JURIST Guest Columnist Pacifique Manirakiza of the University of Ottawa Law School discusses the debate surrounding what is going on in Burundi and proposes a different view…

Burundi is undergoing a political and constitutional crisis. Following the announcement of Mr. Pierre Nkurunziza as the presidential nominee for the ruling party, the Conseil national pour la défense de la démocratie/ Forces de défense de la démocratie (CNDD-FDD), people mainly in the Capital city Bujumbura descended to the streets to demonstrate against the decision. The organizers of the demonstrations (main political opposition parties and civil society organizations) are of the view that Nkurunziza vying for a third term is unconstitutional. Although they were initially peaceful and all-inclusive, they became violent as some of demonstrators resorted to violent acts followed by police fierce reprisals. Also, they became contained in Tutsi-dominated suburbs of Ngagara, Nyakabiga, Musaga, Cibitoke, Mutakura and Jabe.

Invoking the law and order paradigm, the government resorted to force—sometimes excessive—to curb the demonstrators today labeled as insurgents or terrorists. The ongoing serious human rights violations, especially the extra-judicial killings carried out by government security forces, have alimented fears of genocide “à la rwandaise” [Rwandan style].

1. The genocide rhetoric in Burundi

There is controversy among Burundians and some corners of the international community on the legal characterization of the human rights situation in Burundi. Tutsi-dominated organizations and the Tutsi elite have no doubt that genocide is ongoing against the Tutsi ethnic group. Apart from some usual Tutsi genocidemaniacs, prominent tutsi elite joined the club and warned[in French] against Tutsi genocide ongoing or in preparation. With the massacres of December 11-12, 2015 following the attacks on the military barracks in Bujumbura, more people now strongly believe that these are evidence of acts of genocide against Tutsi, as most of the hundred and more victims were of Tutsi ethnicity. In addition, reference is made to unfortunate hate speeches made by political leaders like the Speaker of the Senate, Hon. Révérien Ndikuriyo who told local leaders to “work“, a word that was interpreted, by reference to Rwanda, as an incitement to murder as many people as possible.

Interestingly, the ruling party CNDD-FDD joined the genocidemaniacs club. In a statement of November 10, 2015, the party accused Belgium, the former colonial empire, of orchestrating genocide in Burundi. Similarly, in another statement made public on December 23, 2015, the Chairman stated that if the December 11-12 attacks on the military barracks were successful, then the attackers would have easily carried out their genocide project as planned. The statement asserts that this is why the Belgian EU Member of Parliament, Mr. Louis Michel, was unhappy when the army defeated them. In both statements, the Hutus were hinted as the would-be victims of that “planned” genocide.

Without denying that Tutsi who essentially opposed the third term project are being killed, other stakeholders are more nuanced and conclude instead that genocide of a political nature is ongoing. Less radical in their positions, some opposition political parties and organizations, whether Hutu or Tutsi, denounce an ongoing genocide of a political nature. For instance, since early 2014, Léonce Ndendakumana, chairman of the FRODEBU party, cautioned on the risk of a political and ethnic based genocide in Burundi. Similarly, the UPRONA in opposition, which portrays itself as the genuine representative of Tutsi interests deplored a politico-ethnic based genocide ongoing.

On its part, the Conseil national pour le respect de l’Accord d’Arusha et de l’Etat de droit (CNARED) observed that both Hutus and Tutsis are being victimized by Nkurunziza regime to the point that its chairman, Mr. Leonard Nyangoma characterized the situation as “Barundicide” (Ihonyabarundi[in Kirundi]). Likewise, in an interview aired on Humura Radio on December 29, 2015 [in Kirundi], Alexis Sinduhije, chairman of the Mouvement pour la solidarité et la démocratie (MSD) and also another CNARED leader, stated that it is counterproductive to be selective and focus on Tutsi victims alone while ignoring the sufferings of Hutu families who lost their loved ones.

Civil society is not left out. In a letter sent to the UN on April 14, 2015, the Campaign “Halt to the third term” warned of perpetration of international crimes in Burundi, including genocide. Recently, Ms. Marguerite Barankitse, founder and CEO of the Maison Shalom stated [in French] on the Réseau d’information de Radio Canada that genocide was ongoing in Burundi.

With regards to the different positions displayed above, it is interesting and useful to analyze the current situation from a legal perspective and find out whether or not there is an ongoing genocide.

