International Non-governmental Commission of Inquiry into the Massive Violations of Human Rights Committed in the Democratic Republic of Congo (Former Zaire) 1996-1997
©ICHRDD -- 1998
Table of Contents and Executive Summary of the Report Prepared by the International Centre for Human Rights and Democratic Development (Montreal, Canada) (ICHRDD) and l'Association africaine pour la défense des droits de l'homme en République Démocratique du Congo (Kinshasa, Congo) (ASADHO)
June 1998
Table of Content
Goal
Objectives
Methodology
Inventory of Types of Crimes Perpetrated
Operational Questions and Working Hypotheses
Outline of the Report
I. The Crime of Aggression by One Country against Another
II. Crimes against Humanity and War Crimes
i
Murder
on a Large Scale
ii Torture and Other Cruel, Inhuman or Degrading Treatment
iii Forced Disappearances
iv Rape
v Pillaging, Village Burning and Destruction of Property as War Crimes
vi Obstruction of All Forms of Humanitarian Aid
vii The Crime of Arbitrary Arrest, Illegal Detention and Kidnapping
viii The Crime of Forced Expulsion of the Tutsis
ix Forced Transfer of Hutus to Rwanda
x Persecution on Political, Racial or Religious Grounds
xi Incitement of Racial, Ethnic or Political Hatred
xii Violation of Property Rights
xiii Recruitment and Enrollment of Children and Minors
III. Persistence of Genocidal Procedures and Acts of Genocide
i Destruction of the "Armed" Camps
ii Systematic Destruction of the Camps and their Civilian Inhabitants
iii Pursuit
iv The Treatment of Refugees Returning to Rwanda
IV. Responsibilities
i Legal Basis
ii The Search of Responsibilities
ii.i The Responsibility of the Rwandan Government and the Rwandan Patriotic Army
ii.ii The Responsibility of the ADFL and the Present Government of the Democratic Republic of Congo
ii.iii The Presidency and the Last Two Governments in Zaire
iii Individual Perpetrators of the Massacres
iii.i Eastern Massacres
iii.ii Massacres in North Kivu
iii.iii Massacres in the Kisangani Area
iii.iv Mbandaka Massacres
V. Roles and Responsibility of the International community
i Before the So-called «War of Liberation» by the ADFL: Conditions at the Origin of the Massacres of Refugees
ii During the ADFL «War of Liberation»
V.I Conclusions and Recommendations
A Conclusions
B Recommendations
I To the Government of the Democratic Republic of Congo
II To the United Nations
Introduction
ACRONYMS
ADP Alliance démocratique du peuple
AFDL Alliance of Democratic Forces for the Liberation of Congo/Zaïre
AFP Agence France Presse
ANR Agence nationale de renseignement
AP Associated Press
ASADHO/
Association africaine de défense des droits de l'homme/
AZADHO Association zaïroise de défense des droits de
l'homme
CADDHOM Collectif d'actions pour le développement des droits de l'homme
CSN Conférence nationale souveraine
DRC Democratic Republic of Congo
DSP Division spéciale présidentielle
FAR Forces armées rwandaises
FAZ Forces armées zaïroises
FIDH International Federation of Human Rights Leagues
HCR [United Nations] High Commission for Refugees
HCR - PT Haut conseil de la République - Parlement de transition
HRW Human Rights Watch
ICC International Criminal Court
ICHRDD International Centre for Human Rights and Democratic Development
ICRC International Committee of the Red Cross
ICT International Criminal Tribunal
IMT International Military Tribunal
MINUAR Mission des Nations unies d'assistance au Rwanda
MSF Médecins sans frontières
OAU Organization for African Unity
ONATRO Office national des transport
PHR Physicians for Human Rights
RPA Rwandan Patriotic Army
RPF Rwandan Patriotic Front
SARM Service d'action et de renseignement militaire
SCF Save the Children Fund
UDPS Union pour la démocratie et le progrès social
UEA Université évangélique en Afrique
ZCSO / OSCZ Opérations de sécurité dans les camps [de réfugiés] au Zaïre
Since the beginning of the war in the eastern part of the former Zaire, several sources have persistently and concurrently reported massive violations of human rights in that country. Whatever the motivation of the Alliance of Democratic Forces for the Liberation of Congo/Zaïre (ADFL) and later of the new Government of the Democratic Republic of Congo to systematically obstruct the various official international investigations subsequently requested by the United Nations Commission for Human Rights during its 53rd Session in April 1997 or by the Secretary General of the United Nations Organization in June 1997, many facts are now emerging. Massacres of civilians took place, and among them many women and children, often beyond the areas of armed conflict.
