Burundi sparks trouble for the future of the International Criminal Court in Africa



On 12 October, members of the National Assembly of the Burundi Parliament voted by an overwhelming majority of 94 out of 110 in favour of draft law to withdraw the nation from its membership to the International Criminal Court (ICC). The law was then quickly passed through the Senate, and on 18 October President Pierre Nkurunziza appended his signature to the legislation. The Parliament’s striking support for severing its relationship with the ICC arises after the UN launched a probe into possible human rights violations in the country under the current political leadership of Nkurunziza. Burundi’s pending withdrawal from the ICC could mark a significant turning point in the future of the ICC in Africa.

The ICC is a nascent body in international jurisprudence with a relatively short yet tumultuous history. In 2002, the Rome Statute, which is the international treaty that gave effect to the Court, established the ICC as a legal body with a permanent role in safeguarding international criminal justice. Under this statute the Court’s mandate includes war crimes, genocide and crimes against humanity. Whilst the ICC plays a prominent role in adjudicating disputes in international law, it currently faces bitter objection from certain members in the international community.

Burundi came under scrutiny from the ICC as a result of a recent surge in political violence and alleged human rights violations. Ever since President Nkurunziza announced his candidacy to run for a third term in April 2015—a decision that protesters claimed was unconstitutional—political turmoil and violence has ravaged the country. Reports of rampant violence, purported human rights violations and details of hundreds of thousands of civilians fleeing the country incited the Chief Prosecutor of the ICC to announce a preliminary examination of Burundi in April this year.

In order for Burundi to officially leave this judicial organ, Nkurunziza must write to the UN Secretary-General outlining his nation’s intention to no longer be a State Party to the Rome Statute. This decision would deprive the civilian population, which is currently at risk from the politically charged violence, of an avenue of justice. However, Burundi argues that leaving the Court is a way for the country to reclaim its sovereignty.

It is speculated that Burundi’s attempt to hinder the role of the ICC in delivering justice to persecuted civilians will have ramifications that reach far beyond the borders of the small Central African nation. Irrespective of whether or not Burundi does take the final step to depart from the Court, this public and political statement made by the Parliament may trigger a general movement of resignation in Africa. Burundi may therefore set a dangerous precedent for other African nations to retreat from the Court and its peacekeeping efforts.

Burundi’s aversion to the ICC is evidently not an isolated case in Africa. Since the Rome Statute entered into force in 2002, the Court has focused almost exclusively on pursuing African cases. This had led to a growing sentiment amongst African nations, and particularly those of the African Union, that the court was established as a postcolonial tool to subjugate African nations to Western political and judicial influence. Burundi is therefore not the only country to contemplate withdrawing from the Court. States including Kenya, South Africa and Namibia have all vocalised their discontent and threatened to annul their memberships to the ICC.

The recent events in Burundi are a clear setback in what has otherwise been a more successful past few months for the Court. Notably, the recent case of Ahmad al-Faqi al-Mahdi, decided on 27 September, was a remarkable victory for the Court. This case focused on the destruction of UNESCO world heritage sites in 2012 by the Malian jihadi terrorist al-Mahdi in the town of Timbuktu in northern Mali. The case was particularly significant as, for the first time in the history of the Court, the defendant confessed his guilt and was sentenced to nine years’ imprisonment for the destruction of cultural heritage—rendering it the first decision of its kind to recognise such an act as a war crime. These developments coming out of Burundi tarnish the Court’s recent judicial success in Africa.

Whether Burundi will officially withdraw from the ICC rests on Nkurunziza’s decision to write to the UN Secretary-General. The withdrawal will then only come into effect exactly one year after the United Nations’ receipt of Burundi’s request. If Burundi withdraws from the ICC, it would be the first country since the establishment of the Court to do so. Rescinding Burundi’s membership would be particularly divisive for the future of the Court, which currently faces significant hostility and dissatisfaction from its African mandate.

Sarah Barrie is currently undertaking a combined Bachelor’s Degree in Middle Eastern and Central Asian Studies and Laws (Honours) at the Australian National University.

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