5203rd Meeting (PM)
On the basis of extensive consultations with government representatives, political parties and civil society at large, and convinced of the acute need to support the peace process, a Secretariat mission to Burundi had recommending establishing a two-part mechanism to clarify the historical truth regarding the conflict in that country, investigate the crimes committed and bring those responsible to justice, Ralph Zacklin, Assistant Secretary-General for Legal Affairs, told the Security Council this afternoon.
Presenting the report of the mission to Burundi, which was led by Tuliameni Kalemi, Assistant Secretary-General for Political Affairs, he said that a proposed truth commission would be established under existing national law with a mandate to establish the historical facts of the conflict in that country and determine its causes and nature, classify the crimes committed since independence in 1962 and identify those responsible. It also recommends creation of a special chamber within Burundi's court system, with the competence to prosecute those bearing the greatest responsibility for genocide, crimes against humanity and war crimes.
The experience gained in establishing parallel judicial and non-judicial accountability mechanisms in Sierra Leone and East Timor would be helpful in determining the relationship between the truth commission and the proposed judicial accountability mechanism, he said. An expeditious establishment of a truth commission would ensure that, by the time a special chamber was established, the results of the investigations carried out by the commission could be shared with the prosecutor of the special chamber.
He said that a request in July 2002 by then-President Pierre Buyoya for an international judicial commission of inquiry must be considered in the light of Burundi's history of ethnic conflict, the events that had taken place since the conclusion of the Arusha Peace and Reconciliation Agreement in 2000, and the experience gained by the United Nations in promoting justice and the rule of law over the past 12 years. It should also be examined against the background of four international commissions of inquiry established between 1993 and 1995, including three at the request of the Security Council. Against that background, the Secretariat assessment mission had been mandated by the Council to determine the advisability and feasibility of establishing yet another commission of inquiry and to consider the relationship between the International Judicial Commission of Inquiry and the national Truth and Reconciliation Commission envisaged under the Arusha Agreement.
Burundi's Justice Minister, Didace Kiganahe, said his Government supported the recommendation of a single commission responsible for establishing the truth and a special chamber within the court system of Burundi to establish responsibility. At the same time, he pointed out that the distinction between the national truth and reconciliation commission and the international judicial commission of inquiry was not clear. There was a clear risk of overlap. Also, Burundi's judicial structure was unable to deal with complex cases of genocide, crimes against humanity and war crimes. The juridical basis for the truth and reconciliation commission would be provided by national law and by agreement between the United Nations and the Government.
He said the mission's recommendations had met the dual concerns of the political negotiators in Arusha and the people of Burundi, which was to establish the truth and then to bring to justice and punish the guilty. Furthermore, the Government also wished that, beyond establishing truth and justice, reconciliation should be placed at the heart of peace and national unity. The aspect of reconciliation was not adequately emphasized and the Council should also specify the financing modalities for the dual mechanisms. The very credibility of the system being put in place would depend on its enjoying adequate funding during its entire operation.
Following those presentations, the Council heard statements by the representatives of the Russian Federation, Romania, China, Brazil, United States, Japan, United Kingdom, Denmark, Algeria, Argentina, United Republic of Tanzania, Benin, Philippines, Greece and France.
The meeting began at 3:25 p.m. and ended at 4:55 p.m.
Before the Council was a letter from the Secretary-General dated 11 March 2005 (document S/2005/158) submitting the report of the assessment mission that he sent to consider the feasibility of establishing an international judicial commission of inquiry, as provided for in the Arusha Peace and Reconciliation Agreement of 28 August 2000. The mission visited Burundi in May 2004.
The report says that in considering the modalities for establishing an accountability mechanism to clarify the truth, investigate the crimes and identify and bring to justice those responsible for genocide, crimes against humanity and war crimes committed in Burundi since its independence, the mission took into account the Arusha Agreement, the needs and expectations of Burundians, the capacity of the Burundian administration of justice, established United Nations principles and practices and the practicality, as well as feasibility, of any proposed mechanism.
According to the report, the mission is convinced of the necessity to establish a commission, though not necessarily in the shape and form requested by the Government of Burundi. In an integrated and "holistic approach" to establishing justice and the rule of law in post-conflict Burundi, the mission proposes the establishment of a truth-telling mechanism to clarify the truth objectively, impartially and in a credible manner; and the establishment of a special chamber in the court system to enhance the capacity of the judicial sector, and leave behind a legacy of international standards of justice and a generation of trained judges, prosecutors, defence counsel and court managers.
