Nearly 300 000 have fled Burundi since the election-related violence of April 2015 to refugee camps in Tanzania (Photo: Flickr/EU/ECHO/Anouk Delafortrie)

Letting Burundi go: ICC withdrawal test for international commitment to justice

23 October 2017 by Benjamin Duerr, The Hague (The Netherlands)

As Burundi becomes the first country to leave the International Criminal Court (ICC) this week, the withdrawal is a test case for the commitment of the international community to global justice. Will there be consequences for the country?

The first ever member state is about to leave the ICC silently. About a year ago the Burundian government decided to withdraw from the Rome Statute, the ICC's founding treaty. It notified the United Nations, where the treaty is deposited, and now, one year later on 27 October, the withdrawal comes into effect.

Burundi's withdrawal is particularly critical because the ICC had opened a preliminary examination to determine whether the court should intervene in the on-going political violence. Despite a constitutional two-term limit, president Pierre Nkurunziza decided seek a third term in April 2015. Since then, violent protests and repression by authorities killed hundreds and forced more than 418.000 people to flee the country.

The ICC's Office of the Prosecutor (OTP) has not requested permission from the judges to open a formal investigation. When the withdrawal takes effect this Friday, the ICC looses its jurisdiction. Only if it were to open an investigation before the withdrawal, the court could prosecute crimes committed in Burundi.

So far ICC prosecutor Fatou Bensouda has remained silent on the situation in Burundi. At her latest briefing of the diplomatic corps in The Hague earlier this month on the activities of her office, she did not mention the country.

Given the scope and gravity of the crimes, and compared to other countries, it could be a conscious decision to let Burundi go and instead focus on conflicts with quantitatively larger patterns of violence, such as Libya and the Central African Republic.

Letting Burundi leave could have a severe impact on the whole system, some say. Civil society organizations warned Burundi could set a precedent which undermines the ICC. “The Burundian case might suggest to other states that face (or will face) a preliminary examination that it would be sufficient to withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively avoided,” said the Burundian Coalition for the International Criminal Court.

While this point of view is understandable with regard to the ICC system, it ignores that other avenues at the international level remain open. For example, the Human Rights Council established the UN Independent Investigation in Burundi (UNIIB) and the Commission of Inquiry (CoI) on Burundi which published its final report recently. Both bodies documented grave human rights abuses and called on the international community – most notably the African Union, the Human Rights Council and the UN Security Council – to take action.

The response of the international community will be decisive for future withdrawals and will reveal its true commitment to the ICC and global justice in general. If the international community lets Burundi go silently and without consequences, the case might indeed set a precedent for others.

If governments would decide, however, to strengthen other bodies or step up their activities in the prosecution and prevention of international crimes in Burundi, it would send a clear signal that the decision to leave the ICC does not mean that accountability ends. The ICC is only one of several possible mechanisms after all.

The case of Burundi is a possibility to show that a withdrawal from the ICC does not mean a country can escape all justice.

Related articles

article
21 December 2011 by Thijs Bouwknegt

Being the ICC's Chief Prosecutor is a delicate and politically sensitivejob.ForLuisMorenoOcampo it has been "the best job in the world." Fatou Bensouda will be taking over his office in June. She inhe

article
07 December 2011 by Thijs Bouwknegt

December 7, 2011 Ivory Coast is the latest playgroundoftheInternationalCriminal Court. This week the courtroom in The Hague became its theatre of justice. Chief Prosecutor Luis Moreno Ocampo proudly p

article
07 December 2011 by Richard Walker

Four Congolese witnesses testifying at the International Criminal Court (ICC) in The Hague, find themselves caught in a legal wrangle, which could at once set a legal precedent and make them the last

article
07 December 2011 by Lindy Janssen

Brazil is booming. The economy is expanding and the country is getting ready to host the Football World Cup in 2014 and the Olympics in 2016. But the Latin American giant has not even begun dealing wi

article
07 December 2011 by Radosa Milutinovic

The primary purpose of the retrial of Ramush Haradinaj, as proclaimed by the International Criminal Tribunal for the former Yugoslavia in its appeal judgement in July, should have been to hear testimonies of two "key" witnesses who proved unwilling to testify in the original trial in 2007. Almost four months into the retrial which started in mid-August, its stated aim has not yet been achieved.