Burundi’s Challenge to the ICC’s “Africa Bias”

Layan Charara

Vol. 39 Associate Editor

On October 27, 2017, Burundi became the first country to withdraw from the International Criminal Court (ICC).[1] Its withdrawal is presumed to be an attempt to elude scrutiny of the carnage ensuing since President Pierre Nkurunziza made a third bid for the presidency in 2015.[2] The Nkurunziza administration is accused of committing crimes against humanity, including killing, torture, sexual violence, and forced disappearance.[3] Burundi, however, cites the Court’s fixation on the African continent as the reason for its exit. The ICC began a preliminary examination of the crimes in April of 2016.[4] Burundi’s withdrawal does not affect the investigation of alleged crimes committed during the period it was still a member of the Court, but its withdrawal has serious implications for the legitimacy of the Court.[5] Established by the Rome Statute in 1998, the ICC is the world’s only permanent international criminal tribunal.[6] The principal goal of this court is to bring perpetrators of the most atrocious international crimes to justice, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.[7] At present, 124 countries are states parties to the Rome Statute.[8] The United States is noticeably absent among the assembly of parties, having signed but not ratified the convention.[9] When a state becomes party to the Rome Statute, it agrees to submit to the jurisdiction of the ICC when the aforementioned crimes are concerned.[10] The ICC prosecutes individuals, as opposed to the International Court of Justice (ICJ), which serves as a venue for the settlement of disputes among states.[11] Since the Rome Statute’s entry into force in 2002, the ICC has heard 25 cases, seven of which are now closed.[12] Despite the import of the ICC’s mission and the harrowing circumstances that animated its founding, namely the Rwandan genocide and the violence engulfing territories of the former Yugoslavia, a number of nations disregard the Court’s authority and describe it as useless.[13] Significant criticisms have been lodged at the Court, but the most potent one in recent years is that the ICC has an “Africa bias.” That is, the ICC has preoccupied itself with prosecuting Africans, as only Africans are charged in the cases ongoing or set to begin at the Court.[14] Indeed, nine of the ten cases the Court is currently investigating took place in Africa, and all 32 individuals indicted in the Court’s history are African.[15] African heads of state frequently lament that crimes of the same degree of severity committed in other regions of the world are not subject to the same scrutiny and concern to which crimes in Africa are subject.[16] The ICC responds to such criticisms by emphasizing that it encourages self-referral of cases, the subject matter of which it has no control over.[17] Moreover, the ICC is not meant to replace national courts, but may step in and investigate and prosecute individuals if the country concerned is unwilling or unable to do so.[18] As such, the number of cases concerning Africa may be more of an indicator of the state of domestic judicial systems there, rather than a fixation on the continent by the Court. At its most recent summit this past February, the African Union encouraged its member states to withdraw from the Rome Statute in protest of the ICC’s “Africa bias.”[19] In the last year, the Philippines, Burundi, Gambia, Kenya, and South Africa threatened to withdraw from the Court. Russia, a signatory but not a party to the treaty, withdrew its signature last year.[20] But until last month, no state party formally removed itself from the Court’s ambit. Burundi’s withdrawal has raised alarm among observers who fear this move will inspire a mass exodus from the Court.[21] Following Burundi’s initial indication that it would withdraw from the Rome Statute last year, the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, H.E. Mr. Sidiki Kaba, urged Burundi officials to reconsider and engage in dialogue with the Court.[22] He described withdrawal as “a setback in the fight against impunity and the efforts towards the objective of universality of the Statute.”[23] Despite his appeals, Burundi began the withdrawal process one year later. But while some observers speculate this may inspire other countries to follow suit and withdraw, particularly those in Africa or under investigation, others posit that withdrawal comes with a range of inconveniences that many nations are not willing to undertake, including amending existing legislation.[24] Moreover, a significant number of African nations expressed their support for the Court in light of these developments.