As Burundi Leaves the ICC, Can the AU Play a Role?
Published: 27 Oct 2017
“I don’t want to go back [to Burundi],” Marie[i], a 29 year old widow, told International Refugee Rights Initiative (IRRI) in June, when we interviewed her in a refugee settlement in Uganda. “There are too many criminals in Burundi and I know they can’t put them all in prison.”
Her husband, an opposition member, had been killed in 2012, but she only fled to the Democratic Republic of Congo (DRC) after another family member was arrested in 2015, when Burundi plunged into a political crisis. Marie was raped in DRC, by what she believes were members of a militarised youth group linked to the party in power in Burundi, the Imbonerakure. Because of the insecurity for Burundian asylum seekers in DRC, she decided to leave with her four children and come to Uganda, where she feels safer.
Marie is just one of the many Burundian asylum seeker IRRI has spoken to that made the clear link between their willingness and ability to return home and accountability for crimes committed against them. However, they did not have much hope this would happen any time soon.
Such scepticism is understandable. Despite many serious human rights abuses in Burundi in the last decades, including since April 2015, justice for victims has been, at best, piecemeal. Several Burundian politicians – both government and opposition – have been personally involved or responsible for such acts, and have never been punished. Seeking agreements between warring parties has often been a priority over holding those responsible for atrocities accountable. No wonder many have lost faith.
Today probably won’t be the day Marie will change her mind, as from today, Burundi is no longer a party to the International Criminal Court (ICC). It informed the ICC of its plans to withdraw from the founding treaty, the Rome Statute, exactly one year ago, six months after ICC prosecutor, Fatou Bensouda, opened a preliminary examination into crimes committed in Burundi since April 2015.
As in many other countries on the continent, Burundian activists and victims of abuses had put their hopes in the ICC as one of the only venues to seek justice. Burundi’s national courts and tribunals have suffered from a lack of independence and commitments to the justice mechanisms outlined in the 2000 Arusha agreement have never fully materialised.
Despite the recent rhetoric of mass withdrawal from the ICC by African countries, Burundi is the first country ever to have followed through, leaving the status of the ongoing examination unclear. In any case, the Burundian government is no longer obliged to cooperate with it. The Kenya casesets a negative precedent as to what can happen when a government is, at best, uncooperative and the Burundi government’s recent track record of refusing cooperation with any international body looking into its human rights record does not instil confidence.
In spite of its lack of cooperation to date, this September a UN-mandated Commission of Inquiryconcluded it had “reasonable grounds to believe that crimes against humanity have been committed in Burundi since April 2015” and itself asked the ICC to open an investigation. Its mandate was renewed by the UN Human Rights Council in the same month, despite resistance by a group of African states, who got another resolution adopted authorising three experts “to engage with the Burundian authorities […] to collect and preserve information […] and to forward to the judicial authorities of Burundi.”
African leaders have shown misplaced solidarity with their Burundian colleagues, but have also aired suggestions to promote accountability on the African level. In one such a reaction, AU commissioner Smail Chergui said that “we have our own approach as African Union. We are promoting our African Court to be first responder”. Whilst “African solutions to African problems” is laudable, realistically this is still a long way off. Six more ratifications are needed for a protocol to turn the African Court of Human and Peoples Rights (ACtHPR) into a court with a legal basis to prosecute individuals responsible for international crimes. In addition, whether or not this will be applicable retroactively is unclear but what is clear is that it will shield senior officials from facing trials.
The African Union should show that statements about African solutions aren’t hollow ways to shield any Burundian from accountability. It has so far failed to provide any protection to Burundian citizens, despite concrete suggestions by its own bodies. It might have a chance to prove better on accountability. Africa has been at the forefront of the promotion of international justice, through its initial strong backing of the ICC, through its engagement with international tribunals such as the ICTR and SCSL, and most recently with the African led, trial against Hissène Habré.
Now is the time for African leaders to keep up the momentum that the Habré trial started. They should ensure that individuals like Marie will, one day, see the killers of her husband, or those responsible for her rape, face justice.