Tagged: Burundi

More States To Withdraw from the ICC?

Shortly after three African States (Burundi, Gambia, and the Republic of South Africa) announced their intention to leave the International Criminal Court (each citing their own specific reasons), on November 16, the Russian Foreign Ministry issued a statement announcing its intention not to ratify the Rome Statute stating that

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions. Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal.

The Russian President issued a Decree on the intention not to become party to the Rome Statue, becoming a fourth state to openly point out its disappointment with the institution.

On the same day,the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a press release called on the international community to not give up on the Court and to “stand by the Rome Statute and the Court.” He emphasized the need to stand with this institution and continue to support it.

To make matters worse, just one day after the Russian announcement, Philippine President Rodrigo Duterte, speaking from his home, also threatened to withdraw from the International Criminal Court by stating

They [Russians] may have thought the International Criminal Court is [useless], so they withdrew their membership … I might follow. Why? Because these shameless bullies only picked on small countries like us.

Some speculated that Duterte’s statement was nothing more than just a well-timed response to Prosecutor Bensouda’s statement on the situation in the Philippines, in which Bensouda made it very clear that anyone engaging in any form of acts of mass violence could potentially be prosecuted by the Court.

Whether in response to OTP’s statement or just in light of the exodus of State Parties from the ICC, Philippines is the fifth state, in a span of less than a month, to publicly disavow its loyalties to and faith in the Court and its effectiveness.  It will be interesting to see how the rest of the international community and the Court itself tackles these, hopefully, temporary setbacks.

More States Announce Intention to Withdraw from the ICC

Following Burundi’s example, two more African States announced their intention to leave the International Criminal Court: South Africa and Gambia.

South Africa has had a controversial relationship with the ICC since last year when it disregarded its responsibility to cooperate with the Court by refusing to arrest the then-visiting Sudanese President Omar al-Bashir. South Africa argued that such an obligation was in direct conflict with its domestic laws governing diplomatic immunity. Although the South African Court later ruled that letting President al-Bashir leave South Africa in 2015 was ‘disgraceful’, the South African Government has continued to state that the Rome Statute (namely Art. 27 addressing non-recognition of any form of immunity) is in direct conflict with South Africa’s Diplomatic Immunities and Privileges Act. The decision to withdraw from the ICC will become effective one year from the day the document withdrawing from the ICC was signed, October 19, 2016.

Following South Africa, Gambia this week also announced its intention to leave the ICC. In the televised announcement, Information Minister Sheriff Bojang said that

[t]his action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.

Gambia cites reasons that are similar to those given by Burundi – that the ICC targets African States. In fact, the Court’s mandate, as stated in the Preamble of the Rome Statute, is to fight impunity by ensuring that “the most serious crimes of concern to the international community as a whole must not go unpunished.” The Court is tasked with focusing on the international community, yet it has predominantly focused on number of African States. So far, the Court has officially investigated the Democratic Republic of Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Mali, Côte d’Ivoire, and Georgia; and the Court has conducted preliminary examinations (not always leading to opening an official investigation), among others, in Palestine, Afghanistan, Honduras, Republic of Korea, Nigeria, Colombia, Georgia, Guinea, Libya, Ukraine, Iraq, Venezuela, and Burundi.

This recent development by three African states – Burundi, Gambia, and South Africa – based on the allegation that the Court targets Africa presents a major blow to the already unstable reputation of the International Criminal Court, the first permanent criminal court of its kind.

Related Readings:

Burundi: The First State to Withdraw from the ICC

The Rome Statute, the founding treaty of the ICC, has 119 State Parties and 32 signatories. Burundi became a State Party on September 24, 2004 when it deposited its instrument of ratification. In 2016, the ICC announced that it was opening a preliminary examination into Burundi based on the Court’s having been monitoring Burundi’s internal situation since early 2015. The focus of the examination is to look into allegations that 430 persons have been killed, at least 3,400 have been arrested and over 230,000 have been forced to seek refuge due to government action. The forthcoming 2016 Report on Preliminary Examination Activities of the Court will bring more detailed summary and overview of the Court’s inquiry.

