The Burundian withdrawal request : a new challenge for the International Criminal Court

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Universiteit van Amsterdam

The Burundian Withdrawal

Request: A New Challenge for

the International Criminal Court

Master Thesis Political Science

Puck Vredebregt - 10457232 June 2017

Master Political Science - International Relations Civil wars, state-building and displacement Supervisor: mw. dr. A.A. (Abbey) Steele Second reader: mw. dr. J. (Jana) Krause

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Abstract

According to the government of Burundi there has been a disproportionate targeting by the International Criminal Court (“ICC”) of States Parties on the African continent. They accuse the ICC of being a political tool that is disproportionately targeting the African continent. Based on this argument, they have chosen to send an official request to withdraw from the ICC on 12 October 2016, even though the country is currently facing one of its most intense and violent political crises. Although the disproportionate targeting argument seems, at first glance, convincing and acceptable, the question arises why Burundi is the only State Party that has decided to send a withdrawal request to the Secretary-General of the United Nations. Based on the explanation of the government of Burundi, more requests of particularly African States Parties were to be expected, because more countries would suffer from the disproportionate targeting as a result of the suggested one-sided focus of the ICC.

This research paper will study the backgrounds behind the request of Burundi to withdraw from the ICC. It will show why Burundi has chosen to send a withdrawal request to the Secretary-General, why they have made this decision on 12 October 2016 and why they are the only State Party that has decided to send a withdrawal request. Furthermore, the thesis provides sharp insight into the functioning of the ICC and how political developments in a State Party have their effect on the ICC.

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1. Introduction and research question

Reference: C.N.805.2016.TREATIES-XVIII.10 (Depositary Notification)

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ROME, 17 JULY 1998

BURUNDI: WITHDRAWAL 1

The Secretary-General of the United Nations, acting in his capacity as depositary, communicates the following:

The above action was effected on 27 October 2016.

The action shall take effect for Burundi on 27 October 2017 in accordance with article 127 (1) which reads as follows:

“A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date

of receipt of the notification, unless the notification specifies a later date.”

28 October 2016 (United Nations, 2016)

In the African Great Lakes region of East Africa, a relatively small landlocked and quite unknown country is located. Although this country has not receive as much media attention as well known violent countries like Rwanda, Sudan and Congo, this former Belgium colony has a history of civil wars, and nowadays violent conflicts still remain. Burundi, officially the Republic of Burundi, Republika y'Uburundi or République du Burundi has on 12 October 2016, as the first State Party of the International Criminal Court (“ICC” or “the Court”), decided to send an official request to withdraw from this Court. This unique decision of the government of Burundi has resulted in shocked reactions by many politicians and scholars. As a State Party of the Rome Statute of the International Criminal Court (“Rome Statute”), so they argue, the government of Burundi should respect the functioning of the Court and should cooperate with the Court to reach its goal, i.e. the ending of impunity and the facilitation of

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international criminal justice (International Criminal Court, n.d.:a). According to the government of Burundi, however, there has been a disproportionate targeting by the ICC of States Parties on the African continent. They accuse the ICC of being "a political tool, used by external powers to remove whoever they want from power on the African continent” (Blair, 2016). Based on this argument, they have chosen to send an official request to withdraw from the ICC, even though the country is currently facing one of its most intense and violent political crises (United Nations, 2016).

Although the disproportionate targeting argument seems, at first glance, convincing and acceptable, the question arises why Burundi is the only State Party that has decided to send a withdrawal request to the Secretary-General of the United Nations (“Secretary-General”). Based on the explanation of the government of Burundi, more requests of particularly African States Parties were to be expected, because more countries would suffer from the disproportionate targeting as a result of the suggested one-sided focus of the ICC. Especially because the impact of the Court is well known by all members and many African States Parties have indeed complained about the current functioning of the Court. Burundi is, however, currently the only State Party that has decided to send a withdrawal request based on the disproportionate targeting argument.

When focusing on the uniqueness of the decision of the Burundian government, questions arise about their use of the disproportionate targeting of the African continent as their justification for the ICC withdrawal request. If this disproportionality argument is the real and only reason to send a withdrawal request, which official statements of the government of Burundi suggest, it would be logical that more African countries would have sent a request over the last couple of years to withdraw from the ICC.

Article 127 Withdrawal

1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

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According to article 127 of the Rome Statute, all it takes to withdraw from the Court is to send a written notification to the Secretary-General and to wait for one year for the withdrawal to take effect. Although several African countries have spoken openly about their worries about the disproportionate targeting and have threatened with an ICC withdrawal request, no other African country has sent a withdrawal request. The threats of African states to leave the ICC can therefore, according to many observers, be seen as rhetoric (Ba, 2016). Furthermore, in contrast to the African countries who have threatened to leave the ICC, several other African governments have continued to quietly support the Court, cooperating with investigations and referring new situations to the Court (Human Rights Watch, 2016). Their willingness to cooperate with the Court seems to suggest that there are possibly other issues at stake which have made the government of Burundi decide to send a withdrawal request. By finding these issues, an explanation for Burundi’s request to withdraw from the ICC could be given.

The main research question for this paper is: “What explains the request of Burundi to withdraw from the ICC?”. Furthermore, as a result of the uniqueness of the Burundian withdrawal request, two more questions have derived from the main research question that will aid in answering it. First sub-question, “Why has the Burundian government chosen to send its withdrawal request on 12 October 2016?”. The second sub-question is: “Why is Burundi the only state party that has decided to send a withdrawal request to the Secretary-General?”.

This first part of this paper will start with an overview of the goals of the ICC and will explain how it is organized and how the Court functions. Next, relevant literature about possible explanations for an ICC withdrawal request will be discussed. It will start with the assessment of the disproportionate targeting argument as justification for the Burundian withdrawal request and will be followed by three general explanation for an ICC withdrawal request. Eventually, the explanations based on the relevant literature will be tested on the Burundian case to evaluate if these could explain the Burundian request. At the end of that chapter the uniqueness of the Burundian withdrawal request will show the theoretical lack in the available literature, because the relevant literature is not able to explain the timing of the request nor why Burundi is the only State Party that has decided to send a withdraw request. The research that already has been done to explain withdrawals from international human

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rights treaties in general or research that has been done specifically on the Rome Statute has not provided sufficient theories to explain the unique Burundian ICC withdrawal request.

The second part of this paper will develop a theory that can explain the Burundian ICC withdrawal request while taking into consideration the uniqueness of their request. By doing an in-depth case study of Burundi, causal effects can be found that explain the timing of their request. The theory that will be developed will explain not only the timing of the Burundian request, but can also be helpful in order to anticipate other ICC withdrawal requests. Furthermore, a comparative case study of the Burundian case compared with Nigeria and South Africa aims to explain why Burundi has send a withdrawal request while other States Parties who have experienced negative consequences from their ICC membership as well have not chosen to send a withdrawal request.

