Burundi’s withdrawal from the International Criminal Court (ICC) became effective in October 2017, after the Court had finished its preliminary examination on crimes committed since April 2015 in that country. But Burundi’s withdrawal does not put an end to the ICC investigations. According to Stella Ndirangu, a Kenyan human rights lawyer working with the International Commission of Jurists, the challenge now is how the Court in The Hague will conduct investigations, since Bujumbura has clearly stated that it will not cooperate. She says the task will be difficult but not impossible.
JusticeInfo: What are the legal consequences for the ICC of Burundi’s withdrawal?
Stella Ndirangu: By the time Burundi withdrew, the ICC had been seized of crimes that had happened or were still happening. Several requests had been filed before the Court and at the time Burundi was still a State Party to the Rome Statute. When Burundi filed notice in 2016 of its intention to withdraw, this took a year to become effective. And what is important is the fact that the ICC still had jurisdiction to investigate and prosecute the crimes committed. So what is important today is not the withdrawal itself, but the fact that even after Burundi has gone, the ICC still has jurisdiction to continue dealing with investigations.
But how can the ICC work in a country that has stated it will not cooperate?
We know very well that with other procedures where they have tried to gather information for the inquiry established by the UN office of human rights, commissioners tasked to go to Burundi were declared personae non grata by the Burundian authorities. So access has been a problem. However, since those crimes started being committed, there has been documentation with a view to ensuring that there will be accountability in the future. Other mechanisms like the UN ones have relied on that in terms of trying to understand the nature and the extent of violations happening in Burundi.
Secondly, there are a lot of people who have been displaced from Burundi. They are potential witnesses who can give an account of what happened to them and to family members who were disappeared, killed, or arrested before they could leave Burundi. There have also been a lot of documents and pictures circulated. So I think the ICC will have to rely a lot on all that and conduct its investigation largely outside Burundian territory.
So you think there is no longer a need to investigate inside Burundi?
I wouldn’t say that! It is important for the ICC to keep trying to get some level of cooperation. There is definitely a need, as people living there understand better what is happening than the ones who are outside. I think ideally there should be a mix of both, internal and external. But what I am saying is that at present the Burundi government is still hostile towards allowing investigators in.
Given how the “Kenyan affair” collapsed before the ICC, what are the chances of successful investigations in a country as hostile as Burundi?
When you look at the Kenyan case, it is important for the ICC to acknowledge shortcomings in how evidence was collected from witnesses and how that evidence was preserved. Hopefully the ICC has learned lessons in terms of how to sample and spread its evidence and ensure that it is secure. With the Burundi situation, the government of Burundi also has its own legitimacy on these issues. The government of Kenya did too, but it also had a lot of support from various levels. So the success or lack of success of this Burundi case will depend on how much interference there is with ICC investigations and prosecutions. I don’t see the level of interference being the same as we experienced in Kenya.
Do you mean internal interference?
External, actually! Most of it was external, firstly by deploying the African Union. I think that because of Kenya’s strategic position in the region, we got a lot more support from the AU. Secondly there was also interference acknowledged by the judges where “witnesses were influenced not to support the case”.
So, having learned from the Kenya case how witnesses were tracked down despite being under the ICC protection mechanism, I would think the ICC would ensure it relies less on witness testimony and finds a way of supporting its case through alternative sources of evidence. I would also hope they strengthen their witness protection mechanisms in such a way that those who want to stop the court from delivering justice do not find it easy to do so.
Don’t you fear the ICC will be exposing potential witnesses to more repression if it continues its investigation in the Burundi situation?
I think the ICC in its own strategy on how to engage victims and witnesses, has acknowledged that challenge. It is my hope that in the Burundi situation, they are aware of these factors and will try to use means that do not expose witnesses and victims to being targeted. There is no way international crimes can be investigated and prosecuted without having contact with people directly affected by the conflict. To understand the conflict, you must deal with them but also find creative ways that do not expose them. And a lot of work has gone into this. It is not necessary to show the face of the ICC, as they can even use other people to help gather the information they need.
Suppose that the case is not brought to justice. What lessons for African countries and for international justice?
One scenario is that the Prosecutor conducts an investigation but finds she does not have sufficient evidence to proceed with the case and bring it to trial. That is quite likely. I would hope that the prosecution will collect sufficient evidence to sustain the trial and to sustain the conviction. But if that that does not happen, then that is a fact of the justice process. It is sufficient to show us that international justice is at work and is important in terms of trying to address serious violations that we are seeing both in Africa and globally.