VII. THE NEED FOR JUSTICE

Following the October 1993 assassination of Melchior Ndadaye, the first Hutu to be freely elected president of Burundi, Hutu massacred thousands of Tutsi, often at the direction of local political or administrative leaders. Burundian soldiers and national police, sometimes aided by Tutsi civilians, killed thousands of Hutu, including in areas where few or no Tutsi had been killed.

Both Burundian and international actors recognized the gravity of these crimes and the need to punish them. In the Convention of Government of 1994, signatories representing all major Burundian parties agreed to describe the 1993 massacres as genocide and called for an international judicial commission of inquiry. In the Transitional Political Program adopted at the formation of the current government, the parties agreed to ask for an international tribunal to prosecute these crimes.

A U.N. Security Council delegation to Burundi in 1994 insisted on the necessity of justice for the 1993 killings and raised the possibility of an international tribunal to deal with them. In its 1995 resolution establishing a commission to inquire into these crimes, the Security Council recalled that "impunity creates contempt for law and leads to violations of international humanitarian law." In a report submitted a year later, the commission concluded that genocide had been committed against the Tutsi in 1993 and that international jurisdiction should be asserted with respect to these acts. The commission described the slaughter of Hutu civilians only as "indiscriminate killing," although ample evidence existed to characterize some of them as crimes against humanity.

Burundian courts have not yet delivered satisfactory justice for most of the 1993 crimes. The judges who tried persons accused of having assassinated Ndadaye found guilty a number of lower ranking military officers but acquitted others of senior rank or greater political importance. Other courts tried only about 20 percent of the 9,500 persons jailed for supposedly having participated in the 1993 crimes. Most of the accused are Hutu and virtually all of the judges are Tutsi, leading many to question the credibility of verdicts in these cases.

Nor has the Security Council acted to provide justice for Burundi, despite the recommendation of its own commission and the expressed wish of the current Burundian government.

With the failure of the justice system to establish the guilt of individuals, politicians have assigned responsibility for past crimes to the totality of the opposing ethnic group, thus reinforcing hatred and fear among Hutu and Tutsi alike. Without credible judgments by the courts, politicians seek to establish guilt by appealing to their own version of history. At one of his first sessions as mediator, Mandela entreated participants in the talks to leave the past behind. No soonerhad he finished, than a Burundian speaker took the floor to begin once more reciting the litany of crimes committed by the other side. In what is probably a unique case in the annals of diplomatic negotiations, the Arusha participants have decided that arriving at an mutually acceptable interpretation of the past is important to ending the civil war. One of the four commissions originally established to organize the negotiations is devoted to producing such a description of the nature and history of the conflict.

Mandela has raised the possibility of amnesty for some of the crimes of the past, but he has excluded genocide, crimes against humanity, and the coup against Ndadaye from any such consideration. Distinguishing political from ethnic crimes, as Mandela has suggested, may prove impossible in Burundi where politicians have used ethnic slaughter as a way to get or hold on to power. But he is right in insisting on the need to punish genocide, crimes against humanity, and the assassination of Ndadaye. Leaving crimes of such gravity unpunished would tempt extremists to dare similar horrors again. It would make a mockery of all pronouncements about establishing a state of law in Burundi and would call into question the delivery of justice for lesser crimes.

What is true inside Burundi is equally so in the larger region. Given the interlinked nature of the Central African conflicts, given the past ethnic slaughter in the DRC and the current fear and hatred between those identified with Tutsi and those identified with Hutu in the Kivu provinces of the DRC, and given the possibility of future threats against even the apparently stable government of Rwanda, the international community must show that genocide and crimes against humanity will be punished no matter where or by whom they are committed. To leave allegations of such crimes unaddressed in any part of this region will undermine the potential deterrent effect of judgments by the International Criminal Tribunal for Rwanda (ICTR).

Conversely, creating an international jurisdiction to try cases from Burundi would reinforce the impact of judgments from the ICTR. Given the present work load as well as the troubled administrative history of the ICTR, it would be best to establish a separate but coordinating division, with its own administration, prosecution, and trial chamber. It should be structured in such a way as to benefit from the existing jurisprudence created by the ICTR and with recourse to the same appeals chamber. Like the International Criminal Tribunal for Ex-Yugoslavia, the Burundi tribunal should have no fixed date for the end of its mandate. By creating a jurisdiction able to prosecute crimes not yet committed as well as those of the past, the international community would deliver a clear warning to extremists of all kinds who might otherwise be tempted to organize ethnic violence in order to disrupt any peace accords.

The majority of cases now pending would be judged in Burundian courts. Given the current limitations in number and resources of these courts, the international community should begin preparing the assistance that will be needed for them to function effectively and according to due process. To remedy the shortage of judicial personnel, the international community should stand ready to assist in the intensive training of new staff. Such training should also be seen as an opportunity to integrate greater numbers of Hutu into the judicial system, a move which would help make judicial decisions more credible in the eyes of Hutu. The international community should also press Burundian authorities to accept the help of foreign jurists who could serve as judges, assessors, and prosecutors in these trials, just as they are now serving as lawyers for the defense. In a world where judicial authorities increasingly take responsibility for judging cases of genocide and crimes against humanity beyond their own borders, Burundians may be persuaded to see the benefits of accepting foreign jurists to assist in resolving-and in resolving with greater transparency-the enormous number of cases that burden their judicial system.24

Burundian negotiators have reportedly decided on the need for another international commission to inquire into genocide and crimes against humanity in Burundi. Its scope has not yet been determined, but if it were to deal only with the events of 1993, it would be the third such investigation of the killings. Before the U.N. commission did its inquiry,a group of international nongovernmental organizations carried out an investigation of the Ndadaye assassination and the ensuing massacres.25 The negotiators also favor creating a national truth and reconciliation commission. Such additional inquiries may be helpful in developing a fuller history of the tragic events but their establishment must not impede immediate investigation and prosecution of responsible individuals. These initiatives serve different purposes and one cannot substitute for the other.

In addition to providing for adequate justice, the Burundian peace accords should guarantee the freedom of local and international human rights monitors to work unhindered throughout the country. The office of the U.N. High Commissioner for Human Rights should prepare to expand its operations in Burundi and international donors should stand ready to provide the resources necessary to make this possible.