Finally, the theory that will ensue from the in-depth case study and the comparative study will answer the research question “What explains the request of Burundi to withdraw from the ICC?”. This research paper aims to not only find explanations for the Burundian withdrawal request but it also wants to present recommendations to improve the functioning of the Court. If a theory could explain the decision of Burundi, it could also be used as a tool to know when other States Parties could decide to withdraw from the Rome Statute. Eventually this could help to prevent a mass withdrawal from the ICC and could improve the functioning of the Court as a fighter against impunity and as an upholder of international criminal justice.

2. Background of the ICC

Before we start with the literature review to evaluate the existing explanations by scholars for an ICC withdrawal request, it is important to provide background information about the ICC. Knowing how the institution works, what its goals are and which constrains follow from a membership, will help to understand why a State Party might want to withdraw from the Rome Statute.

The ICC is a relatively new judicial organ that cooperates with the United Nations (“UN”) but is independent from it. The Court was established on July 1, 2002 and was established by the Rome Statute (International Criminal Court, n.d.:a). According to the Rome Statute, the ICC exists to hold people accountable if they commit atrocious crimes and it consequently

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helps to prevent such crimes from happening again (United Nations General Assembly, 1998). The Court tries individuals for four kinds of crimes, i.e. genocide, war crimes, crimes against humanity and crimes of aggression. These crimes have to have taken place after 1 July 2002. Furthermore, the Court has jurisdiction in four cases. First, on the territory of States Parties. Secondly, in other countries where the crimes have been committed by nationals of States Parties. Thirdly, in countries that have accepted the Courts’ jurisdiction. Fourth, in other countries if the crimes were referred to the ICC Prosecutor (“Prosecutor”) by the United Nations Security Council (“Security Council”) pursuant to a resolution adapted under Chapter 7 of the UN Charter (International Criminal Court, n.d.:a). However, the ICC does not replace national courts but complements them. The ICC is a court of last resort, which means that it only prosecutes cases when a country is “unwilling” or “unable” to prosecute. Besides prosecutions in the courtroom, the ICC also conducts work in the field by cooperating with countries. Especially for arrests, the transfer of arrested persons to the Hague, where it is located, the freezing of suspects assets and the enforcement of sentences, the help from countries is needed for the Court to fulfil its mandate (ibid.). Furthermore, besides a court, the ICC has a trust fund for victims as well as an Assembly of States Parties. The Assembly of States Parties is created to provide oversight management. Furthermore, the ICC has four organs. The Presidency, the Judicial Divisions with 18 judges, the Office of the Prosecutor and the Registry. The Office of the Prosecutor is an independent organ of the Court which conducts investigations and brings cases before the Court. Since June 2002, the Prosecutor of the ICC is Fatou Bensouda (ibid.).

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Afghanistan Albania Andorra Antigua and Barbuda

Argentina Australia Austria

Bangladesh Barbados Belgium Belize Benin Bolivia Bosnia and Herzegovina Botswana Brazil Bulgaria Burkina

Faso

Burundi Cambodia Canada Cape Verde Central

African Republic

Chad Chile Colombia Comoros Congo,

Democratic Republic of the Congo, Republic of the Cook Islands

Costa Rica Côte d'Ivoire

Croatia Cyprus Czech Republic Denmark Djibouti Dominica Dominican

Republic

East Timor Ecuador El Salvador Estonia Fiji Finland France Gabon Gambia, The Georgia Germany Ghana Greece Grenada Guatemala Guinea Guyana Honduras Hungary Iceland Ireland Italy Japan Jordan Kenya Korea,

South

Latvia Lesotho Liberia Liechtenstein Lithuania Luxembourg Macedonia,

Republic of

Madagascar Malawi Maldives Mali Malta Marshall

Islands

Mauritius Mexico Moldova Mongolia Montenegro Namibia Nauru Netherlands New

Zealand

Niger Nigeria Norway Palestine Panama Paraguay Peru Philippines Poland Portugal Romania Saint Kitts

and Nevis

Saint Lucia Saint Vincent and the Grenadines

Samoa San Marino Senegal Serbia

Seychelles Sierra Leone

Slovakia Slovenia South Africa

Spain Suriname Sweden Switzerland Tajikistan Tanzania Trinidad

and Tobago

Tunisia Uganda United

Kingdom

Uruguay Vanuatu Venezuela Zambia

Table 1. States Parties of the ICC (International Criminal Court, 2004)

Currently, 124 States Parties are subscribers to the Rome Statute. Out of them, 34 are African states, 19 are Asia-Pacific states, 18 are from Eastern Europe, 28 are Latin American and Caribbean states, and 25 are from Western European and other states (International Criminal Court, 2004). To become a member state of the Rome Statute, countries have to ratify the Rome Statute and by doing so, they are legally obliged to cooperate with the Court when required. Besides the ability to become a State Party, States Parties are according to article 127 of the Rome Statute, also able to withdraw from the Rome Statute. Withdrawal takes

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effect one year after notification of the depositary, and has no effect on prosecutions that have already started (United Nations General Assembly, 1998).

3. Existing explanations for an ICC withdrawal request

To answer the research question “What explains the request of Burundi to withdraw from the ICC?”, the focus will first be on the existing literature. The applicable literature does not only provide multiple reasons for withdrawals from international human rights treaties in general, but also specifically for ICC withdrawal requests. The multiple explanations that will follow from the existing literature will therefore be formulated in different theories. Eventually, these theories can explain a withdrawal from international human rights treaties in general as well as a withdrawal request from the Rome Statute. These different theories will all be tested on the Burundian request to be able to provide an answer to the research question.

We will start the discussion of the existing literature with the evaluation of the use of the disproportionate argument as a justification by the Burundian government. It is important to show that the argument on which the Burundian government have based their withdrawal request, the disproportionate targeting argument, is not able to fully explain the unique Burundian request. The first paragraph will therefore start with a focus on the African critique towards the impact of the ICC on the international community, followed by answering the question why African states could choose to send a request to withdraw from the Rome Statute based on this critique, after which it will be explained why this argument does not apply as the justification for the Burundian request.

In the next section, the paper will be presenting potential explanations for an ICC withdrawal request that follow from the existing literature to answer the research question “What explains the request of Burundi to withdraw from the ICC?”. According to the existing literature, the first way to answer the research question is to focus on the reasons why the ICC is established and what the goals of the founders of the ICC were. By focussing on this, the effects of the ratification of the Rome Statute on the States Parties will become visible. These effects could provide an indication why states want to withdraw from this Statute and could potentially explain the Burundian request. Secondly, it is possible to examine whether the factors that lead to the ratifications of an international human rights

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treaty in general could illustrate why a State Party would want to withdraw from such a treaty. With the use of rational choice theories, it is possible to show what the initial reasons for states are to join an international human rights treaty. These reasons might give an indication why states would ultimately choose to withdraw from such treaties.