The question is no longer whether or not massacres of Rwandan refugees and of Congolese citizens did occur in Congo, but rather what is the extent and nature of these massacres. Were they violations of international humanitarian law, war crimes, crimes against humanity, or acts of genocide?
In order to establish these distinctions, determine responsibility, and if possible identify individuals responsible for these crimes, criminal law jurisprudence provides us with two types of evidence: physical evidence and evidence based on a reliable bodyof testimonies by the witnesses. Since the beginning of this search for truth, those who control the areas where these crimes were presumably committed (ADFL, and since May 1997, the Government of the Democratic Republic of Congo) have used all political and diplomatic manoeuvering in order to deny access to the investigators. The international community, frustrated by these obstructions, is at an impasse. Will the Commission headed by Judge Améga have enough time and resources to meet the challenge of conducting a conclusive independent inquiry in face of the substantial allegations that physical evidence has been deliberately destroyed?
We should recall that in 1994, it was the concerted and consistent effort of many human rights NGOs, in conjunction with some member states that finally forced the UN Human Rights Commission and soon after the Security Council to define "the so-called inter-ethnic massacres" that began intensively in Rwanda in April 1994 as "genocide, crimes against humanity and war crimes." It was also this concerted effort that pushed the UN to take, although rather late, its responsibilities according to the International Convention for the Prevention and the Punishment of the Crime of Genocide, and the various Geneva Conventions on war crimes and crimes against humanity, by creating the International Criminal Tribunal for Rwanda in Arusha. However, the present frustration imposed on the international community by some governments of the region, in particular that of the Democratic Republic of Congo, has not prevented the same humanitarian, non-governmental conscience to do its work while member states of the UN seem to hide behind political considerations.
The principal hypothesis of this initiative is that if one cannot freely access the area, the truth may nevertheless be established through a solid synthesis of all the investigations conducted and of the substantial bodyof testimonies accumulated since the beginning of the conflict in the eastern part of Congo/Zaïre last year, in addition to a recent, on-site complement of inquiry east of Mbandaka during January and February 1998, in spite of a vast campaign to erase any traces of crimes and to intimidate the population from testifying.
In April 1997, the International Centre for Human Rights and Democratic Development received a request from several human rights organizations in Zaïre to put in place an international non-governmental commission of inquiry whose goal would be to investigate the massacres. At the time, our institution preferred, as did many others, to support the implementation of the resolution of the UN Commission for Human Rights establishing the commission of inquiry composed of Mr. Garretón, Special Rapporteur for Zaire (Congo), Mr. Foli, member of the Working Group on Enforced or Involuntary Disappearances, and Mr. Bacre Ndiaye, Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions.
A year later, many reports were produced in various quarters by NGOs such as Physicians for Human Rights; Doctors Without Borders; Amnesty International; Human Rights Watch Africa and the International Federation of Human Rights Leagues (FIDH). The joint mission of the three Special Rapporteurs published a report at the beginning of July 1997. The UN High Commission for Refugees, which recently withdrew its mission from Congo, accumulated testimonies and published internal and public reports over many months. Others humanitarian organizations and institutions have in their possession many testimonies, including the European Union Commissioner for Humanitarian Affairs, Ms. Emma Bonino.
At the end of October 1997, the International Centre for Human Rights and Democratic Development solicited the participation of other organizations for this international Non-governmental Commission initiative to synthesize the numerous reports and testimonies that have emerged. Several organizations replied favourably, certain ones by furnishing documents and others by delegating individuals to join the workteam. This team worked for three weeks between January 26th and February 13th in Montreal.
Why did the Non-governmental Commission choose to cover the period of 1996-1997 instead of 1993-1997 as did the UN Commission of Inquiry that is presently on-site?
In the present inquiry, the Commission chose the period of 1996-1997 in conformity with the UN Human Rights Commission resolution, contrary to the Secretary General's mission of inquiry that is presently on-site which, as a result of political negotiations, extended the period of its inquiry to 1993 in order to satisfy the claims of one of the parties to the conflict. This negotiation has weakened the multilateral system for the protection of human rights by bringing into question a UN Human Rights Commission resolution and by pushing aside the Special Rapporteur for Zaire (Congo). Thus, the approach of the Non-governmental Commission aims to reinforce and support the system of international instruments and mechanisms for the promotion and protection of human rights.
