The recent release of the report of the Commission of Inquiry (CoI) on Burundi included suggestions that the International Criminal Court’s (ICC) Office of the Prosecutor open a formal investigation into the events that took place in Burundi beginning April 2015. Going by the allegations, there seems to have been far too many disappearances, claims of torture and other inhumane and cruel treatment, and even worse, the discovery of so many corpses to not raise serious concerns about the human rights situation in Burundi. More than 400,000 people do not flee their homeland without just reason. To date, the Government of Burundi has not taken credible steps to conduct an independent and competent investigation as it is obliged to do under international human rights law, the Rome Statute and Burundian domestic law. This failure to respect its obligations has only added to tensions and has put Burundians of all affiliations at risk. In the light of all these, we make an emphatic plea that the people of Burundi deserve answers and should get them.
While we appreciate the mandate of the CoI, we must stress the need to give the Prosecutor and her staff the proper space to make the determination as to whether and how to proceed. The CoI recommendations have no binding effect on the Prosecutor however. The decision is clearly within her mandate. Her staff has already began conducting a preliminary examination into the matter and previous statements from the office suggest that they take the matter seriously. We must also stress the need for all parties, including non-state actors, to cooperate fully with the Prosecutor and her office. While we are very concerned about the conduct of organs of the State, we are fairly confident that non-State actors has conducted themselves in a manner that will raise questions for the Prosecutor should she seek to open a formal investigation.
The government of Burundi has, to date, failed to conduct an effective investigation. While the government has submitted a notice of withdrawal from the Rome Statute, in part citing threats to its sovereignty, the government has and will continue to have original jurisdiction over the constituent crimes of the Rome Statute. The Court may only exercise jurisdiction when the State in question is unwilling or unable to. A competent and independent investigation followed by judicial action in response to the evidence obtained during the investigation would likely render the situation outside the scope of the jurisdiction of the Court. Contra Nocendi International, and its affiliates and partners in Cameroon and Burundi remain committed to adding our voices to the call for justice to be served for the people of Burundi. We sincerely hope the Office of the Prosecutor initiates a formal investigation, and provides the findings to the people of Burundi, as they very well deserve answers!