3.1 Disproportionate targeting of the African continent

As described at the beginning of this paper, the Burundian withdrawal request is based on the argument that there is a disproportionate targeting of the African continent. This specific complaint of several African countries has affected the reputation of the Court and the way many Africans look at the functioning of the ICC nowadays. When we look at the establishment of the ICC, we see that African countries were initially very enthusiastic about a court that would fight impunity and wants to achieve international criminal justice. Because of the conflict-ridden history of many post-colonial African countries, they were really motivated to ensure that such violent conflicts would never rise again. Consequently, the African Union (“AU”) passed a resolution urging all African states to consider ratification of the Rome Statute (Mills, 2012, p. 404).

Action Countries

Cases Central African Republic, Côte d’Ivoire, Sudan (Darfur), Democratic Republic of the Congo, Kenya, Libya, Mali, Uganda

Situations under Investigations Uganda, The Democratic Republic of the Congo, Sudan (Darfur), Central African Republic, The Republic of Kenya, Libya, Côte d’Ivoire, Mali, Central African Republic II, Georgia

Preliminary Examinations Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece and Cambodia, Ukraine

Table 2. Actions by the ICC (International Criminal Court, n.d.:c)

The positive attitude of most African countries towards the ICC has changed over the years. Many years after the establishment of the ICC, the AU has called on States Parties not to

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cooperate with the ICC anymore. They argue that the ICC can be seen as a new form of liberal imperialism (Mills, 2012, p. 405). Consequently, much has been written about the so-called disproportionate targeting of the African continent.

Looking at Table 2, it is indeed striking that mainly African countries have been the object of an action by the Prosecutor. Seeing the preliminary examinations, the investigations and the prosecutions of the ICC, it is not surprising that the African continent sees the working of the ICC as disproportionate. Moreover, the use of the disproportionate targeting argument by the Burundian government as the justification for the withdrawal request seems logical.

Nevertheless, this paper argues that the disproportionate targeting argument can easily be rejected when we focus on the preamble of the Statute, the official statements of countries about the establishment of the ICC and the number of African countries that ratified the Rome Statute. Consequently, many facts undermine the disproportionate targeting argument and argue that there is no bias against African countries (Sriram, 2009, pp. 320-323).

The first fact is that while most of the African states did ratify the statute, many Asian and South American states have not. Consequently, the Court has no “automatic” jurisdiction in these countries when one or more of the four crimes are committed and no national prosecutions has been started, since it is only possible to start an investigation if the Security Council decides to refer a case to the Prosecutor. However, because of the veto rights of the Permanent Five members (“P5”), it is not easy to refer a situation to the Security Council. Particularly because multiple resolutions that have asked for an investigation by the ICC, have been vetoed by them (Webb, 2014, p. 471). This is mainly the result of the fact that major players like the United States of America (“USA”) and Russia have not signed the Rome Statute. They do not want to be bound by the treaty, because of the political impact of the Court and the possibility that nationals will be punished for the foreign policy of their government (Goldsmith, 2003, p. 93). All in all, based on these facts, it might look like the Court acts as “a tool of Western imperialism”, but this argument can easily be rejected since it is mainly the result of the many African countries who have chosen to ratify the treaty and the resistance of non-African countries.

The second fact that undermines the disproportionate targeting argument is that the Court only has jurisdiction if one of the four crimes that are codified in the statutes have been committed in a country since 2001. As a result of this jurisdiction, many countries that have suffered from one of the four crimes before 2001, are not relevant for prosecution by the Court. Also many, especially western, countries, who are a party of the Statute, have not

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experienced recent internal conflicts and these countries are not relevant to the Court, as many African countries are. Their internal conflicts are especially the result of the post-colonial period and the attempts of state building and democracy building. After the post-colonial period, multiple parties wanted to govern a country and many violent situations have been the result. Crimes against humanity, genocides, war crimes and aggression have frequently taken place (Sriram, 2009, p. 321). This explains why African countries are more often subject of preliminary examinations, investigations and prosecutions compared to other States Parties.

The third fact that undermines the disproportionate targeting argument is the fact that African countries have referred cases by themselves, while no other countries have done this. Countries like Uganda, the Democratic Republic of the Congo and the Central African Republic have decided to ask for an investigation by the Prosecutor (International Criminal Court, n.d.:b). Since only African countries have decided to do this, there are more African countries on the action list of the Prosecutor and this contributes to the disproportionate targeting misconception.

Lastly, besides the aforementioned facts that undermine the disproportionate targeting argument, we need to admit that African countries more often have a weak state capacity and are therefore prime candidates as a result of the principle of complementarity. This principle governs the exercise of the Court’s jurisdiction. The ICC may only exercise jurisdiction where national legal systems fail to do so (Office of the Prosecutor, 2003, p. 3). As stated before, many of these countries are in a post-colonial phase and that might explain their weak judicial system. National prosecutions are therefore more often not feasible and this provides jurisdiction for the Prosecutor.

Seeing that not only the uniqueness of the Burundian withdrawal request undermines the use of the disproportionate targeting argument as a justification, it can also be concluded that the disproportionate targeting of the African continent in itself is not a valid argument. Additional research is needed to answer the research question since the aim of this thesis is to comprehend why Burundi has chosen to send their request, why they have chosen to do this at this particular moment and why they are the only State Party that has chosen to send a request.

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3.2 The Rome Statute and its effects on the sovereignty of states

International criminal justice has always been high on the agenda of the international community. With precursors such as the Nuremberg Tribunals and ad hoc tribunals like the Yugoslavia Tribunal and the Rwanda Tribunal, it was a matter of time for the International Law Commission to acknowledge that it was necessary to create an international court to prosecute war criminals who are not convicted by a national court. The establishment of the ICC and the adoption of the Rome Statute on 17 July 1998 were therefore seen as major steps in the direction of the ultimate goal: the ending of impunity. The fact that initially 124 states had ratified the treaty, which came into effect on 1 July 2002, showed the willingness of many countries to accept accountability on an international level (Mude, 2017, p. 179). Furthermore, the establishment can be seen as an important step towards “an international legal order that is less based on state sovereignty and more oriented towards the protection of all citizens of the world from abuse of power” (Glasius, 2010, p. 137).

