By: Sheri Dickson
In October of this year, Burundi became the first State to withdraw from the Rome Statute (“the Statute”) and is theoretically no longer subject to the International Criminal Court (“ICC”). This withdraw took place only a month after a United Nations Commission of Inquiry on Burundi reported that there was evidence of “extrajudicial killings, disappearances, arbitrary arrests and detentions, torture and sexual violence.” Pursuant to Article 127 (1) of the Rome Statute, Burundi notified the UN Secretary-General of its plan to withdraw from the Rome Statute a year before the effective date of October 27, 2017. However, there are now questions and disputes, especially by Burundi, as to whether the ICC can investigate and, if necessary, prosecute crimes by the government after the withdraw has become effective. The answer to these questions according to Article 127 (2) of the Statute is yes; that is a qualified yes, however, because the Statute maintains the obligation to cooperate with any investigations and proceedings commenced prior to the effective date of the withdrawal.
The ICC’s decision to investigate and its jurisdiction
The decision to investigate was initially issued under seal on October 25, 2017 in order to protect the lives and “well-being of victims and potential witnesses.” The ICC has jurisdiction over any of the crimes subject to the Rome Statute from the date the State became party to the Statute, in this case December 1, 2004, until the effective date of the State’s withdrawal, which was October 26, 2017. The Prosecutor has been authorized to extend the investigation to crimes that have continued to be committed after the effective date of Burundi’s withdrawal if “certain legal requirements are met.” This jurisdiction is not limited to Burundi but extends beyond the borders to cases where crimes are committed by State agents and other groups implementing the policies of the State. Some of those entities are the “Burundian National Police, national intelligence service, and units of the Burundian army.” The ICC has found a reasonable basis to believe that the aforementioned entities, among others, have “launched a widespread and systematic attack against the Burundian civilian population.” “The attack targeted those opposed or were perceived to oppose the ruling party after the announcement, in April 2015, that President Pierre Nkurunziza was going to run for a third term in office.” The preliminary examination was announced on April 25, 2016. At that time there were more than 430 reported to have been killed, at least 3,400 people arrested, and over 230,000 Burundians forced to flee to neighboring countries. The numbers have since gone up substantially with the number killed believed to be up to 2,000 and the Burundians who have fled abroad to be more than 400,000.
Why was there opposition to Nkurunziza running for a third term in office?
The concerns regarding the Nkurunziza running for a third term in office stem from it going against the Arusha Accords, which was established to help maintain peace among the Hutu and Tutsi in 2000. The Accords limited the President to two terms in office. Burundian civilians are concerned that with the increased radicalization of the current regime and the dismissal of the standards set out in the Accords, another bloody civil war could erupt. Based on the preliminary investigation, these concerns are not without merit.
The government of Burundi’s response to the investigation
Burundi’s justice minister says Burundi will not cooperate with the ICC as it looks into war crimes that were allegedly committed by forces within President Nkurunziza’s government. The justice minister claims the decision for the ICC to investigate “was biased against Africa [and that] Burundi was not notified of the ICC’s decision to investigate Burundi before its effective departure.” Additionally, a spokesman for President Pierre Nkurunziza voiced the hostilities towards the ICC’s decision to investigate by stating through Twitter that they are “outrageous lies to implement Westerners’ hidden agenda to destabilize #Africa.”
While there have been concerns that other states might withdraw from the Rome Statute, the ICC is sending a clear message, that withdrawal does not equal immunity from investigation and prosecution for human rights violations. Despite allegations of Western biases against Africa, the Rome Statute and the ICC have been widely supported over the years. Not only have they been supported by human rights advocates worldwide, intergovernmental organizations, and victims and their families, but over half of the world’s states are party to the Statute.  In fact the largest regional block of states participating in the Statute are thirty-four states in Africa. It seems unlikely that the citizens of these states would willingly abandon their right to justice in the Court of last resort.
 Jina Moore, Burundi Quits International Criminal Court, The New York Times (Oct. 27, 2017), [hereinafter Moore], https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court.html?rref=collection%2Ftimestopic%2FBurundi&action=click&contentCollection=world®ion=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=collection [https://perma.cc/E6HN-A5V6].
 Rome Statute of the International Criminal Court, art. 127, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute], available at https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf [https://perma.cc/3WSU-Q5W9].
 Sergey Vasiliev, Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi (Part 1), Opinio Juris (Nov. 6, 2017, 8:00 AM), http://opiniojuris.org/2017/11/06/piecing-the-withdrawal-puzzle-may-the-icc-still-open-an-investigation-in-burundi/ [https://perma.cc/MAN9-ZBVK].
 See Rome Statute, supra note 3, at art. 127 (2).
 ICC judges authorize opening of an investigation regarding Burundi situation, International Criminal Court (Nov. 6, 2017), https://www.icc-cpi.int/Pages/item.aspx?name=pr1342 [https://perma.cc/Q9N3-UPQC].
 Burundi Situation in the Republic of Burundi ICC-01/17 International Criminal Court (Nov. 9, 2017), https://www.icc-cpi.int/burundi [https://perma.cc/NJ9A-W5CD].
 Burundi rejects International Criminal Court war crimes investigation, TRT World (Nov. 11, 2017) [hereinafter TRT], https://www.trtworld.com/africa/burundi-rejects-international-criminal-court-war-crimes-investigation-12149 [https://perma.cc/R5XN-2LCB].
 Burundi: A Dangerous Third Term, International Crisis Group (May 20, 2016), https://www.crisisgroup.org/africa/central-africa/burundi/burundi-dangerous-third-term [https://perma.cc/9CPC-9V4D].
 Moore, supra note 16.
 TRT, supra note 16.
 Rick Gladstone & Marlise Simons, We’re Not Done Yet, Hague Court Tells Burundi’s Leaders, The New York Times (Nov.9, 2017), https://www.nytimes.com/2017/11/09/world/africa/icc-burundi-nkurunziza.html [https://perma.cc/BM48-U9CR].
 Adama Dieng, ICC: Why Withdrawing from the Rome Statute Undermines International Justice for Everyone, Justice Info.net (July 2, 2017), http://www.justiceinfo.net/en/justice-reconciliation/31970-why-withdrawing-from-the-rome-statute-undermines-international-justice-for-everyone.html [https://perma.cc/3ZDU-Y8MY].