However, recently, and in line with one of the more frequent criticisms of the Court that it only prosecutes African nationals, Burundi voted overwhelmingly (94 for, 14 abstained, and 2 against) to withdraw from the ICC. The law now needs to be signed by the Burundi President to become effective, potentially making Burundi the first State to leave the ICC.

In response to this development, the President of the Assembly of States Parties issued a statement expressing his concern, as follows:

[t]he withdrawal from the Statue by a State Party would represent a setback in the fight against impunity and the efforts towards the objective of universality of the Statute. I remind that all States Parties have the opportunity to share their concern before the Assembly of States Parties in accordance with the Statute and invite the Burundian authorities to engage in a dialogue.

As discussed in our previous posts, preliminary examination is a stage prior to official investigation. The ICC does not authorize official investigation at the end of every preliminary examination. During the preliminary examination stage, the Court identifies whether the situation meets the Court’s selection and prioritization criteria for opening an official investigation. The Court may decline to proceed to an official investigation for a variety of reasons, such as: a finding that the situation is not grave enough to proceed; a finding that its complimentary jurisdiction should not be invoked because a genuine investigation and prosecution is being carried out by national representatives; or a lack of evidence to support subject matter jurisdiction.

In any case, the preliminary examination in Burundi is likely to continue even if Burundi withdraws from the Court’s jurisdiction, because the withdrawal is not likely to be applied retroactively. However, if Burundi does withdraw, and the investigation moves forward, that withdrawal is likely to make difference during the enforcement and cooperation stages.

Related Readings:

ICC Opens Another Preliminary Examination – Burundi

Fatou Bensouda, the ICC’s Prosecutor, announced in her statement that a preliminary examination has been initiated into Burundi on-going crisis, allegedly involving more than 430 persons killed, at least 3,400 people arrested, and over 230,000 Burundians forced to seek refuge. As reported in an earlier post, the Prosecutor has been watching the ongoing situation in Burundi since early 2015, commenting on the then-upcoming election, fulfilling the OTP’s early warning function and preemptively calling for peace and cease of violence. It appears however, that her prevention efforts within Burundi, a State Party to the Rome Statute, unfortunately fell short because about a year later, she is initiating a preliminary examination.

Preliminary examination may be initiated by the Prosecutor, referral from a State Party or Security Council, or a 12(3) declaration by a State that is not a Party to the Rome Statute. In this case, the Prosecutor exercised its vested authority to begin examination. The purpose of such examination is to review and assess information available so far to determine whether a reasonable basis to proceed with investigation exists. Article 53(1) of Rome Statute requires Prosecutor to consider issues of jurisdiction (often focusing on the Court’s subject matter jurisdiction), admissibility (comprising of both complementarity and gravity determination often focusing on the domestic prosecutorial and investigative efforts) and overall interest of justice.

Not every preliminary examination leads to authorization to investigate. In situations of Honduras, Republic of Korea, and the Vessels of Comoros, the Court found no reasonable basis to proceed with investigation, as required by art. 53(1), and concluded its preliminary examinations without prejudice, leaving the possibility to re-open examination available should additional information and evidence surface. On the other hand, in situations of Libya, Ivory Coast, Mali, Georgia, and CAR II, for example, the Court moved forward, finding reasonable basis to proceed and securing pre-trial chamber’s authorization to open investigation in these situations.

The ICC has seven open preliminary examinations at this time, making Burundi the eighth one. Three situations, Palestine, Ukraine and Iraq, are currently in Phase 2 – having the Court consider subject-matter jurisdiction. Four situations, Afghanistan, Colombia, Guinea, and Nigeria, have moved to Phase 3 – having the Court consider issues of admissibility. The Court issues reports on its preliminary examination conclusions each year sharing its findings in each situation and ensuring so the much needed transparency.

Related Readings:

ICC Prosecutor Expresses Concern About Upcoming Elections in Burundi

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.