Although the creation of the ICC followed by the number of ratifications of the Rome Statute can be labelled as a major achievement in guaranteeing justice, not all states have decided to ratify the Rome Statute. According to many scholars, this reluctance is mainly the result of the jurisdiction of the Court and the potential impact it could have on the sovereignty of states (Simmons & Danner, 2010 and Dutton, 2011). Therefore, to eventually illustrate why states could decide to leave the ICC, it is important to focus on the functioning of the ICC and the effects this institution could have on the jurisdiction of States Parties.

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

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According to the preamble of the Rome Statute, the main goal of the ICC is to end impunity and to achieve justice for everyone worldwide. Although the goals are clear, the jurisdiction of the Court has been a widely discussed topic since it is no ordinary thing to give an independent institution jurisdiction over criminal acts and the possibility to interfere in a sovereign state. Consequently, to avoid conflicts about the broad scope of the jurisdiction, the treaty explicitly outlines which crimes fall under its jurisdiction, i.e. genocide, crimes against humanity, war crimes, and aggression (Sriram, et al., 2010, p. 216). As previously mentioned, the Court has the competence to prosecute individuals when nationals of a State Party have committed crimes that are subject of the Court or when these crimes have been committed on the territory of a State Party on or after 1 July 2002 (International Criminal Court, n.d.:b). Furthermore, the Court has jurisdiction when the Security Council refers a situation to the Prosecutor, even though the state is not a State Party (ibid.). When the Prosecutor has jurisdiction, it could in the end decide to start a preliminary investigation to determine "whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction" (ibid.).

Nevertheless, as a consequence of the broad scope of jurisdiction, which could have a large impact on the sovereignty of states, many politicians have been sceptical about the jurisdiction of the Court. Furthermore, during the negotiation process toward the Rome Statute, many states have complained about the potential impact of the Court´s jurisdiction on their national judicial system. They argued that not many states would ratify the treaty as a result of the broad jurisdiction and they emphasized that it was necessary to provide a sort of “escape”. This escape had to result in a less drastic interference of the Court and needed to make sure that the Court would not undermine the national sovereignty. A final necessary additional principle of law was therefore added in the Rome Statute by the founders of the Court. The purpose of this principle is to reduce the impact of the Court on the national judicial system of States Parties.

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Article 17

Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(United Nations General Assembly, 1998)

While the impact of the Court could initially undermine the sovereignty of states, the so-called complementarity principle has resulted in less drastic effects for States Parties. The principle is based on the idea that the ICC is intended to complement national criminal systems and it "prosecutes cases only when States are unwilling or unable to do so genuinely" (International Criminal Court, n.d.:b). It gives preference to national prosecutions and the Prosecutor is not able to replace national criminal systems. As a consequence of the complementarity principle many states were less afraid of the potential undesirable impact of the Court on their jurisdiction (Seils & Wierda , 2005, p. 8). Many sceptical states have eventually decided to ratify the treaty. The impact of the jurisdiction of the Court as a potential reason to decide not to ratify the treaty was significantly reduced because of this complementarity principle.

Nevertheless, it is remarkable that the USA and Russia, seen as the two most powerful states, have chosen not to ratify the treaty even though they do emphasize the importance of the ending of impunity and the achievement of international criminal justice. These countries are, despite the complementarity principle, still afraid of the ability of the Court to interfere on their territory, to prosecute their nationals and of the potential undermining of their sovereignty. In light of these political consequences they have chosen to prioritize their own sovereignty by not ratifying the Rome Statute (Bulger, 2013).

Even though the complementarity principle has been incorporated in the Rome Statute, and most concerns about the impact of the Court on national sovereignty were satisfactorily addressed, there are still multiple constraints connected to the ratification of this international

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human rights treaty. The ratification of the Rome Statute has direct and indirect effects on the powers of the government and of the sovereignty of states, and these effects can be both intended as unintended. The consequences of these effects can influence the vision of governments towards the Court and it can determine why states might choose not to ratify the Rome Statute. The effects of the treaty on the states could therefore potentially help in answering the main research question “What explains the request of Burundi to withdraw from the ICC?” by showing why States Parties might want to withdraw from the Rome Statute.

There are according to the existing literature direct and indirect effects connected to the ratification of the Rome Statute. First, the Rome Statute has direct effect on the sovereignty of a state when it is “unwilling” or “unable” to end impunity. Since the ICC acts as a court of last resort due to the complementarity principle, it could decide to start an investigation, after a preliminary examination, if one or more of the four crimes has been committed or if there are enough signals that a crime has taken place (International Criminal Court, n.d.:b). The most susceptible states are consequently the states with a history of civil wars or countries where a lot of political violence has occurred, since the jurisdiction conditions are easier met under these circumstances, especially in combination with a weak judicial systems. These states could become the object of preliminary examinations, or even investigations and prosecutions, when the government is not able to guarantee criminal justice on a national level. Therefore, according to this direct effect, specifically states with a history of civil war, increased one-sided violence by the government in combination with a bad domestic accountability mechanism are seen as the perfect examples of potential “investigation” states. These states can be marked as the most susceptible ones for actions started by the Prosecutor. Taking into consideration the possibility of prosecutions of nationals of these states, or even members of the government themselves, it could be argued that it is likely that these states could decide to send a request to withdraw from the ICC to avoid being held accountable.

H1: States that have, since 1 July 2002, had civil war and/or incidents of one-sided violence by the government, are more likely to send a request to withdraw from the ICC.

Secondly, there are, besides the expected direct effects, also indirect effects due to the ratification of the Rome Statute. Being a State Party of the Rome Statute could have a deterring effect on the violence perpetrated by its government and potentially by other

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violators in a country (Hillebrecht, 2016, p. 616). As a result of being a State Party, trials could start to prosecute nationals of that nation and the fear of a prosecution could eventually reduce the violence in a country. Nevertheless, this positive effect on the intensity of violence could change over time if the violence does not decrease after the ratification. The government of a state could be of the opinion that it is not expedient to be a State Party of the treaty if conflicts remain in the country and the domestic stability does not improve. Especially when the violence is being committed by opposition parties of the government. The government could, as a response to violence, continue with their own disregard for human rights and the rule of law and decide to send a withdrawal request. Moreover, when there is no democracy, and when the national judicial system is deeply corrupt and manipulated by ruling party officials, a withdrawal is more likely.

H2: When the government of a state is of the opinion that their membership does not improve domestic stability, states are more likely to send a request to withdraw from the ICC.

Lastly, according to many scholars, we can assume that there is another indirect effect due to the ratification of the Rome Statute (Downs & Jones, 2002; Guzman, 2005 and Hathaway, 2002). Based on a normative view, being a State Party could improve the international reputation of a country and it could preserve connection and prevent isolation (Keohane, 1996, p. 121). According to this normative view the ratification of the Rome Statute could have a positive effect on the international reputation of countries. However, it could also worsen the relations among countries if states are not able to comply with the international obligations of the treaty. “In an interdependent and interconnected world, a reputation of reliability matters” and if this reputation worsens as the result of the membership of the Rome Statute, a withdrawal request seems more likely (ibid.).

