Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it 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.


Rome Statute, Article 127(2)

It was coming for some time. On 27 October 2017, Burundi became the first State Party to withdraw from the International Criminal Court (ICC). The reasons for Burundi’s withdrawal are not important, though not a mystery. Motivated by a desire to shut down an investigation and to avoid the potential of having the powerful and elite charged and dragged to The Hague to be tried, Burundi bid farewell to ceding its jurisdiction to the ICC to investigate and prosecute crimes falling under the Rome Statute – whenever Burundi (as other States Parties) refused or was incapable of doing so.

Will there now be a cascade of withdrawals by other States? Or to paraphrase from Shakespeare’s Richard The Third Act 1, scene 1, 1–4:

Is now the winter of discontent
of the African States that have expressed an intent to withdraw from the ICC
  Made glorious summer by Burundi’s withdrawal;
And all the clouds that low’r’d upon some of these African Heads of State
In the deep bosom of the ocean buried?

Heads of States in illiberal and quasi-liberal democracies (I am referring to States where there is a semblance of the rule of law though squeezed by political interference and corruption) do not countenance foreign scrutiny and accountability of their domestic affairs, especially when they relate to investigations of alleged criminal activity subject to prosecution in a court beyond their ability to control the outcome.

Burundi may be the first to withdraw from the ICC, but it certainly will not be the last. Other States have given notice or have threatened to give notice to withdraw for effectively the same reasons given by Burundi. South Africa deposited a notice of withdrawal in October 2016, though it rescinded its notice of withdrawal in March 2017, after the Gauteng High Court found that the notice was unconstitutional and invalid because it was not subject to parliamentary approval. The Gambia put in a notice of withdrawal in November 2016, only to rescind the notice of withdrawal in February 2017, following Gambia’s presidential 2016 election, which ended the rule of former President Yahye Jammeh. Recall that it was President Jammeh who once characterized the ICC as “the International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”

I suspect that there will also be other withdrawals for other reasons (hope for the ICC to get its act together and mature as an efficient, effective, and even-handed judicial institution does not spring eternal). The reasons for any future withdrawals are essentially unimportant. States Parties are entitled to withdraw for whatever reason fancies them. The Rome Statute being a treaty, it provides for withdrawal under Article 127(1) – a negotiated buyer’s remorse clause with an unreserved right for any State Party to walk away and reclaim the jurisdiction it ceded to the ICC.

In the wake of Burundi’s withdrawal and the buildup to the Pre-Trial Chamber’s public redacted version of its authorization for the Office of the Prosecutor (OTP) to conduct a formal investigation in Burundi (the public decision shed light on ICC Prosecutor Fatou Bensouda’s 15 September 2017 ex parte request to investigate in Burundi), there had been lots of very thoughtful, if not erudite, posts on interpreting Article 127(2) when it comes to the ICC’s jurisdiction over acts prior to a State’s withdrawal from the Rome Statute (see here, here, here, here, and here).

Much of the debate has hinged on when a matter is “already under consideration by the Court” under Article 127(2). Some have argued that a matter is under consideration by the Court when the OTP begins its preliminary investigation (PE) (see here and here). Others disagree that a unilateral PE initiated by the OTP, with no framework to set the parameters for the investigation, can be considered “a matter already under consideration by the Court” so as to frustrate a State’s withdrawal from the ICC. Dov Jacobs pointed out that the informal phase of the investigation “might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports.” Others have commented that it cannot be assumed that the OTP is considered “the Court,” for the purposes of Article 127(2).

For Burundi, this conversation matters not, because the Pre-Trial Chamber authorized the OTP’s formal investigation three days before Burundi’s withdrawal became effective; the matter was “already under consideration by the Court” prior to its withdrawal. While the debate on the interpretation of Article 127(2) is interesting from an academic perspective, the more important conversation is what now?

