With a successfully completed peace process followed by general elections in the summer of 2010, the case of Burundi seemingly contradicted the conventional wisdom that there can be no peace without justice. In fact, despite a rhetorical commitment to establishing transitional justice mechanisms, no action has so far been undertaken to end impunity for past human rights crimes.

By Stef Vandeginste

It was hoped that the 2010 elections might consolidate the achievements in terms of peace, security and stability and pave the way for a transitional justice process. However, hope transformed into fear soon after the start of the electoral process.

In the early hours of June 23rd 2010, Agathon Rwasa went into hiding and has not been seen since. He was the leader of Burundi’s last active rebel movement, The Party for the Liberation of the Hutu people, which laid down arms in 2009. His voluntary disappearance is directly related to the defeat of his political party, the National Liberation Forces (FNL) in the communal elections of May 24th. The FNL and several other opposition parties denounced what they considered to be massive electoral fraud and decided to boycott the presidential and legislative elections.

On June 28th, incumbent President Pierre Nkurunziza was reelected as Head of State after six challengers, including Rwasa, withdrew their candidature. The leader of the former main rebel movement, the National Council for the Defense of Democracy - Forces for the Defense of Democracy (CNDD-FDD), won 91.6 percent of the votes cast, consolidating his party’s dominant position.

As former leaders of the predominantly Hutu rebel movements, both Rwasa and Nkurunziza are suspected of having committed war crimes. Many political and military leaders of the predominantly Tutsi government forces they fought, are also among those threatened with prosecution for human rights crimes. Several among them today continue to be part of Burundi’s political, military and economic elite.

Short-term peace
For more than fifteen years, Burundi has been the scene of a clash between two paradigms of global conflict settlement: power-sharing and transitional justice. Throughout its involvement with the crisis that started in October 1993, the international community (the United Nations, the African Union, the Regional Peace Initiative and Burundi’s bilateral donors) has systematically given priority to restoring short term peace, security and stability through power sharing, despite its apparent commitment to rendering justice after several cycles of ethno-political violence that marked Burundi’s post-colonial history.

Firm action against impunity was delayed time and again, a strategy which was most probably based on a sincere conviction that imposing criminal justice upon Burundi’s former and current leaders would inevitably derail the peace process.

In August 2000, a first peace agreement was signed in Arusha, Tanzania, between the government, the national assembly, and groups of predominantly Tutsi and Hutu parties. They agreed to set up a truth and reconciliation commission (TRC) and ask the UN to establish an international judicial commission of inquiry to investigate whether war crimes, crimes against humanity or genocide had been committed. This was expected to lead to the establishment of an international criminal tribunal for Burundi. However, despite two subsequent peace agreements in 2003 (with CNDD-FDD) and 2006 (with FNL) that did not revise this approach, so far none of the two bodies has been established. So what went wrong?

Obstacles on the road to transitional justice
In 2004, the UN sent an assessment mission to Burundi with the mandate of studying “the advisability and feasibility of establishing an international judicial commission of inquiry”. UN Security Council Resolution 1606, adopted on June 20th, 2005, requested that the Secretary-General initiate negotiations with the Burundian government on the implementation of the assessment mission report. The report recommended the establishment of two hybrid transitional justice mechanisms: a TRC and a Special Tribunal.

Negotiations between the UN and the government started in early 2006 but were suspended in November 2007, leaving two major elements of disagreement unresolved. The first obstacle concerned whether the TRC had the authority to recommend amnesty for perpetrators of war crimes, crimes against humanity and genocide. Whereas it is now standard policy for the UN not to accept such amnesties, the Burundian government clearly wanted to include that option as part of the TRC mandate. This was not surprising in light of the disastrous human rights record of several of its military and political leaders.

A second obstacle concerned the independence of the prosecutor of the Special Tribunal --an essential cornerstone according to the UN. But the government wanted the prosecutor to investigate only those cases that were forwarded to his office after an unsuccessful reconciliation procedure before the TRC. A CNDD-FDD memorandum, published on the eve of the visit to Burundi by the UN High Commissioner for Human Rights in May 2007, goes even further. It suggested that the Special Tribunal should only be established when the TRC recommends doing so in its concluding report. In combination with a proposed majority of national TRC commissioners, such a scenario might well allow the government to veto the establishment of a Special Tribunal. No agreement was reached

Temporary way-out
A temporary way-out was found in November 2007. A national consultation process was launched to inform the general population, to enhance its ownership, and to inquire about its expectations in terms of dealing with the past. Most importantly, this allowed both sides of the negotiating process to win time until after the 2010 elections.

Consultations were organised by a tripartite steering committee, composed of representatives of the UN, the government and civil society. They were held between July and December 2009 in all provinces, involving some 4,800 participants. In April 2010, the report was submitted to the President’s office but has not yet been made public. As stipulated in UN Security Council Resolution 1902 - which defines the mandate of the UN Integrated Office in Burundi (BINUB) - the report is supposed to form the basis for the continued negotiations on the establishment of transitional justice mechanisms.

However, it is doubtful whether the findings of the report will make negotiations any easier. It rejects amnesty for genocide, crimes against humanity and war crimes, not because that is the view of the Burundian population, but because such amnesties were a priori excluded in the terms of reference of the consultation process.

Political tension on the rise
It was hoped that, after the elections, the climate would be more conducive to launch the transitional justice process. Unfortunately, that hope has nearly dissipated. Human rights violations, most notably by the intelligence service (SNR), are on the rise. And violent attacks that recently claimed the lives of over twenty people have fuelled rumours about a new rebel movement, possibly under the leadership of Agathon Rwasa.

Although both the government and the opposition (most of its leaders now reside abroad) deny that there is a political agenda behind the recent assassinations, rumour easily becomes part of reality in Burundi. Following Rwasa’s electoral defeat, criminal prosecution for past human rights abuses hangs over him like the sword of Damocles. Together with conjunctural allies, he may well conclude that renewed use of armed conflict is both a necessary and sufficient condition for him to be invited for yet another round of peace talks, and to claim through power-sharing negotiations what he failed to obtain through the ballot box.

Stef Vandeginste is a Postdoctoral Fellow of the Research Foundation - Flanders (FWO) at the Faculty of Law, University of Antwerp (Belgium). His monograph Stones Left Unturned. Law and transitional justice in Burundi (2010) analyzes the law, policy and practice of transitional justice in Burundi since independence.

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