Burundi abandons the ICC-where does this leave the victims?

Published 2nd November 2017

Last week on 27 October 2017 Burundi’s withdrawal from the International Criminal Court became effective, making it the first country to leave the ICC. Given the ongoing perpetration of human rights violations, and lack of accountability, the future of the east African nation hangs in the balance. With the Burundi’s presidential office calling it a “great victory “and a move to protect “sovereignty and national pride” where does this leave the victims of egregious crimes Burundi?

Since independence in 1962 and even years before that, the nation has battled with conflict and civil unrest including the 1972 massacre of the Hutu at the hands of the Tutsi dominated army. 1993 saw a repeat of the slaughter only this time the roles were reversed- the majority Hutu population targeted and murdered several hundred Tutsis. This led to 13 years of civil war and the deaths of an estimated 300 000 people. The divide and conquer stratagem used by Belgian colonial powers is inextricably linked to history of ethnic conflict in Burundi’s but the nation’s challenges today are compounded by other factors including underdevelopment, poor health care and poverty.

In addition, current President, Pierre Nkurunziza’s determination to stay in power after 12 years at the helm has caused civil unrest and protest. Nkurunziza made a controversial bid for a third term in office despite many questioning the legitimacy and constitutionality of his candidature. Two months of anti-Nkurunziza protests resulted in the deaths of at least 100 people in 2015 as state police used extreme violence and intimidation to disperse protests and suppress protestors.

A failed coup d état resulted in further suppression and state sanctioned violence against opposition movements and ordinary civilians. More than 325 000 Burundians have fled in fear since 2015, ending up in Tanzania, Rwanda, Uganda and the Democratic Republic of Congo.

National security and intelligence services, in collaboration with the ruling party’s youth wing Imbonerakure, have been accused of summary executions, abductions, torture, rape, and sexual assault. Armed opposition groups have also contributed to the violence using similarly grotesque means to attack their enemies.

As the situation deteriorated the United Nations formed a Commission of Inquiry in 2016. Mandated to conduct a thorough investigation into human rights violations and abuses committed in Burundi since April 2015, the Commission concluded that grave human rights violations have and continue to be perpetrated in Burundi in impunity. The UN Commission even urged the ICC to open a full investigation into the situation in Burundi when it released its report in September this year.

By this point, the ICC already had an eye on the situation, having announced its preliminary examination on 25 April 2016. At the time, more than 430 persons had reportedly been killed.

A preliminary examination precedes an investigation and is used by the Prosecutor to determine whether there is enough information on the alleged “crimes of sufficient gravity”, which then provides a “reasonable basis” to open an investigation.

It remains to be seen whether the ICC will open such an investigation and although Burundi’s withdrawal from the ICC has caused alarm, their departure does not necessarily mean they are off the hook.

The ICC still has jurisdiction over crimes committed during the time Burundi was a state party. Though there are legal scholars who beg to differ on this issue let us assume that is indeed the case, there are still numerous pragmatic hurdles to delivering justice for alleged crimes against humanity in Burundi. The mere fact that the ICC is unwelcome in Burundi already makes gathering evidence and obtaining access witnesses and victims onerous. The picture is unfortunately no better when one considers domestic justice options.

Domestic justice for human rights violations remains elusive, partial, one sided, and inconsistent. Whilst the politicians wax lyrical about “sovereignty and national pride” people are being slaughtered, the rule of law is crumbling and victims have nowhere to turn.

The Commission also called for the UN Security Council to refer the situation to the ICC for crimes committed after 27 October 2017, the date upon which withdrawal became effective. This is one of the three ways in which a matter can come before the ICC. The other two are self-referrals from member states and when the prosecutor exercises her power and initiates a process within a member state. A UNSC referral could cover the ever-growing impunity gap. However, it would be yet another referral of an African situation which will continue to fuel allegations of bias against Africa. Three of the permanent five members of the UNSC, the US, Russia, and China remain outside the Rome Statute system and yet they have been bestowed with the power to veto referrals to the ICC. This skewed political dimension stymies the international criminal justice project and provides fodder for its detractors.

**This article appeared in the Star on 2 November 2017

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