[25] Whether or not a mass exodus ensues, the African Union’s criticisms of the Court cast doubt on its legitimacy and capacity to administer justice and should be properly considered. As long as the ICC’s prosecutorial activities are concentrated in Africa, the institution will continue to be perceived as reinforcing global structures of inequality. Thirty-four of the ICC’s member states are African, indicating that the continent was largely on board with the project at its inception, but perhaps now believes that its hopes in the institution were misplaced. This predicament only emboldens the dictators from whom Africans seek protection and allows them to exploit disappointment in the ICC for their advantage, as is evinced by the many indications of withdrawal. Moreover, the refusal of major global powers like the United States, Russia, and China to submit to the jurisdiction of the Court while simultaneously referring cases to the Court at the Security Council only further frustrates weaker states and reinforces the notion that the Court is a tool of the West and its allies.[26] If the ICC is to bolster its credibility, it should heed the suggestions for reform made by the African Union and its critics, including reconsideration of the United Nations Security Council’s power to refer cases, the need for country-level and continental ownership of international criminal justice, and reassessment of its ability to bring those indicted to justice. Otherwise, the Court’s ability to fulfill its ambitious and crucial goal of achieving global justice will continue to be curtailed. [1] Burundi leaves International Criminal Court amid row, BBC News (Oct. 27, 2017), http://www.bbc.com/news/world-africa-41775951. [2] Burundi becomes first to leave International Criminal Court, L.A. Times (Oct. 27, 2017), http://www.latimes.com/world/la-fg-burundi-international-criminal-court-20171027-story.html. [3] Burundi: Preliminary Examination, Int’l Crim. Ct., https://www.icc-cpi.int/burundi (last visited Nov. 9, 2017). [4] Id. [5] Burundi leaves International Criminal Court amid row, supra note 1. [6] Understanding the International Criminal Court, Int’l Crim. Ct. 1, https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf (last visited Nov. 9, 2017). [7] Id. at 3. [8] The States Parties to the Rome Statute, Int’l Crim. Ct., https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#U (last visited Nov. 9, 2017). [9] Id. [10] Understanding the International Criminal Court, supra note 6, at 4. [11] Id. at 1. [12] Cases, Int’l Crim. Ct., https://www.icc-cpi.int/cases (last visited Nov. 9, 2017). [13] Jane Onyanga-Omara, What’s the International Criminal Court and why are countries bailing?, USA Today (Nov. 17, 2016), https://www.usatoday.com/story/news/world/2016/11/17/whats-international-criminal-court-and-why-countries-bailing/94017990/. [14] Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times (Nov. 6, 2016), https://www.nytimes.com/2016/11/07/opinion/the-icc-out-of-africa.html; Alexandra Zavis & Robyn Dixon, Only Africans have been tried at the court for the worst crimes on Earth, L.A.  Times (Oct. 23, 2016), http://www.latimes.com/world/africa/la-fg-icc-africa-snap-story.html. [15] Adam Taylor, Why so many African leaders hate the International Criminal Court, Wash. Post (June 15, 2015), https://www.washingtonpost.com/news/worldviews/wp/2015/06/15/why-so-many-african-leaders-hate-the-international-criminal-court/?utm_term=.ee9082a104bb. [16] Robyn Dixon, African leaders amp up pressure on the International Criminal Court, with a plan for mass exit, L.A. Times (Feb. 1, 2017), http://beta.latimes.com/world/africa/la-fg-southafrica-icc-massexit-20170201-story.html. [17] Stephanie Hanson, Africa and the International Criminal Court, Council on Foreign Rel. (July 24, 2008), https://www.cfr.org/backgrounder/africa-and-international-criminal-court. [18] Understanding the International Criminal Court, supra note 6, at 4. [19] Emmanuel Igunza, African Union backs mass withdrawal from the ICC, BBC News (Feb. 1, 2017), http://www.bbc.com/news/world-africa-38826073. [20] Robbie Gramer, Why Russia Just Withdrew from the ICC, Foreign Pol’y (Nov. 16, 2016), http://foreignpolicy.com/2016/11/16/why-russia-just-withdrew-from-icc-putin-treaty-ukraine-law/. [21] African leaders plan mass withdrawal from international criminal court, Guardian (Jan. 31, 2017), https://www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass-withdrawal-from-international-criminal-court. [22] Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi, Int’l Crim. Ct. (Oct. 18, 2016), https://www.icc-cpi.int//Pages/item.aspx?name=pr1244. [23] Id. [24] David Bosco, Is the International Criminal Court Crumbling Before Our Eyes?, Foreign Pol’y (Oct. 26, 2016), http://foreignpolicy.com/2016/10/26/is-the-international-criminal-court-crumbling-before-our-eyes-burundi-south-africa-gambia/. [25] Elise Keppler, African Members Reaffirm Support at International Criminal Court Meeting, Hum. Rts. Watch (Nov. 17, 2016), https://www.hrw.org/news/2016/11/17/african-members-reaffirm-support-international-criminal-court-meeting. [26] Cruvellier, supra note 14.