RESPONDING TO ALLEGATION OF GENOCIDE OF IN THE GREAT LAKES REGION: ASSESSMENT AND PROSPECTS The Great Lakes region of comprises the Democratic Republic of Congo (hereinafter the DRC), , and Uganda. For a long time, the Republic of Rwanda was ruled by Hutus whereas the majority of Tutsis lived in exile in the neighbouring countries. The later developed an armed opposition, the (RPF) which was based in Ugandai. In 1994, suspected to have organised the shooting of President Habyarimana’s plane, the Tutsis were subject of mass killings which has been proved before the International Criminal Tribunal for Rwanda (ICTR) to be genocide. The killings only stopped when the RPF defeated the Rwandan Army and came to power in . More than a million of Rwandan fled to the DRC (then Zaire). It was the beginning of a long period of political instability and humanitarian concern in the regionii. It has been reported that the RPF organised a ‘counter genocide’ and killed Hutus in retaliation of the genocide of Tutsisiii. Following the thematic of this conference, this paper will focus on the allegations of counter genocide (1), the missed opportunities of responding to the allegations of ‘counter genocide’ (2) and the prospects of responses thereto (3). 1. The allegations of ‘counter genocide’ The allegations of ‘counter genocide’ emerged from major UN documents including the Gersony report (1.1), the report of the UN General Secretary’s investigative team dated of 1998 (1.2) and the mapping exercise report documenting the most serious violations of human rights and international humanitarian law committed within the DRC between June 1993 and June 2003 (Hereinafter the Mapping Report,1.3). It is also important to see how the allegations of counter genocide impacts on the restoration of peace in Rwanda. 1.1. The Gersony Report One should note that the existence of this document is subject to a controversy. Hence it does not figure amongst the UN public documentsiv. Its existence is now beyond doubtv. In essence, Gersony was tasked with the identification of a strategy for the return of Rwandan refugees to their country after the collapse of the Habyarimana regime. He informed the UN on the causes of the massive fleeing of Hutus from Rwanda. As the RPF came into power, it organised systematic killings of Hutus in retaliation of the genocide of Tutsis. He suggested that the killings of Hutu could amount to genocidevi. 1.2. The UN Secretary General investigative team’s reportvii The team reported that when it reached the town of Mbandakaviii, the Rwandan Patriotic Army searched and killed Hutu refugeesix. The report suggested that if proved before a judicial body, those killings could be qualified as genocidex. It 2

suggested the extension of the temporal competence of the ICTR in order to investigate into the allegations of massacres of Hutusxi. The governments of the DRC and Rwanda denied the allegations of massacres of Hutus on the territory of the DRCxii. Instead of appointing a neutral judicial body, the UN urged the aforementioned countries to investigate the allegations of massacresxiii. As one could expect (given the fact that they denied the findings of the report), no investigation took place at the domestic level. 1.3. The mapping reportxiv The mapping report considered the allegations of counter genocide. It suggested that the mass atrocities perpetrated by Tutsis on Hutus on the territory of the DRC amount to the crime of genocidexv and recommended further investigation by a judicial bodyxvi . 1.4. Impact of the allegations of genocide on the restoration of peace in Rwanda The Republic of Rwanda has two major communities: the majority Hutu and the minority Tutsi. The Tutsi have been active on building the memorial of the Genocide. The most important tool in this memorisation effort is the film ‘Hotel Rwanda’ that has broadly circulated the horrible pictures of the genocide of Tutsisxvii . On their part, the Hutus have echoed (mainly on the internet) the UN documents and other testimonies suggesting a counter genocide and been advocating for the investigation of the counter genocidexviii . Both communities have been regarding themselves as ‘Génocidaires’ (this French word stand for perpetrator of genocide). This situation negatively impacts on the peace process in Rwanda. On may therefore infer that the current peace in Rwanda is only apparent and that there is a reel need for a long lasting peace which is seriously dependent of the clarification on the allegations of counter genocide. It is appropriate to review the missed opportunities in this regard before suggesting practical solutions. 2. Missed opportunities The has definitely missed the opportunities of discovering the truth about the allegations of ‘counter genocide’. Two major opportunities were missed including the investigation of alleged RPF crimes by the ICTR (2.1) and the extension of the ICTR’s temporal jurisdiction (2.2). 2.1. The investigation of allegations of RPF crimes by the ICTR It is reported that the intention of the ICTR Prosecutor Carla Del Ponte to investigate the allegations of crimes committed by the RPF in the limits of the temporal competence of the ICTR provoked a deadlock between the Rwandan government and the ICTR Prosecutor. After the failure of all negotiated solution, the ICTR Prosecutor referred the matter to the Security Council. The UN Security Council 3

