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Section 7. Criminal science
https://doi.org/10.29013/EJLPS-20-1-31-46
Ishmail Pamsm-Conteh, LLB (Hons), MSc(Criminal Justice Policy), PhD (Law), Lecturer in Law University of Makeni, Makeni-Sierra Leone Ernest Bai Koroma University, Makeni, Makeni- Sierra Leone
E-mail: [email protected]
CAN THE STATE OF BURUNDI JUSTIFY ITS REASONS FOR LEAVING THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT?
Abstract. Some Africa states and the International Criminal Court (ICC) currently have a tumultuous relationship, which is attributable to the accusation that the Court is deliberately targeting Africans and African leaders for prosecution. For this reason, there has been an anticipated mass withdrawal from the Court's Jurisdiction of African states; though this has not yet happened. Burundi is the only state from the African continent which has withdrawn from the Court for that reason.
The focus on Burundi by the Court has been for alleged crimes against humanity committed in Burundi or by nationals of Burundi outside Burundi since 26 April 2015 until 26 October 2017. It is viewed in the context of the internal violence which stemmed from those who opposed or were perceived to oppose the ruling party after the announcement, in April 2015, that President Pierre Nkurunziza was going to run for a third term in office.
The ICC' Statute has universal jurisdiction, amongst other international crimes; war crimes, crimes against humanity under which some of those alleged crimes committed by the leadership and state officials of Burundi, falls under. And within the Court's Statute is imbedded the principle of complementarity in which, it can only adjudicate upon such crimes where the state party is unwilling or unable to prosecute the alleged crimes. As Burundi has not demonstrated that it can or will prosecute the individuals who stand accused of such crimes, is the State's decision for leaving the Court justifiable?
Keywords: Burundi, International Criminal Court, Universal jurisdiction, Complementarity, Crimes against Humanity.
1. Introduction open a preliminary investigation into acts of kill-
Fatou Bensouda Prosecutor at the International ing, imprisonment, torture, rape and other forms
Criminal Court, (ICC, the Court), an African, an- of sexual violence in Burundi, an African state [1].
nounced on 25 April 2016, that the ICC intends to Being on the verge of an ICC investigation, it would
potentially mean finding the political leadership of the country, including President Pierre Nkurunziza, guilty of the alleged crimes [2]. Consequently, Burundi decided to leave the jurisdiction of the ICC. It became the first country to leave the jurisdiction of the now 123 memberships, since the court was established in 2002. The effective date of Burundi's departure was 27 October 2017, more than a year since the announcement by the Prosecutor was made. Accordingly, the reason for Burundi's decision is based on the accusation that; the ICC is deliberately targeting Africans for prosecution.
Burundi's allegation could be viewed in the context of the current docket before the Court, (ten out of the eleven cases under investigations are from the African continent). This should lend credence to the accusation on a prima facie basis, at the very least. This may not be unconnected to the fact that the Court has initiated investigations and, in some instances, brought prosecutions against African leaders, such as; former Presidents Omar Al-Bashir of Sudan, Muammar Al-Gaddafi of Libya, Laurent Gbagbo of Cote d'lvoire and current President Uhuru Kenyatta of Kenya. Including, current Vice-President William Ruto of Kenya, former Vice Presidents Jean -Pierre Bemba Gombo of Central African Republic, and Saif Al-Islam Ghaddafi, (de factor prime minister of Libya, at some point in time) [1]. However, the ICC on its part denies the allegations, insisting it is pursuing justice for victims of war crimes in Africa.
It should be noted that African states contributed significantly to the deliberations of the Rome statute in 1998 which established the ICC, of which currently, thirty- three (after the exit of Burundi) of the fifty-four African countries, are State Parties to the Treaty. Senegal was the first country to ratify the Rome Statute, whilst South Africa enacted laws conforming to the Rome statute within the first few years of the ICC being established [3]. Africa's enthusiasm and support for the ICC stems from the fact that, there was a large activist civil society, mostly in human rights, which had emerged since the 1990's, as
the wave of democratisation swept the continent [4, 52-53]. Furthermore, the political inclination of most African states emerging out of dictatorship embraced the call to end impunity.
The ICC's has universal jurisdiction on the core crimes of; war crimes, crimes against humanity and genocide, and crime of aggression. Its principle of complementarity means it can only initiate investigations and prosecution ofcrimes within its jurisdiction where State Parties are unable or unwilling to do so [5]. Suffice it to say, the Court has not been oblivious to the African voices critical ofits work. Hence, to smooth the ruffle feathers, Fatou Bensouda and other State Parties called for dialogue with the AU to allay those concerns. Though she restated that, she cannot take political considerations into account when considering investigations of cases due before the Court. This beleaguered relationship between Africa, and the ICC continues to be an existential one both for the ICC and the African continent, if not for anything, but because the allegation seems to question the effectiveness and legitimacy of the Court.
Considering the reason Burundi gave for leaving the Court, would the country's decision be justified? The aim of this article is to address that question.