H3: When the international reputation of a country does not improve or even worsens, states are more likely to send a request to withdraw from the ICC.

3.3 Rational choice theories and the reason why states join international human rights treaties

Besides the specific effects of the Rome Statute as an explanation for a request to withdraw from the ICC, it is also interesting to examine whether the reasons for states to join

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international human rights treaties in general could help to answer the main research question “What explains the request of Burundi to withdraw from the ICC?”.

According to the existing scholarship, rational choice theories could be useful and able to explain the decision of states to join international human rights treaties. Rational choice theories are often used in political science to explain the decisions of states and could for this research paper be used as a guideline to find explanations for an ICC withdrawal request since they focus on the maximization of satisfaction (Levy, 1997, p. 89). The main characterization of rational choice theories is that they try to explain the decisions of states by focussing on the self-interests of states as the decisive factor. According to these theories and by looking at the research question, it is particularly relevant to explore what the advantages of the withdrawal request were for Burundi. We therefore need to focus on the specific moment that the government of Burundi has chosen to officially send the withdrawal request, since this eventually might reveal the case-specific factors that are relevant for answering the main research question. This could potentially show why states could decide to join international human rights treaties.

Rational choice theories provide frameworks that could help us understand humans as self-interested and as short-term maximizers (Ostrom, 1998, p. 2). Standard rational choice models can predict outcomes, ranging from the very best to the very worst, and these can be used by individuals to potentially achieve more productive outcomes and avert disasters (ibid.). The main characteristic is that states act as rational actors who base their decisions on their own preferences and their own potential gains. States therefore tend to examine whether the constraints are “acceptable” by making a cost-benefit analysis. An analysis based on the rational choice theories could in this research paper show whether being a State Party of an international human rights treaty could be in the own interests of a state or whether the constraints of these treaties will be decisive for the withdrawal. The behaviour of actors can be best interpreted as though they were seeking to maximize their subjectively expected benefits (Jervis, 1989, pp. 183-184). The causes and effects of threats and violence which could result from the ratification of an international human rights treaty will therefore be analysed and when these causes and threats will be disadvantageous for a government, it could be that they decide to send a request to withdraw from such a treaty and thus circumvent the negative consequences (idem: p. 183). To expose such a situation, it is important to have an in-depth analysis of a country and “to specify what situation the [president] thinks he is facing, how he ranks his goals, what options he perceives, and how he

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thinks others are likely to react” (idem: p. 184). Especially the last question, how he thinks others are likely to react, could attribute to the decision to send a withdrawal request or not. International behaviour could improve or worsen the relations to other states and this could have an effect on the decision to send a request or not.

In short, by focusing on rational choice theories, the commitment to international human rights treaties depends on the effects that the constraints of the treaty will eventually have on the ruling governments of the relevant countries (Hathaway, 2007, p. 612) While the specific constraints of the Rome Statute have already been summarized in the previous paragraphs, it is important to focus on the constraints of the ratification of international human rights treaties in general as well. Especially since international human rights treaties often depend on the interests of the government of states, much has been written about the general constraints of these treaties and the role of the self-interests of states when they decide to join human rights treaties or not (Dutton, 2011; Kelley, 2007; Keohane, 1996; Keohane & Martin, 1995; Simmons, 1998; Simmons, 2010 and Simmons & Danner, 2010). Moreover, many scholars have written about the rational choice theories and the way international human rights treaties are used as political instruments to improve their position (Neumayer, 2005, p. 927). Therefore, when we focus on the main research question, it is useful to use the existing literature about self-interest as reasons for states to join international human rights treaties to see if this has an effect on the decision to withdraw from such a treaty. This literature could potentially explain why states decide to withdraw from international human rights treaties in general and this could help answer the main research question “What explains the request of Burundi to withdraw from the ICC?”.

H4: When the membership of an international human rights treaty will have negative consequences for the ruling government, states are more likely to send a request to withdraw from an international human rights treaty.

4. Testing the existing explanations for Burundi

Following from the four hypotheses which came forth from the existing literature, we would expect that there is an explanation for the ICC withdrawal request by Burundi. The next paragraphs will therefore test the four hypotheses on the unique ICC withdrawal request of

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Burundi by focusing on the political situation in the country and the developments over the last years.

H1: States that have, since 1 July 2002, had civil war and/or incidents of one-sided violence by the government, are more likely to send a request to withdraw from the ICC.

According to the first hypothesis, which is based on a direct effect of the Rome Statute, Burundi should serve as a perfect example of a withdrawal-sensitive country, because of their history of civil wars and their bad domestic accountability mechanism (Danner & Simmons, 2010, pp. 234-235). Based on these characterizations of the country and the legal grounds of when the Prosecutor has jurisdiction, the preliminary examination by the Prosecutor on 25 April 2016 was not surprising. This decision by the Prosecutor was the result of the violent incidents which had worsened to extreme proportions since December 2015. After president Nkurunziza has been sworn in for his third term, post-election violence took place and protests increased, which resulted in low-level violence and many human rights violation (The Guardian, 2016). Consequently, the preliminary examination set by the Prosecutor focusses on the following:

The preliminary examination of the situation in Burundi was announced on 25 April 2016. At the time more than 430 persons had reportedly been killed, at least 3,400 people arrested and over 230,000 Burundians [were] forced to seek refuge in [neighboring] countries. The preliminary examination focusses on acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances that have been allegedly committed since April 2015 in Burundi.

(International Criminal Court, 2015a)

The decision of the Prosecutor to start a preliminary examination was possibly seen as a threat for the ruling Burundian government. The Prosecutor has expressed her concerns about the increasing risk of violence in Burundi, as well as the reported use of inflammatory language by political leaders and other actors in the country (International Criminal Court, 2015c). Consequently, in order to avoid being held accountable by the international justice system and to guarantee total impunity to perpetrators of the crimes, it seems logical that the government might have sent their request based on both domestic political considerations as on personal considerations. Especially the ruling party’s youth militia, the Imbonerakure,

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have caused fear among the Burundian population as a result of their violent behavior. Members of opposition political parties and perceived opponents have been victims of arbitrary arrest, detention, ill-treatment and enforced disappearance by both the ruling government and the Imbonerakure (UN Security Council, 2017c, p. 2). The Prosecutor has noticed these violent acts by the government and the youth militia and based her decision to start a preliminary examination on these acts. Following this, we can assume that the government of Burundi could have seen their own political interests as superior to international justice and have decided to send their request after realizing that they could be convicted by the Court (Mude, 2017, p. 181). Furthermore, the Uppsala Conflict Data Program (“UCDP”), which is made available by the Uppsala University in Sweden, also shows that the number of deaths due to one-sided violence by the government and the intensity of the conflict have increased (Uppsala Conflict Data Program, 2016). They describe one-sided violence as “the use of armed force by the government of a state or by a formally organized group against civilians which results in at least 25 deaths in a year” (Department of Peace and Conflict Research, 2016). According to this database, the violence by the government has indeed increased over the last years and the possibility for the ruling government and political members of the ruling party to become object of investigations by the Prosecutor became more realistic.

