Last week, Burundi President Pierre Nkurunziza’s office announced that his country had begun taking steps to leave the International Criminal Court, of which it has been a member since December 1, 2004. This move was apparently prompted by the ICC Prosecutor’s announcement back in April of this year that she was commencing a preliminary examination – the first step to determine if a full investigation is warranted – into allegations of murder, imprisonment, torture, rape, other forms of sexual violence, and enforced disappearances committed in Burundi since early 2015. The Rome Statute provides that a State Party’s departure from the Court shall only be effective one year following formal notification of withdrawal. The question then is, if Burundi follows through on its threat to leave, what happens to the ICC’s already-commenced preliminary examination into crimes committed there? Because the answer is uncertain, in the event Burundi does withdraw, the Prosecutor should open a full investigation before the withdrawal is effective to ensure that the Court retains jurisdiction. The Statute is designed well enough to give the Prosecutor the ability to pursue unapologetically this option.

The Rome Statute addresses the question of what survives withdrawal, but not particularly clearly, and there is no jurisprudence on the matter because although States Parties have sometimes threatened to leave the Court, to date none have done so. Article 127(2) of the Rome Statute states that:

“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.” (emphasis added).

This provision broadly provides that a State Party to the Statute may not escape investigation into past acts simply by quitting the Court. And that makes sense. By joining the Court, States gain protections but also incur obligations, including acceding to the Court’s jurisdiction for any Rome Statute crimes (genocide, crimes against humanity and war crimes) committed on the territory of the State Party or by nationals of the State Party. The Court would be seriously undermined if States Parties could simply skate away from these obligations when the Court turned its attention to crimes committed in that State.

But the devil is in the details. Does the Court retain jurisdiction over any crime committed before a State Party’s effective date of withdrawal? Or does the Court have to take specific steps to begin investigating the crimes before the State Party leaves in order to retain jurisdiction, and if so, what steps would be sufficient?

There is a decent but far from certain argument that jurisdiction should survive at least for any crimes that are the subject of a preliminary examination by the Office of the Prosecutor before the date of a State Party’s effective withdrawal. Following the broad first sentence of Article 127(2), the provision addresses two specific situations: (1) when an investigation or proceeding is underway before effective withdrawal, the departing State Party continues to have a legal duty to cooperate with the Court’s inquiry even after the State Party has left the Court, and (2) the State Party’s departure cannot prejudice the Court’s “consideration of any matter” that was already underway before departure. The “Court” in the Rome Statute refers to the entire ICC, including the Prosecutor, and not just the judges.

The question of whether a preliminary examination survives withdrawal appears to be governed by the second part of Article 127(2), and turns on whether a preliminary examination constitutes the “continued consideration of any matter” within the meaning of that provision. The term is not defined in the Statute, nor is it used elsewhere in the Statute in a way that clarifies its meaning here. In light of the reference to “investigations and proceedings” in the first part of Article 127 governing cooperation, it would seem that the “continued consideration of any matter” as used in the second part should have a broader meaning, including the Prosecutor’s consideration of alleged crimes during a preliminary examination to determine if an investigation is warranted. Moreover, in light of the purpose of Article 127 – to prevent State Parties from avoiding ICC scrutiny for past actions by leaving the Court – the terms of the provision, including the meaning of the “continued consideration of any matter,” should be read as broadly as the text allows.

On the other hand, the preliminary examination stage is not formally mentioned in the Rome Statute, but is simply implied from the Prosecutor’s obligation to assess whether certain jurisdictional and admissibility requirements have been met before commencing an investigation. In addition, to the extent Article 127 seeks to give departing States Parties (and nationals within those States Parties) notice of the scope of the ICC’s ongoing jurisdiction, defining the “continued consideration of any matter” to include preliminary examinations would not necessarily further that goal, since there is no obligation that the Prosecutor publicly announce that she has commenced a preliminary examination (though ordinarily she does so). Finally, defining the “continued consideration of any matter” to include preliminary examinations risks creating an odd incongruity in the Statute: the ICC would have ongoing jurisdiction over the subject of the preliminary examination, but the departing State Party would have no duty to cooperate after departure because that duty is limited by Article 127(2) to “investigations and proceedings” already commenced before the effective date of departure.

Given the uncertainty in the Statute, in the event Burundi files a formal notice of withdrawal, the Prosecutor should consider opening an investigation within the year following that notice to ensure that the Court retains jurisdiction over alleged crimes committed there. If she sought to open such an investigation on her own authority, acting proprio motu, she would need authorization from the Pre-Trial Chamber before she could formally begin the investigation (and therefore she should move in sufficient time to give the Pre-Trial Chamber time to decide), but if another State Party to the Rome Statute could be persuaded to refer the case to the Court, she could commence the investigation without judicial authorization. In either event, there is no question that as long as the formal investigation commenced before the effective date of withdrawal, the Court would retain jurisdiction and Burundi would also continue to be legally obliged to cooperate with the investigation, even after departing the Court.

Naturally the Prosecutor should take the step of opening an investigation only if it is warranted under the Statute. In the past, however, the Prosecutor has often delayed opening a full investigation as a matter of prudence or resource limitations. In this case, she should act as soon as she has sufficient legal grounds to do so.

Of course, any investigation that she commences will be challenging, and maybe even impossible in the short term, because even though Burundi will have a continuing legal obligation to cooperate, it is doubtful that it will do so. But opening an investigation would still be the right step for the Prosecutor because it would reinforce the purpose of the Statute and signal to other States Parties that they cannot easily run from their obligations to the Court simply when it becomes convenient to do so. Furthermore, the temporal reach of international criminal justice is long: even though Burundi is today not receptive to accountability, the day may come when it will be more so. At that point it will be essential to have an institution that is prepared to investigate and adjudicate the alleged crimes.