UN and Burundi Discuss Transitional Justice Mechanisms

Discussions have begun between the UN and the Burundian government about establishing two transitional justice mechanisms for dealing with the atrocities committed during Burundi’s 12-year civil war, which claimed the lives of more than 200,000 people and displaced more than 500,000: a Truth and Reconciliation Commission, and a special criminal tribunal empowered to investigate and prosecute genocide, war crimes, and crimes against humanity. Both the commission and the tribunal would be composed of national and international members.

Although the discussions are a welcome development — and long overdue — Amnesty International notes some well-founded concerns with the structure of the proposed commission and tribunal:

Firstly, Amnesty International recommends that the terms of the TRC and the Special Tribunal include provisions to guarantee the effective independence, impartiality and competence of its members. In this regard, Amnesty International is concerned that, according to the government memorandum, members of both mechanisms would be nominated by the President of Burundi. Apart from referring to the consultation with the UN Secretary General, the memorandum is silent on the issue of the procedure of selection of the members. The memorandum furthermore suggests that the Burundian government could remove international members on the grounds of ‘objective neutrality’ at any point throughout the proceedings of the TRC. Such a proposal, if accepted, may directly or indirectly compromise the independence and impartiality of the TRC.

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Secondly, Amnesty International is concerned about the limitation to the temporal jurisdictions of the TRC and the Special Tribunal as neither the Burundian government nor the United Nations have proposed to include crimes committed before the date of independence. Violations committed during the period in which Belgium administered the United Nations Trusteeship must be addressed if comprehensive reconciliation of the Burundian population is to be achieved. Barring the investigation and prosecution of crimes committed before Burundi’s independence would be contrary to the prohibition of statutes of limitation for crimes under international law.

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Thirdly, the organization is concerned about the role the government envisaged for the TRC in determining which cases could benefit from the application of an amnesty law. Amnesties for crimes under international law that prevent the judicial determinations of guilt or innocence and do not provide for full reparations for victims are prohibited by international law. Amnesty International urges the government and the UN to exclude any amnesties, pardons or similar measures of impunity that prevent the emergence of truth about gross human rights violations, a final determination of guilt or innocence and full reparations for the victims and their families.

Fourthly, Amnesty International is concerned that the “procedure of reconciliation” before the TRC, as proposed by the government, could result in barring or limiting investigation and criminal prosecution of those suspected of having committed crimes under international law. According to article 43 of the government’s memorandum, the TCR will only refer cases which do not successfully go through the procedure of reconciliation to the special tribunal.