In April 2016, the International Criminal Court (ICC) Prosecutor Fatou Bensouda opened a preliminary examination focusing on the third term related atrocities in Burundi following President Pierre Nkurunziza’s decision to run for a third term. On October 27, 2016, Burundi notified the UN Secretary General of its intention to withdraw from the ICC. On October 27, 2017, Burundi will be the first Member State to effectively withdraw from the Rome treaty. As the deadline draws nearer, tension is rising among Burundians, including within the human rights community. On the Burundian government side, fingers are crossed hoping that the deadline arrives quickly so that they won’t be bound by any consented obligations towards the ICC. Within the human rights community, the Independent National Human Rights Commission (INHRC) issued, on July 28th 2017, a statement deploring the ICC undue interference and calling the Office of the Prosecutor (OTP) to halt the preliminary examination in favor of Burundian courts which, it suggested, are competent and capable to deal with the alleged crimes. Alternatively, the INHRC calls upon the UN Security Council to request a deferral of the situation in accordance with Article 16 of the ICC Statute in order for the East African Community-led peace process to conclude easily and also to give a chance to Government’s efforts towards peace consolidation and reconciliation.
The INHRC statement was fiercely criticized by the mainstream civil society organizations (CSOs), most of them now deregistered in Burundi. In a common statement signed by 10 organizations, it is stated that the INHRC’s move aims at simply shielding perpetrators of the worst crimes from prosecution. Denouncing partisanship and lack of credibility of the INHRC, they instead call on the OTP to speed up the process and formally request a criminal investigation into the alleged crimes committed in Burundi beginning in April 2015. Additionally, they call upon the Security Council not to be distracted by the INHRC and simply ignore its deferral request. This frontal collision is deplorable because CSOs and the INHRC are supposed to be partners and to share a collective responsibility to promote and protect human rights. This in itself is indicative of the malaise and the complexity of the Burundian crisis. On the other hand, it is worth recalling that the same CSOs began, on 17 July 2017, a 100 days campaign under the hashtag #Justice4Burundi. The campaign aims at drawing the attention of the OTP on the serious nature of the third term related atrocities. On top of this, additional actions are planned, such as upcoming demonstrations at the seat of the Court in The Hague.
What emerges from this background is that the INHRC and CSOs diverge on how the alleged third term related crimes should be dealt with. For the INHRC, domestic courts are competent and capable of investigating and prosecuting the alleged crimes. In theory, I agree that Burundian courts are competent and capable to investigate and prosecute human rights violations, including those amounting to international crimes, especially given the fact that they retain the primary jurisdiction on them. I doubt, however, that they can do it without a declared and sustained level of political will in this regard, along with some technical assistance. For the time being, the Government’s preferred accountability mechanism is the Truth and Reconciliation Commission (TRC) at work today. Unfortunately, the alleged crimes under examination by the OTP fall out of the temporal jurisdiction of the TRC, unless its commissioners constructively interpret their mandate broad enough to include them. CSOs on the other hand only swear by the ICC, viewed as the only way to prevent further human rights violations and the ensuing impunity. While I do not disagree with them that ICC can contribute towards ending impunity of the worst crimes committed in Burundi, I posit that the ICC’s narrow focus on third term related crimes will seriously limit its deterrent impact and possibly undermine the legitimacy of its selective intervention in a country marred with endemic impunity for past atrocities. For this reason, in her move to take a decision on the fate of the preliminary examination, the OTP needs to factor in some constraints and challenges in relation to the context of her intervention (1), evidence-gathering (2), her independence (3) and the possible lack of cooperation from Burundian Government (4).
1. Context Matters: Impunity of Past Massive Atrocities
In the Arusha Peace Agreement, Burundian politicians agreed that worst crimes of international law have been committed in Burundi. For instance, every April 29 of each year, victims and survivors of the 1972 Hutu genocide and other mass atrocities organize commemorative and other remembrance events and activities all over the world, including in Burundi. Each time, they call upon the international community to set up a tribunal to prosecute and try alleged perpetrators. Similarly, on October 21 of each year, Tutsi organizations of survivors and victims of the 1993 massacres meet regularly in Kibimba where a remembrance monument has been erected. They also make the same call for justice. Curiously, both calls have remained unanswered up until today.
Third term related crimes are intimately connected to past atrocities such as the mass and state-sponsored killings and other massive human rights abuses committed since the independence of the country. In fact, they are a continuation of unpunished past mass criminality. Addressing the present atrocities is a laudable initiative. At the preliminary examinations stage, the situation can satisfy the jurisdiction and admissibility criteria but, the thorny question would be whether or not context matters in the determination of the “interest of justice” test. The answer being affirmative, then the next question would be how to assess the context. Will the interest of justice be appreciated only in relation to the current situation of alleged crimes or, will it be determined in consideration of the overall context of impunity as described above along with the historical and political situation? For sure, ICC partial justice focusing only on third term related crimes will come as shock to survivors, victims and families of victims of past atrocities, many of whom are now controlling the reigns of political power in Burundi or otherwise related to the ruling party and who are still longing for justice. Of course, legally speaking, no one can blame the ICC for not addressing all the crimes committed in Burundi. The Court simply has no jurisdiction on crimes committed in 1965, 1969, 1972, 1988, 1993 and beyond. However, the contextual element is an important aspect for the OTP to consider.
