Since Nkurunziza Pierre’s decision to run for a third term in violation of the constitution and the historic Arusha peace and reconciliation agreement of Burundi, in April 2015, Burundi has been plunged into an unprecedented crisis with an escalating violence. According to estimates by the Office of the United Nations High Commissioner for Human Rights (OHCHR), between 26 April 2015 and 30 August 2016, at least 564 cases of executions have been registered. By the end of April 2016, the OHCHR office in Burundi had documented 36 enforced disappearances, 3477 arbitrary arrests or detentions, 651 cases of torture and 19 cases of sexual violence since the beginning of the crisis.
Burundi has been a State party to the Rome Statute since 1 December 2004. The International Criminal Court (hereinafter referred to as the ICC) has jurisdiction over crimes against humanity, crimes of genocide and war crimes committed on territory of Burundi or by Burundian nationals as from that date.
The evolution of the situation in the country has thus legitimately attracted the attention of the ICC Prosecutor who twice expressed his concerns about the Preliminary examination is the initial phase of any proceeding before the ICC, in which the ICC Prosecutor’s Office determines “whether there is a reasonable basis for initiating an investigation”
The reaction of the Burundian state was not long in coming and on October 7, 2016, he announced his intention to withdraw from the Rome Statute. On October 12, 2016, the two Houses of Parliament of Burundi had already passed the bill of withdrawal, in an unprecedented rush, President Nkurunziza promulgated the law on October 18, 2016. On October 27, 2016, Burundi officially notified its withdrawal to the Secretariat United Nations.
In the past, threats of such action have not been lacking, but so far no state has so clearly demonstrated its willingness to complete the withdrawal. However, following the steps taken by Burundi on 21 October 2016, South Africa expressed the same desire and the day itself became the first country to formally withdraw from the Rome Statute, 11 opening the door to a “Domino effect”. Indeed, this road has already been undertaken by The Gambia, which announced its intention to withdraw on 25 October 2016. Fortunately, it recanted itself in favor of the change of institutions that took place in that country with the overthrow of the President Yahya Jammeh,
The South African justice also invalidated the government’s decision to withdraw from the Rome Statute, to say that ultimately only Burundi actually withdrew
The purpose of this contribution is to explore the legal consequences of Burundi’s withdrawal from the Rome Statute of the ICC on the current preliminary examination and the possible continuation of the proceedings, by analyzing the relevant provision of the Rome Statute (1). °). It aims to probe the avenues that are opening up in such a situation, including the possibility of continuing the preliminary investigation and the initiation of the investigation itself. This despite the expiration of a period of one year after notification of withdrawal to the Rome Statute. It will finally question the future of the international justice system based on the ICC, once the ICC does not use its prerogatives to prosecute the perpetrators of serious crimes committed in Burundi since April 2015
- The possibility for Burundi to withdraw to the Rome Statute
The Rome Statute expressly provides for the possibility of a State withdrawing from the treaty and specifying its terms and limitations. According to what Art. 127 (1), “Any State Party may, by written notification to the Secretary-General of the United Nations, withdraw from this Statute”.
Burundi’s withdrawal from the International Criminal Court responds to a wish of the African Union because it deems it biased. But the withdrawal can not be formulated by the set of States, because the accession was made individually and the withdrawal is done individually
Art. 127 (1) goes on to say that “the withdrawal takes effect one year after the date on which the notice was received, unless the notice provides for a later date”. Thus, only from the receipt of the withdrawal instrument the period of one year begins to run. The withdrawal will not be effective for Burundi until 27 October 2017. Until the expiry of the deadline, Burundi remains a State party with all the obligations arising therefrom..
The South African court also invalidated the government’s decision to withdraw from the Rome Statute, which means that only Burundi has effectively withdrawn.
- The consequences of the Withdrawal from Burundi to the Rome Statute
According to Art. 127 (2), the withdrawal “shall not relieve the State of its obligations under the … Statute while it was a Party, including financial obligations incurred, and shall not affect cooperation established with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect; the withdrawal shall not affect the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect “.
From this provision we can see many consequences, in particular the obligations incurred by him when he was a party to it, including the financial obligations incurred (1), the obligation to cooperate with the Court in investigations and criminal proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect (2) and the obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect (3)
For the moment allow us to analyze the last two obligations as these are both apparently relevant to the case in this case
The obligation of cooperation with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect
It can be emphasized here that Art. 127 (2) of the Statute thus provides that the withdrawal does not affect the State’s co-operation obligations arising from criminal investigations and proceedings initiated before the one-year period has expired.
It is clear that the preliminary examination already begun on Burundi is part of the investigation to which Burundi has an obligation to cooperate with the court from beginning to end.
From this obligation to cooperate one can deduce the possibility of continuing the investigation in spite of the delay of one after the notification
Extension of the preliminary examination
This would seem to be the only way that the ICC would undoubtedly continue to exercise its jurisdiction once the withdrawal is executed. This means that if the preliminary investigation was initiated before the expiry of one year after notification of the withdrawal, Burundi should cooperate from the preliminary phase until the closure of the case, to the judgment of either the conviction or acquittal of the alleged perpetrators of crimes under international law.
The obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect
The second paragraph of Art. 127 provides that “the withdrawal shall not affect the continuation of the examination of cases which the Court has already begun to consider” before the withdrawal is effective. The doctrine seems to agree on one point: what the editors of the Statute wished to express with this sentence remains vague. The preparatory work does not seem to help in this sense.
First, although doubts were expressed, it might fairly easily be considered that when Art. 127 (2) refers to the “Court”, the Office of the Prosecutor would be understood, in particular because of the use of the term “Court” throughout the Rome Statute. It could also be said that a preliminary examination is indeed an examination of a “matter”. Although the English version of the provision uses the term “matters” to create some confusion, the term “case” is used in many provisions of the Statute to indicate either a specific case.
Thus, in principle, there would be no objection to the possibility that this sentence might legitimize the continuation of the preliminary examination of the situation in Burundi which had begun before the withdrawal of the Statute became effective. Such a result would flow from the “ordinary meaning to be attributed to the terms of the treaty” and would be most consistent with its object and purpose.
However, this could be nothing but a simple academic exercise. Indeed, as Whiting correctly noted, as soon as the one-year period expires without an “investigation or criminal proceeding” within the meaning of the second paragraph, Burundi would no longer have the “duty to cooperation “under Chapter IX
Would the result change if an application for authorization to initiate an investigation by the Prosecutor acting proprio motu, submitted before the withdrawal took effect, namely on 27 October 2017, would be pending before the Pre-Trial Chamber?
An unambiguous answer can not be given. It can certainly be maintained that under the last sentence of Art. 127 (2), the withdrawal may not affect the further consideration by the Pre-Trial Chamber of the application for leave to commence an investigation. But if a positive decision of the Chamber does not intervene before the withdrawal of Burundi is effective, the fate of the investigation remains uncertain. According to Kolb, “a State which has freed itself from its treaty obligations can no longer be obliged to cooperate in an investigation or proceedings initiated after the date on which its withdrawal took effect”
- General international law: a means of supporting the court to open the investigation despite the end of one year after notification of the withdrawal of Burundi to the Rome Statute
In support of the second paragraph of Art. 127, one might be tempted to resort to general international law, including relevant customary law, as codified by the 1969 Vienna Convention on the Law of Treaties (hereinafter CVDT)
Art. 70 of the CVDT provides that “Unless the treaty otherwise provides or the parties otherwise agree, the fact that a treaty has terminated under its provisions or in accordance with this Convention: (b) does not affect any right, obligation or legal position of the parties created by the execution of the treaty before it has ended ”
According to Clark, under this general rule, the ICC would in no way lose jurisdiction over crimes committed before the withdrawal was effective regardless of whether an investigation had been opened.This argument would be based on the fact that the mere commission of a crime falling within the jurisdiction of the ICC creates “a legal situation of the parties” to which withdrawal can not be infringed.In this way, Clark seems to suggest that the withdrawal ” would have no impact on the ICC’s competence with respect to crimes ex Art. 5 of the Statute allegedly committed on Burundian territory or by Burundians before the one-year time limit expired on 27 October.
Sanctions that may be opened up against other states parties, especially the African Union in the event of non-cooperation Article 86 of the Rome Statute states that “In accordance with the provisions of the present Statute, States Parties shall cooperate fully with the Court in its investigations and prosecutions of crimes within its jurisdiction. “The article states that states parties to the Rome Statute are under an obligation to cooperate fully with the court in the investigation and prosecution of perpetrators of crimes under its jurisdiction. As a result, countries that would act against this provision would be subject to sanctions, as was the case in countries such as Chad and Malawi, which were sanctioned by the Court for breaching their legal obligation to arrest and surrender El BECHIR to the Court
- Towards the collapse of the international justice system
The case of Burundi could set a potentially very dangerous precedent for the international justice system based on the Rome Statute. Beyond the question of the mass withdrawal of African States from the Statute, which is a very questionable question outside the scope of this note, 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. Indeed, as stated above, the Prosecutor may initiate an investigation before the withdrawal takes effect
It should be recalled that, in order for the Prosecutor to initiate an investigation on his or her own initiative, once it has concluded that there is a reasonable basis for proceeding, it is required to “submit to the Pre-Trial Chamber an application for leave to do so “. As stated above, this request will probably not be sufficient for the Court to retain its jurisdiction: a positive decision authorizing the initiation of the investigation would seem necessary.
But the Prosecutor would not need such permission from the Pre-Trial Chamber if other actors of the international community, such as other States parties to the Rome Statute or the UN Security Council, responsibility for the fight against impunity in recalcitrant countries.
Although until then the States parties to the Statute have only referred cases directly affecting them, under Art. 14 of the Statute, a State Party may properly refer to the Prosecutor a situation such as that prevailing in Burundi. Once determined that there would be a reasonable basis for initiating an investigation, the Prosecutor could proceed without the need for prior judicial review by the Pre-Trial Chamber.
Alternatively, responsibility could be assumed by the United Nations Security Council. Acting under Chapter VII of the Charter of the United Nations, the Security Council may also refer a situation to the ICC and no authorization would be required for the initiation of an investigation. Today, this approach has been initiated only for the situation in Darfur (Sudan) in 2005 and for the situation in Libya in 2011.
Source: Burundi Coalition on the ICC