Burundi’s Withdrawal from the International Criminal Court: Can It Still Exercise Jurisdiction over Crimes Committed prior to Withdrawal? An Academic Discourse

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Stretching the Rome Statute’s framework? The International Criminal Court, the Hague, the Netherlands. Courtesy of Wikimedia.

On Oct. 27, 2017, a year after Burundi submitted its withdrawal notification from the International Criminal Court (ICC) to the United Nations (UN) Secretary-General, the first official withdrawal from the Court came into effect, pursuant to Article 127(1) of the Rome Statute (RS). Following withdrawal, questions remain about the authority of the ICC’s Office of the Prosecutor (OTP) to continue a Preliminary Examination (PE) it launched in Burundi in April 2016 and about the ICC’s jurisdiction over crimes committed prior to withdrawal.

Following pre-elections in April 2015, President Pierre Nkurunziza decided to run for a third term, sparking a widespread, violent, and prolonged crisis around security forces’ repression of protest and dissent. This crisis has been constantly reported by human rights organizations, including Amnesty International and Human Rights Watch. Hundreds of unlawful killings have been reported, along with increasing numbers of torture, ill-treatment and forced disappearances, thousands of arbitrary arrests and detentions. Hundreds of thousands of Burundians have sought refuge in neighboring countries.

The situation was closely followed by international governmental organizations. The ICC’s OTP opened a PE in April 2016, after it became clear Burundian authorities were failing to address the crisis. In addition, in September 2016, the UN Human Rights Council established a Commission of Inquiry into human rights violations and abuses committed in Burundi since April 2015. The Commission aimed to identify alleged perpetrators and to formulate recommendations. In its report from September 2017, the Commission found “reasonable grounds to believe that crimes against humanity have been committed and continue to be committed in Burundi since April 2015.” It called on the ICC to launch an investigation into these crimes.

This is the first time the ICC has faced this situation, and the question whether the ICC can open an investigation after Burundi’s withdrawal took effect in light of the ongoing PE is subject to academic debate. The ICC’s spokesman stated that withdrawal does not affect the PE and therefore the Prosecutor may seek to open an investigation. Nevertheless, the academic discourse is divided over the legal implications of withdrawal on the ICC’s ability to exercise jurisdiction over crimes committed in Burundi prior to the effectuation of its withdrawal.

Article 127(2) of the RS governs the legal implications of state-parties’ withdrawal. It provides as follow:

“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.” (Emphasis added).

Article 127(2) provides that a state-party cannot renounce obligations it incurred under the RS by withdrawing. With respect to Burundi, commentators have nevertheless contested whether the emphasized wording should be read to include a PE commenced before withdrawal took effect, focusing on the following two questions.

First, commentators debated whether a PE can be considered “any matter which was already under consideration”. Some commentators argue that the answer should be negative. Dov Jacobs and Kevin Jon Heller view the PE as an informal process that mostly involves review of publically available reports. To Jacobs and Heller, it seems unreasonable that an OTP investigator could, by “downloading Human Rights Watch’s reports,” establish ICC jurisdiction over withdrawing state-parties forever, despite exercising their sovereign right to withdraw from a multilateral treaty. Alex Whiting raised an argument excluding such interpretation, because the PE stage is not explicitly governed by the RS, but is implied from the Prosecutor’s obligation to examine a situation before seeking to open an investigation under RS Article 15. Whiting and Amnesty International, Human Rights in International Justice (Amnesty) iterated counter arguments, supporting purposive interpretation of Article 127(2) to prevent state-parties from impeding ICC jurisdiction by withdrawing during the early stages of ICC scrutiny, e.g. the PE, and thereby avoiding accountability. Such interpretation, according to Amnesty, would ensure the ICC’s fundamental objective to end impunity, “as any other interpretation would defeat” that purpose and incentivize state-parties to avoid liability through withdrawal. Accordingly, Amnesty believes the PE should be viewed as an integral and recognized part of the OTP’s operations pursuant to Article 15 of the RS and thus “should ‘survive’ the withdrawal.”