The other fundamental reason is that, given the magnitude of human rights violations and the type of crimes committed, the victims involved and the individuals responsible, all these are pushing us to not mix those violations that were committed between 1993 and 1996 by the Mobutu regime with the other crimes committed during that period by the ex-FAR (Rwandan Armed Forces) and Interahamwe which were a prolongation of the Rwandan genocide that took place on foreign territory. In this regard, the International Criminal Tribunal in Arusha was created as an international response to the crime of genocide, war crimes, and crimes against humanity that were committed on Rwandan citizens either inside or outside Rwandan territory during the period from January 1st to December 31st 1994. The Rwandan judicial apparatus with its Genocide Law has undertaken to cover the period between 1990 and 1995. It would be most suitable if these judicial structures conducted any new inquiries for these periods.
We are of the opinion that any account of the human rights violations during the Mobutu period, during which the individuals responsible are known, should be made without linking it to the massacre of refugees which occured in the precise context of war.
As it is an shared international responsibility to establish the truth about massive human rights violations whenever and wherever they occur, we have chosen to make a modest contribution by focussing on the more recent period in the Democratic Republic of Congo.
Furthermore, the Special Rapporteur on Zaire (Congo) also investigated the events of 1993, 1994, and 1995, in the east of Zaire under Mobutu, in particular in the region of North Kivu (Masisi) and South Kivu. For all these reasons, therefore, the Non-governmental Commission has chosen the most recent and intense period, namely from January to December 1997, to investigate the allegations of these crimes that are not subject to prescription.
Goal
Our principal aim in this initiative is to fight against a culture of impunity which is prevalent in this region Africa and which is a long-term obstacle to all international peace-building and peace-keeping efforts in the region. If crimes related to international criminal law took place in Congo, the truth should be known and impartially presented. Afterwards, an international campaign will be necessary in order to generate the necessary political will to request that the suspects responsible for these crimes be prosecuted in due course by the international justice system, in a forum such as the proposed International Criminal Court. While awaiting the creation of such a court, the suspects should be castigated by the international community and their own national community.
Objectives
· to produce a synthesis of existing reports over the period of one month;
· to develop a strategy and a methodology to gather and analyse the many testimonies from eye-witnesses already collected by several Congolese human rights organizations;
· to hear additional eye-witnesses, civilian or ex-combatants, of the Congo/Zaïre war;
· to determine, through a legal analysis of the facts and of international law, whether the massive violations that occured on the territory of the Former-Zaire constitute crimes against humanity, war crimes, or acts of genocide;
· to prepare a synthesis report which will be published and submitted as part of the official documents at the next session of the UN Commission for Human Rights.
Methodology
Documentation was gathered for the work of the Commission in December 1997 (see annexed bibliography). During the period of its operations in Montreal, the Commission discussed the methodology to be employed in preparing its report. It made an inventory of the crimes committed and analysed the background to the crimes, the methods used, their geographic occurrence and their judicial categorization. It also sought to identify those responsible. It worked out an outline for the report, and proceeded to write the preliminary report. In the month following the Montreal meeting, this report was finalized by correspondence among the various members of the editorial team.
The bodyof the work was essentially an analysis of written documents: investigation reports, testimony and newspaper articles. These were also subjected to comparative analysis in arriving at the synthesis contained in this report. As a means of illustrating the facts reported, this summary report reproduces lengthy passages; however, where such lengthy quotation is felt to be unnecessary, the reader is referred to the bibliography.
As one of its supplementary efforts, the Commission, through the intermediary of serious collaborators, conducted a field research effort in the Democratic Republic of Congo to clarify certain aspects of the reports and testimonies and, in particular, to gather further details on the question of responsibility. This supplementary inquiry was conducted particularly in the regions of North and South Kivu, Kisangani, and Mbandaka.
Inventory of Types of Crimes Perpetrated
In its work, the Non-Governmental Commission identified the following types of massive human rights violations, among other crimes, committed on Congolese soil:
1. Murders, assassinations, massacres, drownings
2. Burning of villages and crops, destruction of property
3. Torture and inhuman treatment, mutilation
4. Rape
5. Disappearances
6. Systematic looting
7. Obstruction of humanitarian aid
8. Incitement of hatred
9. Theft of livestock and property
10. Hostage-taking
11. Kidnapping of children and medical patients
12. Recruitment of minors
13. Non-assistance to people in danger
14. Arrest and arbitrary detention
15. Conviction and execution without recourse to a legally constituted tribunal
16. Crime of aggression
17. Forced expulsion of Tutsis (Masisi, Kinshasa, Katanga, Kisangani)
18. Forced repatriation of refugees
19. Racial, ethnic or political persecution
Operational Questions and Working Hypotheses
In its discussions concerning the destruction of human life as a result of the massacres, the Non-Governmental Commission considered the following operational questions and working hypotheses:
Was there an intent to systematically destroy the lives of human beings protected in the refugee camps in Zaire?
