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XII. Justice

As victims of crimes frequently complained to Human Rights Watch researchers, police and judicial authorities have done little to bring perpetrators of crimes to justice. This is true for military authorities as for those in the civilian justice system. Soldiers accused of crimes have sometimes been transferred to other posts, as mentioned in cases above, but the accusations against them have not been investigated and sent to the appropriate judicial authorities.

In some cases angry victims, like those discussed above, believed there was no justice to be had but at their own hands and attacked those whom they believed responsible for crimes, whether military, rebel, or other civilians. A soldier recently killed a couple whom he held responsible for the death of a relative. The couple had been arrested and released because, so the soldier believed, they had bribed the authorities.²⁵⁵ Although the number of such cases is not large, the slippage from public to private justice is significant because it symbolizes a potentially widespread loss of faith in the judicial system. If the provisional immunity described below serves to protect perpetrators of massacre, rape, and other abuses of the civilian population, Burundians can be expected to have even less respect for their system of justice.

Provisional Immunity

Driven by political pressure to ignore past crimes yet apparently anxious to demonstrate a commitment to a rule of law, the Burundian government pursues a zigzag course in the domain of justice, well illustrated by the provisional immunity article of the November 2 Pretoria Protocol.

This second measure was seen as necessary to enable these leaders to return to Burundi and participate in the transitional government specified in the accord. The law against genocide, war crimes, and crimes against humanity was passed in April 2003. By that time the leaders who were supposed to benefit from provisional immunity had already returned home and enjoyed de facto protection from prosecution. The Transitional National Assembly nonetheless adopted a provisional immunity resolution in August 2003, apparently to honour a political deal between Hutu and Tutsi parties. The resolution guaranteed provisional immunity for alleged political crimes for a period of two years but specifically excluded any immunity for war crimes, crimes against humanity and genocide. As of early November, the senate had not yet acted on this resolution.

In the protocol signed November 2, the government of Burundi and the FDD agreed to grant provisional immunity to all leaders and combatants of CNDD-FDD and to all members of the government security services (meaning army, national police, and so on); tocreate a mixed commission to examine the cases of civilians currently in prison in order to determine that (not if) they will have the right to provisional immunity; and to support those parts of theArusha Accordthat promoted peace and reconciliation, that is, the articles concerning the creation of an international tribunal and a national commission of truth and reconciliation.²⁵⁶

These immunity measures were far broader than those adopted by the assembly in August: they specified no time limit for the immunity and they excluded no crime. In addition, with the November agreement there was no pretext of the action being necessary to facilitate the return of persons outside the country: members of the security services were necessarily resident in Burundi, those in prison were certainly in the country, and even the great majority of FDD leaders and combatants were inside the borders. And unlike the August measure that applied only to a limited number of leaders, the November guarantee covers all members of the FDD and the security services.

In 2001 the government established a mixed commission of international and national experts to examine the status of political prisoners, as called for in the Arusha Accord. Among other measures, the commission recommended the release of prisoners accused of political crimes, such as membership in armed groups. But many political prisoners remained in jail in November 2003 and the new commission agreed to in the Pretoria Protocol was meant to free them, as is shown by the language of the provision.²⁵⁷

According to one diplomatic source, the initiative for the immunity provision came from the FDD. The rebel movement reportedly insisted that protection from prosecution was a prerequisite to any settlement and must be extended to government forces as well in order to mask the origin of the initiative. Should this information be accurate, government officials accepted rather than demanded the immunity.²⁵⁸

The vague and open-ended language of the protocol may well serve to prevent prosecution of persons responsible for serious violations of international humanitarian and human rights law and hence in effect grant them amnesty for these crimes. Amnesties for certain political offences, such as taking up arms against the state or treason, are consistent with international law. Provision of amnesty for serious crimes under international law (including international humanitarian law),²⁵⁹ crimes against humanity,²⁶⁰ and genocide,²⁶¹ however, are in violation of a state’s international legal obligations. At the very least, the guarantee of provisional immunity will delay—perhaps for many years—any delivery of justice for these crimes and will hinder the reconciliation that depends upon justice being done.

The Arusha Accords prohibit the national army from incorporating any members of the government forces or the rebel movements found guilty of genocide, coup d’états, violations of the constitution and violations of human rights and war crimes. This provision cannot be implemented so long as persons possibly guilty of these crimes are immune from prosecution.²⁶²

In the protocol, the Burundian government and the FDD gave a nod towards justice by professing support for an international tribunal, but it is extremely unlikely that such a tribunal would ever be established, as these political leaders must certainly know. While they support a truth and reconciliation commission, such a body would not serve the same purpose as criminal trials.

Responsible leaders inside and outside Burundi must seek to narrow as far as possible the effective immunity from prosecution granted by the protocol, both by restricting its duration and by insisting that it must not apply to serious violations of international humanitarian and human rights law. Should there be no effective action to limit this grant of immunity, combatants engaged in the ongoing war, whether government soldiers or rebels, will be encouraged to disregard international law whenever they find it useful to do so. Not only will the crimes detailed in this report go unpunished, but more such crimes will surely be committed.

The Law Against Genocide, War Crimes and Crimes Against Humanity

In April 2003 Burundian legislators adopted a long-promised law against genocide, war crimes and crimes against humanity. Passage of the law marks a major step in this country that has seen large-scale ethnic slaughter in the past, but, like the provisions for immunity, the law may delay rather than speed justice. It is encumbered with a complicated mechanism that requires waiting for an international judicial commission of inquiry to examine crimes committed from 1962 until the date of promulgation of the law to determine if they constitute genocide, war crimes and crimes against humanity and, if it so determines, to refer these cases to an international tribunal. The law which was promulgated on May 8 provides also that national jurisdictions should try any crimes of this nature that may be committed in the future and specifies that these jurisdictions should be “staffed with regard to ethnic balance,” a standard which is both vague and, given the relative lack of Hutu jurists, probably unworkable in the immediate future. The death penalty could be applied to those found guilty, in contravention of prevailing international norms and the practice of existing international tribunals.

