy,” said Seconde Hamenyimana, speaking in the capital’s Musaga district, an opposition stronghold  where many demonstrated against Nkurunziza in 2015.

“If I could, I would march in favour of the ICC’s good initiative,” she said, adding however that worries over security had kept her awake all night.

“Everyone is afraid. The streets, shops, and restaurants in my area emptied before 7pm last night. Everyone went to hide at home.”

(Additional reporting from Bujumbura. Top photo: Residents of Bujumbura demonstrate in favour of Burundi's withdrawal from the International Criminal Court in October 2017. Contributor/IRIN)

 

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