1. The "ADFL rebellion" was conceived in Kigali between 1995 and 1996 for the purpose of dismantling the Rwandese refugee camps in eastern Zaire. The aim was to annihilate the military capacity of the ex-FAR and Interahamwe who, after "Operation Turquoise" in 1994, had taken a portion of the Rwandese population hostage and reconstituted their forces and command structures in the Zairian camps. Thus, the refugee camps created by the UN High Commission for Refugees and the international humanitarian organizations were knowingly identified as military targets from the outset.
2. Special RPA commandos within the ADFL forces had a mission to physically destroy all Rwandese Hutu refugees suspected of genocide, whether armed, involved in combat or defenceless civilians, including children, women, and the elderly. From the outset, there was a real intention to physically destroy and annihilate part of the Rwandese refugee population in Zaire.
3. The soldiers of the ex-FAR and the Interahamwe militiamen killed Hutu refugees seeking to return to Rwanda and targeted Congolese Tutsi communities, forcing them into exile in Rwanda.
4. UN High Commission for Refugees workers and other humanitarian organizations indirectly contributed to the elimination of the Rwandese refugees and Zairian civilians by identifying the locations of these refugees once the large camps had been destroyed.
5. As a result of their hesitation and because of the failure of the international humanitarian mission of intervention, the major international powers indirectly contributed to the destruction of many human lives.
Where did the most deadly massacres take place? Was there any correlation between the sites of the massacres and the zones of combat during the rebel campaign?
6. The sites of the worst massacres correspond to the location of Rwandese civilian refugees on Zairian soil, but were only very weakly correlated with the location of military combat.
Who is responsible for the massacres? Who gave the order to fire on non-combatant civilians? Who gave the order to destroy the lives of non-combatants and unarmed combatants during the October 1996-May 1997 campaign?
7. The RPA commanders working as part of the ADFL rebel forces.
8. General Kagame in his capacity as Minister of Defence and Commander in Chief of the RPA.
9. Mr. Kabila in his capacity as spokesperson, President of the ADFL and self-proclaimed President of the Democratic Republic of Congo.
10. The commanders of the ex-FAR.
11. Mercenary leaders hired to back the Zairian armed forces in Kisangani.
Who knew about these orders?
12. The Rwandan Patriotic Army staff.
13. The ADFL staff.
14. The FAZ staff.
15. The staff of the ex-FAR.
16. Certain political leaders.
OUTLINE OF THE REPORT
The commission decided on the following outline in keeping with the legal analysis adopted. In each section, the legal framework for the crimes in question is presented and discussed. Then, a summary of the corresponding facts is presented, with reference to the various reports or quotation of relevant testimony illustrating them. The report is divided into the following sections:
I. The
Crime of Aggression by One Country Against Another.
II. Crimes Against Humanity and War Crimes
III. Persistence of Genocidal Procedures and acts of Genocide
IV. Responsibility
V. Roles and Responsibility of the International Community
VI. Conclusions and recommendations
I. THE CRIME OF AGGRESSION BY ONE COUNTRY AGAINST ANOTHER
It has been established that as of late 1996, Zairian territory was invaded by the Rwandan Patriotic Army (RPA), then later by Ugandan, Burundian and Angolan troops.
This aggression against one state by one or more others was acknowledged by General Kagame himself in an interview with the Washington Post. The objectives of this aggression, he stated, were to dismantle the refugee camps, to repatriate the refugees "held hostage" in the camps, and to bring about the fall of the Mobutu regime:
"Rwandan's powerful defence minister, Paul Kagame, has acknowledged for the first time his country's key role in the overthrow of President Mobutu Sese Seko in neighbouring Congo, saying the Rwandan government planned and directed the rebellion that toppled the longtime dictator and that Rwandan troops and officers led the rebel forces..... He added that Rwandan "mid-level commanders" led Congolese rebel forces throughout the successful rebellion and that Rwanda provided training and arms for those forces even before the campaign to overthrow Mobutu began last October.....
Kagame, the 40-year old major-general who commanded the 1994 takeover of Rwanda by a rebel army, offered what he said were ‘secrets of the war' in Congo, including the first public account by a senior Rwandan official of that country's involvement. Several other African countries, including Uganda, Angola, Burundi and Zambia, also are known to have supported the rebel cause, but Kagame's account suggests that the war, which began in the eastern Congo near the borders of Rwanda and Uganda, was planned primarily by Rwanda and that the plan to remove Mobutu originated in Kigali as well......