This paper would be discussed in four parts. In the first part, it would follow the travaux preparatoire of the ICC. It would chart the ICC's course from the earlier ideas of addressing the question of impunity, to codifying international crimes with universal jurisdiction into a permanent international criminal court. It is aimed at capturing Africa's role in establishing the Court. In the second part, it would adumbrate the trigger mechanism of the Court, depicting how cases arrive at the ICC for investigations. The third part will be the discussion. It would express scientifically, both the cases currently being investigated and those under preliminary examination, in percentage terms, with a view to deducing whether it has been selective, by targeting; (a) African leaders, and, (b) focusing mainly on cases from Africa. The fourth part would conclude the paper, which should
determine whether Burundi has made the case for leaving the jurisdiction of the ICC.
2. The Travaux Preparatoire of the International Criminal Court
The formulation of the international criminal court could be traced to one of the founders of the Red Cross Movement, Henri Dunant, in Geneva in the 1860s, when he urged a draft statute for an international court [6, 2]. This initiative continued in 1872 when a permanent international criminal court was proposed to respond to the crimes of the Franco-Prussian War, tasked to prosecute breaches of the Geneva Conventions of 1864 and other humanitarian norms [6]. The Conventions are a series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians [7]. Two additional protocols to the 1949 agreement were approved in 1977 [7].
It was the Hague Conventions of1889 and 1907 which represents the first codification of the laws of war in an international treaty, which included an important series of provisions dealing with the protection of civilian population [7]. Offences against the laws and customs of war, known as "Hague Law" because of their roots in the Conventions, were subsequently codified into the 1993 Statute of the International Criminal Tribunal of Yugoslavia [8], (ICTY) which would also be reflected in Article 8(2)(b),(e) and (f) of the Statute of the ICC [9].
Prior to that, the discussion to host a permanent International court after the proposal in Geneva, in the 1860s had to wait until after the First World War between 1914-1918. It only took off at the 1919 Treaty of Versailles, which was a peace treaty aimed at prosecuting German war criminals of World War I [4, 85]. At the conclusion of that war, the Allied and Associated powers, (Great Britain, France, Russia, and the United States), convened a Responsibility of the Authors of the War and on the Enforcement of Penalties, to inquire into culpable conduct by the Central Powers (Germany, Austria, Hungary, Bulgaria, and the Ottoman Empire) [4].
This peace treaty with the Germans provided for the prosecution of war crimes committed during the war and went so far as to lay down in Article 227, the responsibility of the German Emperor (Wilhelm II), for, "the supreme offence against international morality and the sanctities of treaties"[10, 317]. The same provision envisaged the establishment of a "special tribunal" composed of five judges (to be appointed by the USA, Great Britain, France, Italy and Japan, charged with prosecuting the Emperor [10, 318]. Emperor Wilhelm fled Germany and took refuge in The Netherlands, which refused to extradite him, chiefly because, the crimes he was accused of were not contemplated in the Dutch constitution [10].
As for the trials of other German military personnel alleged to have committed war crimes during World War I, no international court was set up, nor were they tried by the Allies, as had been envisaged in Articles 228-30 of the Versailles Treaty. However, some prosecutions did take place before a German court, the "Imperial Court ofJustice", (Reichsgericht sitting in Leipzig)[10] in 1920. Thus, the attempt to establish some form of an international criminal justice, ended in failure.
Though draft statutes of an international criminal court were adopted by non- governmental organisations such as the Inter-Parliamentary Union, in 1925 and by scholarly bodies such as the International Law Association, in 1926 [10, 319]. But none of these, aimed at forming an international criminal court, led to anything concrete.
Despite these false starts, efforts in this direction continued by expert bodies such as the International Law Association of Penal Law, culminating in 1937, to the adoption of a treaty by the League of Nations [11], which contemplated the establishment of an international criminal court [12]. But this attempt again failed as there were not sufficient number of ratifying States, to enable the treaty to come into force [10, 318].
This was set to change immediately before the end of World War II in 1945, when in the Moscow
Declaration, of 1 November 1943, the Allies affirmed their determination to prosecute the Nazis for war crimes [7, 5]. But it was only in the summer of 1945, after the defeat of Nazi Germany, that the "Big Four" (The United Kingdom, France, the United States and Russia), convened the London Conference to decide by what means the world was to punish high ranking Nazi war criminals [10, 321]. The resulting Nuremberg Charter, on 12 July established the International Military Tribunal (IMT) to prosecute individuals for "crimes against peace", "war crimes", and "crimes against humanity". Two weeks before the conclusion of the London Conference on 26 July 1945, the "Big Four" issued the Potsdam Declaration announcing, their intention to prosecute leading Japanese officials for these same crimes [13, 107]. These efforts eventually culminated to establishing the International Military Tribunal for the Far East, (IMTFE).
The "Road to Rome" as described within the field of international criminal justice, leading to the Rome Treaty, gathered speed immediately after these two international tribunals (IMT and IMTFE), at the same time when the United Nations, (UN) was emerging from its predecessor, the League of Nations.
