Prosecutors have been racing against time to conclude investigations into alleged crimes against humanity in Burundi fearing that authorities could erase evidence of these crimes by eliminating witnesses through kidnapping and extrajudicial executions, after the country's withdrawal from the Rome Statute became effective in late October.
Three judges of the Pre-Trial Chamber III at the International Criminal Court authorised the inquiry on October 25, and gave the Chief Prosecutor a 10-day head-start before their decision could be made public to enable the court to protect victims and likely witnesses.
Burundi's one-year notice to withdraw from the treaty that created the ICC lapsed on October 27, 2017 but it is still obliged to co-operate with the court in resolving past crimes.
Lambert Nigarura, president of the Burundian Coalition for the ICC, this past week told the 16th Assembly of States Parties in New York that the ICC Prosecutor urgently needed money and support to protect victims and witnesses in his country.
Ray of hope
Although Burundi had a month after the announcement of the judges' decision to notify the prosecutor of its own investigations into the alleged crimes, Justice Minister Aimée Laurentine Kanyana has declared that her country will not co-operate with the ICC.
"The facts speak for themselves. The key issue was whether there was a reasonable basis for opening an investigation, and the Pre-Trial Chamber concluded there was," a senior official in the ICC prosecutor's office said.
An estimated 1,200 people have been killed and over 400,000 exiled since a political dispute arose over President Nkurunziza's decision in April 2015 to vie for a controversial third term in office.
"Hundreds of thousands of civilians have lost their lives, thousands have been imprisoned, others are missing," Mr Nigarura said.
Prosecutors are looking into allegations of murder, imprisonment, rape, torture, enforced disappearance and displacement of persons.
Security forces, the national intelligence service and members of the Imbonerakure militia, believed to have committed these crimes, have reportedly been promoted into strategic positions or sent on peacekeeping duty in Somalia and Central Africa Republic instead of being punished, Mr Nigarura told the ASP.
State security officers, and government-allied militia have been accused of attacking and harming protestors opposed to Mr Nkurunziza's third term as president.
Opposition to Mr Nkurunziza's term stems from arguments that it violated the Constitution as well as the Arusha peace and reconciliation accord that ended decades of civil war in Burundi.
Options for justice outside the ICC have closed in Burundi, according to Stella Ndirangu, head of the international justice programme at the Kenya Section of the International Commission of Jurists.
"Those affected by the crisis remain hopeful that the ICC will find a way to investigate the crimes and to bring perpetrators to justice," said Ms Ndirangu.
Although there appear to be parallels with Kenya, whose President Uhuru Kenyatta and Deputy President William Ruto were facing crimes against humanity charges at the ICC, Ms Ndirangu cautions that the situations are different.
"Burundi is not in the same context as Kenya was because it continues to deal with a crisis. Some form of normalcy had returned to Kenya and the people in power were sufficiently well- off to roll out a sophisticated machinery to track down and intimidate witnesses," she said.
Additionally, Kenya wields great influence at the African Union because of its strategic location and economic power in the region. Getting the support Kenya obtained will be impossible, because even Sudan had not been able to mobilise the AU effectively.
"The extent of state reach in interfering with witnesses outside the country is also limited because many have fled, unlike the case in Kenya where most affected communities were still in the country."
Burundi's withdrawal from the Rome Statute occurred within a particular context marked by unprecedented, massive and systematic violations of human rights, says Nigarura.
He urged states parties to the Rome Statute, especially in Africa, to collaborate with the ICC or serious crimes would go unpunished with the risk of recurrence if perpetrators were not punished.
Following the failed coup attempt in May 2015, power has become radicalised with worrying excesses: the institutionalisation of the crisis; the use of propaganda based on an ethnic ideology, which equates opponents such as civil society and independent media professionals with being enemies of the country that must be eliminated. There is also the use of elite units and militia to suppress opponents.
Judges Chang-ho Chung (presiding), Antoine Kesia-Mbe Mindua and Raul C. Pangalangan found that the ICC had jurisdiction over crimes allegedly committed while Burundi was a state party to the Rome Statute.
Burundi was a state party from the moment the Rome Statute entered into effect on December 1, 2004, until the end of the one-year interval since it notified the UN Secretary General of its intention to withdraw on October 26, 2016.
The withdrawal became effective on October 27, just two days before the court authorised the investigation. The court retains power to try any crime occurring within Burundi's jurisdiction up to and including October 26, regardless of its withdrawal.
Subsequently, the court may exercise its jurisdiction even after the withdrawal became effective as long as the investigation or prosecution relate to the crimes occurring when Burundi was a state party.