Kagame .... said that months before war erupted, he warned the United States that Rwanda would take military action against Mobutu's regime and the refugee camps in eastern Congo that where being used as a base by the Hutu troops Kagame has defeated. While Kagame said he was unaware of any American military support for the rebellion, he commended the United states for ‘taking the right decision to let it proceed.' The decision to prepare for a second war, Kagame said, was made in 1996, although rebels in Congo have said there were training for a year before the uprising began in October....
Kagame said the battle plan as formulated by him and his advisers was simple. The first goal was to ‘dismantle the camps.' The second was ‘to destroy the structure' of the Hutu army and militia units base in and around the camps either by bringing the Hutu combatants back to Rwanda and ‘dealing with them here or scattering them.'
The third goal was broader ...toppling Mobutu. Kagame said , ‘it would have more suitable' if Congolese rebels had done most of the fighting against Mobutu's troops, but it also would have been riskier....." (2)
Finally, this aggression manifested itself by a visible military occupation in terms of the command of the operations (the term "afande" in Uganda and Rwanda, although unknown in the local Zairian speech, confirms the presence of foreign troops). As such, it constitutes a violation of international law such as it is expressed in the UN General Assembly Resolution of December 14, 1974 which defines aggression as:"the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." (3)
The prohibition on the use of force is a universally recognized principle of modern international law which, following the Charter of the United Nations, proclaims the obligation of states, in carrying on their international relations, to abstain from the use of force against the territorial integrity or political independence of other states.
The United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970) enjoins states not only to refrain from directly or indirectly using force against one another, but also to avoid all shows of force aimed at compelling another participating state to renounce its sovereign rights, as well as any act of reprisal by force. Force must never be used as a means of settling disputes.
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II. CRIMES AGAINST HUMANITY AND WAR CRIMES SUMMARY II.i. Murder on a Large Scale II.ii. Torture and Other Cruel, Inhuman or Degrading Treatment II.iii. Forced Disappearances II.iv. Rape II.v. Pillaging, Village Burning and Destruction of Property as War Crimes II.vi. Obstruction of All Forms of Humanitarian Aid II.vii. The Crime of Arbitrary Arrest, Illegal Detention and Kidnapping II.viii. The Crime of Forced Expulsion of the Tutsis II.ix. Forced Transfer of Hutus to Rwanda II.x. Persecution on Political, Racial or Religious Grounds II.xi. Incitement of Racial, Ethnic or Political Hatred II.xii. Violation of Property Rights II.xiii. Recruitment and Enrollment of Children and Minors War crimes and crimes against humanity are among the most serious international offences, whose commission entails individual criminal responsibility. International criminal law has its origins in customary law, but gradually over the 20th Century, the norms applicable to war crimes and crimes against humanity also have been codified in various international treaties. With respect to war crimes and crimes against humanity, the first significant codification can be found in the London Charter of August 8, 1945, in which the parties determined to create the International Military Tribunal for the trial of war criminals. The relevant provisions are found in Article 6 of this Charter: "(b) WAR CRIMES: namely, violations of the law or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed in execution of such a plan." (4) From these definitions, it is apparent that war crimes and crimes against humanity complement one another to create a regime of humanitarian law which protects the victims of armed combat. Moreover, there has been considerable expansion in the definitions of two of the crimes defined in Article 6. (5) In particular, these definitions, which codified international law in 1945, have been expanded by the decisions of the International Military Tribunals of Nuremberg and Tokyo, by the Geneva Conventions of 1949, and later instruments such as the Statute Establishing the International Criminal Tribunal for Former-Yugoslavia and Rwanda. (6) In terms of their legal development and normative status, war crimes and crimes against humanity are closely related. With respect to the four Vienna Conventions for the Protection of Victims of War and their Protocols, grave breaches of these Conventions constitute war crimes or crimes against humanity. The Conventions are the "core of customary international law" applicable in armed conflicts. (7) The Conventions contain common articles which deal with grave breaches that involve acts committed against protected persons or property. "All these grave breaches in effect constitute war crimes or crimes against humanity. The four Geneva Conventions obligate all Contracting Parties to search for persons who commit grave breaches and bring them to trial regardless of their nationality (or alternatively to extradite them). The Conventions impose a duty on--and therefore authorize--neutral States to prosecute the offenders. What this boils down to is establishing universal jurisdiction." (8) The most relevant provisions of the Conventions are: · Article 50 of the (First) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field repeats the prohibition against wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to