The presence of the United Nations Office in Burundi (UNOB) affords a unique opportunity for the Organization to engage in restoring peace, building national reconciliation and achieving justice, the report says. The Security Council has repeatedly affirmed the vital importance of the Burundian parties themselves taking ownership of the process to address the devastating impact of impunity. It has pledged the readiness of the international community to assist in efforts to build up Burundi's capacity for promoting respect for human rights standards and the rule of law and to put an end to impunity.
According to the report, the United Nations can no longer engage in establishing commissions of inquiry and then disregard their recommendations without seriously undermining the Organization's credibility in promoting justice and the rule of law. The mission is, therefore, of the view that a comprehensive approach to the pursuit of truth and justice in Burundi is now necessary. Unlike the Arusha Agreement, which foresees parallel national and international tracks, the mission proposes to be a cooperative effort in which the international community lends it assistance and the Government of Burundi remains ultimately responsible for eradicating impunity and restoring the rule of law.
Presentation of Report
RALPH ZACKLIN, Assistant Secretary-General for Legal Affairs, presented the report of the assessment mission to Burundi, which was led by Tuliameni Kalomoh, Assistant Secretary-General for Political Affairs. He said that the July 2002 request by then-President Pierre Buyoya for an international judicial commission of inquiry must be considered in the light of Burundi's history of ethnic conflict, the events that had taken place since the conclusion of the Arusha Agreement in 2000, and the experience gained by the United Nations in promoting justice and the rule of law over the past 12 years. It should also be examined against the background of four international commissions of inquiry established between 1993 and 1995, including three at the request of the Security Council.
He said that for all their differences, the four commissions shared similar features. Their subject-matter and temporal jurisdiction was limited to the events of 1993, namely, the coup d'état and assassination of Burundian President Melchior Ndadaye and the ensuing massacres. As the earlier 1972 massacre of Hutus was outside their mandate, a legal determination that the crime of genocide had been committed in Burundi was made only in respect of the 1993 massacres of Tutsis. While all four commissions had recommended that if impunity was to be eradicated those responsible should be brought to account, no action had been taken on those recommendations by any United Nations organ.
In such a deeply divided society, where inter-ethnic killings in 1965, 1972, 1988, 1991 and 1993 had formed part of a dreadful and deeply disturbing repetitive cycle, limiting the mandate of any mechanism to a single cycle of massacres, and characterizing it and it alone as genocide, was considered by many of the mission's interlocutors in Burundi as a partial and biased account of the events. The demands for the establishment of a commission of inquiry whose temporal jurisdiction extended over four decades of Burundi's recent history was, thus, an appeal for fairness in establishing and recounting the historical truth and putting the 1993 massacres in a broad historical perspective.
Against that background, he said, the Secretariat assessment mission had been mandated by the Council to determine the advisability and feasibility of establishing yet another commission of inquiry and to consider the relationship between the International Judicial Commission of Inquiry and the national Truth and Reconciliation Commission envisaged under the Arusha Agreement. Based on extensive consultations with representatives of the Government, political parties and civil society at large, and convinced of the acute need to support the peace process and foster truth and reconciliation while achieving justice, the mission had considered modalities for establishing a twin-accountability mechanism to clarify the historical truth, investigate the crimes and bring to justice those responsible.
He said that the proposed truth commission would be established under existing Burundi law and be comprised of three international and two national commissioners. Its mandate would be to establish the historical facts and determine the causes and nature of the conflict in Burundi, classify the crimes since independence in 1962 and identify those responsible. The experience gained in establishing parallel judicial and non-judicial accountability in Sierra Leone and East Timor would be helpful in determining the relationship between the truth commission and the proposed judicial accountability mechanism. An expeditious establishment of a truth commission for Burundi would ensure that by the time a special chamber was established, the results of the investigations carried out by the commission could be shared with the prosecutor of the special chamber.
