As Burundi becomes the first country to leave the International Criminal Court (ICC) this week, the
withdrawal is a test case for the commitment of the international community to global justice. Will there be
consequences for the country?
The first ever member state is about to leave the ICC silently. About a year ago the Burundian
government decided to withdraw from the Rome Statute, the ICC's founding treaty. It notified the United
Nations, where the treaty is deposited, and now, one year later on 27 October, the withdrawal comes into
Burundi's withdrawal is particularly critical because the ICC had opened a preliminary examination to
determine whether the court should intervene in the on-going political violence. Despite a constitutional
two-term limit, president Pierre Nkurunziza decided seek a third term in April 2015. Since then, violent
protests and repression by authorities killed hundreds and forced more than 418.000 people to flee the
The ICC's Office of the Prosecutor (OTP) has not requested permission from the judges to open a formal
investigation. When the withdrawal takes effect this Friday, the ICC looses its jurisdiction. Only if it were to
open an investigation before the withdrawal, the court could prosecute crimes committed in Burundi.
So far ICC prosecutor Fatou Bensouda has remained silent on the situation in Burundi. At her latest
briefing of the diplomatic corps in The Hague earlier this month on the activities of her office, she did not
mention the country.
Given the scope and gravity of the crimes, and compared to other countries, it could be a conscious
decision to let Burundi go and instead focus on conflicts with quantitatively larger patterns of violence,
such as Libya and the Central African Republic.
Letting Burundi leave could have a severe impact on the whole system, some say. Civil society
organizations warned Burundi could set a precedent which undermines the ICC. “The Burundian case
might suggest to other states that face (or will face) a preliminary examination that it would be sufficient to
withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively
avoided,” said the Burundian Coalition for the International Criminal Court.
While this point of view is understandable with regard to the ICC system, it ignores that other avenues at
the international level remain open. For example, the Human Rights Council established the UN
Independent Investigation in Burundi (UNIIB) and the Commission of Inquiry (CoI) on Burundi which
published its final report recently. Both bodies documented grave human rights abuses and called on the
international community – most notably the African Union, the Human Rights Council and the UN Security
Council – to take action.
The response of the international community will be decisive for future withdrawals and will reveal its true
commitment to the ICC and global justice in general. If the international community lets Burundi go
silently and without consequences, the case might indeed set a precedent for others.
If governments would decide, however, to strengthen other bodies or step up their activities in the
prosecution and prevention of international crimes in Burundi, it would send a clear signal that the
decision to leave the ICC does not mean that accountability ends. The ICC is only one of several possible
mechanisms after all. The case of Burundi is a possibility to show that a withdrawal from the ICC does not
mean a country can escape all justice.
(c) 2017 International Justice Tribune