bodyor health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. · Article 130 of the (Third) Geneva Convention Relative to the Treatment of Prisoners of War adds a prohibition against compelling a prisoner-of-war to serve in the forces of a hostile Power; and of wilfully depriving the rights of a prisoner-of-war to a fair and regular trial. · Article 147 of the (Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War adds the unlawful deportation or transfer or the unlawful confinement of a protected person; compelling a protected person to serve in the forces of a hostile Power; willfully depriving a protected person of the rights of fair and regular trial; and taking hostages. · The First Protocol of the Geneva Conventions Relating to the Protection of Victims of International Armed Conflict (1978) adds breaches such as medical or scientific experiments on protected persons; making civilians the object of attack; launching an indiscriminate attack affecting the civilian population in the knowledge that such attack will cause excessive loss of life or injury to civilians; transference by an occupying Power of part of its own civilian population into territory it occupies, or deportation of all or parts of the population of the occupied territory; and practices of racial discrimination (9) Although we have discussed crimes against humanity in conjunction with war crimes as part of international humanitarian law, which governs armed conflicts, it is important to note that crimes against humanity can be committed in times of peace as well; thus, crimes against humanity are also part of general human rights law applicable at all times. (10) Taken separately, the concept of "crimes against humanity" denotes certain grave acts of violence committed on a large scale by individuals, be they agents of the State or others, against civilians on national, political, ideological, racial, ethnic or religious grounds. This element of discrimination and persecution is one of the central feature of that we have seen in the definition in article 6 of the Charter of the Nuremberg Tribunal. (11) The definition of crimes against humanity in the Statute of the ICT for Rwanda is inspired by the Statutes of the IMTs at Nuremberg and Tokyo. In Article 3, it sets forth that the tribunal has the power to prosecute, for crimes against humanity, the persons responsible for the following acts when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:
a) murder The definition of the Rwandan tribunal has the merit of specifying that crimes against humanity are characterized by their being targeted against a national, political, ethnic, racial or religious group. Unfortunately, this element does not appear in the Statute of the ICT for the Former-Yugoslavia. In regards to "war crimes," the definition of the crime is focused upon the violation of the laws and customs which govern armed combat. As we have seen, the notion of war crimes which existed in customary international law was codified by the Charter of the Nuremberg Tribunal in 1945. Shortly afterwards, in 1949, the Geneva Conventions established the framework of customary international law for the regulation of armed conflict and includes wide-reaching protection for combatants and non-combatants in international and internal conflict situations. Some of the important provisions have been listed above. Moreover, Article 3 of the Geneva Conventions for the Protection of War Victims of August 12, 1949 and Additional Protocol II to these conventions, of June 8, 1977, forms the basis for the Rwandan tribunal's Article 4 which proscribes, "at any time and in any place whatsoever".
a) violence to life, health and physical or mental well-being of The creation of an International Criminal Court, which is anticipated for the summer of 1998, provides the world community with the opportunity to codify the recent developments of international law relative to war crimes and crimes against humanity. Since the Draft Statute of the ICC is still open to negotiation at the present time, it is not yet law. Moreover, given the dynamics of negotiation, it is unclear whether the final definitions of the crimes under the ICC's jurisdiction (aggression, genocide, war crimes, crimes against humanity) will be progressive. However, upon examination of Part 2 of the Statute, "Jurisdiction, admissibility and applicable law," it is clear that the most progressive and comprehensive definitions of these crimes have been proposed and should be accepted. (12) As is evident from the various documents, reports and testimony relayed by both the local and international press, the acts described below were committed in the DRC and constitute war crimes and crimes against humanity under the relevant international legal instruments. II.i. Murder on a Large Scale As we have seen, from Article 3 of the Statute of the ICT for Rwanda and Article 5 of the Statute of the ICT for the Former Yugoslavia, murder is a "crime against humanity when committed against civilian population, as a part of widespread or systematic attack." (13) Murder, defined by Article 6 of the International Covenant on Civil and Political Rights of 1966, denotes all arbitrary and extra-judicial summary executions. Paragraph 1 of this article provides, in particular, that "[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The definition of murder also includes "all voluntary homicides including homicides perpetrated by the willful creation of the conditions leading to death." This crime was committed on the territory of the DRC between 1996 and 1997, in a massive, widespread, systematic and large-scale manner. It was committed by all parties to the conflict against the civilian population, and in particular