In deciding to recommend a special chamber within Burundi's court system, the mission had opted for a judicial accountability mechanism located in the country and forming part of its court system, he said. It was envisaged that the special chamber would have the competence to prosecute those bearing the greatest responsibility for the crime of genocide, crimes against humanity and war crimes committed in Burundi. Its temporal jurisdiction would be limited to specific phases of the conflict, and would include, as a minimum, the events of 1972 and 1993. As with the truth commission, the composition of the special chamber would be mixed, with a majority of international judges and an international prosecutor and a registrar. It was envisaged that the prosecutor's office and court management would include a substantial international component working alongside Burundi nationals.
DIDACE KIGANAHE, Minister of Justice of Burundi, said that, following two years of intense negotiations, the people of Burundi had reached the Arusha Agreement on peace and reconciliation, in order to put an end to the deep-rooted causes of violence and political instability. Following an in-depth analysis of the causes of conflict, the parties had agreed to the request from the Transitional Government to the Security Council to establish an international judicial commission of inquiry on genocide, war crimes and crimes against humanity to investigate the facts for the period from independence to the date of the signing of the peace agreement, and to submit its report to the Council.
The parties had also agreed to create a national truth and reconciliation commission to establish the truth concerning the serious acts of violence from independence to the signing of the Arusha Agreement, as well as to establish the identity of the perpetrators and the victims and to conduct reconciliation, in order to inform the people of Burundi of their own past.
At the request of the Transitional Government, he recalled, the Security Council had sent in May 2004 a mission to Burundi with the aim of examining the possibility and timeliness of creating an international judicial commission of inquiry. Today, the Council was meeting to study the report of that mission. The mission report recommended a single commission responsible for establishing the truth and a special chamber within the court system of Burundi to establish responsibility. While approving that new approach, he pointed out that the distinction between the national truth and reconciliation commission and the international judicial commission of inquiry was not clear. There was a clear risk of overlap. Also, the judicial structure in Burundi was unable to deal with complex cases of genocide, crimes against humanity and war crimes. The juridical basis for the truth and reconciliation commission would be provided by a national law and by agreement between the United Nations and the Government.
In light of the mission, the Government supported the recommendations, which met the dual concerns of the political negotiators in Arusha and the people of Burundi, which was to establish the truth and then to bring to justice and punish the guilty. Furthermore, the Government also wished that, beyond establishing truth and justice, reconciliation should be placed at the heart of peace and national unity. The aspect of reconciliation was not adequately emphasized. Regarding the judicial mechanism responsible for establishing responsibility, the Government supported the description given of it in the mission's report and pointed out the need to accelerate reform of the judicial system that was now taking place, to allow it to implement its new mission.
The Government also believed that the Council should specify the financing modalities for the dual mechanisms, he stated. The very credibility of the system being put in place would depend on its enjoying adequate funding during its entire operation. Also, he requested that negotiations to establish the practical modality to implement the recommendations should give the strong signal awaited by the Burundian people, who were thirsty for truth and justice. Therefore, to prepare the minds of the people of Burundi, a broad consultation involving all sectors could be planned, to gauge the feelings of the people and to encourage their support for the new mechanisms.
Once the mechanism was put in place, he added, the teams of mixed composition would be established to determine the nature and programme of work before the agreed mechanisms could be put in place. The Government was grateful to the Council for all its efforts. The people of Burundi remember the support and wise advice the Council had given to the political leadership in Burundi. He thanked the Secretary-General for his efforts and invited him to come to Burundi to witness the positive results of his untiring efforts.
ALEXANDER KONUZIN (Russian Federation) said that a close study of the report was necessary in order to establish the truth, to avoid partiality and to establish justice in Burundi. The recommendation to establish two bodies -- a truth and reconciliation commission and a special chamber -- required political and legal analysis.
MIHNEA MOTOC (Romania) said the Minister's participation provided an opportunity for the Council to convey its message about the need for reconciliation with a view to the establishment of stability in Burundi. Romania had recognized the need for the countries of the region to make concerted efforts to end the climate of impunity in Burundi. Romania commended the approach recommended by the report regarding the establishment of truth and justice through a commission of inquiry and a special chamber. Any solution to the situation must be based on a regional and well-coordinated approach. Could the Minister shed further light on his views of regional actions to combat impunity?