We can conclude that, based on the announcements by the Prosecutor and the UCDP about the situation in Burundi, the first hypothesis, which has followed from the existing literature, seems to be valid for the Burundian withdrawal request. As a result of their history of civil wars, the political instability and the increased number of incidents of one-sided violence since 2001, it became more likely that Burundi would send a withdrawal request.

H2: When the government of a state is of the opinion that their membership does not improve domestic stability, states are more likely to send a request to withdraw from the ICC.

The second hypothesis focuses on the effect of the Rome Statute on the domestic stability of a State Party as an explanation for an ICC withdrawal request. This indirect effect means that being a State Party of the Rome Statute could have a deterrent effect on potential violators and that this could improve the domestic stability. However when this expectation does not become a reality, States Parties could decide to withdraw from the Statute.

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Looking at the history of Burundi, it is remarkable to see that they have never been a frontrunner in promoting accountability for serious human right crimes. The fact that no Burundian has ever been charged with genocide, crimes against humanity or war crimes supports this assumption (Vandeginste, 2016, p. 2). Seeing the government’s disregard for human rights and the increasing one-sided violence that the UCDP showed, it is understandable that the Burundian government did sent a withdrawal request. The increasing violence in the country could have given them the feeling that it was not expedient to be a State Party of the treaty anymore since the domestic stability had not improved. Consequently, it is possible that the decision of the government of Burundi to send a request to withdraw from the ICC was the result of their disappointment in the ICC, since the domestic stability had not improved as a result of the ratification of the Rome Statute.

H3: When the international reputation of a country does not improve or even worsens, states are more likely to send a request to withdraw from the ICC.

The third hypothesis will be tested on the Burundian situation as well to show if it could explain their unique withdrawal request. When we look at the Burundian request, the absence of an improvement of their international reputation due to the ratification could be seen as an explanation for their withdrawal request. When no external rewards are present to compensate for the dissatisfying nature of the membership, a withdrawal request could be the logical consequence (Staw, 1976, p. 28).

These indirect negative effects as a result of a worsening international reputation should be particularly notable when we look at trade treaties and to diplomatic relations (Keohane, 1996, p. 121). It is therefore useful to focus on bilateral and multilateral treaties to see if the membership of the Rome Statute has improved the international reputation of Burundi. In consequence of UN documentation like resolutions, a number of bilateral and multilateral partners have suspended their financial and technical assistance to the government of Burundi because of the worsening violent political situation in the country (UN Security Council, 2016a, p. 2). This may demonstrate that the worsening international reputation might be a potential explanation for their withdrawal request. The costs that normally would result from the withdrawal are small compared to the huge reputational costs they already have and this could explain their decision to send a withdrawal request (Vandeginste, 2016, p. 3).

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H4: When the membership of an international human rights treaty will have negative consequences for the ruling government, states are more likely to send a request to withdraw from an international human rights treaty.

Lastly, the fourth hypothesis will be tested on the Burundian withdrawal request. More has been written about this hypothesis, then about the others and it is probably the most relevant one. As previously mentioned, the Burundian government is often describedas a bad human rights guarantor, as can be concluded from the number of deaths as a result of the one sided political violence by them. Furthermore, the number of refugees has drastically increased over the last couple of years and the willingness to reduce human rights violations and the numerous displacements seems lacking (UNCHR, 2017). States are often described as rational actors who behave according to their self-interest. The Burundian withdrawal request could be explained by focussing on the disadvantages for the government of Burundi that have followed from their ICC membership and the gains that would result from their decision to withdraw from the ICC.

The history of Burundi records multiple civil wars and the population has recently experienced multiple violent conflicts (Ngaruko & Nkurunziza, 2000, p. 372). It seems therefore possible that Burundi has initially used their ratification of the Rome Statute as a signal of their commitment to reduce the violence. They could have used the membership of this international human rights treaty in their own interest by hoping for a positive effect on the degree of violence.

Nevertheless, the ratification of the Rome Statute does also entail that the government of the State Party respects human rights. The government must be willing to eliminate human rights violations, as it will not be in the advantage of a country to join such a treaty when they are structurally violating human rights themselves. Since the violent political tensions in Burundi have increased and the appearance of a new civil war is realistic, it seems that the initial political willingness to respect the Rome Statute has diminished and that the government is not willing to tie their own hands anymore to such a treaty. The fact that the government has been accused of human rights violators, and that the membership of the ICC has not improved the government’s behavior or reputation, leads to the possibility that the binding effects of the Rome Statute might only be seen as negative for Burundi. The fact that no positive advantages counter the negative disadvantages that might appear for the Burundian government as a result of their membership, might explain their withdrawal

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request. It seems that the initial reasons for the Burundian government to join an international human rights treaty did not become reality because the violence has not decreased and the political stability has not improved. Their withdrawal request seems therefore logically based on a cost-benefit analysis. Such a balance of interests results in predominantly negative consequences for the Burundian government, especially since the country has become the object of a preliminary examination. The disadvantages for the ruling government as a result of their ICC membership could therefore function as a justification for the decision to send a withdrawal request.

We can conclude this chapter with the notion that the existing literature offers theory that seems to explain the Burundian ICC withdrawal request. By testing the hypotheses on the withdrawal request of the Burundian government it appears that the existing literature could explain why Burundi has decided to send an ICC withdrawal request. Nevertheless, the existing literature is not able to provide answers on the two sub-questions which have followed from the uniqueness of the withdrawal request, namely “Why has the Burundian government chosen to send a withdrawal request on 12 October 2016?” and “Why is Burundi the only State Party that has decided to send a withdrawal request to the Secretary-General?”. General explanations were given to explain why Burundi has decided to withdraw from the Court, but the existing literature has not been able to give a detailed explanation for the timing and uniqueness of the ICC withdrawal request of Burundi while specifically these sub-questions need to be answered to provide an answer on the main research question “What explains the request of Burundi to withdraw from the ICC?”.

5. Methodology

When we look at the previous chapter, we can conclude that the disproportionate argument, which is used as justification by the Burundian government for their decision to withdraw from the Court, cannot be the real and only explanation for the Burundian ICC withdrawal request. Furthermore, the test of the four hypotheses following from existing literature on the Burundian withdrawal request shows that there are explanations for their ICC withdrawal request, but that there are no explanations for the timing and the uniqueness of the request.