The second question debated is whether the OTP should be considered under this provision as part of “the Court”, or whether this phrase refers only to the judicial wing, excluding matters considered solely by the OTP as falling outside the scope of this provision. Negating Whiting’s assumption that this phrase addressed all segments of the ICC, Jon Heller argues the phrase “the Court” is used under the RS to mean both the entire ICC and solely the judicial wing, depending on the contexts in which it applies. Hence, it cannot simply be assumed that Article 127(2) was meant to effectuate matters considered by the OTP after a state-party’s withdrawal took effect. Following his concerns that the PE mainly relies on publically available knowledge, he argues against broader interpretation, which would provide the OTP with too much power to retain ICC jurisdiction without judicial review and effectively nullify the withdrawal provision.

While Jon Heller views these questions as crucial in Burundi’s context, Sergey Vasiliev reached the same conclusion purportedly without addressing them. Both scholars are of the view that the OTP’s failure to request that the Court open an investigation before withdrawal took effect precludes the ICC’s ability to authorize an investigation afterwards. Vasiliev however argued simply, based on Article 13(c) of the RS, that the ICC can launch an investigation proprio motu over states-parties only. Considering the language of Article 13(c) to be clear, Vasiliev argues the ICC cannot authorize the OTP to open an investigation over a former state-party. He further argues that Article 127(2) is applicable only if the OTP submitted to the Court a request to open an investigation (possibly confidentially, absent announcement of one in the case of Burundi). According to Vasiliev, only in that case, even though the investigation has not actually commenced before withdrawal came into effect, can it still be considered a “matter under consideration by the Court.” It seems the subtext of his argument confirms Jon Heller’s argument: Article 127(2) refers only to matters considered by the judicial wing, yet Vasiliev does not provide his own reasoning for this conclusion.

All commentators agree that the language of Article 127(2) is ambiguous. Most of them opined that the OTP should have avoided the legal risk and asked the Court to launch an investigation before Burundi’s withdrawal was effectuated. Vasiliev criticized the OTP for failing to do so, as this is a “matter of due diligence” to secure legal basis for both exercising jurisdiction and demanding cooperation from Burundi and even from other international political actors. Whiting and Vasiliev suggested that since Burundi is clearly not interested in cooperating with the Court, opening an investigation before its withdrawal took effect would at least have a symbolic effect, warning other state-parties that they cannot circumvent the ICC’s jurisdiction by withdrawing.

In contrast, Amnesty argued that there are no temporal limitations on the ICC’s jurisdiction over crimes committed prior to withdrawal. To Amnesty, withdrawal is only relevant with respect to crimes committed afterward. Thus, the OTP should not rush, undermining its impartiality and independence, when deciding whether to ask the Court to open an investigation.

Despite their differences, all commentators expressed concern about launching an investigation over a non-cooperating state. But, in Jennifer Trahan’s view, the bigger concern from Burundi’s withdrawal is a setback in the ICC’s progress toward becoming a “universal” court by expanding jurisdiction through RS ratifications. In addition to her request to actively advance ratifications, she asks the ICC’s state-parties to effectively address the issue of non-cooperation by other state-parties. She also asks the UN Security Council to enforce cooperation with its own referrals to the ICC. With respect to Burundi, she asks the UN Security Council to refer the case to the ICC pursuant to Article 13(b) of the RS even though it’s under examination, in order to ensure accountability.

The OTP has not yet formally addressed this recent development and its implications on the Burundi PE. Nevertheless, it has addressed Burundi’s withdrawal submission in the 2016 Report on Preliminary Examination Activities, maintaining that “according to its legal assessment, the Office could also initiate investigation at least during this one-year period.” (Emphasis added). Assuming the OTP is aware of the implications, both legal and political, of not requesting the Court to open an investigation prior to effectuation of withdrawal, it seems that the OTP is at least of the view that it should not rush such a decision, since it is legally possible the ICC could open an investigation after withdrawal took effect. Assuming it would have already submitted such a request should it have sufficient evidence, while considering its institutional obligations, as well as other jurisdiction triggering mechanisms, the OTP may be indicating reluctance to open an investigation proprio muto to impede a state-party’s withdrawal. Beyond whether the ICC could or should open an investigation in Burundi at this point, prioritizing its professionality over political or ideological considerations is necessary to ensure its legitimacy and fulfil its long-term objective and purpose to end impunity.

Tom Nachtigal is an LL.M. student at Columbia Law School. She holds a Bachelors degree in law and international relations from the Hebrew University of Jerusalem. After graduation, she worked at the Department of Special International Affairs of Israel’s State Attorney’s Office, practicing in-house litigation with respect to international allegations based on international humanitarian or criminal law brought against the State of Israel and its officials.