Is the International Criminal Court Really Biased Against Africa? - the Case of Burundi

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Dugard contends that while all these cases in Africa were being investigated and prosecuted by the International Criminal Court, other war crimes and crimes against humanity were being committed internationally (Dugard, 2013) with specific references to situations in Iraq (by British forces), the Comoros (the Mavi Marmara), the Colombia (by both the FARC and government forces) and the Palestine. At the same time when Libya and Sudan were referred to the ICC for investigations by the United Nations Security Council, conflicts of similar gravity were being committed in Syria which saw no referrals whatsoever from the USCL. Moreover, in 2008, an attack was launched on Gaza, with the code name Operation Cast Lead (Dugard, 2013). This attack by the end of 2009, had claimed the lives of 1,400 Palestinians, out of 850 were civilians, including 110 women and 300 children and properties and homes were burned to ashes. The ICC surprisingly made no deliberate attempts to investigate these situations

Also, Desmond Impilo Tutu referred Tony Blair to the International Criminal Court over alleged ‘crimes of aggression and a crime against peace” due to the latter’s blatant invasion of Iraq which led to loss of lives due to the use of weapons of mass destruction. Owing to this, in 2012, Desmond Mpilo Tutu blatantly refused to share a stage with Tony Blair in Johannesburg, based on his alleged actions over the war in Iraq. This alarmed the international community to this apparent moral ambivalence in relation to the way the ICC works.

Stemming from these, African opponents of the Court and other international bodies have stated that the International Criminal Court is anti-African and persecutes and humiliates people of color, especially Africans, due to its skewed selection of cases (Arieff, Margesson, & Browne, 2010) with specific reference to the Gambian “Information Minister, Sheriff Bojang, claiming that the International Criminal Court is an “International Caucasian Court” (Monbiot, 2012). These assertions are understandable since the record of activities of the ICC has done nothing to alter it. Moreover, these perceptions defeat the primary object of the Court to end universal impunity and reflects badly on the reputation of the court as an independent and fair international tribunal.

Critically analyzing the current situations of the International Criminal Court, there is a genuine issue of concern with regards to the perception and the need for the ICC to be regarded by all (including Africans) to be acting in a free and a fair manner to salvage its alleged dying reputation and authority. In a world in which many other nations – particularly powerful ones – act with apparent impunity, the ICC’s alleged limited focus on African states deviates from the universal aspirations of international criminal law (Plessis, Maluwa & O’Reilly, 2013) and suggests that the arguments made by its critics with regards to its activities are not entirely irrelevant.

Burundi, before withdrawing from ICC, asserted that the court is biased towards Africa. This is a country that has experienced a long and protracted series of inter-ethnic conflicts since its independence in 1962 (Schweiger, 2006). The Burundi Civil War was an armed civil war that spanned between 1993 to 2006 due to an entrenched ethnic division. Ever since the civil war, Burundi has never recovered from conflicts and political unrest (Blattman & Miguel, 2010). The conflict ended in 2005 following the swearing in of President Pierre Nkurunziza in 2005. It was estimated that about 300,000 civilians were killed which came as a shock to the international community (Schweiger, 2006). On the 25th of April, 2015, the ruling party in Burundi, the National Council for the Defense of Democracy – Forces for the Defense of Democracy (CNDD – FDD), explicitly announced that President Pierre Nkurunziza would run for a third term in 2015.

This unpopular announcement sparked widespread protests among those who did not agree with his decision to run for a third term. Due to the protests the country’s internet and telephone network shut down. A coup was announced shortly after as President Nkurunziza embarked on a trip to Tanzania. The coup was a nine-day-wonder as the government reasserted legitimate control a few days later. Following this, about 430 persons had reportedly been killed, at least 3,400 persons were arrested and about 230, 000 indigenes including the Vice-President of the constitutional court due to threats of deaths band torture have fled to seek refuge in neighboring Rwanda, Democratic Republic of Congo, and Tanzania (“Burundi,” n.d.).

Due to the gruesome situation in Burundi, three lawyers, who happened to members of the Bujumbura – capital of Burundi – in a report to the UN Committee on Torture described in detail the mass violence and the murders, tortures and rapes that civilians were facing due to the widespread and rampant protests (The Guardian, 2016). This report was not taken lightly by the government. The three lawyers were unequivocally commanded to be removed from the Bar. The UN launched private investigations into the issue and ascertained that Burundi was undergoing gross human rights violations. The UN investigators verified 564 executions in Burundi since April last year (The Guardian, 2016). The government of Burundi denied all the claims and accusations levelled against them stating that the accusations were made by “those who want to sow division and panic within the defense and security corps” of the country.

Since Burundi remains under the jurisdiction of the court, in April, 2016, Fatou Bensouda – the chief prosecutor at the court – announced preliminary examinations were being launched by The Hague-based court to investigate the acts of killing, imprisonment, torture, rape, and other forms of violence, including situations of forced disappearances to get more evidence to prosecute the perpetrators of those heinous crimes (“Burundi moves to quit the International Criminal Court,” n.d.). This move by the court was met with heavy objections, particularly from the ruling government. The ruling government saw the move as “a threat to harm Burundi” and accused the ICC of disproportionately bringing charges against innocent African countries.

Examining the case of Burundi, it can be argued that there is no shred of biasness with regards to the ICC’s approach to ending impunity in Burundi’s territory. It can be said that the ICC only made a move following a genuine concern of the citizens of the country, which is justifiable. Moreover, there are very good reasons why the ICC has prosecuted mostly Africans since its establishment in 2002 (Plessis, Maluwa & O’Reill, 2013) hence the geographical