Burundi has been confirmed as the first country to withdraw from the International Criminal Court. This news comes a year after Burundi as well as The Gambia and South Africa made moves to notify the court that they had intentions to withdraw their membership. The withdrawal of Burundi took effect of Friday the 27th of October.
The International Criminal Court (ICC) is based in The Hague and prosecutes the world’s worst crimes including crimes against humanity such as mass murder or sexual violence. The ICC has 122 member countries, 34 of which are African.
Burundi, The Gambia and South Africa made their moves to withdraw from the ICC, as they believe that the ICC deliberately and unfairly targets African countries for prosecution. The Gambia reversed its withdrawal in February 2017 after the election of its new government, and South Africa revoked its withdrawal in March 2017.
Since 2015, Burundi has suffered from major unrest. In April of that year, President Pierre Nkurunziza announced that he planned to run for a third term in office. The opposition deemed this unconstitutional. Ultimately Nkurunziza won, however this has been disputed. Since his reelection the government of Burundi has been accused by the UN Commission of Inquiry of committing crimes against humanity including sexual violence and murder. It is alleged that perpetrators include top government officials in the intelligence services, police force, military officials and members of the ruling party. According the UN report, there are upwards of 500 witnesses to these crimes. The report published by the UN Commission of inquiry in September 2017 stated that crimes against humanity are ongoing in Burundi. The UN Commission of Inquiry has urged the ICC to open prosecution against Nkurunziza’s government as soon as possible.
Human Rights Watch Associate Director of International Justice, Param-Preet Singh states that “Burundi’s official withdrawal from the International Criminal Court is the latest example of the government’s deplorable efforts to shield those responsible for grave human rights violations from any kind of accountability.” Singh on behalf of Human Rights Watch goes on to state “We urge the ICC to take a progressive approach in interpreting its jurisdiction so that victims maintain a viable path to justice.”
According to the ICC spokesman Fadi El-Abdallah, membership withdrawal from the ICC will not affect the currently active preliminary examination of the humanitarian and security situation in Burundi. These assessments started in April 2016 and should not be impacted by the withdrawal of Burundi from the ICC. Furthermore, El-Abdallah states that according to Article 127, “withdrawal does not affect the jurisdiction of the ICC over the crimes that have been committed [while the country was a member].”
Withdrawal from the ICC does not theoretically impact the ability of the ICC to prosecute the alleged crimes against humanity that have been committed in Burundi. However, since withdrawal is unprecedented, it is difficult to know how prosecution of the alleged perpetrators will play out. For example, in the case of Sudan’s President Omar al-Bashir who is one the ICC’s “most wanted,” the ICC has had great difficulty gaining cooperation from the government because Sudan is a non-member state and therefore has no obligation to assist. It can be assumed that gaining the co-operation of Burundi who is now a non-member state will be difficult. The Nkurunziza government has accused the ICC of ‘cherry picking’ and targeting African countries in criminal inquiry, which makes them less likely to assist. BBC’s Anna Holligan says Burundi’s decision to leave the ICC is unprecedented; it is a statement that if you do not like the focus of the prosecutor, you can simply leave. She adds that the real impact of Burundi’s withdrawal will be determined by what happens next.