2. Is there genocide ongoing in Burundi?

Before I respond to the question, I deem it necessary to recall the legal definition of the crime of genocide. According to the Convention on the Prevention and the Punishment of the Crime of Genocide, this crime amounts to an act targeting ethnic, racial, religious or national groups as such, with the intent to destroy them in whole or in part (article 1). Since the total annihilation of a group is practically impossible, the issue then lies at the meaning of the “part” of the group that needs to be destroyed for genocide to occur. Originally, the international case-law considered that the killing of a single person would suffice to establish genocide, as long as he or she was intentionally targeted because of his or her ethnicity, race, nationality or religion (Akayesu case, judgement, para. 521). However, the case-law has evolved since. Today, for an act to be characterized as genocide, the prosecution must establish, beyond reasonable doubt, the destruction of a substantial part of the protected group (Jelisić case [PDF], judgement, para. 82; Bagilishema case, para. 64; Krystić case, appeals judgement, para. 8). This approach makes sense because the Genocide Convention aims at protecting groups, not individuals per se. Even Raphaël Lemkin, the “Godfather” of the Genocide Convention has explained that the intent to destroy “in part” must be interpreted as a desire for destruction, which “must be of a substantial nature […] so as to affect the entirety.” The ICTR caselaw in Kayishema has set the bar high since, for an accused to be found guilty of genocide, the prosecution must prove the intention to destroy a “considerable” number of individual members of a group (Kayishema case [in French], para. 97), to the point that their disappearance would impact upon the survival of the group as such.

It is worth noting that the Genocide Convention has been ratified and somehow domesticated by Burundi, making the crime of genocide prosecutable nationally. So, according to the legal criteria, is it warranted to speak of genocide in Burundi for the moment? Although Burundi has experienced atrocious acts over the last eight months, mostly in Tutsi-dominated suburbs of Bujumbura, the killings do not amount to acts of genocide targeting Tutsi group as such. Given the fact that the spring demonstrations against the third term of President Nkurunziza were carried out by people predominantly living in these suburbs, the targeting of these areas is politically motivated and localized. Other Tutsi-dominated areas such as Rohero, Kiriri, Kinindo and countryside have been spared from police reprisal acts. However, it should be highlighted and reminded that international criminal law does not require territorial generalization of heinous acts to qualify as genocide. If the legal criteria are satisfied, genocide can be proved even if the acts are simply localized. Furthermore, regardless of the atrocities and the deplorable number of deaths, it is less plausible for the moment to suggest an intention to destroy a substantial part of the Tutsi to the point that the killings have endangered the very survival of the Tutsi ethnic group as such.

In fact, the human rights violations modus operandi in the anti-third term areas follows the same pattern of this very government, which has displayed a great deal of intolerance towards political opponents. For instance, during the first and second Nkurunziza presidential terms, one should remember the systematic killings perpetrated against the militants and combatants of the Forces Nationales de Libération (FNL). Despite their Hutu ethnicity, members of the FNL were systematically killed mainly in Muyinga and Bujumbura Rural provinces. Victims’ corpses were also found in water drains and rivers or on the streets as we are witnessing it today with third term victims. Apart from FNL militants and combatants, government sponsored hostile acts were carried out against members of other opposition political parties such as MSD, FRODEBU, UPD Zigamibanga as well as prominent members of civil society organizations like Pierre Claver Mbonimpa, who survived an attempted assassination.

Can we then say that a “politicide” is ongoing against those opposing the CNDD-FDD political agenda? Although the majority of stakeholders are of that view, it should be reminded that the Genocide Convention affords protection to only four groups (ethnic, racial, religious and national). Contrary to other countries, the Burundian implementing legislation textually adopted the definition from the Genocide Convention, without extending the grounds for protection, to include for example other groups deemed to be equally vulnerable for genocide such as political groups. Therefore, no political genocide can be sustained either, from a purely legal perspective.

In conclusion, an evidence-based inquiry into the facts suggests that the killings and other degrading and ill-treatment acts are targeting people who are against Nkurunziza third term. They are in no way attacks on any Tutsi for his or her ethnicity as such. Therefore, from a legal perspective, no serious analysis can conclude to the existence of genocide ongoing in Burundi. However, from a human rights perspective, and for the time being, even if they cannot found allegations of genocide, most of the horrible acts are in no way justifiable, under the law and order paradigm. They are punishable domestically or internationally, the real issue here being for the moment the recognition of the scale of the human suffering and the dignity of victims as opposed to the recognition of genocide per se. Time is not for apocalyptic discourse from politicians and others. Burundians are all affected by the current crisis, irrespective of their ethnic or political affiliation. In order to avoid the worst, the international community should ensure that political “belligerents” commit to dialogue. Dialoguing is playing responsible politics.

Professor Pacifique Manirakiza is an Associate Law Professor at University of Ottawa. Professor Manirakiza has just completed a 4-year term as a member of the African Commission on Human and People’s Rights. In 2014 Dr. Manirakiza has been appointed member of the first African Union-led Commission of Inquiry on South Sudan.

Suggested citation: Pacifique Manirakiza, The Genocide Rhetoric in Burundi, JURIST – Academic Commentary, Jan. 19, 2016, http://jurist.org/academic/2016/01/pacifique-manirakiza-burundi-genocide.php.