It should be mentioned that the end of World War II and the 1950 s, were characterised by much work done by a variety of international bodies in furtherance of this goal of creating a permanent international criminal court with universal jurisdiction ofthe core crimes. For example, the codification of International Criminal Law continued with the development of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the four Geneva Conventions of 1949 [14]. Pursuant to a request by the General Assembly on 21 November 1945 under Resolution 177/11, the International Law Commission (ILC) commenced the formulation of the principles recognised in the Charter of the Nuremberg Tribunal, to prepare a draft code of offences against peace and security of mankind [10, 323].
Meanwhile, the General Assembly ofthe UN also established a parallel committee charged with drafting
the statute of an international criminal court, composing of Seventeen States [10, 9]. This body submitted its draft to the General Assembly in 1952 [15]. At the same time, the ILC made considerable progress on its draft code and actually submitted a proposal in 1954
[16]. But the General Assembly suspended its work on the draft, pending the sensitive task of defining the crime of aggression [10, 9]. By then, the political tensions associated with the cold war made progress on the international criminal court agenda virtually im possible [10, 9]. This was in part due to ideological differences and political disagreement of the type of crimes that would be under the subject matter jurisdiction of such an institution [6, 88]. Specifically, the definition of the crime of aggression.
During this period when there was a lull in activities towards establishing the permanent court, the ILC reminded the General Assembly that there was limited interest in an international code if there was not to be an international court charged with enforcing it [7, 11]. However, the UN general Assembly did not react until late in 1989, a few weeks after the fall of the Berlin wall [10]. During the intervening period, establishing the permanent court had always been on the UN's agenda, though little progress was being made in that direction.
During that year, negotiations to establish the ICC were triggered, by a proposal from sixteen Caribbean and Latin American states led by Trinidad and Tobago, supported by NGOs and some prominent academics, requesting the UN General Assembly to ask the ILC to resume work on the international criminal court in the context of attempting to provide jurisdiction of dealing with drug trafficking
[17]. The matter was referred to the ILC, which prepared a Draft statute to the effect. This was discussed first by an Ad Hoc Committee, and then by a Preparatory Committee [7, 10]. These preparatory negotiations revealed profound divides within the international community on the subject of international criminal justice [18, XXIII]. Primarily, the creation of the permanent court would not only be
technically complex, but also politically sensitive as many States regarded the permanent court as a potential threat to sovereignty. Moreover, majority of states took the view that an international criminal court was not the best method of dealing with the problems of drug trafficking as this was difficult to investigate and prosecute [19, 41].
Whilst the draft statute of an international criminal court was being considered, conflicts were ranging on in the former Yugoslavia, and in Rwanda, Liberia, and Sierra Leone within the African continent. As the situation deteriorated in the former Yugoslavia, the UN Security Council on 22 February 1993, passed Security Council UNSC Resolution 872/1993, which effectively established the International Criminal Tribunal for Yugoslavia (ICTY) [20]. This was closely followed by the International Criminal Tribunal for Rwanda (ICTR) in 1994, under UN Security Council Resolution 955/1994 of 8 November 1994 [21], with primary jurisdiction. Subsequently, additional ad hoc tribunals were later established through various UN Security Council resolutions to respond to crimes committed in Sierra Leone, East Timor, Lebanon and Cambodia, to name but a few.
Just prior to establishing these two international tribunals, (ICTY and ICTR) the ILC in 1990 had already completed a report which was submitted to the 45th session of the UN General Assembly [10, 328]. Though the report was not limited to the drug trafficking question, it was nonetheless, favourably received by the General Assembly, which encouraged the ILC to continue its work. The ILC produced a comprehensive text in 1993, which was modified in 1994 [22].
The General Assembly in 1996, established a Preparatory Committee on the Establishment of an international Criminal Court, (PrepCom) [23]. After two years of discussion, in 1998, in its Sixth Committee, the General Assembly of the UN decided to convene an international diplomatic conference on the idea of creating a permanent international court
[24]. This would later take place in Rome, between 15 June-17 July 1998.
During the deliberations, the PrepCom submitted to the Diplomatic Conference at Rome, a Draft Statute and a Draft Final Act consisting of116 Articles containing in 173 pages of text with some 13000 words in square brackets, representing multiple options either to entire provisions or to some words contained in certain provisions [10, 329]. While no group of States acted as a monolithic bloc, there were several groupings of varying degrees of formality and organisation in the negotiations. One was the "Like Minded Group", (LMG), a group of 60 States with a shared commitment to an independent and effective court [10, 329]. Fourteen African countries were amongst these groups, and when the Rome Statute was finalized, forty one African states at the conference voted for it, Libya being the only country that voted against it [25, 65].
