After submitting its official notification to the UN Secretary-General, the withdrawal of Burundi from the Rome Statute will take effect on 27 October 2017. Meanwhile, the Burundi situation remains under consideration of preliminary examination by the Office of Prosecutor (OTP) which is focusing on alleged acts committed since April 2015. An interesting issue is how Burundi’s withdrawal affects the Burundi situation in relation to the future of the International Criminal Court (ICC). This blog post will critically discuss the application of Article 127(2) of the Rome Statute in three respects: firstly, it will evaluate whether a “situation” under preliminary examination by the OTP can be considered a “matter” under A.127(2); secondly, it will discuss Burundi’s cooperation; and thirdly, it will argue that the withdrawal of Burundi should not be a catalyst for the OTP’s preliminary examination activities.

Firstly, with Burundi’s formal notification of withdrawal, A.127(2) might apply as to the ongoing Burundi situation before the ICC. Part of this provision provides that

[Its withdrawal shall not] …prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

The issue here is whether “a situation” in the OTP’s “preliminary examination” is included as “a matter under consideration”. As Schabas observes, the wording “any matter” was not fully discussed during the negotiation of the Rome Statute, indeed, there are divergent interpretations of the phrase “any matter under consideration of the court”, which can lead to different possible results from the ongoing preliminary examination situation.

If the word “court” is interpreted literally and understood in a broad manner to include the Prosecutor of the ICC then the answer to the main question (whether a situation under preliminary examination is included as a “matter”) is affirmative. Simply put, the preliminary examination of Burundi’s situation could be included as a “matter” under consideration, meaning that A.127(2) would apply and the OTP could continue their preliminary examination after Burundi’s withdrawal.

However, as Whiting mentions, this literal interpretation might put the ICC in a dilemma: supposing the preliminary examination is ongoing after the date of the effective withdrawal (i.e., 27 October 2017), there will be a preliminary examination without any apprehension or cooperation by the Burundi.  In this case, it may be better for the OTP to abandon the situation.

Alternatively, a different understanding is indicated by the French and Chinese versions of A.127(2). As a commentator points out, the French version of this phrase seems to show a restricted interpretation of the word “matter” to be limited to “cases”. Therefore, a situation in the phase of preliminary examination would be excluded from the scope of “matter” meaning A.127(2) could not apply.

In addition, the text of the Chinese version (i.e., 法院已在审理中的任何事项) provides another interpretation of “matter”. Compared to the French version, the Chinese version shows an even more restricted understanding of the wording “court”.  By the phrase “审理 (under consideration)”, the “court” seems to be limited to chambers, excluding the OTP of the ICC. The Chinese interpretation of “court”, also appears to restrict the scope of “matter” to “cases” and in this regard, it is similar to the interpretation of the French text.

It should be noted that the Pre-Trial Chamber of the ICC is in the ambit of “court” and the Rome Statute provides that for an investigation acting proprio motu by the OTP the Pre-Trial Chamber has to decide whether to authorise such an investigation of a situation. Therefore, a “situation” under consideration by the Pre-trial Chamber might also be implied in the scope of “matters under consideration of the court”, thus, A.127(2) could apply and Burundi’s withdrawal should not prejudice the work of the Pre-trial Chamber.

Due to the uncertainty of the interpretation of “any matter under consideration of the court” it is difficult to say that the ongoing Burundi situation under preliminary examination would definitely be included as a “matter”.

Moving on to the second issue to be addressed, even if the “matter” includes preliminary examination, A.127(2) simply imposes on Burundi a negative obligation, implied in the wording “prejudice”, not to bar the consideration of the Court, rather than a duty to cooperate with the Court. Therefore, another question is what the OTP should do in this circumstance?

Whiting suggests that it is better for the OTP to initiate an investigation of this situation based on the evidence presented before Burundi’s effective withdrawal. By doing so, another part of A.127(2) will apply. It provides that

“[Its] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective…”

Accordingly, Burundi would be obliged to cooperate with the ICC in investigations after the withdrawal becomes effective.

The third and final issue is whether Burundi’s withdrawal should be a catalyst for the OTP’s preliminary examinations. The Report on Preliminary Examination Activities 2016 issued by of the OTP in November, stated that the Burundi situation is in the subject-matter (jurisdiction) assessment phase. However, the OTP addresses:

“According to its legal assessment, the Office could also initiate investigations at least during this one-year period. The withdrawal of Burundi would not affect its duty to cooperate with the Court in connection with criminal investigations and proceedings commenced prior the date on which the withdrawal becomes effective.”

This statement indicates that the OTP will submit the situation to the Pre-Trial Chamber who must authorise an investigation within eleven months. Although it is unknown whether the withdrawal was a catalyst for the OTP’s legal assessment, it shows that the Burundi situation will be one of its priorities.

Even if all factual and legal requirements are satisfied, then there would be doubt as to whether this situation should be prioritised. Considering the budget in 2017, resources for the OTP are limited and if the OTP makes this situation its priority then other situations would be delayed. The Burundi situation should not be prioritised simply due to the State’s withdrawal.

The 2016 Policy paper on case selection and prioritisation might provide guidance for the assessment of whether to focus on this situation. One of its criteria is “the impact and the ability of the Office to pursue cases involving opposing parties to a conflict in parallel or on a sequential basis”. Considering its withdrawal, Burundi might not cooperate with the ICC to ensure the appearance of suspects working for its government before the Court, despite being obliged to do so. Without cooperation, it seems that no individual in a potential case would be prosecuted before the ICC. The OTP might be less capable of pursuing cases involving the Burundi government.

Yet, if the OTP successfully justified the prioritisation of this situation and the Pre-Trial Chamber authorised the investigation of this situation, its authorisation might imply that a State party whose leaders might be defendants cannot avoid the ICC by withdrawing from the Rome Statute.

However, the ICC’s prosecution of the Burundi situation may not have a lasting effect, and perhaps focusing on the Afghanistan and Iraq/UK situations would save the ICC’s reputation in the long term.

To sum up, the application of the A.127(2) of the Rome Statute is uncertain in the preliminary examination of the Burundi situation. Furthermore, due to Burundi’s withdrawal, the ICC has to be prepared for long-term criticism if the Pre-Trial Chamber authorises an investigation of the Burundi situation in the following eleven months.