Civil society talks: ICC a last resort for justice in Burundi?

A local human rights defender spoke with CIVICUS about public and civil society reactions to Burundi's move to withdraw from the ICC last year. According to Cyriaque Nibitegeka, while the government has an opportunity to backup its claimed interest in protecting citizens from heinous crimes, the public and victims continue to look to the Court of last resort in The Hague, where a preliminary examination into a crisis that erupted in April 2015 is underway.

Human rights defender Cyriaque Nibitegeka speaks to CIVICUS about Burundi’s withdrawal from the International Criminal Court and the implications for human rights and victims of human rights abuses. Nibitegeka is one of the leaders of civil society in Burundi. He is also a lawyer and member of the Burundi Bar. He was a professor at the Law Faculty of the University of Burundi before being dismissed for his human rights activities.

Q: What is the rationale for Burundi’s decision to withdraw from the International Criminal Court (ICC)?

The position of the Burundian government is that the decision to withdraw from the ICC is motivated by the fact that the court would be an instrument in the hands of Western powers to dominate the African continent. Everybody knows that since April 2015, several cases of arbitrary deprivation of life, torture and other cruel, inhuman or degrading treatment, sexual violence on men and women, countless arbitrary arrests and detention, including mass arrests have taken place in Burundi. These actions are systematically perpetrated by members of Burundi’s National Police Force, the armed militia of the party in power ─ Imbonerakure ─ and, to a lesser extent, members of the National Defence Force. These actions constitute crimes against humanity according the Report of the United Nations’ Independent Investigation on Burundi (EINUB), in line with Resolution S-24/1 of the Human Rights Council on 20 September 2016. More seriously still, with the evolution of the Burundi crisis and the authority’s ethnic rhetoric, a real risk of genocide clearly appears.

Within such a context and in a country like Burundi where crimes under international law are committed as the state’s general policy and where the danger of genocide is highly critical when we take into account the history of Burundi, international criminal justice remains the only way to bring the perpetrators of crimes to justice. It is therefore obvious that the authorities in Burundi decided to withdraw Burundi from the Rome Statute in order to avoid being held accountable by the international justice system and to guarantee total impunity to perpetrators of these crimes.


Q: What do you think is motivating the hostility of other African countries towards the ICC?

In several African countries we have seen a failure of governments to peacefully transfer power when their terms in office come to an end.  In these countries there are no structures to ensure that democratic transitions take place and leaders focus on protecting their regimes at the expense of the fundamental rights of citizens. In this regard, such leaders do not hesitate to sacrifice thousands of lives and to perpetrate the most heinous crimes against their own people.

It has also been observed that some African presidents with an egocentric political view always ensure that national judicial systems are not independent and are used to advance their interests and those of their supporters.  Therefore, until quite recently, the ICC was the last resort for victims of crimes against humanity and human rights violations to get protection and justice.  It comes as no surprise therefore that some African leaders oppose the Court.

The argument that is often put forward is that the ICC only focuses on the African continent is not an objective. Indeed, it is not acceptable for African leaders to support the killing, rape, torture of their peoples under the pretext similar atrocities are perpetuated with impunity in other regions. This reasoning does not take into account the fact that atrocities against the population are sometimes perpetrated by non-state actors and war criminals without any conscience. The Court is not perfect and must improve in many ways but the supranational criminal justice it offers is obviously better than the apparent open door approach taken by African leaders and non-state actors to commit heinous crimes unchecked.


Q: Can you tell us what the popular opinion of the Burundian people about the ICC is?

Since the beginning of the repression of peaceful demonstrations against the third term bid of President Pierre Nkurunziza, the people of Burundi, and especially the victims, have made it clear that the only hope for justice rests with the ICC. Indeed, in view of national justice, which has itself become an instrument of repression, several victims have given mandates to lawyers’ collectives to obtain justice from the ICC.

In addition, during the brutal repression it was obvious that demonstrators kept on chanting songs about the fact that the perpetrators of these crimes will one day face justice at the ICC. This shows that Burundians are convinced that they cannot depend on national judicial systems which are controlled by the executive. In the absence of impartial national judicial processes, Burundians are of the view that any hope of justice against the very powerful politicians, defence and security forces and the Imbonerakure rests with the international justice system.


Q: How has civil society reacted to the government’s decision to withdraw from the ICC? Do movements exist that are able to defend the ICC and its underlying principles?

On 10 November 2016, the Lawyers’ Collective for Victims of crimes under international law perpetrated in Burundi (CAVIB, Collectif des Avocats des Victimes des crimes de droit international commis au Burundi), wrote a letter to the Attorney General of the Court requesting her to initiate an investigation into the current crimes perpetrated in Burundi. In addition, on 11 November 2016, the leaders of Burundi’s civil society initiated and organised an ICC support protest at The Hague. Furthermore, a delegation of Burundi’s civil society was recently at The Hague to carry out advocacy at the Assembly of State Parties to the Rome Statute.

Civil society in Burundi is well aware of the fact that the decision to withdraw from the ICC does not in itself prevent perpetrators of human rights violations and crimes against humanity which fall under the jurisdiction of the court from being held accountable by the court.  That is why civil society continues to advocate using Article 127 of the Rome Statute.  Paragraph 1 of Article 127 states that; “A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date”.  Similarly, paragraph 2 states that; “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”.


Q: What are the consequences of this withdrawal on justice and human rights in Burundi?

Since the beginning of the current crisis in Burundi, the ICC has seemingly been aware of the atrocities committed and there is a feeling that sooner or later a decision will be taken by the Court to hold to account criminals of the regime guilty of massacres, rapes, forced disappearances and acts of torture.  The regime and its supporters see this as a threat. Now, by withdrawing from the ICC, the government is basically making sure that those complicit in the regime avoid persecution. The implication then is that since the crimes against citizens are for the most part committed by members of the defence and security forces with the complicity of the judiciary and with orders from top members of the regime, human rights violations are only likely to get worse. The ICC also serves as deterrent to those who potentially will use extreme violence to target opponents or those critical of the regime.  Without the ICC, the regime carries out human rights abuses with utmost impunity.


Q: Are there African alternatives to the proposed ICC, and if so, what is the reaction of civil society to these alternatives?

The slogan which became a catch-phrase answer to all critics is that Africa needs “African solutions to African issues”. But there is currently no African alternative to the ICC. African countries already expressed the wish to establish an African Justice and Human Rights Court (African Justice Court). A number of countries already signed the Malabo protocol establishing the African Justice Court. However, there is reason to believe that this court will only be an extension of national judicial systems. We can also legitimately think that this initiative can be used by some as an escape route to by-pass a stricter criminal justice system which African leaders cannot control remotely or directly.

Civic space in Burundi is listed as 'closed' on the CIVICUS Monitor.

The views expressed do not necessarily reflect the position of the Coalition or its individual members.