The African contribution and expectations of the Rome statute need not be over emphasised. Africa shared the profound hope, as expressed by South Africa's minister of justice at the Rome Conference that, 'the establishment of the ICC "would ultimately contribute to the attainment of international peace [25, 65]. Prior to the diplomatic conference, African countries made efforts to adopt a common position on the establishment of the International Criminal Court [26]. Those efforts led to different parts of the continent hosting several conferences and workshops. For instance, the Southern African Development Community (SADC) held a Regional Conference on the International Criminal Court in Pretoria in September 1997 and then again in June 1999 [26]. Senegal, in West Africa, also hosted an African Conference on the establishment of the International Criminal Court in February 1998 in Dakar. Where the participants adopted a declaration in which they affirmed their commitment to the establishment of the International Criminal Court and underlined the importance which the accomplishment of the Court would imply for Africa and the world community [27].
And on 17 July 1998, at the Headquarters of the Food and Agriculture Organisation of the United Nations in Rome, 120 States from around the world, including 32 from the African continent voted to adopt the Rome Statute effectively creating the International Criminal Court [7, VIII].
The relevance ofAfrica to the ICC, and vice versa has now been overshadowed by this fractious relationship, which lately bears upon Burundi's decision. It is against this back drop that it is relevant to understand, how the Court gets involved with cases it investigates and prosecutes.
3. Trigger Mechanism at the ICC
The cases which are within the primary jurisdiction of the Court have already been outline at the introduction of this article. The 'situations' at the Court are identified through one of the three modes or 'trigger mechanisms' set out in the ICC Statute:(a)Securi-ty Council referral (Article 13), (b) State Party referral (Article 14) and, (c) prosecutorial initiative or propio motu power ofthe Prosecutor,(Article 15) [28]. Security Council referrals is simply straight forward, in that under UN Security Council Resolutions, the Court is mandated to investigate and if possible prosecute such matters that are brought to the attention ofthe Court, through such UN resolutions.
In self- referral, cases are brought to the attention of the Court by the State Parties themselves, requesting for the Court's intervention. It is the prosecutorial initiative that needs some elaborating on, as it is the route through which the Prosecutor would directly initiate the investigation of alleged crimes. By this means, the case selection which has been mainly in Africa seems to somewhat supports the assertion that African states are being targeted.
First, (Reasonable Standard basis)- he/she must determine whether the available information provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed, under Article 15(4). This is a relatively low evidentiary standard, in the sense that the information presented to the Chamber need not be
conclusive and need not eliminate all other possible interpretations of the information. Instead, the Pre-Trial Chamber must be satisfied that a reasonable or sensible justification exists for the belief that a crime(s) within the ICC's jurisdiction is being or has been committed [29].
Secondly, (Complementarity Requirement) he/ she must assess whether the case would be admissible in terms ofArticle 17 [29]. This involves examining whether the national courts are unwilling or unable genuinely to proceed with investigating the alleged cases.
Third (Gravity Requirement) - During this process, the Prosecutor conducts investigations regarding the seriousness ofthe alleged cases, to include how widespread the abuses were, and the number ofvictims involved. It is carried out by gathering and examining evidence, questioning persons under investigation and questioning victims and witnesses, for the purpose of finding evidence of a suspect's innocence or guilt. The Prosecutor must investigate incriminating and exonerating circumstances equally, requesting cooperation and assistance from States and international organisations, and sends investigators to areas where the alleged crimes occurred to gather evidence [29].
Fourth, (Interest ofJustice requirement) When all of these are done, the prosecutor must then consider the 'interests of justice' [29].
The Pre-Trial Chamber would then hold confirmation hearing, at the end of which it may decide to confirm the charges, having determined that there are substantial grounds to believe that the person committed the alleged crimes, or, if not, to adjourn the hearing and request the Prosecutor to provide more evidence, to conduct further investigation or to amend a charge [30].
Finally, arrest warrants or summons to appear are prepared only when a case is nearly trial-ready in order to facilitate the expeditiousness of the judicial proceedings [30].
Non-parties to the ICC Statute ordinarily have no obligation to cooperate with the Court. The
ICC Statute is a treaty and treaties may not impose obligations (or rights) for non-parties (third states) without the consent of that state [31].
Suffice it to say, the Court is bound by rules and procedures rooted in the Statute which must be followed before any prosecution can be initiated for alleged crimes committed.
4. Discussion
As discussed earlier in the article, Burundi's decision may have been taken against the backdrop of an already strained relationship between the ICC, the AU and some African states. Primarily, the Court stands accused of focusing on cases mainly from African continent and African leaders. This could be traced back to 2004, just two years after the Court commenced its work, after it began prosecuting leaders from Africa. This is consequent upon the action of ICC's first Prosecutor, Louis Moreno Campo. Whilst acting upon the first self-referral case from the Central African Republic, (CAR), initiated prosecutions against Vice President Jean-Pierre Bemba Gombo in December 2004. The Court focussed on alleged war crimes and crimes against humanity committed in the context of the conflict in CAR since 1July 2002 [1]. It opened its investigation 3 years later, in May 2007. He was later found guilty and sentenced on 21June 2016 to 18 years imprisonment.
