Burundi, South Africa to Withdraw from International Criminal Court

SG Special Adviser Jamal Benomar (UK) briefs the SC stakeout after consultations on the situation in Burundi.

Special Adviser to the Secretary General on conflict prevention discusses Burundi before the UN Security Council
Credit: UN Photo/Manuel Elias

Both Burundi and South Africa announced in the last two weeks that they intend to withdraw from the jurisdiction of the International Criminal Court (ICC). On October 12, 2016, 94 of 110 parliamentary members in Burundi voted in support of retracting Burundi’s membership as a State party to the ICC’s treaty, the Rome Statute. [ICC Press Release] On October 18, 2016, the president of Burundi signed legislation withdrawing the country from the ICC. [NY Times: Vote] Three days later, South Africa announced its plans to withdraw from the ICC; the country sent an official notice to the United Nations earlier in the week. [Washington Post] Withdrawal takes effect a year after official notice is provided to the UN Secretary General. [NY Times: Vote] Although others have threatened to withdraw from the ICC, Burundi and South Africa will be the first countries to do so. [NY Times: Vote]

Burundi elected to withdraw amid calls for an ICC investigation into possible crimes against humanity committed in the country since April 2015, and just after the government announced its intent to suspend cooperation with the United Nations Office of the High Commissioner for Human Rights (OHCHR). [FIDH] In April 2015, the ICC initiated a preliminary examination into the situation in Burundi, and UN monitors have more recently urged a stronger international response to ongoing rights violations there. [IJRC: UNIIB] South Africa, which has been considered an example of peace and reconciliation in the region, reportedly chose to leave the ICC because it considers the Rome Statute to be inconsistent with its domestic diplomacy strategies. [NY Times: ICC] Activists warn that these exits may lead to a mass exodus of African countries from the ICC, threatening the credibility of the institution. [UN Dispatch]

Withdrawal from the ICC

According to the Rome Statute, during the year between notice of withdrawal and when it takes effect, States parties remain obligated to cooperate with criminal investigations or proceedings initiated before the effective date of withdrawal. [UN News Centre] As of this post, Burundi has yet to notify the UN Secretary General of its intent to withdraw from the ICC. [Justice in Conflict] South Africa’s Foreign Minister Maite Nkoana-Mashabane already provided the required notice. [NY Times: South Africa]

In response to Burundi’s vote, the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, H.E. Mr. Sidiki Kaba, said the withdrawal would undermine the effectiveness of the ICC and would represent regression in a global fight to end impunity for international crimes. [ICC Press Release]

Human rights activists fear that South Africa, as a politically powerful country, will influence other withdrawals. Amnesty International’s Netsanet Belay, director of Africa research and advocacy, expressed concern that South Africa’s withdrawal represents a larger collective narrative of contempt towards the ICC. [Washington Post] Kenya, Namibia, and Uganda are among the countries voicing criticisms of the ICC and that may follow Burundi and South Africa’s lead. [NY Times: ICC]

Political Context and Human Rights Situation in Burundi and South Africa

Burundi’s decision to withdraw from the ICC occurred in the context of ongoing disputes between the leadership of Burundi and the international community concerning the country’s human rights record. [NY Times: Vote] Rights abuses have resurfaced in Burundi after President Pierre Nkurunziza decided to run for a third term in 2014, launching local and international protests and State-led reprisals. [IJRC: UNIIB]

The ICC, which initiated its preliminary examination of the situation last April, will ultimately decide whether to open a full investigation into Burundi. The Court will legally retain jurisdiction over crimes against humanity, war crimes, or acts of genocide committed in Burundi up until the date when a withdrawal takes effect. Its preliminary examination is limited to any such crimes committed since April 2015, although the Court’s jurisdiction over Burundi and its nationals extends back to December 1, 2004, when the Rome Statute entered into force there.  There is no time limit or set end date by which the pending preliminary examination must be concluded.

More recently, an independent investigation by the United Nations concluded that the abuses occurring in the region could amount to crimes against humanity and could increase the risk of genocide in the region. [IJRC: UNIIB]

The United Nations Security Council plans to send an envoy to Burundi to discuss possible solutions to the peace and security issues in the country. [UN News Centre] The United Nations High Commissioner for Human Rights Zeid Ra’ad Hussein condemned the government’s decision to suspend its cooperation with the OHCHR. [UN Press Release]

South Africa’s domestic law provides diplomatic immunity to regional politicians and leaders, allowing the country to host peace talks. The Rome Statute requires South Africa, as a State party, to cooperate with the ICC, including by arresting suspects sought by the Court, a requirement that conflicts, South Africa claims, with its goals of promoting peace in the region. South Africa’s current position on the ICC diverges from the anti-apartheid policies of Nelson Mandela, who supported the Court. [NY Times: ICC] Observers have repeatedly criticized South Africa in the recent past for welcoming Sudanese President Omar al-Bashir, who is wanted by the ICC on suspicion of responsibility for international crimes in Darfur, instead of respecting the ICC’s outstanding warrant for his arrest. [Guardian; Newsweek]

International Criminal Responsibility and Tensions Across Africa

Critics of the ICC, including many African leaders, have expressed views suggesting that the ICC is targeting African nations, since most of the ICC investigations to date have taken place in the continent, despite the fact that the UN Security Council and States parties themselves initiated some investigations through referrals to the Court. [Washington Post] In the face of an ICC preliminary investigation into rights abuses in the country, Burundi asserted that its withdrawal from the ICC is a means of regaining its sovereignty. [BBC News] The government of South Africa argued that an impetus for withdrawal was the ICC’s pursuit of the “imperialist agendas” of international actors. [Washington Post]

Members of the African Union (AU) have previously discussed withdrawing en masse from the ICC. [NY Times: Fears] Calls to withdraw from the ICC became prominent amongst African countries following the indictment of Kenyan President Uhuru Kenyatta for alleged crimes against humanity in post-election violence in 2007, which resulted in more than 1,000 deaths. [NY Times: Vote] Some countries, including the Democratic Republic of Congo, Cote d’Ivoire, Nigeria, Senegal, and Tunisia, have opposed efforts to withdraw from the ICC. [NY Times: South Africa] Ugandan Deputy Foreign Minister, Oryem Okello, anticipates that African States’ withdrawal from the ICC will be a “hot issue” debated at the African Union summit in January 2017. [NY Times: ICC]

Countries in Africa have proposed a regional African court with jurisdiction over international crimes. [NY Times: Vote] The African Union previously decided to exempt senior government officials from the proposed regional human rights court that would be authorized to try individuals of serious international crimes. [IJRC: African Union] The proposed African Court of Justice and Human Rights is intended to merge and replace the African Court of Human and Peoples’ Rights and the African Court of Justice. The new court would have jurisdiction over State violations of international human rights law in addition to adjudicating individual responsibility for genocide, war crimes, and crimes against humanity. [IJRC: African Union] The Protocol on the Statute of the African Court of Justice and Human Rights will only enter into force if and when 15 States have ratified it. See IJRC, African Human Rights System.

Additional Information

For more information on International Criminal Court and the African human rights system, visit IJRC’s Online Resource Hub.

For previous posts on the human rights situation in Burundi, visit IJRC’s News Room.

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