Burundi to Create Criminal Tribunal and Truth and Reconciliation Commission

The United Nations announced last week that the government of Burundi has agreed to establish a criminal tribunal and truth and reconciliation commission (TRC) to deal with the widespread war crimes, crimes against humanity, and acts of genocide committed during Burundi’s 12-year civil war, in which more than 300,000 people were killed:

Louise Arbour, the U.N. High Commissioner for Human Rights, said Burundi would set up the two bodies soon and that the government had agreed not to give amnesty for war crimes, genocide, crimes against humanity and other serious violations.

“I think this is an important element in the process of peace, justice and reconciliation in Burundi,” Arbour said at a news conference at the end of her five-day visit to Burundi.

[snip]

Analysts say one of the biggest tests for President Pierre Nkurunziza’s government is whether it will carry out a thorough reconciliation process, which is likely to implicate some of its allies and perhaps senior officials.

Nkurunziza himself was a Hutu rebel leader.

[snip]

The truth commission and the tribunal will be set up after national consultations to be led by a nine-member panel with three members each from the government, the United Nations and civil society groups.

The international community has been trying to establish justice mechanisms in Burundi for more than a decade. As Human Right Watch noted in 2000:

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.

Although amnesty for serious international crimes is apparently off the table, the structure of the criminal tribunal and the TRC itself have not been determined. We can only hope that negotiations have moved beyond the structure sketched in a memorandum circulated by the Burundian government in 2004, which human-rights groups considered inadequate. Here is a snippet of Amnesty International’s reaction:

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.

[snip]

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.

[snip]

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.

[snip]

In addition Burundi must conduct a comprehensive reform of its penal code and code of criminal procedure, including implementation of the Rome Statute of the International Criminal Court, and enact legislation guaranteeing victims the right to reparation for crimes under international law.

The UN’s announcement is positive news. But as AI’s concerns indicate, the devil will be in the details.