Background Briefing

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A crime of this horror calls for justice, as many national and international actors have recognized. The UN Security Council directed a preliminary inquiry of the massacre and will likely ask for further investigation by some UN or other international mechanism. The African Union may launch an inquiry, General Mbuze Mabe, Chief of the 10th Military Region of the Congolese army, has ordered an investigation and a Burundian inquiry is under way in the hands of two magistrates. The presidents of Burundi and Congo also discussed launching a joint inquiry. At best one or more of the investigations will provide material for successful prosecution of those responsible for the massacre; at worst the multiplicity of efforts will lead to confusion and conflicting interpretations of the events. 

Prosecution of FNL Leaders

After the public statements of the FNL spokesman Habimana asserting that his movement carried out the attack on the camps, the Burundian government issued arrest warrants for him and for FNL head Agathon Rwasa. As of this writing, neither has been apprehended. The two could be tried under a Burundian law of May 8, 2004 providing for the prosecution of those charged with genocide, crimes against humanity, and war crimes. This law gives Burundian courts jurisdiction over such crimes committed on Burundian territory after May 8, 2003, including over perpetrators who are not resident of Burundi or who are outside the borders of Burundi.

From the start Habimana linked the massacre of the Banyamulenge with past killings of civilians that have gone without investigation and without punishment. Of course the deliberate killing of civilians can never be justified, but his comments underline the continuing importance of impunity in Burundi. Absence of criminal prosecutions for killing on one side provides pretexts for those who wish to carry out killing on the other.

Although there have been several apparent war crimes and crimes against humanity committed in Burundi since the promulgation of the May 8 statute, there have thus far been no prosecutions under this law which is little known even among judges and magistrates.       

Burundian authorities could seek the assistance of the International Criminal Court (ICC) in investigating and prosecuting this case. Habimana said that he would have no hesitation appearing before an international jurisdiction although he has no confidence in the Burundian judicial system. In April 2003 the national assembly approved the Rome Statute of the International Criminal Court, a first step in joining the ICC, but the senate split over the possible use of article 124, which would allow Burundi exemption from ICC jurisdiction for war crimes for seven years. The government withdrew the measure from the senate, which then took no action on the assembly resolution approving the treaty. The constitutional court ruled in July 2003 that the failure of the senate to act within the legally specified delay meant that the law could be sent to the president for signature and promulgation. In August 2003, the president signed the law, but his signing was kept secret until recently. In order to complete the process of joining the ICC, the Burundian government would need simply to officially inform the court of its approval of the treaty and of its wish to join. The Gatumba massacre offers the Burundian government an ideal opportunity to complete its membership in the court and to invite its assistance in finding and punishing the perpetrators of this crime.

Even without completing the formal process of joining the ICC, Burundian authorities could request the exercise of the jurisdiction of the court for this case, in accord with article 12(3) of the ICC Statute. Such a request would then trigger at least a preliminary investigation by the ICC prosecutor.

Commitment to justice for the Gatumba victims, essential though it is, must be only the starting point for a much broader effort involving justice for all parties to the conflict in Burundi and elsewhere in the region.  In an August 30 press release, the FNL asked “why the same compassion [as shown for the Gatumba victims] was not shown when there were massacres of millions of Burundian Hutus and Rwandan refugees in the Congo.” The release then specifically referred to the massacre at Itaba in which Major Budigoma, currently head of the Gatumba military camp, was implicated.96 It is illegal and immoral to use killings on one side to try to justify killings on the other, but military and political leaders often do just that.  It is only real justice—justice for all victims, regardless of the crime, regardless of the perpetrator—that can deprive them of that powerful tool to mobilize followers for violence.

[96] FNL National Secretariat for Foreign Relations, COMMUNIQUE PH-FNL 010/08/2004, “A Qui Profite les Evenements de Gatumba?”

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