ZHANG YISHAN (China) expressed satisfaction with the positive progress achieved in the past months as a result of efforts by the Government of Burundi and the international community as a whole. The commission of inquiry was in line with the wishes of the international community and China supported the recommendations for a truth and reconciliation commission, as well as a special chamber. China agreed on the need for the Council to authorize talks between the Secretary-General and the Burundian authorities in order to implement those recommendations as soon as possible.
PAULO TARRISSE DA FONTOURA (Brazil) said that there was broad consensus regarding the need to fight impunity in Burundi, particularly because Burundians themselves understood that the search for truth and justice was an integral part of the peace and reconciliation process. He expected that the authorities of Burundi and members of the Government would cooperate fully with the international community, particularly the Secretary-General and his Special Representative. At the same time, he hoped the Council and the international community could act in a timely manner to provide the guidance and assistance required by the Burundian people. He encouraged the interim Government to keep its commitment to the transitional process in Burundi.
Mr. SCOTT (United States) said his country had strongly supported Burundi in making a peaceful transition. To achieve that, there must be a process by which Burundi understood its past. He had found much in the mission's report that warranted support. The recommendations raised a number of questions, which had been alluded to. The recommendations constituted a skeleton, rather than a blueprint for action. He would be obliged if further elucidation could be furnished. First, he noted that the national truth commission would attempt to determine the facts and identify those responsible. That was a large mandate and he hoped the commission would not be bogged down in a lengthy historical search.
Second, he wished to have some estimate of what the anticipated costs would be. Third, he agreed with the need for a national sense of ownership of both the commission and the special chamber. He would like to know how that sense of ownership could be brought about. He agreed that both activities should be funded voluntarily.
SHINICHI KITAOKA (Japan) said he welcomed the Minister's comments on the mission's recommendations, as it demonstrated the determination of his Government to eradicate the culture of impunity, while promoting national reconciliation. He was fully aware of the urgent need to establish such mechanisms, but doing so would require the discussion and approval of the Burundian Parliament, once the transition was completed. He asked the Minister to provide his view on the timing of the establishment of the mechanisms.
Also, according to the Secretary-General's report, the legal basis for the establishment of the special chamber and the laws governing its operation would be Burundian law, with necessary modifications. Would it be possible to achieve broad support for the recommendations among the people of Burundi, and in particular, the members of the Parliament and the various political parties? he asked.
EMYR JONES PARRY (United Kingdom) said that most of the questions that he would have wished to put to the Assistant Secretary-General and the Minister had already been asked by the preceding speakers and all that was left for the United Kingdom was to wish the people of Burundi well on their way forward.
LARS FAABORG-ANDERSEN (Denmark) noted that sustainable peace could only be attained if perpetrators were brought to justice. The recommendation on the establishment of a truth and reconciliation commission, as well as a special chamber, struck a good balance towards achieving that goal. However, no progress would be made without Burundian ownership of the process.
MOURAD BENMEHIDI (Algeria) noted with pleasure that the mission had come back convinced of the need to set up a truth and reconciliation commission. The support of the international community was essential and the formula proposed for a mixed commission and a special chamber in the national judicial system would help the people of Burundi to combat impunity and opened up positive long-term prospects for the country's judicial system.
MARTÍN GARCÍA MORITÁN (Argentina) highlighted the importance of bringing to justice the perpetrators of genocide, crimes against humanity and war crimes. He also supported the initiative of the Secretary-General to begin negotiations with the authorities of Burundi to begin implementation of the recommendations.
TUVAKO MANONGI (United Republic of Tanzania) said he was pleased by the agreement of the parties in support of the establishment of the mechanisms for accountability. The fact that there was a broad consensus about that approach should be welcomed and supported by the Council. He commended that resolve and considered it among the positive measures adopted by the Transitional Government. The Arusha Agreement was not cast in stone; new perspectives were being offered in an attempt to foster national reconciliation. Such efforts must be supported.
Burundi, he said, would require considerable support from the international community, which should not fail them. He appealed for international support for the mechanisms envisaged for truth and reconciliation. That would have been best served through assessed contributions. "Ending impunity must be our collective responsibility and in our own self-interest." He joined the Minister in expressing caution about the relationship between the international commission and the special chamber within the Burundi court.
