10 novembre 2017

ACTU : ICC authorises opening of an investigation regarding Burundi situation

Catherine MAIA

On 9 November 2017, the International Criminal Court (ICC) gave Prosecutor the go ahead to investigate alleged war crimes committed by the Government of Burundi - the first country to leave the Court - against its political opposition between April 2015 and October 2017. 

In a statement, judges said there is "a reasonable basis to proceed with an investigation in relation to crimes against humanity." The war crimes, judges said, include murder, rape and torture that led to the deaths of more than 1,000 people and prompted 400,000 to flee the country.

The decision was handed down on October 25, just two days before Burundi’s withdrawal from the ICC, but was kept under seal until 9 November 2017. It means that the ICC will still have jurisdiction over crimes committed while Burundi was a member.

Burundi erupted into protests and violence in 2015 after President Pierre Nkurunziza announced he would seek a third term. The opposition boycotted the poll.

United Nations investigators reported in last September there was strong evidence of killings, torture and rape by mainly Government forces but also by opposition groups in the land-locked, central African state.

In this sense, the ICC judges noted that "at least 1,200 persons were allegedly killed, thousands illegally detained, thousands reportedly tortured, and hundreds disappeared. The alleged acts of violence have reportedly resulted in the displacement of 413,490 persons between April 2015 and May 2017."

The judges ruled that although Burundi had become the first country to leave the ICC, the Court still had "jurisdiction over crimes allegedly committed while Burundi was a State party to the ICC Rome Statute. Burundi was a State Party from the moment the Rome Statute entered into effect for Burundi (1 December 2004) until the end of the one-year interval since the notification of Burundi's withdrawal (26 October 2017)."

ICC, 9 November 2017

As announced earlier today, on 25 October 2017, my Office was granted authorisation by the Judges in the Pre-Trial Chamber III of the International Criminal Court ("ICC" or the "Court") to commence an investigation into the Situation of the Republic of Burundi.  On the same day as the Pre-Trial Chamber's decision in October, I notified the Registry that I have formally opened an investigation into the Situation effective as of 25 October 2017; a step I undertook in line with the Chamber's Decision for the purpose of preparing and implementing protective measures.

In accordance with the Chamber's decision, I may investigate alleged crimes committed on either the territory of the Republic of Burundi or crimes allegedly committed outside of Burundi by Burundian nationals.  The time period of my investigations will focus on crimes allegedly committed from 26 April 2015 to 26 October 2017, but may also extend to related or continuous crimes that occur outside of those parameters.

The Chamber has further confirmed that Burundi's withdrawal from the Rome Statute has no effect on the jurisdiction of the Court over crimes allegedly committed during the time period it was a State Party. Nor does it affect the continuing obligation of Burundi to cooperate with the Court in relation to the investigation, given that it was authorised and initiated before the withdrawal of Burundi from the Statute came into effect.

My request to the Pre-Trial Chamber seeking authorisation to open an investigation was made under seal on 5 September 2017 to protect the integrity of the investigation and the life or well-being of victims and potential witnesses in the Situation.  The Chamber agreed with my assessment that this exceptional measure, which was fully consistent with the Court's legal framework, to be necessary given the circumstances of this situation.  

Keeping the request under seal afforded my Office critical time to complete deployment and collection plans, as well as comprehensive operational and protection strategies, in our efforts to reduce and mitigate the identified risks. 

Since violence erupted in Burundi in 2015, hundreds have reportedly been killed, thousands detained, countless others unaccounted for, with over 400,000 Burundians forced to seek refuge in neighbouring countries.

At the end of a thorough factual and legal assessment of the information available, I have determined, and the Chamber concurs, that there is a reasonable basis to believe that members of the Burundian security forces as well as members of the Imbonerakure, the youth wing of the ruling party, acting pursuant to a State policy, carried out a deliberate attack against the civilian population, entailing multiple acts of murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance and persecution, constituting crimes against humanity.

The above crimes formed part of a campaign carried out against civilians who opposed or were perceived to oppose the ruling party: demonstrators against President Nkurunziza's third term in office and suspected demonstrators, members of the opposition political parties, members of the civil society, journalists, members and sympathisers of armed opposition groups or persons suspected of having joined such groups, and members of the former Forces Armées Burundaises.

The large-scale commission of the alleged crimes, the number of victims, and the organised and coordinated nature of the acts of violence establish a reasonable basis to believe that the attack was both widespread and systematic. Although the violence subsided in December 2015, related alleged acts of violence continue to be committed to the present.

Additionally, a number of acts of violence, including acts of murder, have allegedly been committed by armed anti-government entities and other unidentified perpetrators. At this juncture, the Office lacks sufficient information that would qualify such acts as crimes that fall under the Court's jurisdiction. Nonetheless, as part of the investigation, the Office will enquire whether a non-international armed conflict existed in Burundi during the relevant period, whether war crimes were committed and ultimately alleged perpetrators of those crimes should be brought to account.

The Burundian authorities have initiated a limited number of domestic inquiries with respect to violent acts. However, the information available to the Office to date suggests that the Burundian authorities have not, and are not, conducting relevant criminal proceedings with regard to the crimes identified. In view of such inactivity, my Office can exercise its jurisdiction to pursue justice for the victims of atrocity crimes connected with the violence in Burundi.  That is our mandated duty.

This is the start of a process which will take as long as needed to gather the required evidence.  We aim to conduct a rigorous investigation and as expeditiously as possible.  The Office's own investigators will collect the necessary evidence. 

My decision to open an investigation does not make any determinative findings on the guilt or innocence of particular persons. Only if and when, based on the evidence collected, there are reasonable grounds to believe a person is criminally responsible for crimes within the jurisdiction of the Court, will my Office request the judges to issue an arrest warrant or summons to appear.

The Office remains committed to the pursuit of justice in Burundi independently and impartially, led only by the evidence and with strict adherence to the Rome Statute legal framework. 
Notwithstanding its withdrawal from the Rome Statute, in relation to the authorised investigations, Burundi remains under a legal obligation to cooperate with my Office's investigations and the Court.  That cooperation can help facilitate the trier of fact and establish the truth through the Court's judicial proceedings. My Office and I also count on the support of States Parties and the international community as a whole to accomplish our objectives of ensuring accountability for the crimes committed in connection with the Situation in Burundi.

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