2. Evidence-Gathering Constraints
Since the withdrawal notification date, the OTP was left with only 12 months to gather evidence to support a request for a criminal investigation. Given the complexity of Burundian situation and that of ICC cases, this time period is neither adequate nor reasonable for such task. Moreover, the OTP has to work in untenable conditions because the Government became uncooperative despite its legal obligations. Burundian CSOs stepped in to feed the OTP with information and documents. For the OTP to receive information and documents from different sources, including from CSOs is not problematic as such. This is in fact a standard practice and it is provided for in Article 15 of the ICC Statute. However, caution is necessary when the information and documents mainly come from an activist party, rather than a neutral party. In fact, some organizations have been caught manipulating information, especially images and videos from other contexts and countries, just for the sake of building a strong ICC case. The information and documents provided are certainly not conclusive; they must be evaluated against all other information and materials available before the OTP.
But problems lie ahead at a later stage if the authorization to investigate is granted and subsequent prosecutions carried out. If second hand information and documents referred to above can satisfy the lower evidentiary test for opening an investigation, they may not be sufficient to convince the Court of the suspects’ culpability beyond reasonable doubt. Therefore, more time would be needed for OTP officers to collect substantial, credible and reliable evidence to build and support the case. It is well-known that preliminary examinations take years to conclude. Unfortunately, the OTP does not have that option as her time for action is constrained by the withdrawal deadline.
3. Securing and Protecting OTP’s Independence
According to Article 42(1) of the Statute, the OTP shall act independently and shall not seek or act on instructions from any external source. The Policy on Preliminary Examinations explains that independence goes beyond not seeking or acting on instructions: it means that decisions shall not be influenced or altered by the presumed or known wishes of any party, or in connection with efforts to secure cooperation. The independence of the OTP will stem from her capacity to decide on the course of a situation or a case without interference or undue pressure from not only States but also other partners from the international community and civil society as well. For instance, in the Burundian situation, international efforts and actions, including sanctions, have proved inadequate or inefficient to improve the human rights situation. People are now eyeing the OTP. This organ should however avoid to be perceived as the last bullet the international community is using to achieve its political goals. Moreover, I am not sure whether CSOs’ actions and initiatives I alluded to earlier (sharing information and documents, regular visits to the OTP, upcoming demonstrations in The Hague, the 100 day campaign, etc) are simply legitimate lobbying initiatives or constitute a disguised pressure on ICC Prosecutor to launch the criminal investigation process before the withdrawal decision becomes legally effective on October 27th. In any event, given a general perception, mainly in Hutu milieu, that those CSOs are politically and ethnically motivated, caution is advised. The OTP must shield itself from the criticism that she has acted upon or ceded to the demands of the CSOs. The latter are also under a duty to refrain from any action that can be perceived as an undue pressure on the OTP; this can even have unintended consequences. Securing the OTP independence, both from political but also from special interests groups is critical in a politically and ethnically polarized situation. A perception of lack of independence may damage its reputation and its credibility.
4. The Challenge to Secure State cooperation
As mentioned earlier, soon after the announcement of the launching of the preliminary examination in Burundi, the OTP, Burundian people and the entire ICC community were caught by surprise by the Government’s decision to withdraw from the ICC. In accordance with Article 127(1) of the Statute, Burundi’s obligations will still be valid until October 27, 2017 when the withdrawal becomes effective. In this withdrawal mood, along with the Government entrenched resentment against the international community, it would be naive for the OTP to expect cooperation once an investigation is formally launched. Given the anticipated lack of cooperation of Burundi, collecting credible and reliable evidence may prove tedious. It will be impossible for OTP officers to conduct on-site visits, access victims and other potential sources in Burundi. Even if a decision to prosecute some alleged perpetrators is made, cooperation in the arrest and transfer of potential suspects may prove difficult. Moreover, in a climate of anti-ICC position at the African Union level, it is unlikely the The Hague based court will receive necessary assistance from African States. Also, given the political context of the alleged crimes, some countries may not be convinced that Burundi meets the threshold of a typical ICC case. They would fear a precedent-setting as many governments like in Cameroon, Togo, DRC, Nigeria, etc. are facing resistance movements claiming their rights either through the streets or the bush. Furthermore, it remains to be seen whether the AU will remain silent and tolerate another African Head of State or Government to be transferred to The Hague for his trial.
5. Conclusion: Revisiting the Idea of a Special Court for Burundi
While the jurisdiction and admissibility criteria may be met in this case, the “interest of justice” test requires a holistic approach to tackle impunity of mass atrocities committed in Burundi, regardless of the time period. The third term related criminality cannot be addressed alone if the international community is serious about justice for the worst atrocity crimes. Since the ICC is not competent to investigate and prosecute the most part of the mass criminality that occurred in Burundi, the international community and Burundians should revisit the idea of a Special Court for Burundi put forward in the 2005 Kalomoh UN Report. Only this Court can ensure justice for all victims of all atrocious episodes. Its temporal and material jurisdiction can be extended to cover past, present and future atrocity crimes, what the ICC cannot do. The international community, the Commission of Inquiry on Burundi in particular, the Arusha II peace process and the Burundian TRC should come up with such a recommendation couched in the strongest terms and ensure its actual implementation. In this way, justice would then be seen as a reconciliatory and not divisive tool. It will not be a problem for the ICC to cohabit with the Special Court, and both institutions will complement one another.
As carried in jurist on 11/9/2017