The International Criminal Court announced Thursday that on Oct. 25 the Pre-Trial Chamber of the Court authorized the Prosecutor to commence an investigation in Burundi for alleged crimes against humanity committed by state agents and groups working on behalf of the state between April 26, 2015 and Oct. 26, 2017. The decision was initially issued under seal and was made public Thursday, after the Prosecutor took steps to protect potential witnesses and victims. The information provided to the Pre-Trial Chamber provided a reasonable basis to believe that the alleged perpetrators committed the crimes of murder, imprisonment, torture, rape, enforced disappearance and persecution. The number of alleged victims is high: 1,200 persons killed, thousands detained, thousands tortured, hundreds disappeared, and over 413,000 persons displaced.
The news is significant because a little more than a year ago, Burundi announced that it was withdrawing as a State Party from the ICC after the Prosecutor launched a preliminary examination into the alleged crimes committed there. The Rome Statute (Article 127) provides that a state’s withdrawal becomes effective only one year after a state files its intention to withdraw, the ICC retains jurisdiction for any crimes committed while the state was a member of the Court, and even after exiting the Court, the withdrawing state continues to have a legal obligation to cooperate with any investigation that was commenced before the effective date of withdrawal.
For Burundi, Oct. 27 marked the one year point from when Burundi filed its intention to withdraw, and when there was no announcement of an investigation, many observers thought that somehow the Prosecutor had missed the boat. It turns out that was not the case.
This week, we learned that the Prosecutor filed her request for an investigation on Sept. 5, and the judges issued their decision authorizing the investigation just before the one-year deadline. As a consequence, even though Burundi is no longer a State Party of the ICC (the first and only state ever to leave the Court), the Prosecutor may proceed with her investigation of the alleged crimes committed there and Burundi is legally obligated to cooperate with that investigation.
Good luck with that. It is difficult to imagine that any such cooperation will be coming from the government of Burundi, the very same government that decided to pull out of the ICC and that is now the subject of the ICC’s investigation.
And herein lies the broader significance of Thursday’s announcement. At the end of 2016, I wrote here that the ICC faced difficult days ahead because it had few cases in the pipeline and it was increasingly turning towards investigations of situations where little or no cooperation could be expected. The decision to investigate in Burundi is now part of that trend. Before the opening of this investigation, the last investigation that the ICC opened was in Georgia in January 2016. Last week, the Prosecutor announced that she would shortly file a request to open an investigation in Afghanistan. All of these investigations were, or will be, opened proprio motu, on the Prosecutor’s own authority, because no State Party has asked for an investigation, and in all of the cases there are reasons to doubt that the countries that are the subject of the investigations will be cooperative. Even if the Court succeeds in gathering enough evidence to charge alleged perpetrators, the prospects for arrests are dim.
Many have celebrated the Afghanistan announcement, and the Georgia one before it, as welcome signs that the ICC is willing to take on powerful countries. Many will also see the Burundi announcement as the ICC taking a strong stand against impunity, sending an important signal to States Parties that escaping accountability by leaving the Court is not an option. It is also the case that given the mandates of the Rome Statute, these moves were inevitable. The Prosecutor could not simply ignore the allegations of crimes occurring on the territory of these States Parties. In Georgia, the ICC delayed making a decision to investigate for seven years, and in Afghanistan, it waited 10 years, but in both cases, it could not continue delaying forever. In the case of Burundi, the one-year deadline meant that delay was not an option.
Many commentators see the opening of these latest investigations as good for the Court, ones that will enhance its legitimacy, rather than moves that it had no choice but to take. But there are reasons to be much less sanguine about what these investigations will mean for the Court. Even if there are legitimacy gains, the risk is that they will be short-lived. To be sure, the modern international criminal law project is full of stories of unexpected successes – who imagined that the likes of Slobodan Milošević and Charles Taylor would find themselves in the dock? And so, who knows? Maybe similar twists in political fortune will lead to accused perpetrators from Georgia, Afghanistan, and Burundi being delivered to The Hague.
But to borrow a phrase from the investment world, past performance is no guarantee of future results. The more likely outcome in these three investigations is that the ICC will be stymied, and that we will see years of investigation but no trials. Add to this the current difficulties in obtaining arrests in the Libya and Darfur investigations, and two risks for the future emerge.
First, the Court could suddenly find itself with few or even no cases to try. There are three cases in trial at the moment – Gbagbo and Blé Goudé (Côte d’Ivoire), Ntaganda (DRC), and Ongwen (Uganda) – but no cases currently in the pipeline. There is always the possibility that an accused could end up in The Hague in the coming months or years on the basis of one of the Court’s outstanding arrest warrants (and there may be warrants under seal of which we are not aware), but if following the current trials the Court suddenly finds itself with no defendants to try, the States Parties, which already approach the budget process looking for ways to save as much money as they can, will likely respond by further cutting the Court’s budget.
Second, what will be the message if the ICC takes on big powers and fails? Will states respond by strengthening the powers of the Court and redoubling their efforts to persuade non-States Parties to sign up? Unlikely. Remember that even during the golden diplomatic period between the end of the Cold War and the beginning of the “Global War on Terror,” the period during which the ICC was born, states granted the ICC very limited powers and accorded it a small footprint. In this time of retrenchment from international engagement and responsibility, it is difficult to imagine the ICC getting more. No, the more likely outcome is that states will seize on the Court’s failures to further justify their own pullback from the Court. States will wonder why they should subject themselves to the ICC’s jurisdiction when the major powers continue to flout it. In other words, the risk is that rather than strengthening the ICC, these new investigations will expose and exacerbate its weaknesses.
The good news, because it is important in this business to finish with good news if it can be found, is that neither the ICC nor the international criminal justice project in general will disappear forever. Both have come too far for that to happen. Rather, there are likely to be periods of quiescence followed by intense activity, followed again by dormancy. And even in periods of challenge, there will be creative, novel, and ad-hoc efforts to fill the gaps and keep the project alive, such as the International, Impartial and Independent Mechanism (IIIM), established last year by the UN General Assembly to collect and preserve evidence of international crimes in Syria to be used by national courts or a future international tribunal. The ICC’s new investigations will test the Court and could very well weaken it, but one has to hope, because international justice requires it, that we will one day return to a political environment conducive to accountability for international crimes.