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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

leejj2017
4989
November 15, 2016
12:31 pm

Moving Into the Investigation Phase of the Burundi Situation

The Burundi government’s withdrawal from the International Criminal Court (ICC) does not mean their government can avoid responsibility for their alleged crimes. To prevent the government from escaping justice, the ICC needs to launch a formal investigation into the Burundi government. There has been hundreds of deaths from violent street protests and political killings in Burundi.1 The Burundi government “has been blamed for many of the deaths, as well as rapes and torture.”2 In April 2016, the ICC announced that a preliminary examination has been launched into the Burundi government for these deaths and disappearances.3 In October 2016, the Burundi government began the withdrawal process from the ICC.4

Launching a formal investigation will allow the ICC to effectively retain jurisdiction over the Burundi government over the alleged crimes.5 Launching an investigation explicitly fulfills the Rome Statute, Article 127. That Article states a “[State’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations…which were commenced prior to the date on which the withdrawal became effective.”6 On the other hand, there is more uncertainty whether a preliminary examination will allow the ICC to retain jurisdiction over the alleged crimes.7 In fact, “Burundi’s signal of an intent to withdraw may actually act ‘as an incentive for the ICC to speed up its decision and open an official investigation in the violence in Burundi[.]’”8

Launching a formal investigation may seem like a political or a retaliatory move. It may seem that the ICC is only launching a formal investigation because the ICC does not want other states parties to withdraw or because the ICC is retaliating against Burundi. However, all the ICC needs to say is that this could be the last chance that the Burundi government could be held responsible for the crimes committed. The local Burundi prosecutors are not likely to do much because prosecutors are generally influenced by the government. The only justice the victims will receive is if the ICC retains jurisdiction by launching a formal investigation. A reasonable person should be able to understand the situation. As long as the situation is explained, people are not likely to view the formal investigation as a political or a retaliatory move.

Finally, the Burundi government “claimed the [ICC] is an instrument of powerful countries used to punish leaders who do not comply with the West.”9 The preliminary examination into the Burundi government occurred on April 2016. Coincidentally, the Burundi government decided to withdraw from the ICC after a couple of months since the announcement of the preliminary examination. The real reason the Burundi government is withdrawing is because they are trying to avoid responsibility for the alleged crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Jeffrey Gettleman, Raising Fears of a Flight From International Criminal Court, Burundi Heads for Exit, N.Y. Times, Oct. 12, 2016, available online. ↩
2.
Id. ↩
3.
Burundi walks away from the ICC, IRIN, Oct. 19, 2016 [hereinafter Walks Away] available online, ↩
4.
Id. ↩
5.
Alex Whiting, If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There?, Just Security (Oct. 12, 2016), available online. ↩
6.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 127. ↩
7.
Whiting, supra note 5. The withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” See id. ↩
8.
See Walks Away, supra note 3. ↩
9.
Human Rights Watch, Burundi: ICC Withdrawal Major Loss to Victims (Oct. 27, 2016), available online. ↩

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