World should unite in demanding justice as Burundi pulls out of ICC without effect on jurisdiction

The ICC today assuaged some concern thatthe pull out today would let the culprits off the hook. “In accordance with article 127.2 ofthe Rome Statute, Burundi’s withdrawal does not affect the jurisdiction of theCourt with respect to crimes alleged to have been committed during the time itwas a State Party, namely up until 27 October 2017,” the ICC Public Affairsunit said in an email.

Though Burundi’smaneuver to elude an ICC investigation for alleged crimes against humanity hasproven ineffective – dissuading more Governments from following Burundi’sexample – last month’s unprecedented voting of two United Nations Human RightsCouncil’s (HRC) Resolutions to tackle the spiraling crisis has sent the wrongmessage. By revealing its inability to unanimously condemn Burundianauthorities and affording them a semblance of cooperation theinter-governmental system had critically dented its credibility. It must nowthrow its full weigh, in a single voice, behind the gathering of evidence toensure perpetrators in Burundi and other States are held accountable and victimscan obtain redress and rehabilitation.

“We must make sure theGovernment of Burundi understands it cannot get away with ignoring human rightsand rule of law” said OMCT Secretary General Gerald Staberock. “Impunity mustbecome a thing of the past that only backward States tolerate. We can and willbring criminals to trial because if we don’t, more victims and the whole worldwill all pay for it dearly.”

Having to date showed nothing but non-cooperative behaviour to stop the extreme violence in the country and punishperpetrators, the Burundian Government also tried to divert attention from human rights topolitics, resulting in gaining some traction among other UN Member States.

During the last HRC session, two different mechanisms were voted through the twoResolutions – one extending the mandate of the CoI by a year and another deciding the establishment of a team of three UN independent experts tocollaborate with Burundian authorities on the ground. Burundi justified its opposition to the EU-ledResolution for maintaining the CoI by saying the EU had wanted to instrumentalize the Council and that politicizationwas counter-productive to improving human-rights situations. This lack ofcoherence that ensued led to two separate Resolutions, which has raisedquestions with regard to the work carried out by the two separate mechanisms votedby the HRC and Burundi’s support to them, and diluted the condemnation thedelinquent State deserved.

“This apparent incompetence is in the interestof Burundi, it exacerbates the continent’s polarization and brings thepolitical situation to a sharp edge,” said Aidan Russell, Assistant Professorof International History at the Graduate Institute in Geneva who hasspecialized in the history of Burundi.

South Africa and Gambia,which also recently expressed their intention to pull out of the ICC, had invokedexcessive focus on African nations as nine out of the 10 situations under investigation are in the continent.

A somber track record: Thousands ofviolations and zero cooperation

President Pierre Nkurunziza’s announcement hewould run for a third term and his controversial re-election brought over 400 killings,some 400,000 Burundian refugees abroad, 3 million people in need of humanitarian assistance amid an acutepolitical crisis.

This pushed the UN Committee Against Torture(CAT) to ask the Government of Burundi to submit during its 58th session from 25 July to 12 August 2016, two years ahead of the scheduled date, aspecial report answering specific questions about reported violations and stepsto investigate crimes of torture and killings by state officials andruling-party youth league members. Only twice before had the CAT made such arequest to any Government – for Israel in 1997 and Syria in 2012.

In an unprecedented move by any State Party tothe Convention, Burundi marked CAT history in July 2016 when its official delegation didnot show up to answer questions on the State’s report.

On top of continuedrepression of popular dissent, the Government used reprisals against prominent Burundianhuman rights defenders who had contributed to an alternative report to the UN anti-torture watchdog. Most of them live in exile as a resultof the quashing of Burundian civil society.

Burundi’s isolation from the UN human-rightssystem further escalated in October 2016, when Burundi suspended allcooperation with the Office of the UN High Commissioner for Human Rights(OHCHR). It also declared the UN independent experts personaenon gratae,and rejected the deployment of a UNpolice contingent in Burundi. It then refused any cooperation with the Commission of Inquiry on Burundi (CoI), established by the Human Rights Council in September 2016, barringthe three experts from accessing the country.

Finally, in 27 October 2016, Burundiformally announced that it would withdraw from the Rome Statute, just seven monthsafter the ICC said it would initiate a preliminary examination.

In August 2017, the CoI in a report based on seven months of investigations and 500 interviews of witnesses, said it had "reasonable grounds to believe that crimes against humanity have been committed and continue to be committed" in the country, pointing a finger at high-level officials and calling for the ICC to open an investigation as soon as possible.

These findings of the CoI coincided with those by human rights defenders, journalists and victims whom OMCT met during a mission to Kigali in July 2017 to support Burundian civil society in drafting a follow-up report in the framework of the follow-up procedures of the CAT. Their accounts highlighted widespread arbitrary arrests and detention, extra-judicial killings, enforced disappearances, torture, including sexual violence, and other cruel, inhuman or degrading treatment, and confirmed the involvement in the alleged crimes of the National Intelligence Service, the police, the military and the ruling-party youth wing Imbonerakure.

The two HRC-born mechanisms

In this context, what was at stake with regard to recalcitrant Burundi during the last Human Rights Council session spanning 11–29 September 2017 was finding a way to put an end to the impunity of perpetrators of extreme violence and abuses. Extending by another year the mandate of the CoI was an obvious step in that direction.