reportedly thought that the prosecution of RPA officers would endanger the fragile peace process in the DRC and consequently it did nothing to persuade the government of Rwanda letting the ICTR investigate without hindrancesxix. This crisis is said to have caused the dismissal of the Prosecutor Carla Del Pontexx. The new prosecutor did not take any action towards the prosecution of RPA leaders. 2.2. The investigation of allegations of RPA crimes by an International Criminal tribunal The Security Council’s decision to rely on the Congolese and Rwandan governments for the investigation of the alleged massacres of the Hutus in the DRC is the second missed opportunity. The Security Council was aware of the unwillingness of the aforementioned governments to reveal the truth on the allegations and therefore it would have better appointed an international and independent body. One should not that there are still some possibilities in responding to the allegations of ‘counter genocide’ in order to expect the building of a long lasting peace in Rwanda and thereby in the Great Lakes regionxxi . 3. Prospects of responses to the allegations of counter genocide The development of the situation in the Great Lakes region offers three possible responses including the judicial option (3.1), the truth seeking (3.2) and the intervention of the Security Council (3.3). 3.1. The judicial option It is clear that in the context of mass atrocity the judicial option does only have limited capacities. This is, among other reasons, because it does only deal with ‘those who bear the greatest responsibility’ (giving the impression of double standard and arbitrariness) and generally it does not have a satisfactory response for victims in terms of reparation of the damages suffered. However, in the context of the Great Lakes region, investigating over the allegations of ‘counter genocide’ will definitely contribute to reduce the hatred caused by the impression of a double standard applied by the Security Council in favour of the Tutsi community. Therefore, it will be a considerable step towards the building of a lasting peace. In concreto, it is appropriate to recommend the upgrading of the ICTR to a regional criminal court namely the Regional Criminal Court for the Great Lakes which will be tasked with the investigation of serious international crimes committed in the region between 1 January 1994 and 30 June 2002xxii . 3.2. Truth seeking One should remember that since 1998, the Security Council has tasked the United Nations’ Secretary General with the preparation of an international conference on peace in the Great Lakes regionxxiii . This conference can be another occasion to focus on the allegations of ‘counter genocide’. It is possible to appoint a truth and reconciliation commission within the framework of this conference in order to appreciate the relevance of the allegations 4

of counter genocide and find out a way of reconciling the Hutus and Tutsis of Rwanda. Such a process may go beyond the sole Hutu-Tutsi question, consolidate the link between all the people of the Great Lakes and therefore prevent a future genocide which is likely to happen elsewhere in the region. For example, no matter the qualification adopted by the ICC, the killings in Ituri could seriously be considered as genocidexxiv . To that end the forthcoming conference should be as inclusive as possible. It should welcome the Hutus in their capacity of protagonist of the armed conflict in the region and give them the opportunity to express their concernsxxv . 3.3. Security council’s intervention The Security Council can intervene in two manners in the case under examination. Firstly, it can upgrade the current ICTR to a regional criminal court as mentioned previously. Such a regional court should be able, at least to determine the extent of the reparation for victims of the crimes investigated. Secondly, the Security Council can create a Compensation Commission modelled after the United Nations Compensation Commission established for the victims of Kuwait’s invasion by Iraq early 1990sxxvi . Such a commission will analyse the relevance of claims from victims of the and its aftermath. Where applicable, it will determine the extent of reparation to be paid to the successful claimants. It should have a reparation funds alimented by different sources including but not limited to:

• The reparation to be paid by the states of the region for their failure to grant security to the victims of the Rwandan genocide and (if proved) to those of the ‘counter genocide’;

• The funds coming from the realisation of assets frozen as well as from the funds seized from the persons alleged to bear the greatest responsibility in the triggering of armed conflicts deplored in the region;

