By Lambert Nigarura
December begins in The Hague with the annual session of the Assembly of States Parties (ASP), the managerial oversight and legislative body of the International Criminal Court. The meeting of representatives of more than 120 states parties to the Rome Statute, the founding treaty of the ICC, of observers from non-states parties and civil society organisations traditionally focuses on the court’s budget and upcoming judicial elections (new judges, new chief prosecutor). This year ‘court review’ (a reform of the functioning of the court) will also be a major discussion point.
Sometimes participants at the ASP can lose sight of what the ICC was set up for in the first place: to bring justice to victims of terrible atrocities.
Journalists For Justice (JFJ) sets out to shine a spotlight on one of the countries that have been under investigation by the Office of the Prosecutor (OTP) of the ICC for years, with no result visible to the public yet: Burundi.
Burundian lawyer and civil society activist in exile Lambert Nigarura, recalls what his country has gone through in the past four years of crisis and repression. So far, thousands of Burundians have been killed, hundreds of thousands forced into exile, new repressive laws adopted, and changes made to the constitution that forbid extradition to the ICC in violation of international legal obligations.
Since April 2015, Burundi has been plunged into a serious socio-political crisis.
The announcement of President Pierre Nkurunziza as a candidate in the 2015 election, in violation of the Arusha Peace Agreement and its constitution, the peaceful protests against this illegal candidacy and crackdown by the army, the National Intelligence Service (SNR) and the Imbonerakure militia have been responsible for serious human rights violations and violations of human rights as crimes against humanity.
The majority of victims are opponents of the government or perceived as such.
This crisis has created a terrible decline in the country on almost all levels (humanitarian, human rights, social, economic and security).
1. Violation of the pillars of reconciliation and adoption of exceptional laws.
– Violation of the historic Arusha Agreement that ended a decade of civil war and allowed for the reconciliation of the two main ethnic groups (Hutu / Tutsi).
– Adoption of the organic law governing the National Defense Force (FDN) which legalizes the probable recruitment of militiamen as reservists within this body.
– Adoption of the new Code of Criminal Procedure legalizing night searches and the capture of computer data.
– Promulgation of the new constitution (7/06/2018) prohibiting the extradition of a Burundian citizen accused of international crimes to the international criminal courts.
2. Continuing violation of human rights and impunity of perpetrators
Since the beginning of the protest, the police crackdown, supported by the Imbonerakure youth affiliated to the ruling CNDD-FDD party and some elements of the army and intelligence services, has killed several thousand Burundians while half a million others have gone into exile.
According to the report of the Burundian League of Human Rights Iteka of April 2019, more than 1773 people were killed, including 226 women, or 13 per cent of victims. The perpetrators of more than half of those killed, or 1038 killings (59%), have not been identified.
A total of 454 people (26%) were murdered by agents of state institutions, 168 people (9%) in clashes with security agents, 59 people (3%) following settlements and 54 people (3% ) following the so-called popular justice.
In addition, more than 527 cases of abductees and / or missing persons, including 23 women (4%). Among the accused, the police accounted for a large share with 287 cases (54%), followed by the SNR with 101 cases (19%). Unidentified persons were accused of having committed 94 cases (18%), military members attributed 23 cases (4%), members of the youth movement affiliated to the CNDD-FDD party of 20 cases (4%).
793 cases of torture were also cited in this report. The alleged perpetrators are basically Imbonerakure youth members with 509 cases (64%). The police have been charged with 148 cases (19%) while intelligence agents are reported to have tortured 66 people (8%).
The report did not forget to mention 198 cases of victims of gender-based violence and 9889 cases of arbitrary arrest.
The United Nations Human Rights Council, in a resolution adopted in September 2016, set up an international commission of inquiry into Burundi. This commission has documented violations of civil, political, economic, social and cultural rights. Critical and independent voices, including members of civil society, human rights defenders (HRDs) and journalists, were the most targeted.
Moreover, the recent report of the Commission of Inquiry of September 2019 presented to the Human Rights Council the eight risk factors for mass crimes that hover over Burundi, before, during or after the elections in 2020.
At the same time, the Office of the Prosecutor of the International Criminal Court opened investigations into the crimes in Burundi, an investigation that was authorized by the Pre-Trial Chamber of the International Criminal Court on 25/10/2017, just two days after the withdrawal of the Burundi from the Rome Statute establishing the International Criminal Court. Despite the withdrawal, Burundi has a legal obligation to cooperate with the ICC.
Finally, since the beginning of 2019, the Burundian government has become more isolated by deciding to close the Office of the United Nations High Commissioner for Human Rights (OHCHR). The government has suspended one of the last independent organizations in the country. The state has also withdrawn the license of the international radios The Voice of America (VOA) and the British Broadcasting Corporation (BBC) and forced international non-governmental organizations to stop their activities in Burundi with the pretext of not respecting the ethnic balance in their recruitment of local staff.
3. Do the chances of success of the ICC investigation exist in Burundi?
Despite Burundi’s refusal to cooperate in this investigation in a particular context, the Office of the Prosecutor has strong support from the population victim of a culture of impunity, human rights defenders and lawyers.
3.1. Collection of information
More than two thousand (2000) victims’ files have already been sent by two groups of lawyers (Justice for Burundi and CAVIB) who accompany the victims of the current crisis.
Civil society organizations, such as SOS Torture Burundi, Ligue Iteka and many others continue to monitor human rights violations and forward reports to the ICC Prosecutor’s office for analysis.
The Ndondeza campaign of the Forum for Conscience and Development (FOCODE) organization has already documented more than three hundred (300) cases of enforced disappearance.
3.2. Availability of victims and witnesses
Civil society organizations that advocate for the promotion of independent and effective international justice oversee and sensitize a large portion of the victims in exile in neighbouring and distant countries. The diaspora is also doing an extraordinary job of helping to establish the truth about the crimes committed in Burundi since April 2015. This is reflected in many events they organize to challenge the international community on the crisis that plagues in their native country for almost five years.
4. The challenges that haunt this procedure of international justice
Burundi’s refusal of cooperation, and especially the prohibition on investigators being able to access the crime scene to conduct their own investigations in the freshest of circumstances, has had an impact on the work of the Court.
The work of the ICC is also limited in time. The jurisdiction ratione temporis of the Court is called into question by the withdrawal of Burundi which became effective on 27/10/2017 whereas until today violations constituting crimes against humanity continue to be committed by the same agents accused of crimes committed prior to the effective withdrawal of the Rome Statute.
Support from African countries that do not even have justice mechanisms that can replace the ICC is fragile. In particular, they accuse the Court of bias on the grounds that it only targets Africans, while the crimes falling within the jurisdiction of the Court are committed on all continents.