The Rome Treaty

Continuing its attention to justice, the national assembly in April adopted a law for ratification of the Rome Treaty establishing the International Criminal Court (ICC). During the debate assembly deputies did not discuss whether the government intended to make use of Article 124 of the statute which permits states adhering to the treaty to prevent consideration by the ICC of any war crimes committed by their armed forces for a period of seven years. The senate scheduled consideration of the Rome Treaty in June but postponed the discussion several times before taking it up on June 18 and 19. The senators hotly debated Article 124 after the minister of foreign relations insisted that it would be applied in case of ratification. In the end the government simply withdrew the question of the Rome Treaty from consideration.²⁶³

Because the senate failed to take a decision on the proposal to ratify the Rome Treaty within the time period specified by law, the measure was considered approved by both houses of the legislature. To ensure that he was acting within the law, the president of the assembly asked the Constitutional Court if he was authorized to send the law on to the president of the republic for signature and promulgation and was told that he could. Although forwarded to the president in August, the law had not been promulgated as of early November. Nor has either legislative chamber reconsidered the question of the use of Article 124. Having moved initially in the direction of international justice, the government finally backed away from accepting accountability for its citizens and military officers, reinforcing the message delivered by the Pretoria Protocol that it was ready to leave the gravest kinds of crimes unpunished.²⁶⁴

Judicial Reform

Since 1999 the Ministry of Justice has been engaged in an effort to reform the legal, judicial, and prison system. One of the most important measures, a law passed on September 22, increased nearly six-fold the number of courts able to judge crimes punishable by the death penalty or life imprisonment. The law granted competence in such cases to the seventeen Tribunaux de Grande Instance; previously only the criminal chambers of the three appeals courts could judge them. Promulgated in October and effective immediately, this law specifies—as does the law on genocide—that the benches of judges must be ethnically balanced but adds also the requirement of balance by gender. It specifies that cases now before the three criminal chambers be immediately transferred “in their current state” to the new jurisdictions. The increased number of jurisdictions should certainly speed up the pace of trials and help to reduce the backlog of detainees awaiting trial. The reform also creates the appellate jurisdiction previously missing because the appeals courts were also judging criminal cases. These important advances may be temporarily counterbalanced by the difficulties of recruiting and training magistrates and re-assigning cases currently in trial.²⁶⁵

Other reforms are still being debated, including a law on judicial competence that would shift cases of members of the armed forces accused of common law crimes from military to civilian jurisdiction and another increasing the number of offices of the military justice system and decentralizing its work.²⁶⁶

Military Justice

Military courts have done little to render justice for military crimes against civilians. In February 2003 the war council (military court) of Kayanza, sitting at Ngozi, found two officers accused of leading the massacre of 173 civilians at Itaba in September 2002 guilty only of failure to follow orders. They were sentenced to just four months of prison and since they had already been detained for five months, they were released and restored to their ranks. After considerable international criticism for this leniency, the Chief prosecutor of the Republic Gerard Ngendabanka took over the case and ordered new inquiries. Apparently no victims were questioned in the course of the summary investigation done by military authorities.²⁶⁷ Faced with the prospect of havingto re-examine the case, military justice authorities sought procedural pretexts for not doing so.²⁶⁸

Military authorities have made little progress investigating the massacre documented by Human Rights Watch of at least thirty-two and probably many more civilians by government soldiers at Mwegereza, Gisuru commune, Ruyigi on January 19, 2003.²⁶⁹ The commander of Ruyigi district showed a Human Rights Watch researcher accounts of several interrogations he had done about the event but he had not transmitted those documents to the military prosecutor, taking the position that there had been no massacre.²⁷⁰

Breakthrough in an Important Case of Murder and Corruption

In late October 2003 judicial authorities arrested four high-ranking officials for the November 2001 murder of Dr. Kassi Manlan, head of the World Health Organization (WHO) in Burundi. The four included a commander of the national police, a commander of the traffic police, a deputy administrator of the immigration police, and an official in the government intelligence service. Several persons were arrested soon after the crime was committed and have been brought totrial, but it had long been rumored that important authorities were implicated in this complex case that apparently involved very lucrative contracts for the importation of medicines.²⁷¹ At his trial in May and June one of the earlier accused, Jean Pol Bukeyemeza, wanted to present information about the organizers of the crime. The court refused to allow him to make a statement publicly but did allow him to place a written version in the case file. ²⁷² The recent decision of the prosecutor to arrest police commanders and other officials of high standing marks a welcome development in the case.

The Judges’ Strike

During September and October, Burundian judges went on strike for fifty days, attempting to secure better pay and working conditions and to assure their independence from the executive. The judges complained that they were not fully consulted about reforms affecting their work and that some judges were reassigned to other posts as punishment rather than for clear and convincing reasons. Their strike stopped trials, led to seriously overcrowded lockups, and obliged police to send detainees to prison without the magistrate’s warrant required by Burundian law.²⁷³

In addition to the institutional reforms described above, the judges—most of whom are Tutsi and male-- are facing the changes required to make their ranks more ethnically balanced, as required by the Arusha Accord, and for at least some chambers, more balanced by gender as well.