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In light of the many States Parties (Table 1) and the many different actions by the Prosecutor (Table 2), it is clear that Burundi is not the only country that has experienced an increased number of one-sided violence by the government, that is of the opinion that their ICC membership has not improved their domestic stability, that has experienced a worsening international reputation or that has experienced negative consequences by the interference of the ICC. Furthermore, seeing the specific claims of African countries, it would be expected that more African countries would have sent a withdrawal request based on the disproportionate argument if this is the real explanation of the Burundian withdrawal request. It must be conceded that the Court is not perfect and that it still needs to improve in many ways, but the disproportionate targeting argument is, just like the four hypothesis, unable to explain the uniqueness of the Burundian withdrawal request.

The first part of this paper can be concluded with the argument that the existing literature cannot completely answer the main research question since no answers can be given on the two sub-questions. There are multiple explanations for an ICC withdrawal request, and these are also able to explain the Burundian withdrawal request, but there are no explanations for the timing of the withdraw request of Burundi nor why they are the only country to have done this. Consequently, it is important that new insights have to be found and that we have to look for alternative causal effects that could explain the Burundian withdrawal request. To develop a better theory, inductive research will be used to make in-depth analysis of the case. The Burundian request is the first official ICC withdrawal request that has been done and which is still running. There are therefore good reasons why Burundi is a valid case to answer the research question. The unique Burundi case could build a better theory by showing the causal effects that lead to an ICC withdrawal request. The new theory could eventually give a more detailed answer on the research question “What explains the request of Burundi to withdraw from the ICC?”.

This second part of the paper contains a document study that will focus on the political developments in Burundi. It will show how these developments relate to the decision to send a withdrawal request and it will eventually build a new and better theory to explain the Burundian withdrawal request. To establish this new theory that can explain the request of Burundi, we need to understand what happened over the past couple of years in Burundi. The next part of the research paper will therefore do an analysis of the political changes that have

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made Burundi the unique State Party that has decided to send a request to withdraw from the ICC.

Timetable

17 July 1998 Adopting of the Rome Statute on the ICC 13 January 1999 Burundi signs the Rome Statute

1 July 2002 Entry into force of the Rome Statute

22 April 2003 Burundi’s transitional parliament adopts a law to ratify the Rome Statute

8 May 2003 Burundi incorporates genocide, crimes against humanity and war crimes in its national criminal law

30 August 2003 President Ndayizeye promulgates the law on the ratification on the Rome Statute

21 September 2004 Burundi deposits its instrument of ratification with the UN Secretary-General

1 December 2004 Entry into force of the Rome Statute for Burundi 25 April 2016 ICC Prosecutor Bensouda announces the opening

of a preliminary examination on Burundi

6 October 2016 The Burundian government adopts a draft law to withdraw from the Rome Statute

12 October 2016 Burundi’s parliament adopts law to withdraw from the Rome Statute

Table 3. Timetable Burundi (Vandeginste, 2016, p. 1)

Table 3 shows schematically what has happened in Burundi regarding the Rome Statute. This table shows the changes over time and the changing attitude of the Burundian government towards their ICC membership. The two most relevant moments in time are:

1 December 2004:

Rome Statute entered into force.

12 October 2016:

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During the tests of the four hypotheses on the Burundian case, some Burundian political developments have already shortly been described. However, a more detailed examination of the Burundian developments by an in-depth case study over time could provide more details about the causal effects that have led to the Burundian withdrawal request.

12 October 2016:

X:……….. - Negative towards the Rome Statute.

Y: Burundi’s parliament adopts law to withdraw from the Rome Statute.

This schematic overview of the withdrawal request on 12 October 2016 demonstrates the goal of this research. To answer the main research question it is necessary to find an explanation (X) for the withdrawal request of Burundi (Y). The goal of the in-depth case study is therefore to find the changes over time that have caused the decision to send the withdrawal request of Burundi. By providing a detailed description of these changes over time, causal effects have to be found which could explain the changing attitude towards the Rome Statute. Case studies are especially effective for theory building because they can demonstrate the beliefs of governments and are able to show how and why decisions are made (Jervis, 1989, p. 184). They are explicitly descriptive and explanatory and could therefore illustrate the situation of Burundi and explain the outcome (idem: p. 185). Furthermore, case studies enjoy a natural advantage in research of an explanatory nature and by doing an intensive study of Burundi it could hopefully generalize across more countries (Gerring, 2004, pp. 346-352). Eventually the new theory will not only explain the Burundian withdrawal request, but it could also offer insight into when and why other states could decide to send an ICC withdrawal request. This will be useful for the future existence of the Court and will potentially improve the functioning of the Court.

The in-depth case study will focus solely on Burundi to show their political developments over the years, and it would be able to explain why the government of Burundi decided to send their withdrawal request on 12 October 2016. However, a case study of Burundi an sich will not be able to explain why Burundi is the only country to have sent a withdrawal request. For that, a comparative case study will be more adequate. To explain the uniqueness, it is necessary to compare the Burundian case to other countries. It is best to collect additional

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cases which are countries with the same features but different outcomes (King, et al., 1994, p. 123).

6. Case study Burundi

The in-depth case study of Burundi needs to provide the causal effects that explain the decision of Burundi to send an official withdrawal request on 12 October 2016. This case study will focus on the developments over time and the relevant time period will be from the ratification until the withdrawal request. In Table 3 we saw that during this time period the vision of the Burundian government towards the Rome Statute changed:

1 December 2004:

Rome Statute entered into force.

12 October 2016:

Burundi’s parliament adopts law to withdraw from the Rome Statute.

Taking this into consideration, it is important to evaluate what has happened between 1 December 2004 and 12 October 2016 and what changed the attitude of the government of Burundi towards the ICC and the Rome Statute.

By taking a good look at a series of specific moments, this case study intends to find out why the government has chosen to send their request at this particular moment (Collier, 2011, p. 824). It needs to find the causal effects (X) that can explain the decision of the government of Burundi to send a request to withdraw from the ICC on 12 October 2016 (Y). These causal effects have to result in a new theory that explains the timing of the Burundian withdrawal request and which could be used to predict potential other withdrawal requests.

6.1 Timetable

6.1.1 A history of civil wars, political violence and the Arusha Agreement

Although the case study will focus on the period between the enactment of the Rome Statute in Burundi and the withdrawal request, it is also important to have knowledge of the political

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history of Burundi. Especially the many conflicts between the Hutu and Tutsi, the two largest ethnic groups of the country, in the past, have had a large impact on the country (Ngaruko & Nkurunziza, 2000, p. 372). It is therefore important to describe the violent past and the impact this might have had on the former governments, the then-ruling government and the political situation of Burundi in general nowadays.