His case was accompanied by the announcement on 4 March 2009, that he (Prosecutor Ocampo) had issued an arrest warrant for the Sudanese President, Omar al-Bashir for war crimes committed in the Dar-fur region of Sudan. This matter was based upon a referral from the UN via UN Security Council Resolution 1593(2005) on 31 March 2005 [1].
Only a year later after the Ocampo announcement involving Al Bashir, on 31 March 2010, Pre-Trial Chamber II granted the Prosecutor's request to open an investigation proprio motu in the postelection violence in Kenya (2007-2008), in relation to crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 and 26 November 2009 [1].
This was again followed two years later, by another referral from the UN Security Council, through Resolution 1970 (2011) of Libyan President Muammar Ghadaffi on 26 February 2011 [1]. The focus was on alleged crimes against humanity committed in the context of the situation in Libya since 15 February 2011.
Nine months later, the Prosecutor was granted
a propio motu request by the Pre-Trial Chamber III, on 3 October 2011, to commence investigations on Ivorian President Laurent Gbagbo, for the post elections violence in Cote d'Ivoire, between 2010-2011 [1]. From the above, one cannot help but notice that, these were all leaders from the African continent.
As already highlighted above, the prosecution of African leaders may have played a part in Burundi's decision. Ifthat is correct, then there would have been no doubt in President Pierre Nkurunziza's mind, that he may be the next leader from the continent that could face prosecution at the Court. Would that then be the actual reason for withdrawing from the Court, believing that such a decision would stave off his and other officials from a possible future prosecution?
The allegations that the Court was targeting cases from Africa and African leaders, could be expressed scientifically. Accordingly, regarding the investigations the ICC had undertaken, the following deductions could be made, bearing in mind that at the time Burundi took its decision, 33 countries from Africa were State Parties to the Rome Treaty [1]:
a) 2 countries are by UN Security Council referrals; Sudan and Libya;
b) 5 countries are self- referrals; DRC (Congo) Mali, CAR, Uganda, and CAR II;
c) 4 cases are by the propio motu initiative of the Prosecutor; Cote d'Ivoire, Kenya, Burundi and Georgia (a non -African state);
d) 10 out of the 11 cases are from Africa: Uganda, Democratic Republic of Congo, Sudan, Central African Republic, Republic of Kenya, Libya, Cote d'Ivoire, Mali, Central African Republic II, Georgia, and Burundi;
e) African leaders investigated are 7 out of 26 cases.
(i) Presidents Omar Al Bashir (Sudan), Muam-mar Ghaddafi, (Libya) and Saif, Al- Islam Ghaddafi (de facto prime minister of Libya) -UN Security Council referral;
(ii) President Uhuru Kenyatta (Kenya) and Vice President William Ruto, (Kenya) and President Laurent Gbagbo, (Cote d'Ivoire)- Propio motu initiative of the Prosecutor;
(iii) Vice President Jean Pierre Bemba Gombo, (CAR) -self- referral;
The data in percentage terms, is presented as follows; (y/11 x 100); where y represents any of the 3 kinds of trigger mechanism, 11 is the sum total of cases before the court, and figure 100 is used to calculate the percentage.
Hence, the following would be arrived at:
(i) UNSC Resolutions referrals of African states (2 countries):
2/11 x 100 = 18.18%
(ii) Self- referrals (5 countries)
5/11 x 100=45.45%
(iii) Propio motu initiative of the Prosecutor (4 cases)
4/11 x 100= 36.36%
(iv) Leaders from the African continent
7/26 x 100=26.92%
(v) Cases from the African continent
10/11 x 100=90.91% With regards to the 10 cases under preliminary investigations, (Afghanistan, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, The Philippines, Ukraine, and Venezuela), only 3 are from Africa. Percentage wise, it could be represented as follows:
3/10 x 100= 30% From the foregoing, situations before the Court is presented as; 90.91 percent of the cases were from the African continent, 36.36 percent were by the Propio motu initiative of the Prosecutor, and 26.92 percent were cases involving leaders from the Afri-
can continent. When one considers the cases under preliminary investigations, it translates to 30 percent from Africa.
It is here appropriate to highlight the role and response of some African leaders and States to the cases involving other African leaders which are being prosecuted at the Court.
Regarding the Sudan (Darfur) situation, at the time the arrest warrant was issued for President Al Bashir, some African States openly supported the ICC's decision, and some went to the extent of threatening to arrest him, should he travel to their countries. Though the mood has now somewhat softened, the initial support should not go un-noticed. As an example; The Sudan Tribune newspaper reported that, "The government of Botswana announced today that it will arrest Sudanese President Omer Hassan Al-Bashir if he visits its territory [32]. "On the contrary, South Africa defied the ICC when it allowed Al Bashir to quietly slip away from the country when he should have been arrested in July 2016. The inconsistent approach on the Al Bashir arrest warrant does not provide any clear indication as to unified position adopted by Africa on the issue of prosecuting head of states. To say the least, Al Bashir has travelled abroad on many occasions both within and outside Africa and has not been arrested even though his arrest warrant remains extant [33].