JEAN-FRANCIS ZINSOU (Benin) said that recent events had given fresh hope to the people of Burundi that they might regain peace. Everyone was aware that the road to peace and stability in Burundi was still strewn with pitfalls and challenges. He was particularly concerned about the repeated violations of human rights. The recommendations of the report were useful. The quest for national reconciliation should take into account the need to promote justice. The contribution of the twin mechanisms to the strengthening of the judicial apparatus and the rule of law in Burundi should not be underestimated. He would give his unswerving support to the implementation of the recommendations to that end.
BAYANI MERCADO (Philippines) said it was important that the truth about past atrocities be known and that the perpetrators be brought to justice and punished. Considering the ethnic divisions in the country and the mutual suspicion between the two main ethnic groups, how would the local commissioners be selected? How long would the two proposed mechanisms take to accomplish their goals?
ADAMANTIOS VASSILAKIS (Greece) emphasized that, in establishing the commission of inquiry, there was a need to punish those responsible for crimes without endangering the chances for reconciliation. Greece wished Burundi success.
Council President JEAN-MARC DE LA SABLIÈRE (France), speaking in his national capacity, noted that two years ago, to the day, he had had been in Bujumbura at the head of a Council mission to Central Africa and the Great Lakes region. All the actors at that time had spoken about the need to end impunity and establish an international commission of inquiry. There had also been questions about time lines and about the mechanisms to be used. The Secretary-General should take into account efforts under way in other places, such as Sierra Leone, to bring about peace and reconciliation. It was important that the various players involved be consulted because of the need for Burundian ownership of the process. The priority now was to carry out elections that would culminate in a presidential election in August.
Taking the floor a second time, Mr. KIGANAHE (Burundi) thanked Council members for the support expressed for the recommendations contained in the report, and for the attention they were paying to the political developments under way in his country. Virtually all speakers had expressed their support for the mechanisms put forth in the report. He believed that, with the support and contribution of Member States, those mechanisms could be implemented.
Among the questions he was asked were whether the subregion and the staff of the UNOB could make a contribution to the implementation of the mechanisms outlined; the costs involved; and how long it might take for the mechanisms to be established, given the judicial process involved and the adoption of the needed laws by Parliament. An important question pertained to ownership of the recommendations by the Burundian people, because it was felt that the mechanisms could only be effective if the people of Burundi supported them.
He believed the subregion had played a highly important role in the peace process in Burundi. In that regard, the Arusha Agreement was adopted by Burundi's political partners, thanks to the fine contribution and engagement of former Tanzanian President Julius Nyerere, the enlightened leadership of former South African President Nelson Mandela, and Ugandan President Museveni, all of whom had dedicated themselves to the success of the process. The contribution of the subregion was essential, and it would not have been possible without the different types of support provided by the United Nations. The presence of the UNOB could play a role in the preparation of an environment conducive to the implementation of the mechanisms, including through support in capacity-building. He was convinced that Burundi would be able to benefit from the presence of United Nations staff, so as to right away lay the groundwork for implementation.
As for the timing, he said that the Government that would emerge from elections would spare no effort to speed up the implementation of those mechanisms. Between now and the end of August, there would be a new Government in place, as a result of the elections just conducted at the town level. The commitments of the present administration would be taken into account by the Government to come.
Regarding ownership by the people of Burundi of the mechanisms, he noted that, if the mechanisms were perceived to be the result of foreign intervention, then the resulting solutions would not respond well to the concerns of the people of Burundi. The very thought of involving the people of Burundi in that process was a first sign of respect for them. That, in turn, would prompt them to support the mechanisms. It would not take any special effort to make them understand that the solutions proposed in the report were indeed solutions to the concerns they themselves raised.
He was also convinced that control and ownership of the mechanisms by the people of Burundi could only be effective if the Government committed itself to debate with the different segments of society on the issue. The mechanisms would be part of his country's domestic legal system through the adoption of laws by an elected Parliament. That Parliament would be there to ensure that the interests of people would be taken into account. The participation and involvement of the legislature in the implementation of the mechanisms would be the finest example of the fact that the people were consulted, through their representatives.
Response by Assistant Secretary-General
Mr. ZACKLIN said that the report and the recommendations were only a beginning and there were points requiring further elucidation, such as questions relating to timing and funding. The Secretariat would provide responses as it moved towards the next steps in the process.
He said the Secretary-General had made it clear that he wished the Secretariat to proceed with the implementation of the recommendations and he looked forward for the discussions with the Burundian authorities in the near future.