Civil conflict in Burundi began in 1965, three years after independence in 1962 from Belgium, when a political exclusion of the Hutu majority was initiated by the Tutsi minority (Bundervoet, et al., 2009, p. 538). Burundi’s population comprises of three groups, but the Tutsi and Hutu have been the two largest and most important ethnic parties of the conflicts. Right after the independence, the Hutu majority was excluded and the Tutsi, approximately 15 percent of the overall population, effectively seized power (Boutellis, 2015, p. 731) . They claimed the First Republic in 1966 and a massacre of educated Hutu’s was the inevitable result (Bundervoet, et al., 2009, p. 538). Although more confrontations have followed, the international community has been able to facilitate fair elections in June 1993 (idem: pp. 538-539). During this free and fair election a Hutu president, Melchior Ndadaye, was elected and a democracy seemed to have been established. Nevertheless, the assassination of the new president by Tutsi army elements resulted in a new civil war and large-scale massacres of Tutsis were the result in October 1994 (idem: p. 539). This period has afterwards been acknowledged as a genocide because between 1993 and 2004 an estimated 300,000 people died, most of them civilians, and another 500,000 were displaced (Boutellis, 2015, p. 731).

Since independence, Burundi has experienced five civil wars, until in April 1997 the Arusha Peace talks were started between the two conflicting parties (Ngaruko & Nkurunziza, 2000, p. 372). African president Nelson Mandela acted as Facilitator and on 28 August 2000 the Arusha Peace and Reconciliation Agreement (“Arusha Agreement” of “Agreement”) was signed (Boutellis, 2015, p. 731). This Agreement can be seen as a major step towards peace, security and impunity. Furthermore, this Agreement was more than just a peace accord that has put an end to a decade of civil war and instability. It also contained the blueprint of a new institutional framework and of new state-society relations (Vandeginste, 2015, p. 2).

During the case study of the relevant time period in Burundi, it is important not to forget the violent past of Burundi. The ongoing clash between the two ethnic groups seems to be a characterization for the post-colonial period of Burundi. Nevertheless, it is also important to acknowledge that Burundi is not the only country on the African continent that has

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experienced violence during the state-building period. The series of civil wars, the distrust between ethnic groups and the related ethnic division in many African countries were for a long time an integral part of the post-colonial period. It is therefore not surprising that this violent past has affected the political system of Burundi and that it lost its opportunities to return to democratic institutions easily (Ngaruko & Nkurunziza, 2000, p. 375). Furthermore, the various conflicts have had their effect on the country, in the form of poverty, unemployment and other economic disadvantages (idem: pp. 384-388).

6.1.2 The ratification of the Rome Statute and the first UN mandate

When the Arusha Agreement was signed on 28 August 2000, a three-year power-sharing Transitional Government of Burundi was established (Boutellis, 2015, p. 732). Local and national elections were due to take place before the end of the transitional period on 31 October 2004. During this transitional period, first a Tutsi, Pierre Buyoya, was president but later his Hutu vice president, Domitien Ndayizeyé, followed him up to become the new president of Burundi. On 30 April 2003 he officially became the president and he is mostly known for his attempts to bridge the gap between the Hutu and Tutsi. Besides the relatively low number of violent acts during the transitional period and the start of a new government led by Ndayizeyé, the Rome Statute finally entered into force on 1 December 2004. However, as Table 3 showed, the enactment of the Rome Statute took quite a long time because it was already signed on 13 January 1999 (United Nations, 2002, p. 1).

With the enactment of the Rome Statute, it seems that the Burundian government wanted to end impunity and wanted to achieve international criminal justice from that moment on. Together with the signing of the Arusha Agreement and multiple ceasefire agreements, a new and less violent period seemed to become reality and the government seemed willing to improve the safety of its citizens and to end impunity (UN Security Council, 2004, p. 1). Nevertheless acts of violence, human rights abuses and international humanitarian law violations continued and there were increasing incidents of rape, including mass rapes (idem: p. 2). As a consequence, a United Nations peacekeeping operation came into function on 1 June 2004 to restore peace and to fulfil the goals codified in the Arusha Agreement (idem: pp. 3-5). Acting under Chapter VII of the UN Charter, Security Council Resolution 1545 established the United Nations Operation in Burundi (ONUB) on 1 June 2004 to support the implementation of the Arusha Agreement. The president had made a statement in front of the Security Council on 22 September 2003 about its request for a United Nations peacekeeping

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operation and the ONUB seemed to be a positive contribution for a peaceful future of the country in the eyes of both the international community and the then-ruling government (ibid.).

6.1.3 The 2005 Elections and the post-election period

On 26 August 2005, president Pierre Nkurunziza, a member of the former Hutu rebel group CNDD-FDD, was sworn in as the first elected president of the Republic of Burundi after the transitional period (Jackson, 2006, p. 3). Despite the hopeful expectations of a peaceful period as a result of the upcoming democracy, the enactment of the Rome Statute and the signing of the Arusha Agreement, the CNDD-FDD-dominated government opted for a military solution against its long-time rival, the last active rebel group Palipehutu-FNL (“FNL”) which led to serious human rights abuses (Boutellis, 2015, p. 736). These violations of the previous peace agreement led to negotiations and eventually the signing of the 18 June 2006 Dar-es-Salaam peace agreement between the ruling government and the FNL and a ceasefire agreement on 7 September 2006, which formally brought an end to a decade of violent conflict (ibid.). These agreements promised a cessation of hostilities, a permanent ceasefire and negotiations without disturbing the electoral process (UN Security Council, 2005, p. 1). Consequently, the violent situation stabilized and there was a decrease in the number of killings as a result of these agreements. Nevertheless, the killing of thirty-one civilians associated with the FNL and the arrest of Burundi’s former Transitional Government president, Domitien Ndayizeye, raised concerns about the government’s respect for human rights (Boutellis, 2015, p. 736). Despite the signing of the agreements, the country remained instable as a result of the threat to peace and security (UN Security Council, 2006a, p. 1). The Security Council therefore decided to extend the ONUB until 31 December 2006 and it openly made statements about their concerns regarding violations of human rights in Burundi (idem: pp. 1-2).

In response to the continuing violent situation in Burundi, South Africa, together with the AU, made efforts towards a solution for the conflict between the government and the FNL. These efforts were successful and on 7 September 2006 a Comprehensive Ceasefire Agreement between the government of the Republic of Burundi and the FNL was established. The willingness of the Burundian government to establish peace and stability was also noted by the Security Council, as can be seen from their notification of the Burundian authorities’

The Burundian withdrawal request : a new challenge for the International Criminal Court