against civilians of Rwandese Hutu origin, as evidenced by many sources. According to the following Amnesty International report, "Appeal for the Protection of Human Rights and the Crisis of Eastern Zaire," combatants from both the FAZ and the ADFL were guilty of this crime: "In early September 1996 fighting broke out in South-Kivu region between the FAZ and a Tutsi-led armed group linked to the Banyamulenge. On 31 October after fighting between the FAZ and this Tutsi-led force, now known as, the Alliance of Democratic Forces for the Liberation of Congo-Zaïre (ADFL), the latter took control of Bukavu, the capital of South-Kivu. Some 83 bodies were counted by Western journalists, including that of the Roman Catholic Archbishop of Bukavu, Christophe Munzihirwa, who had publicly criticized the ADFL and its alleged support by the Rwandese Patriotic Army (RPA). Several of those killed appeared to be victims of execution, but it was unclear who had carried them out. After the ADFL captured Goma, the capital of North-Kivu, about 300 bodies were found. The circumstances of their death remain unclear, although many reportedly died from gunshot and shrapnel wounds." (14) Primary target of the massacres: Rwandese and Burundian Hutu refugees In its memorandum to the government of the Democratic Republic of Congo, Amnesty International persistently confirmed the existence of massacres: "Amnesty International received numerous accounts and considerable information to the effect that ADFL combatants had committed arbitrary murders in eastern DRC starting in September 1996. Most of the victims were Hutus. They were reportedly killed by gun shots or bayonet wounds, or beaten to death. Tens of thousands of refugees were forced to flee into the forest where many died of illness, hunger or exhaustion. A large number of former FAZ members and unarmed civilians were allegedly summarily executed at Kinshasa by ADFL combatants on May 17, 1997 or in the days that followed. On May 26, 1997, 100 unarmed civilians were reported executed by the ADFL at Uvira." (15) Similar facts were reported by other NGOs, both national and international, e.g. that of Human Rights Watch and FIDH, (16)which describes how Hutu refugees were massacred by the ADFL and RPA elements. This report signals (p.18), that "strong testimonies (...) which mention rape, massacres, destructions, and pillaging perpetrated by the FAZ...", and that "abuses committed (...) By the ex-FAR and other armed exiles, presumed to be members of the Interahamwe militia, were largely related to foraging and pillaging to sustain themselves. These consisted primarily of theft, destruction, and violations of physical integrity, as well as some killings.." (p. 18), and mainly that (p. 19) "Violations committed by the ADFL in the area near villages consist essentially in widespread of civilian refugees. Refugee Men, women and children who were too weak or sick to flee were killed by the first ADFL units coming in contact with them . The Killings in the villages and on the road were carried out over a three-day period as the ADFL troops advanced and overtook refugees. No combat took place in the area as the last of the ex-FAR, Interahamwe and FAZ left several days before the arrival of ADFL ." (17) The executions perpetrated by the ADFL in this case took place over three days along the length of a road that joins three villages through the heart of the Congolese forest. The following are the eloquent accounts of villagers and employees of humanitarian organizations in the region through which the refugees passed, who were direct witnesses to these massacres: "There were a mix of men and women. There was one child about three years old. We buried twelve of them here in this grave and put one in with the other grave with two people who died from sickness. There are two more people in that third grave over there. Seventeen people in all were reportedly buried, fifteen killed by the ADFL, two from disease. ... The ADFL killed them in front of me with knives and machetes. I saw around fifteen cadavers, but I was trying not to look. The villagers were already burying refugees in groups of four or six in common graves. There were many, many killed; more than fifty." (18) "... Residents of the second village reportedly witnessed the killings by the ADFL and later disposed of fourteen of the bodies in a defunct well, ten adults and four children, all unarmed civilians... At the bridge past the second village, the remains of several campfires were still visible, with bones and skulls scattered in the brush nearby. As many as an additional fifty refugees had been killed at this site; bodies had been thrown into the river. In addition to those refugees killed by the ADFL, Humanitarian agents from the first village stated that they had buried at least fifteen other refugees who had died due to disease, dehydration or exhaustion between the first and second villages." (19) "Witnesses from the area estimate that hundreds of refugees had been killed between the second and third villages alone, but that some cleanup had already taken place. A medical doctor with extensive experience in the area estimated that up to 1,700 people may have been killed between the second and third villages. Residents of the area were particularly reluctant to accompany Human Rights Watch /FIDH along this segment of road due to a fear of reprisal by the ADFL. All bodies or bones photographed were in the road or within a few metres of the road, some in groups of up to eight, often near or in the remains of campfires. Many of the skulls contained holes or were fractured, suggesting blows with a heavy object. All bodies were in approximately the same state of very advanced decomposition or were