Practice Relating to Rule 158. Prosecution of War Crimes
Burundi’s Regulations on International Humanitarian Law (2007) states:
The obligation to suppress breaches of the law of war takes the form … of aut dedere, aut judicare
. It pledges any State to search for the authors of war crimes or crimes against humanity, either by penal prosecution … irrespective of their nationality, the nationality of the victims or the place where the acts were committed, or by extraditing the authors, according to the law of the State concerned, to the State which requests their extradition in order to prosecute them.
The Regulations also states:
Burundi adheres to the definitions of the violations of the law of war set out in these statutes [including the 1998 ICC Statute] and accepts their suppression. … [I]n Burundi, any soldier suspected of having committed a violation of the law of war must be brought before the Conseil de Guerre or the Cour Militaire, depending on his rank … [A]ny civilian … accused of violations of the law of war must be brought before a civilian criminal court.
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
The present law has the objective of integrating into Burundian legislation the crime of genocide, crimes against humanity and war crimes, and to organize the procedure of prosecution and of bringing to trial persons accused of the aforementioned crimes.
The Law also provides:
The crime of genocide, crimes against humanity and war crimes must be the subject of an inquiry and the persons against whom clues of guilt have been collected [must be] arrested, brought before the competent courts and, if found guilty, punished in conformity with the procedure foreseen by the criminal procedure code or by other specific provisions foreseen by the law.
The Law further states:
Any person who … orders [or] instigates to commit … one of the offences proscribed by Articles 2, 3 and 4 of the present law, is culpable of the crime of genocide, a crime against humanity or a war crime, respectively, according to the modes of criminal participation as they are set out by Articles 67 to 69 of the penal code.
Burundi’s Penal Code (2009) states:
Any offence [including genocide, crimes against humanity and war crimes] committed in the territory of Burundi by Burundians or foreigners is … punishable according to the criminal law of Burundi.…
Any crime committed abroad by a Burundian or a foreigner is, subject to conventions on extradition, punished by the criminal law of Burundi if the perpetrator is present in Burundi or if the victim has the Burundian nationality, and if the fact is punishable pursuant to the legislation of the country where it was committed.
The jurisdiction of Burundian tribunals over genocide, crimes against humanity and war crimes is not subject to these crimes being punishable pursuant to the legislation of the country where they were committed, nor is it subject to conventions on extradition.
The Code also states:
In case of conviction for rape, torture, crime of genocide, crimes against humanity, war crimes or in case of conviction for tentative or complicity regarding war crimes, crimes against humanity and crime of genocide, the courts and tribunals cannot suspend the sentence.
In 2008, in its second periodic report to the Committee on the Rights of the Child, Burundi stated: “Legislation punishing the crime of genocide, war crimes and crimes against humanity was enacted in 2004.”
Burundi’s Refugee Law (2008) states:
Grounds of inadmissibility of the asylum application
… The right to seek and to enjoy asylum in Burundi may not be invoked by those persons with respect to whom there are serious reasons for considering that:
… [T]hey have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.