With the Libyan situation, during the deliberations at the UN Security Council, before Resolution 1970 (2011) was passed, it was unanimously adopted by the Council with African states voting in favour of the resolution; South Africa, Nigeria and Gabon sitting as Security Council members [34].
The Kenyan situation became a focus of the ICC because of post elections violence in Kenya. The country's leaders had agreed pursuant to a peace accord brokered by the former UN Sectary General Kofi Anan (an African) to end the 2007-2008 violence and that Kofi Annan should hand over an envelope containing the names of suspects from a government commission of inquiry for the atten-
tion of the Prosecutor at the ICC, for investigation and prosecution, if Kenya failed or was unwilling to prosecute those suspects whose names were on the list [4, 53]. Kenya refused to establish a local tribunal, thereby triggering the ICC's investigations [4, 53]. So in essence Kenya's case could be viewed as a quasi- referral [4, 53]. It became the first country in which the Prosecutor'spropio motu power was exercised involving leaders from the African continent. However, during the trial, the ICC Prosecutor, on 5 December 2014, withdrew the charges against President Kenyatta, citing lack of evidence, because of the failure of the Kenyan state to cooperate with the Court by providing it with information required by the prosecution [35]. The case of his Vice President William Ruto was also terminated [36].
The situation of Cote d'Ivoire involving President Laurent Gbagbo, became the second country where the Prosecutor exercised his propio motu power involving a leader. She was urged on by the African Union itself to act on the situation [36]. Though it was alleged that because President Gbagbo was arrested by French troops, his arrest may have been orchestrated by the west. However, for the fact that the AU had urged his arrest, should be little grounds for African states to decry for being prosecuted.
Hence, it would be correct to arrive at the conclusion that African leaders themselves were com-plicit in the cases regarding other African leaders before the Court. They initially showed unflinching and unwavering support for their counterparts to be brought before the Court, and some still do. Having stated that, they should not escape responsibility for being hypocritical in their dealings not only with the Court but with other regional court as well, and when it comes to prosecuting their colleagues. For example, President Yoweri Museveni of Uganda, was amongst the first leaders to refer cases to the Court in the fight against the Lord's resistance army, which saw the ICC opening investigations in July 2004. During the announcement of the prosecutions both himself and the ICC Prosecutor shared
the same stage at that point in time. However, he has now became a loud voice in criticising the ICC. During President Kenyatta's inauguration, in support of him, he has stated that, "I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution" [37].
Also, when the ICC finally brought a member of the LRA., Ongwen, to trial, Museveni had turned on the "useless" court, criticising it of "western arrogance". He told Der Spiegel: "This is our continent, not yours" [38]. Controversially, earlier in 2011, Malawi had refused to arrest Al Bashir when he visited the Country. It was reported that Mr Bashir was welcomed by a military guard of honour when he arrived in the capital, Lilongwe, for a trade summit [39]. Malawi 's Information Minister Patricia Kaliati told the BBC it was not her government's "business" to arrest him [39].
Only a year later for it to reverse its earlier position by refusing to host Al-Bashir for the AU summit in 2012, and threatened to arrest him if he attended over crimes Al Bashir committed against humanity in Darfur, as he is on the wanted list of the International Criminal Court [40]. Consequently, the AU meeting which was to be held in Malawi, was re-located to Addis Ababa.
One must also consider the case of former President Yahya Jammeh, of the Gambia who decided that his country would leave the jurisdiction of the Court effective on 10 November 2017 [41]. Sheriff Bojang, the information minister, had said in an announcement on state television that the court had been used "for the persecution of Africans and especially their leaders" while ignoring crimes committed by the west. This decision has now been reversed under the current President Adama Barrow when he took over from Jammeh in January 2017 [42].
In separate matters, Burundi in October 2017, has decided to leave the jurisdiction of the African Court on Human and People's Right. According to
the country's Justice Minister, Johnston Busingye, who told legal experts and human rights activists at the meeting that Rwanda withdrew from the declaration because it couldn't afford to let the court be a platform for Genocide convicts to launder themselves [43].
It seems an all too familiar story of African leaders not wanting to be held accountable. It has to be recalled that ending impunity and holding perpetrators accountable for their crimes is the central focus of establishing the ICC. This is abundantly clear when tracing its travaux preparatoire, since Henri Dunant in Geneva in the 1860 s, to when the ICTY in 1993 and the ICTR in 1994 were established.
Whilst accusations of the Court as targeting mainly Africans is being echoed by many from the African continent, one should not overlook the role of the UN Security Council itself in handling cases from Africa. It has been argued that the UN Security Council is not taking African leaders concern into consideration when it comes to referring cases. As Kamari et al writes, For its part, the UN Security Council also proved unwilling to address the concerns ofAfrican states. Despite numerous requests from the African Union, the Security Council refused to defer the prosecution ofAl-Bashir and later to suspend the prosecution of the Libyan leader, Muammar Gaddafi [44]. This position again finds strength in the deferral request to the UN Security Council when the ICC decided to indict Uhuru Kenyatta and William Ruto, the President and Vice President of Kenya in March 2003. In the ensuing votes, seven voted in- favour of the deferral, whilst eight abstained [44]. Which failed in the referral request.