skeletons. Many of the remains were clearly identifiable as women or children." (20) "Five kilometres from the second bridge is the third village, where UNHCR estimates that between 22,000 and 30,000 refugees had passed through a temporary camp. Numerous testimonies from Congolese, International Humanitarian workers, and refugees in Congo-Brazzaville spoke of mass killings by the ADFL of refugees at the third village. A witness who had accompanied the ADFL to the third village state that he saw several hundred cadavers in and around the camp upon his arrival.: " On the road approaching (the third village), there where many more at the camp , several hundred. They were killed with knives and machetes, but right in the camp they had been shot, too.". (21) "Human Rights Watch visited the former refugee camp site at the third village which spread over some 800 metres of road and into the forest. The camp was littered with clothing, shoes, equipment and many bullet shells . No evidence of bodies or mass graves was present . According to villagers and relief workers, the site had been cleaned by the ADFL and the bodies of refugees, numbering in the hundreds, were dumped in a nearby river." (22) The Palermo-Bukavu Solidarity Committee reported the same massacres but ascribed them to the ADFL forces alone. This report notes the atrocity in which the ADFL surrounded the Cimanga camp between October 31 and November 2, 1996 and killed many refugees with machine-gunfire. The number of victims was estimated at over 500. The same report reveals that: · about 50 refugees fleeing the bombardment of Kashusha found refuge in the Kajeje school on November 4, 1996. Two days later they were all killed by ADFL combatants on duty in the Kabare area. · On November 20, 1996, nearly 800 women, children, medical patients and senior citizens were reported killed at Cibumba on Magobe Hill and buried under the supervision of a Tutsi named Kamari. · On November 21, 1996, several other refugees were killed at Lumbishi. The following is an excerpt from this report: "Primary target of the massacres: Rwandese and Burundian Hutu refugees The survivors and the killers are in the best position to speak of this unprecedented drama in the history of refugees. Nevertheless, looking back on what occurred with the refugees, from Uvira in September 1996 to Ubundu in April 1997, one can scarcely avoid the conclusion that this drama was the result of a carefully conceived plan, with firearms and hunger being the deadly instruments used to accomplish it. At all events, the refusal of the international community to do something concrete to stop the killing is not likely to dispel this perception. The refugee camps were made into military targets. From the moment the Tutsis touched off the war, in Rutshuru and Nyiragongo to the north and on the Ruzizi River plain in the south, they aimed their violence at the refugees in the camps. Using bombs, rocket launchers and small arms, they destroyed camp after camp during the months of September, October and November 1996. It is obvious that many refugees were killed, and that the mass graves discovered near the sites of several camps in South and North Kivu are not an invention. As an example, while staying at the settlement of Kajeje from Friday, October 31 to Sunday, November 2, 1996, we could hear bombs launched day and night at the INERA and Kashusha camps. When the bombing ceased, the two camps were empty. A Red Cross representative who I contacted two weeks later indicated that about one hundred bodies had been buried there. During the same period, the Cimanga camp was surrounded and many refugees were machine-gunned to death. Some sources place the number of these victims at between 300 and 500, while others estimate over 1000. These victims were buried at the site in mass graves. Visits to the site were prohibited. It was against this backdrop that Abbé Jean Claude, a Diocesan pastor passing through the area, was killed. About fifty refugees fleeing the bombardment of Kashusha took refuge in the Kajeje school on November 4, 1996. Two days later, they were all killed by men from the ADFL who were already combing the Kabare area. Following this act, many Bashi families became more and more reluctant to take in and accommodate anyone foreign to the zone. This was one reason why the people displaced from Bukavu who had found refuge in the Kabare area were forced to return home. Those of the refugees who survived the destruction of the camps were forced to flee. Some took the road to Rwanda and Burundi. Others (the large majority) headed into the hinterland, far from the border. These latter were hunted down like game over the last six months in the Zairian forest. On this long march, the South Kivu refugees took three different directions · The southward direction leading to Shabunda, and from there to Kalima and Kindu. It will be recalled that when Shabunda was taken in January 1997, several men and boys had been separated from the women and children before taking up arms. · The central direction was the Miti-Bunyakiri road and the Kahuzi forest to either side of it. · The northward direction was the Kalehe-Nyabibwe-Minova road. Caught between two groups of Tutsi combatants, those advancing from Bukavu behind and those arriving from Goma ahead, these refugees climbed into the mountains, where many of them were killed by bombs and machine-gunfire. · November 20, 1996: nearly 800 women, children, medical patients and elderly men were reported killed at Cibumba on the Magobe Hill and buried under the supervision of a Tutsi named Kamari. · November 21, 1996: over 350 people were reported killed at Shanje in the Rukiga forest.
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