Time for a serious reality check

Burundi has repeatedly expressed that it will not cooperate with the ICC. What does this mean in practical terms?  Well, just go back to my previous post on Fatou Bensouda’s speech to the United Nations Security Council (UNSC). The UNSC referred the situation in Libya to the ICC in Resolution 1970. Presumably, the OTP should have no problem going in situ to investigate, collect physical evidence, interview witnesses, have its arrest warrants executed, have suspects and accused brought to The Hague, and so on – in short, have the full and unhindered cooperation of the host State. Though it should be so, it is not.

The efforts of Madame Bensouda’s office to conduct credible investigations and to have arrest warrants executed have been stymied by the Libyan authorities. The UNSC has proved to be brazenly ineffectual – just as it has been in the situation in Darfur (see my post on the Pre-Trial Chamber’s decision declining to refer South Africa’s non-compliance with its obligations on the Rome Statute to the Assembly of States Parties).

Ugandan President Yoweri Museveni and Tanzanian President John Magufuli

A case is only as good as the investigation and the collection of evidence. If Burundi follows through with its public statements that it will not cooperate with the ICC (and there is no reason to doubt it will flinch or do an about-face), you can expect a total blocking of any ICC investigation in Burundi. And there is nothing the ICC can do about it. Don’t expect any cooperation from other African States Parties either. While warmly embracing Sudanese President Omar Al-Bashir, who is wanted by the ICC for genocide among other crimes alleged to have been committed in Darfur, Ugandan President Yoweri Museveni and Tanzanian President John Magufuli condemned the Pre-Trial Chamber’s decision to authorize a formal investigation. Indecently, both Uganda and Tanzania are States Parties to the Rome Statute.

There’s a dark cloud overhead
As if brought by a storm
But this cloud will not shift
And more clouds begin to form
1   First stanza of Dark Clouds by Allyson Gordon.

Politics and capitulating to political pressure abounds in international criminal law. It really does not matter who establishes the judicial institution that is expected to carry out the task of pursuing and prosecuting alleged perpetrators of genocide, war crimes, and crimes and humanity.

Even the International Criminal Court for Rwanda (ICTR) – established by the UNSC – had to succumb to the pressures of the Rwandan government if it wished to have access to Rwanda, where the crimes were committed and where the evidence was located. ICTR Prosecutor Carla del Ponte, dubbed the “avenging angel,” had her wings clipped when she dared investigate crimes committed by Tutsis, and indeed, no charges were brought against Tutsis (see here and here). When Richard Goldstone was ICTR Prosecutor, the Court acquiesced to having Froduald Karamira – Vice President of the MDR Hutu Party and founder of Hutu Power, an extremist group credited with authorizing the genocide in Rwanda – be tried (and executed) by the national courts of Rwanda, rather than having him tried at the ICTR. The UN, being aware of the deficiencies in the Rwandan judiciary and knowing that Karamira would be subject to the death penalty, should never have turned him over to the national courts. Nonetheless, Rwanda made clear that unless the ICTR turned him over, it would not cooperate, potentially going so far as to shut down the OTP office in Kigali (see my 1997 article in The Champion discussing the difficulties stemming from the lack of cooperation between the ICTR and the Rwandan government).

This all goes to show that the prosecution of cases (part and parcel of which is the investigation, execution of arrest warrants, and transfer of accused) cannot be done without the full cooperation of the host State. Granted, I am looking at things from a practitioner’s point of view. It may not sit well with those who have placed their hope on the ICC to hold accountable and bring to justice those who fall under the ICC’s jurisdiction. But to ignore reality is to ignore the ever-increasing realization that the ICC has vast limitations that extend beyond its ability to control.

As one of my colleagues put it recently: “International justice has nothing to do with justice, international or of any other kind. It is all politics. Even if the OTP independently investigates situations, it cannot go forward with the support (politics) of the UNSC.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality”

  1. Another good reading, Michael. Appreciate the effort to educate some of us who are seeking to understand what is in the hell going on with the ICC or lack thereof.

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