In 1998, during the campaign that brought Laurent Kabila to power in the Democratic Republic of Congo, it was alleged that several atrocities including crimes against humanity and systematic murder of Hutu refugees were committed by troops which were under the command of the Rwandan government [45].A UN team mandated to investigate the allegations found that those crimes were in fact com-
mitted and recommended to the Security Council to refer the crimes to an international criminal tribunal. Nonetheless, the Security Council refused to take any steps on the matter [46].
As Stephen Lamony writes, "In many ways, the animosity of the AU to the ICC is more about problems with the UN Security Council than with the ICC itself" [47].
To be clear, Burundi's case before the ICC, stems from alleged international crimes allegedly committed during violence leading up to the country's elections in 2015, after President Pierre Nkurunziza announced he would seek a controversial third term mandate. This embroiled the country into conflict throughout 2016, with numerous cases of extraju-dicial killings, enforced disappearances, and torture committed by security forces [48], which saw 500 people killed and at least 40,000 fleeing to neighbouring countries as refugees [49].
It is appropriate to hereby mention the principle of complementarity in the context of the Burundi situation, insofar as, when the propio motu initiative powers of the Prosecutor is exercised to initiate investigations. The principle is laid down in paragraph 10 of the Preamble as well as in Article 1 of the Statute (whereby the ICC "shall be complementary to national criminal jurisdictions"). The Court is authorised to exercise its jurisdiction over a crime, even a case concerning the crime is pending before national authorities, and thus to override national criminal jurisdiction, whenever: (i) the state is unable or unwilling genuinely to carry out the investigation or prosecution, or its decision not to prosecute the person concerned has resulted from its unwillingness or inability genuinely to prosecute that person [50].
There has so far been no report of any judicial undertakings by the Burundi authorities to investigate or prosecute those responsible for the alleged crimes., which are being investigated by the Court. Instead, the country has instituted a Truth and Reconciliation Commission, which as reported by Patrick Nduwimana, falls short of punishing the per-
petrators. He writes, "Burundi, locked in its worst political crisis since its civil war ended in 2005, has created a reconciliation commission that opposition parties say will shield the ruling party from accountability for past crimes" [51]. The report continues, "It is clear that current leaders want to promote impunity" [51].
In the absence of a judicial mechanism in which the alleged perpetrators are to be prosecuted by the Burundi authorities, and bearing in mind the alleged crimes are still being perpetuated, how can the country make the case for leaving the jurisdiction of the Court; as the Court is targeting cases from Africa? It is correct that the complementarity provision in the ICC statute's makes it necessary that the Court investigates the Burundi situation, if not, the victims would have no recourse to justice.
The lack of credible judicial institutions in Some African states may be responsible for some countries not being in the position to conduct such investigations and prosecutions. As Charles Charles Jalloh writes, "African states are likely to be the frequent users, or "repeat customers", for the Court because of a restively higher prevalence of conflicts and serious human rights violations and a general lack of credible legal systems to address them" [52]. Abdul Tejan Cole has expressed similar views. He says, "There are many reasons in favour of ICC's involvement in African situations; from the nature of the crimes and widespread systematic conflicts on the continent to a lack of capacity or willingness to hold perpetrators accountable, thereby providing redress to victims" [53]. Margaret M. de Guzman also contributed, "critics accuse the ICC of acting immorally by discriminating against Africa and Africans in deciding which situations to investigate and prosecute. The evidentiary basis for such claims is weak" [54]. Elise Keppler also ventures, "the characterization of the ICC as unfairly targeting Africans is not supported by the facts" [55].
This article argues that there are cases which have been dismissed by the Court due to lack of evidence
or have deemed inadmissible. For example, in the Libyan situation referred to the Court by way of UN Security Council, involving Abdullah Al-Senussi, the Court deemed his case to be inadmissible. Another is that of Callixte Mbarushimana (DRC situation), where Pre-Trial I, declined to confirm the charges, he was released from custody and the case is now closed unless and until the Prosecutor submits new evidence. Additionally, the case of Abu Garda (Sudan), whose case was also not confirmed by the Pre-Trial Chamber, is now also considered closed. Another case in point involves Henry Kiprono Kosgey from Kenya. Judges declined to confirm the charges against Mr Kosgey on 23 January 2012. The above cited examples weaken the argument that the Court is targeting cases from Africa.
