Burundi’s ICC Withdrawal a Major Blow for Accountability

Members of Burundi's National Assembly vote in favor of withdrawing from the International Criminal Court. Bujumbura, Burundi, October 12, 2016. (Onesphore Nibigira/AFP/Getty Images)

Members of Burundi’s National Assembly today voted to withdraw from the Rome Statute, the founding treaty of the International Criminal Court (ICC). The decision comes six months after the ICC opened a preliminary examination into violence that erupted in April 2015 following President Pierre Nkurunziza’s contentious bid for a third term in power. There is good reason to believe the East African nation will follow through as the first member state to abandon the ICC, further isolating it from the international community and posing serious questions around accountability for its ongoing violence.

The Burundian government argues that a withdrawal from the Rome Statute would restore its sovereignty. “We’re very clear on the fact that this is about a conspiracy of the international community to harm Burundi,” media has reported Vice-President Gaston Sindimwo as saying of the ICC investigations.

While other African governments have threatened similar steps in the past, including South Africa’s a year ago and Kenya’s in 2013, none have ever followed through. In South Africa, the opinion was supposedly only shared by a minority of the ruling African National Congress, while Kenya now wants to reform the court instead of leaving it.

Burundi is different, however. Its institutions and its democracy are relatively weak. The government has become increasingly repressive and autocratic in recent months and years. Nkurunziza’s plans to remove term limits would, experts say, lead the country further down the road toward a single party regime. The ICC vote saw 94 members of the National Assembly favor withdrawing from the Rome Statute, with only two against. Moreover, the country remains in a state of conflict. Extreme violence has disrupted the democratic discourse, with members of both the government and the opposition continuing to torture and kill one another. Unlike in South Africa or Kenya, Burundi’s political opposition and civil society are also weak.

Nkurunziza and Burundi’s senate must still endorse the ICC withdrawal, and then send written notification to the UN secretary-general for it to take effect a year on from this process. Yet both domestic steps are seen as a formality given the ruling party’s considerable power. Lambert Nigarura, head of the Burundian Coalition for the ICC—a network of pro-ICC nongovernmental organizations—told me that opposition members have little power and would risk assassination if they were to express disagreement.

In addition, many members of the ruling elite have a strong personal motivation to withdraw from the ICC since they are allegedly directly involved in perpetrating the violence. In a report published at the end of September, United Nations-appointed experts of the Independent Investigation on Burundi said they received names of, and detailed allegations against, at least 12 senior members of the government, police, army and security agency. According to observers, Burundi’s national judiciary is also largely under government control.

Violence between groups loyal to Nkurunziza and the opposition have left more than 430 people dead and more than 230,000 displaced since April last year. ICC prosecutor Fatou Bensouda’s preliminary examination into the violence focuses on acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as forced disappearances. A preliminary examination of this nature is a standard procedure to determine whether the situation warrants an official investigation. At this stage, no individual suspects have been identified.

Since Burundi would be the first country to leave the ICC, it is not completely clear what a withdrawal would mean for the preliminary examination already underway. Theoretically, the court’s ongoing work is not impacted by a withdrawal from the Rome Statute. However, Article 127 of the statute, which stipulates that withdrawal “shall not affect any cooperation with the Court in connection with criminal investigations…” refers only to formal investigations. It appears that the uncertainty could be avoided if the ICC prosecutor opens an investigation before the withdrawal takes effect. Once it begins, Burundi would have a legal obligation to cooperate. It is doubtful, however, that the government would adhere to its obligations in practice.

Burundi’s government has shown firm resolve in resisting international intervention in its crisis until now. In March this year, its attorney-general called on citizens to refrain from submitting evidence to the ICC or UN investigations, saying that these contributions could be manipulated. This week, the foreign ministry barred the three UN investigators who prepared the report mentioned above from entering the country. A day later, the government suspended its cooperation with the UN Office of the High Commissioner for Human Rights. And Burundi has also rejected proposals by the African Union to deploy a rapid intervention force to curb the violence.

Nkurunziza’s government has a clear intention of avoiding accountability for its actions. The international community has little chance of avoiding this reality as it seeks to restore order.

Benjamin Duerr is an international criminal law analyst based in The Hague. Follow @benjaminduerr