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The Danger of Selective Justice – the International Criminal Court and Burundi


Fatim Selina Diaby studies Social and Culture Anthropology and is currently a Volunteer Intern at the Institute for Justice and Reconciliation, based in Cape Town, South Africa.

Investigations led by the International Criminal Court are a serious threat to Burundi’s social cohesion as the country struggles to emerge from years of inter-ethnic conflict. While promoting justice for victims only of human rights abuses and crimes allegedly committed in 2015, the ICC is promoting selective justice, which could prove to be very dangerous. There is a real possibility of awakening the demons of ethnic hatred in case victims of former regimes feel that their pain is simply being ignored.

In 2015, civil protests and outbursts of violence occurred, especially in Burundi’s capital following the announcement of incumbent President Pierre Nkurunziza to run for a third term. Critics say that a third term is prohibited by the Arusha Peace and Reconciliation Accords that were signed in 2000 to end a decade of civil war that brought the country to its knees. Others defend the head of state’s right to run again based on the legal loophole that was evident in Burundi’s 2005 Constitution.

According to a report of the International Federation for Human Rights (FIDH), more than 400,000 Burundians fled their country, 400 to 900 disappeared, 1,200 have been killed and thousands were tortured and detained without trial since 2015.

In September 2017, the United Nations Commission of inquiry urged the International Criminal Court (ICC) to investigate the situation. One month later, on 25 October, the ICC-Judges Chang-ho Chung, Antoine Kesia-Mbe Mindua and Raul C Pangalangan authorised the opening of an investigation regarding crimes against humanity including killing, imprisonment, torture, enforced disappearance and sexual violence.

Two days later, on 27 October 2017, Burundi became the first nation to withdraw its membership from the International Criminal Court. The withdrawal became effective after a notification sent to the United Nation’s Secretary General one year earlier. Nevertheless, the ICC is trying to move forward with its investigation, forcing its way out despite the resistance of Burundi’s government. In Burundi, the ICC is perceived as an instrument that some Western powers are trying to use to impose their will against a poor African country with less power to resist.

Without taking Burundi’s conflicted and traumatic past into account as well as the imposed silence of the 1972 Hutu genocide and other crises that took lives of hundreds of thousands of people and without addressing the problem of impunity of perpetrators, the ICC’s investigation risks perpetuating injustice among former and current victims.

The focus of the ICC on a short period of violence – 2015 to 2017 – and the negligence of the longer period of committed atrocities will have devastating effects on the stability of the country and on its social cohesion. The problem is not the attempt to bring justice to victims but rather its selective character, the period chosen and the context in which the country is evolving.

With probably good intention of the ICC to provide justice for victims, its decision to only investigate crimes committed from 26 April 2015 until 26 October 2017 excludes automatically all other victims of past violence. These include high-scale massacres, genocide and other forms of violations of human rights that many Burundians went through from 1965, 1969, 1971, 1972 1988 until 1993.

Moreover, the ICC’s investigation perpetuates the imposed, international silence of the above-mentioned massive atrocities, while shifting the focus on the violent events occurred only since 2015. Consequently, the form of justice that the ICC is pursuing becomes a perpetuation of past injustices. At this point, it is important to mention that the ICC can for obvious reasons only investigate crimes committed after its establishment in 2002. Nevertheless, its action looks like a continuation of observed ignorance and resistance of implementing justice for past crimes.

Second, ignoring the pain endured in past years is not only felt as humiliation by the too many victims, but also as another form of violence. The ICC’s investigation can unintentionally lead to renewed ethnic cleavages between Hutu and Tutsi which the government is slowly trying to overcome.

The signing of the Arusha Peace and Reconciliation Accords in August 2000 and the ceasefire agreements in 2003 should have marked a new beginning for the country. A foundation for such a beginning has been established: Security forces presently consist of an equal share of Hutus and Tutsis. The same proportional representation is observed in the Senate while in the National Assembly, the groups are represented as follows: 60% Hutus and 40% Tutsis, with 30% of the total being female. The same proportion is implemented in government and other spheres of social and political life.

The ICC’s investigation and the increased media attention on the 2015 political crisis, a low-intensity conflict in comparison to Burundi’s history of bloodshed, could easily be misjudged and placed as equal to the genocidal killings in the past. It seems justice for people suffering from the recent events is taken much more seriously whereas legal investigation of the past crimes is not seen as important.

Finally, the ICC investigations in previous cases against African states had a flawed approach of justice and the same could be for Burundi. For example, a closer look at the investigation against Ivory Coasts’ former President Gbagbo and his imprisonment in The Hague seems to indicate a politically manipulated process. While the previous head of state and his allies were targeted, allegations of crimes committed by forces supporting the incumbent president Alassane Ouattara were neglected.

Similar to the West African nation, opponents and armed groups fighting against the current regime in Burundi are not on the list of those to be investigated. They are simply being ignored. In her statement released on 9 November 2017, the ICC’s Chief Prosecutor Fatou Bensouda, declared that the court will only investigate and prosecute crimes allegedly committed by members of the Burundian security forces as well as the “Imbonerakure”, the Youth League of the ruling party CNDD-FDD.

Promoting justice for victims is an encouraging initiative. However, for a country like Burundi, which has a twisted and traumatising history of violence, crimes, mass killings and a past which is ever present, the work of the ICC is likely to be counterproductive. There is a pressing need to take into account the painful past while working on today’s violations of human rights. With this in mind, an inclusive approach when providing justice will be crucial for the healing process of Burundi as a nation. DM

Fatim Selina Diaby studies Social and Culture Anthropology and is currently a Volunteer Intern at the Institute for Justice and Reconciliation, based in Cape Town, South Africa.


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