On 27 October 2017, Burundi became the first country to withdraw from the Rome Statute of the International Criminal Court (ICC) prompting condemnation from civil society and others.
“The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi,” said Lambert Nigarura, the president of the Burundi coalition for the ICC. “Today, Burundian justice, as it is so called, has lost contact with life. It has become a mere tool of repression of any dissenting voice."
“Withdrawing from any international treaty is a derogation of a country’s commitment to the rule of law, and we are saddened that victims of grave crimes in Burundi will lose recourse to justice and redress through the ICC system,” said William R. Pace, convenor of the Coalition for the ICC.“However, we take hope from the fact that South Africa and Gambia have decided to stay with the ICC, and that many African states rejected calls for a mass withdrawal at the last African Union summit.”
“Withdrawal from the Rome Statute does not in any way absolve Burundi of its obligations to end ongoing widespread human rights violations, or to address its abject failure to deliver justice for victims at the national level" said Matt Cannock, head of office of Amnesty International’s Center for International jJustice. “The ICC can continue its preliminary investigations regardless of Burundi’s efforts to stop its work by withdrawing from the Court. Even if President Pierre Nkurunziza’s government will not cooperate with the Court, the ICC has ways and means to investigate and prosecute the crimes committed."
“Burundi has failed to hold people responsible for brutal crimes to account and has sunk to a new low by attempting to deny victims justice before the ICC,” said Daniel Bekele, Africa director at Human Rights Watch. “This latest move only confirms Burundi’s continuing disregard for human rights and the rule of law.”
In a statement, the European Union External Action Service said: "This marks a serious step backwards which risks further isolating the country within the International Community. This decision deprives the victims of crimes and human rights abuses of the possibility of obtaining redress and weakens civil society. The recent report of the independent UN Commission of Inquiry on Burundi is clear about the scale and the seriousness of the alleged human rights violations being committed in the context of the ongoing crisis. Withdrawing from the Rome Statute is not conducive to the peaceful resolution of the crisis and is detrimental to fighting impunity. Any solution to the current crisis will have to build on re-establishing the rule of law, including by effectively addressing and prosecuting all human rights violations, ensuring accountability for those responsible. The European Union expects Burundi, as a former Party to the Rome Statute, to continue to cooperate with the Court. The European Union remain staunch supporters of the ICC. Where concerns are raised within the framework of the Rome Statute, we remain open for constructive discussion."
Impact on the ICC preliminary examination
This is the first time an ICC member state has withdrawn from the Rome Statute. There are varying opinions of the impact of the withdrawal on the ICC preliminary examination. The situation in Burundi was under preliminary examination, not a formal ICC investigation, at the time that the withdrawal took effect on 27 October, meaning that the Prosecutor had not requested or received authorization from the judges to bring prosecutions before the Court.
The ICC Office of the Prosecutor’s preliminary examination in Burundi—considered to be at the subject-matter determination phase (Phase 2) at the time of the OTP’s last PE report (14 November 2016)—has been looking into alleged Rome Statute crimes including killings, arbitrary detentions, enforced disappearances, torture, and sexual violence committed in the country since April 2015.
Uncertainty has risen around the Court’s ability to move the preliminary examination to a full investigation and possible prosecutions due to the unprecedented nature of the withdrawal.
Upon the withdrawal taking effect, ICC Spokeperson Fadi El-Abdallah said, “Article 127 states that withdrawal does not affect the jurisdiction of the ICC over the crimes that have been committed while the state was a state party.”
Amnesty International stated that the Prosecutor would retain grounds to open a formal investigation, while Human Rights Watch called on the Court to apply a progressive approach in the interpretation of its jurisdiction.
"The case of Burundi could set a potentially very dangerous precedent for the Rome Statute system of international justice," said the Burundi Coalition for the ICC. "The Burundian case might suggest to other states that face (or will face) a preliminary consideration that it would be sufficient to withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively avoided."
“The ICC remains the only path to justice for many victims of the gravest crimes when national courts are unable or unwilling to try these cases,” Bekele said. “African countries should distance themselves from ICC withdrawal, and reaffirm their commitment to accountability for atrocities in Africa.”
