There’s no escaping ICC probe
A country’s withdrawal from the International Criminal Court (ICC) does not stop the ICC from investigating that country. The ICC emphasized this in 2017 when it ordered the investigation of Burundi, the first country to withdraw from The Hague court.
The ICC’s Pretrial Chamber III emphasized that a country’s withdrawal takes effect a year after serving the notice.
The country is bound to continue cooperating with investigations initiated before the effective date, for as long as they continue.
Burundi withdrew on Oct. 27, 2016. The ICC retained jurisdiction over Burundi until Oct. 27, 2017, and, further, over crimes with a “continuous nature” that began before Oct. 27, 2017, and continued beyond this date.
The ICC would also investigate related crimes committed outside Burundi.
Pretrial Chamber III, which includes Filipino Judge Raul Pangalangan, is investigating more than small countries. It is reviewing a request to investigate Afghanistan, including acts there by US and UK soldiers and the US Central Intelligence Agency.
No stopping ICC
Burundi’s withdrawal thus did not stop the broad investigation. With difficulty, ICC Chief Prosecutor Fatou Bensouda presented actual testimony by survivors and victims’ relatives, some with medical certificates.
Where facts are difficult to establish, this is even greater reason to investigate, the ICC emphasized.
The ICC documented Burundi’s “complete lack of international cooperation,” capped by its withdrawal. It is even harassing or assassinating witnesses who fled abroad.
Burundi, in Central Africa, has a population of 10 million people and a 2016 GDP per capita of $285.70, or one-tenth of the Philippines’ $2,951.10.
It placed lowest among 156 countries in the World Happiness Report 2018.
Crimes against humanity are defined as “a widespread or systematic attack directed against any civilian population … pursuant to or in furtherance of a state … policy.”
The ICC is investigating Burundi for mass murder, imprisonment, torture, rape, enforced disappearance and persecution, and even possible war crimes.
Pierre Nkurunziza ran for a third term as president in April 2015. Citizens demonstrated, particularly in the capital Bujumbura, arguing this violated constitutional term limits.
Attacks on protesters
Police Nationale du Burundi (PNB) units shot unarmed protesters. Opposition supporters and journalists were assassinated or arrested.
After a failed coup in May 2015, the PNB and Imbonerakure—the ruling party’s youth wing—conducted “cordon and search operations” in Bujumbura neighborhoods believed sympathetic to the opposition.
The ICC outlined a pattern where dozens of citizens were forced out of their homes, then shot while kneeling or lying on the street.
More were arrested or tortured. Girls as young as 8 were raped.
The raids then segued into covert arrests. People were forced into trucks and never seen again. Instead of mass graves detectable by satellites, smaller graves were used to conceal their murder.
By the end of 2017, an estimated 1,200 people had been murdered, thousands had been detained or disappeared, and 413,490 had been displaced.
Evidence suggests these acts were conducted systematically by the government.
First, the government targeted people opposed to Nkurunziza. It also targeted journalists.
Second, the attacks were carried out by government units such as the PNB, Army and Imbonerakure.
To facilitate these, the PNB director was sidelined and his deputy received orders directly from Nkurunziza and his minister of public security.
Potentially uncooperative Army officers were transferred to the provinces or assassinated.
Members of Imbonerakure were allegedly armed by the PNB and the Army, and controlled by officers close to Nkurunziza.
Unwillingness to prosecute
Finally, the ICC emphasized Burundi’s unwillingness to prosecute.
The ICC rejected investigations of only “discrete parts” of the crimes, those for fact-finding with no intent to prosecute, and sham proceedings designed to shield perpetrators.
Some investigative commissions formed focused on attacks on police, not victims.
Some did not gather more evidence when terrified witnesses refused to speak.
Some did not even order forensic examination of bodies.
Finally, the people believed most responsible were never investigated.
The ICC is not perfect. But imagine the moral catastrophe if an ICC judge, one with the same stature and credibility as Pangalangan, wrote an order on the Philippines as meticulous as the 94-page Burundi decision, whether or not this order is legally binding.
Stand by Carpio
In CenterLaw’s case, justices suggested opening criminal cases to allow courts to protect victims from rogue policemen.
Acting Chief Justice Antonio Carpio demanded the disclosure of police records of more than 3,000 deaths.
Whatever one thinks of the Philippines’ withdrawal from the ICC, perhaps national pride dictates that we empower Carpio and our own judges, before the ICC considers writing the Philippines into its next chapter, after Burundi, war criminals and genocidal murderers.
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