JURIST Guest Columnist Pacifique Manirakiza of the University of Ottawa discusses the effectiveness of Burundi’s withdrawal from ICC…

On October 27th, 2017 Burundi became the first State Party to withdraw from the Rome Treaty creating the International Criminal Court (ICC), in accordance with the provisions of Article 127. It is worth recalling that prior to Burundi’s withdrawal notice, the Office of the Prosecutor launched a preliminary examination into the situation in Burundi. Since this was a motu proprio move by the Office of the Prosecutor (OTP), the latter cannot go further without an authorization from the Court. On the date of withdrawal, the Prosecutor has not formally seized the Pre-Trial Chamber (PTC) of an authorization request to open criminal investigations on the alleged third term related crimes. Burundian victims and other actors were hoping the Prosecutor would have opened a formal criminal investigation by the deadline. The expectations became even higher when the United Nations Commission of Inquiry on Burundi, in its final report, requested the OTP to speed up the examination and request an authorization to investigate those alleged crimes. However, for those familiar with international proceedings, the OTP’s inaction was not a surprise. Technically, the OTP had to act in twenty months and this timeline obviously proved inadequate to build a strong case and meet the required threshold. The examination of the situation was still at the phase 2 (subject-matter jurisdiction) at the time the withdrawal became effective.

Now that Burundi opted out, the fate of the preliminary examination is not clear. A legal discussion on whether or not ICC retains its jurisdiction on Burundi despite the withdrawal is well warranted, at least for the alleged crimes committed before October 27th. Each one’s position on the issue depends on the reading and interpretation of paragraph 2 of Article 127 of the ICC Statute, which stipulates:

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.

Basing himself on the literal reading of this provision, Mr. Fadi El Abdallah, the ICC spokesman, in an interview relayed by the mainstream media such as AFP, Reuters, Al Jazeera, etc., stated that Burundi’s withdrawal does not affect the jurisdiction of the court with respect to crimes alleged to have been committed during the time it was a state party, namely up until October 27, 2017. The voice of the spokesperson usually represents the position of the Court or, at least that of the OTP. However, in this particular instance, one can legitimately ask the following question: to what extent can we rely on the spokesperson’s view as a statement of applicable law on such an important issue, absent a declaration from the OTP clarifying the way forward or an existing caselaw on the scope the said provision?

Mainstream international and Burundian civil society organizations are also of the same view that the withdrawal does not bar the ICC to exercize its jurisdiction as the situation is already under examination. For instance, Amnesty International stated that “The ICC can continue its preliminary investigations regardless of Burundi’s efforts to stop its work by withdrawing from the Court. Even if President Pierre Nkurunziza’s government will not cooperate with the Court, the ICC has ways and means to investigate and prosecute the crimes committed.” For the Fédération internationale des droits de l’homme (FIDH), the withdrawal “does not mean that Burundian perpetrators now have entered a safe space: the ICC can still open an investigation into crimes committed in Burundi before October 27, 2017.” For The Burundian Coalition for the International Criminal Court, since the preliminary examination began before the expiration of the withdrawal date, the Prosecutor can still open an investigation into the alleged crimes.

Apart from civil society organizations, where there is a consensus on the generous and liberal interpretation of Art. 127(2), the same consensus is not obvious among scholars. Some like Beitel van der Merwe think that ICC will retain jurisdiction on Burundi after its formal withdrawal. For him, “at first glance then, it seems that the withdrawal will not affect the preliminary examination already underway.” Other authors posit that the OTP’s failure to open a formal criminal investigation, or at least to request an authorization thereof before the October 27 deadline deprives the ICC of its jurisdiction.

In fact, the lack of consensus on this issue is intrinsically linked to the different views people hold on the question whether preliminary examinations are part or not of the court proceedings referred to in paragraph 2 of Article 127. Those who argue for the continuation of the ICC jurisdiction, except Whiting, favor the position that preliminary investigations are “matters” which are already under consideration by the Court, provided that the Prosecutor is also part of the Court. To the contrary, other authors are of a different opinion. After sampling and highlighting different provisions of the ICC Statute, which are formulated in a similar way as Art. 127(2), Kevin J.Heller concludes that the “Court” refers to the judiciary. Therefore, the OTP is not part of the Court for the purpose of Art. 127(2). He finally and convincingly argues that a situation is not under consideration of the Court by the virtue of OTP preliminarily examining it.

I tend to agree with Heller. First of all, it is obvious that preliminary examinations are not part of either criminal investigations or proceedings referred to in Art. 127(2). According to me, criminal investigations refer to investigations duly authorized by the Pre-Trial Chamber of the ICC (in a motu proprio situation) after the Prosecutor has demonstrated that the information and evidence at her disposal support reasonable grounds to believe that ICC crimes have been committed in a particular situation. Regarding the proceedings, the notion refers to proceedings already pending or under consideration before the Court.

In my view, preliminary examinations are pre-investigations carried out in order to ascertain whether a particular situation warrants further OTP’s action or not. At that particular stage, the State has no case to answer and in fact no legal obligation whatsoever towards the OTP. From a comparative criminal law perspective, the State is in a similar situation to a person of interest (PI) in domestic criminal investigations where the Police, which is the entry point for criminal proceedings, gets and analyzes information on a possible crime and the potential involvement of a particular person. The police will not bother or otherwise interfere with the person of interest’s life until they get precise and sufficient evidence to support an indictment. Until then, there is no criminal case. In the case of preliminary examinations, it is the same. In its Policy Paper on Preliminary Examinations, the OTP’s position is that at the preliminary examination stage there is not yet a ‘case,’ as understood to comprise an identified set of incidents, suspects and conduct. No wonder that under Ocampo tenure, preliminary examinations were treated as confidential information with little or no information released to the public during the process. This was not illegal practice at all. The difference with current practice under Bensouda is simply that now preliminary examinations are dealt with in a transparent manner. The launch is usually made public and the public gets updated information at each of the four stages of the preliminary examination.

In conclusion, a State Party’s withdrawal while under a simple preliminary examination deprives the ICC of its jurisdiction. In the particular case of Burundi, an OTP decision to continue examinations followed by the request to conduct investigations would lack a firm legal basis under the existing regime. The situation would have been different if the PTC was at least seized of a prosecution’s motion requesting the authorization to open formal criminal investigations on the alleged third term related crimes. Whether the authorization was granted or still pending before the PTC, it can be said that the matter was under consideration before the Court, in accordance with the provisions of Art. 127(2). Therefore, it would be difficult to support the claim that ICC retains post-withdrawal jurisdiction on Burundi. The ICC Spokesperson’s statement was probably a strategic move to smoothly assuage the apparent deception of victims and other actors involved in this situation. In any case, if the Prosecutor is of the same view and decides to request a post-withdrawal formal investigation in the Burundian situation, it will be interesting to see how the PTC will interpret relevant provisions, in particular those of paragraph 2 of Article 127, especially when even the travaux préparatoires are not helping in order to understand the minds of the framers of the Rome Statute.

Professor Pacifique Manirakiza is an Associate Professor at the Faculty of Law (Common Law Section), University of Ottawa where he teaches Canadian Criminal Law and International Criminal Law and African International Law. Professor Manirakiza is also a dedicated human rights lawyer.

Suggested citation: Pacifique Manirakiza, The ICC Post-Withdrawal Jurisdiction on Burundi, JURIST – Academic Commentary, Nov. 2, 2017, http://jurist.org/forum/2017/11/Pacifique-Manirakiza-ICC-Burundi.php