For the ordinary Africans, the ICC can be said to have strong support. Survivors and activists continue to exhort the Court to do more for the victims of mass crimes on the continent. As Shamiso Mbizvo writes, "from the DRC, to Sudan to the Central African Republic, to Nigeria, African citizens continue to demand more engagement by the ICC" He continues that ". For example, when the Prosecutor visited Kinshasa in March 2014, survivors of unspeakable sexual violence in the Eastern Congo appealed to her for more rather than less justice; they demanded more ICC intervention in the DRC" [6, 41]. Several African ICC members, Cote d'Ivoire, Nigeria, Senegal, and Tunisia - initiated a significant step in joining Botswana to expressly oppose the AU call for withdrawal from the Rome Statute, as Reported by Human Rights Watch in November 2016 [56]. Surprisingly, According to this Human Right Watch report, Cote d'Ivoire still supports the ICC even though their former President Laurent Gbagbo was prosecuted by the Court.
At the same time, African civil society has firmly and consistently raised its voice in response to attacks on the Court. More than 160 organizations based in more than 30 African countries have spoken out about the ICC's importance for Africa, and
the need for the court to receive adequate cooperation from states in response to the AU call for non-cooperation.
After Burundi's announced its withdrawal from the Court, in October 2016, the Minister of State, Minister ofJustice and Human Rights of the Gabo-nese Republic, voluntarily referred a situation to the prosecutor of the ICC [57]. Earlier to that, the Central African Republic has for the second time referred itself to the ICC in May 2014 in the context of the on-going conflict in the country. And only recently on the 9 April 2018, Nigeria has once again reiterated its support for the ICC. These supports should be read in the context of the talked about mass withdrawal of African states from the ICC because the Court has lost credibility in Africa, -such mass withdrawal has not yet happened.
The Burundi authorities may have thought that leaving the Court means it would drop the investigations which it intends to undertake in the country's situation. It should be noted that two days prior to Burundi's withdrawal from the ICC's jurisdiction, Judges at the ICC's Pre-Trial Chamber III, noted that Burundi's obligation to cooperate with the investigation stands and covers any resulting proceedings, which could also consider alleged crimes from before 26 April 2015 or after the withdrawal if related to crimes allegedly committed while Burundi was an ICC member state [1]. It is envisaged that the ruling could deter other African countries that have threatened withdrawal, as it sends the strongest signal yet that any such move is unlikely to stop proceedings already undertaken by the court [58]. So far, this decision seem to worked, as no other country in the remaining 32 African State Party to the Rome Statute have followed the decision of Burundi, three years after announcing its decision in 2016.
5. Conclusion
Burundi's decision to withdraw from the jurisdiction of the ICC is based on the accusation that the Court is targeting mainly cases from Africa. This may well be correct on the superficial level as the data
analysed from the Court records shows that indeed 10 out of 11 situations are from Africa, equating to 90.91 percentage. However, that alone is not incontrovertible evidence that Court is targeting Africans for prosecution.
In considering both the situations and cases before the Court, the following has been deduced; the propio motu initiative of the Prosecutor accounts for 36.36 percentage, from four countries, (Cote d'Ivoire, Kenya, Burundi, and Georgia), UN Security Council resolutions account for 18.18 percent from two countries(Libya and Sudan), whilst self- referral was from 5 countries (DRC (Congo), Mali, CAR, Uganda and CAR II) accounting for 45.45 percent. The data shows that the highest percentage of trigger mechanism is by self- referral and not from the direct propio motu exercise of prosecutorial power. Would that mean states which self -refer are targeting themselves? That is obviously is not the case. Rather, one should infer that those countries are seeking the Court's power to hold accountable those persons who have been alleged to have committed crimes which fall within the jurisdiction of the Court, with a view to addressing the issue of impunity. It is for the same reason that the propio motu power exercised by the Prosecutor must not be seen as it is targeting cases from Africa. With regards to the preliminary investigation, it must also be borne in mind that the propio motu power of the exercise of the preliminary investigation cases from the African states accounts for 30 percentage of the total, meaning the 70 percentage of the cases are outside Africa. By considering that account alone, it would not support the accusation that the Court targets Africans for prosecution.
The exercise of the propio motu powers of the Prosecutor must be seen in the context of the complementarity principle of the ICC statute. This power could only be exercised if the State Party is unable or unwilling to investigate and prosecute those persons alleged to have committed those crimes. Burundi has not demonstrated that it was willing to investigate
those crimes, hence, the Court would be abdicating its responsibility, if it had not carried out its obligations to investigate with a view to prosecuting the perpetrators of the alleged crimes.
Since Burundi declared its intention to withdraw from the Jurisdiction of the Court, other African states have come out in support of the ICC. No mass withdrawal has taken place and Gambia and South Africa, which had previously expressed such an ambition are now solidly in support of the Court. Other States such as Gabon and CAR (for the second time) have referred themselves to the Court
As there have been cases before the Court which have been rendered inadmissible or have been withdrawn due to lack of evidence, if the Court was targeting cases from Africa, it would have been highly unlikely that such situations would have occurred. This should cast doubt on Burundi's accusation of the Court targeting cases from Africa. Considering all of these facts in their entirety, they do not support that Burundi has made the case that the Court is targeting cases from Africa for prosecution. In other words, Burundi's decision for leaving the Court cannot be justified.
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