Yet the voting of a Resolution to manage that proved quite complicated – if not outright counter-productive. On 28 September 2017, for the first time in United Nations Human Rights Council’s history, two separate Resolutions were passed recommending the use of two distinct mechanisms to address human rights violations in a crisis-hit country. What made the vote further unsettling is that the two Resolutions left the Government in the middle and free to continue ignoring pleas to take action against crimes.

A last-minute, African-Union resolution (A/HRC/36/L.33), presented by Tunisia, called for the dispatching of a three-person team of independent UN experts to help the investigation of human rights violations in Burundi through the provision of technical assistance to Burundian authorities.

“Our intention was to involve the country via another mechanism – a team of experts, “ said Intissar Hedi, Plenipotentiary Minister in charge of human rights at the Tunisian Mission before the United Nations. “If the country now agrees to collaborate it’s a good thing and it will be useful: we must take advantage of it rather than isolate Burundi and bombard it with criticism. We mustn’t leave an African country isolated but make it responsible, and hope that it will be sincere with itself. If it still does not cooperate it will then be its own responsibility.”

Having failed to obtain prior consensus for a single Resolution encompassing all state demands, the European Union, represented by Estonia, still managed to obtain enough votes for a Resolution (A/HRC/36/L.9/Rev.1) extending by a year the mandate of the CoI.

“This element is clearly missing from the African-group-led Resolution, which solely focuses on technical assistance to domestic judicial processes in Burundi,” said Ms. Tiinu Kallas, Human Rights officer of the Estonian Mission to the UN and main sponsor of the EU Resolution. “The findings of the Commission of Inquiry are extremely serious. The facts speak for themselves. Therefore, it was crucial to renew the mandate of the Commission for another year, so the Commission can continue the valuable and excellent work they have been doing so far.”

Yet once both Resolutions – set along political fracture lines – were passed, Member States and UN staff were left wondering whether the two mechanisms could co-exist and if the access of three UN experts to the country, as conceded in the African-led Resolution, should at all be welcomed as the long-awaited cooperation of Burundi.

What is more, though some local human rights specialists do not dismiss the possibility that the two mechanisms may be able to collaborate and find synergies in spite of their different mandates, most are concerned any collaboration with state officials can only be nominal. Ultimately, this might simply be a way for Burundi to be left off the hook under the guise of bogus cooperation.

“The Burundian justice system has not conducted any investigation since the start of the crisis,” said Armel Niyongere, coordinator of the SOS-Torture/Burundi campaign and member of the Collectif des Avocats des Parties Civiles ‘Justice for Burundi’, which vowed in a statement to collaborate solely with instances that offered clear and trustworthy guarantees. “There is no reason to believe they will now all of a sudden prosecute the culprits. Giving the information to the Government will be of no use – worse it might just increase the risk of reprisals against those who dare speak out.”

The Office of the United Nations High Commissioner for Human Rights (OHCHR) has said having two Resolutions would de facto make no difference, explaining the two mechanisms would remain separate, following different lines of reporting, and would each produce a report during the upcoming 39th session of the HRC due next year.

The Office added that it was still working to obtain permission from Burundi to give the three experts access to the country, and negotiating standard guarantees of independence and security for its staff, adding Burundi has so far said neither yes nor no. OHCHR added it would respect the fundamental principle of preserving the safety of witnesses, even if that might make it slightly more difficult to carry out its mandate.

“You cannot force a country to collaborate, but you can convince it to,” said OHCHR Spokesperson Rupert Coleville.

Other observers see it as unreasonable to expect the Burundian Government to cooperate considering its behaviour with the UN to date.

“To expect Burundian authorities to cooperate is almost equivalent to asking them to punish themselves,” said Brussels-based Burundian lawyer and researcher Methode Ndikumasabo. “So unless there is a radical change in the current regime, any hope for obtaining justice for these crimes is sheer utopia.”

The only way forward: No way out for Burundi’s criminals

The ICC’s Public Affairs unit said in an email the Court would announce the results of its preliminary examination process “in due course”.

To address the victims’ need for redress and reparation, it is essential that crimes that took place in Burundi since April 2015 are scrutinized by ICC and that the international community keeps showing resolve to end impunity in the country for two reasons.

First, Member States must understand that what is at stake here is the fate of thousands of Burundian victims. These need their complaints to be taken into account and the culprits to be punished in order to recover from the violence they underwent.

Second, beyond these thousands of Burundian victims – and associated national and regional stability – States should consider the consequences for the many other potential victims of crimes against humanity. Indeed, as Burundi’s attempt to ignore and dupe the system was met with weak-willed, mixed messages from Member States, allowing delinquent leaders violating international human rights law and generating humanitarian crises around the world to think that they could literally get away with murder.

Poorly managed, the case of Burundi could fuel criticism about the human-rights system’s politicization and ineffectiveness. It could also set a dangerous precedent that risks inflaming the region and defanging the system designed to end impunity of individuals charged with the gravest crimes of concern to the international community.

In short, the only way forward is to prove Burundian criminals are wrong in thinking they can get away with impunity.

About OMCT

OMCT is short for the World Organisation Against Torture – in French, as the organization created in 1985 is headquartered in Geneva, Switzerland.

On top of protecting human rights defenders and promoting NGO participation before the CAT, OMCT works for, with and through an international coalition of over 200 non-governmental organizations – the SOS-Torture network – fighting torture, summary executions, enforced disappearances, arbitrary detentions, and all other cruel, inhuman and degrading treatment or punishment in the world.

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As coordinator of civil-society presence at the CAT, OMCT:

- communicates ahead of time with national NGOs warning them that their countries will be reviewed in an upcoming session,

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