The ICC’s Africa Problem:
What to make of Burundi’s exit

By William Onyeaju, JD candidate, Osgoode Hall Law School

On October 27, 2017, the Republic of Burundi became the first country to leave the International Criminal Court (ICC). As one Burundian activist lamented, “The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi. Today, Burundian justice, as it is so called, has lost contact with life. It has become a mere tool of repression of any dissenting voice.” In contrast, a Burundian government spokesman called the withdrawal “a great victory for Burundi because it has defended its sovereignty and national pride.”

About the ICC

The ICC was created by the Rome Statute in 2002 to try individuals for war crimes, crimes against humanity, and genocide. Generally, the ICC takes on those cases that participant countries are unable or unwilling to handle domestically. Of the 123 countries that are State Parties to the Rome Statute, 33 are from Africa. In the fight against impunity, the ICC has brought charges against high-profile individuals, ranging from warlords to heads of state, including Joseph Kony (Ugandan rebel leader), Omar al-Bashir (President of Sudan), Muammar Gaddafi (former leader of Libya), and Laurent Gbabgo (former President of Côte d’Ivoire).

The ICC was established to ensure “that the most serious crimes of concern to the international community do not go unpunished.” Burundi’s departure threatens to hamper the ICC’s work, not only within that country’s borders, where leaders stand accused of serious human rights violations, but also across the African continent. Its withdrawal has only served to exacerbate tensions between the ICC and Africa, where countries are increasingly turning their back on the institution.

Africa and the ICC

The ICC has been disparagingly labelled the “African court”, with critics alleging it disproportionately targets African countries while ignoring serious human rights abuses in other parts of the world. Critics point to the fact that ten out of the eleven current investigations at the ICC involve African countries, and that most of those indicted in its two-decade history have been from the continent. (However, as we will see below, this criticism appears to be at least partly misguided.)

Things came to a head in 2013, after the ICC indicted Kenya’s sitting President, Uhuru Kenyatta, and Vice-President, William Ruto, for crimes against humanity during the 2007 Kenyan elections. Kenya’s leaders accused the ICC of targeting Africans, with Kenyatta going so far as to call the ICC “a toy of declining imperial powers.”

Following the indictments, leaders at an African Union summit in 2013 unanimously agreed that no sitting African head of state should stand trial during his or her tenure, further expressing their support for Kenya’s embattled politicians. Ethiopia’s Prime Minister said, “On a number of occasions, we have dealt with the issue of the ICC and expressed our serious concern over the manner in which the ICC has been responding to Africa’s considerations.”

The Threat of Other Departures

Shortly before Burundi’s withdrawal, South Africa’s ruling African National Congress also announced that it was planning to pull out of the ICC. This was in response to the court’s ruling that South Africa had violated its ICC obligation to arrest Sudanese president Omar al-Bashir, who had visited the country the previous year. al-Bashir had been indicted by the ICC in 2009 for crimes against humanity, war crimes and genocide relating to the Darfur conflict. In a surprising turn of events, in 2017 the South African High Court declared the government’s withdrawal announcement not valid due to lack of parliamentary approval, leading the government to rescind its planned exit. As of 2018, South Africa’s long-term future as a signatory of the Rome Statute remains uncertain.

At one point, The Gambia also threatened to exit the ICC, following the lead of Burundi and South Africa. In late 2016, Gambia’s then-Information Minister described the ICC as “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” However, after a new government was elected in 2017, The Gambia announced it will retain its membership with the court.

Rumblings of further African departures persist, although so far no countries have taken any meaningful steps towards doing so.

Understanding the Criticism

The criticisms of the former Gambian Information Minister, while hyperbolic, may be partially born out of frustration with perceived geopolitical biases at the ICC. Some of the world’s most powerful countries, including the United States and Russia, did not ratify the Rome Statute, and so are largely outside the court’s jurisdiction. African governments also point to conflicts and grave human rights situations in countries such as Venezuela, Iraq, and Myanmar which have not led to ICC indictments.

The ICC has defended itself against these criticisms by stating that the victims, to whom they are providing justice, are Africans, and that indictments by the ICC come from referrals to the court by African governments. For instance, the governments of Uganda, Mali and the Democratic Republic of Congo have referred cases and assisted with investigations that have led to convictions. The current chief prosecutor of the ICC (and Gambian national) Fatou Bensouda has said, “Any time I hear this about ICC targeting Africa, ICC doing double justice (standards), it saddens me, especially as an African woman.” She went on to say, “Most of these conflicts are happening on the continent … The ICC’s concentration on Africa is always a result of the engagement of the African people with ICC.”

Burundi’s Withdrawal from the ICC: Understanding the Context

In October 2016, Burundi’s parliament voted by a large majority to exit the ICC, leading to Burundi’s withdrawal in the fall of 2017. Burundi’s exit from the ICC came at a pivotal time in the country’s history. After decades of conflict between ethnic Tutsis and Hutus, the country was plunged into a twelve-year civil war which lasted until 2006. The end of the civil war ushered in multi-party elections with Pierre Nkurunziza (a former Hutu rebel leader) becoming Burundi’s new president. However, in 2015, Nkurunziza’s decision to seek a controversial third term in office sparked a new crisis which led to attacks on human rights.

According to a United Nations Commission of Inquiry, there are reasonable grounds to believe that crimes against humanity, such as extrajudicial killings, torture and sexual violence, have occurred. An estimated 500,000 refugees have fled the country. Investigations by Human Rights Watch (HRW) suggest that youth members of the ruling party, the Imbonerakure, are some of the main instigators of the violence. HRW’s research further indicates that Burundian police and intelligence officers are utilizing the Imbonerakure to identify opponents of the regime who have then been tortured and, in some cases, killed.

The timing of Burundi’s exit suggests the decision was driven by apprehension regarding international condemnation for human rights abuses, and the looming possibility of an ICC investigation. If this was Burundi’s strategy, it was ineffective. On October 25, 2017, the ICC opened an investigation into the Burundian crisis, asserting that the court had jurisdiction over human rights violations which occurred while Burundi was still a State Party.

Burundi stands alone (for now)

Burundi’s departure from the ICC has added another dimension to the sometimes difficult relationship between the court and the African continent. Although Burundi’s relatively small size may lead to perceptions that the country is less influential than other countries in the region, its exit can still be seen as another blow to the ICC’s legitimacy in Africa.

Meanwhile, many African states, including Nigeria, Tanzania, Botswana, Senegal, and Sierra Leone, have re-affirmed their commitment to the ICC. Their support suggests that calls from African governments to leave the ICC may be the statements of a “vocal minority.” With The Gambia rescinding its withdrawal, and with South Africa’s future at the court uncertain, it remains to be seen what kind of precedent the Burundi withdrawal will actually set.

WO