• A percentage on the selling of the natural resources of the countries of the region. Conclusion To sum it up, the limited capacities of the judicial response to the allegations of genocide in the Great Lakes region commends the following of a more realistic approach. This paper has explained briefly how the truth seeking and the Security Council’s intervention can contribute to healing for victims, reconciliation of the people of the region and therefore to building of a long lasting peace. Though improbable, the upgrading of the ICTR to a regional court might help to strengthen the rule of law in the region as the ICC faces the criticism of operating far from the ground. As for the compensation commission, it is more feasible and will contribute to reduce the interethnic hatred and thereby the likelihood of future violence. 5

i See http://www.state.gov/r/pa/ei/bgn/2861.htm. ii See http://en.wikipedia.org/wiki/Rwandan_Genocide iii See Rwanda, the preventable genocide, Para 22.23 available at http://www.africa- union.org/official_documents/reports/Report_rowanda_genocide.pdf . iv See id, Para 22.9 v Its presence on Wikipedia is a reliable evidence of its existence. See http://en.wikipedia.org/wiki/Gersony_Report. vi See Rwanda, the preventable genocide (Report of the International Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events appointed by the Organization of African Unity), Para 22.9 to 22.15 available at http://www.africa- union.org/official_documents/reports/Report_rowanda_genocide.pdf . vii See S/1998/581, Letter dated 29 June 1998 from the Secretary-General addressed to the President of the Security Council, available at http://www.undemocracy.com/S-1998-581.pdf. viii Capital city of the Equateur province in the Democratic Republic of Congo. ix See S/1998/581, Para 41 and 87, available at http://www.undemocracy.com/S-1998-581.pdf. x See S/1998/581, pages 2 and 7. xi See S/1998/581, recommendation 4, page 26. xii See S/1998/582, Letter dated 25 June 1998 from the Permanent Representative of the Democratic Republic of the Congo to the United Nations addressed to the Secretary-General, Para 35, 70 and 90. Available at http://www.undemocracy.com/S-1998-582.pdf See also S/1998/583, Letter dated 29 June 1998 from the Permanent Representative of Rwanda to the United Nations addressed to the Secretary-General. Available at http://www.undemocracy.com/S-1998-583.pdf xiii See S/PRST/1998/20. Available at http://www.undemocracy.com/S-PRST-1998-20.pdf xiv See Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003. Available at http://www.ohchr.org/Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_EN.pdf xv See Mapping Report, Para 28 to 30. xvi See id, Para 33 xvii For more information on the film, see http://en.wikipedia.org/wiki/Hotel_Rwanda. xviii See for instance http://rwandarwabanyarwanda.over- blog.com/pages/THE_SLAUGHTER_OF_HUTU_REFUGEES_IN_DRC- 1001738.html xix See V. Peskin, International Justice in Rwanda and the Balkans, Virtual justice and struggle for state cooperation, Cambridge University Press (2008), pp 209, 211 to 214. See also C. Mahony, The justice sector afterthought: Witness protection in Africa, available at http://www.iss.co.za/siteimages/WitnessProt.pdf accessed on 3 May 2011 6

xx See R. Cryer, prosecuting international crimes: selectivity in International criminal Law, Cambridge University Press (2005), p 221. xxi The social interlinks of the people of the Great Lakes region explains why the instability generated by internal causes in one country quickly spreads to create a dynamic conflict in the entire region. For details, see S/2003/1099, Report of the Secretary-General on preparations for an international conference on the Great lakes region. Available at http://reliefweb.int/node/138025 xxii This will avoid any conflict with the jurisdiction of the ICC which is only competent for crimes committed since 1 July 2002. xxiii See supra note xxi. xxiv At the moment of his transfer to The Hague (by virtue of the arrest warrant issued by the ICC), Thomas Lubanga was facing genocide charges before Congolese military justice. Some authors have questioned the choice of the ICC Prosecutor not to charge him with the crime of genocide. See for instance MM. EL ZEIDY, The gravity threshold under the statute of the International Criminal Court, Criminal Law Forum (2008) 19:35– 57. xxv One may reasonably expect that given the current state of affairs in the region, the Hutu community (usually stigmatised as culpable of genocide) would not be invited to the conference. However its attendance and active participation is appropriate in the search for a long lasting peace in the region. xxvi For details, see http://www.uncc.ch/