Part V: Recommendations

488. To make recommendations as to how to effect national reconciliation in Burundi and reestablish peace and security is, if not beyond the mandate, certainly beyond the means of the Commission. The Commission can hardly be expected to come up with miraculous solutions where the intensive, ongoing efforts by the United Nations and other members of the international community have so far shown no results in preventing, much less in redressing, the constant deterioration of the situation in Burundi.

489. The Commission, having gained a certain familiarity with conditions in the interior of the country, cannot fail to point out, however, that reported international efforts appear to concentrate on the redistribution of power among the political and military elite in Bujumbura, while little is heard of the basic problem of resettling the tens of thousands of internally displaced Tutsis and exiled Hutus, of restraining population growth, of creating opportunities for work outside of agriculture and of increasing agricultural yields, all of which would require considerable outside assistance.

490. Impunity has, without any doubt, been an important contributing factor in the aggravation of the ongoing crisis. But, while at the outset it was one of the causes of the present situation, it has now become an effect. To make the suppression of impunity a precondition for the solution of the crisis is completely unrealistic and can serve only to give excuses to those who are unwilling to take the necessary actions.

491. Impunity can only be suppressed through a fair and effective administration of justice. The Commission can find no way in which such an administration of justice can be established while the present situation of the country has not been brought under a minimum of control.

492. It is a fact that the Burundian judiciary and police are overwhelmingly unbalanced in favor of Tutsis, as is the entire legal profession. It is a fact that Burundian criminal law and criminal procedures need to be reformed. It is a fact that judges and prosecutors lack even the most essential material resources to accomplish their task. But all these facts pale before the central fact of overriding ethnic confrontation and total insecurity throughout the country. No amount of reforms or resources can have any effect as long as every citizen faces the ever present and very real danger of death at the hands of members of either ethnic group, and as long as every citizen is convinced that his own ethnic group is under attack by people who have repeatedly shown that they do not hesitate to commit mass murder. It is clearly impossible for any system of justice to function under such conditions.

493. The Commission believes that, whenever conditions in the country permit effective reforms to be made, the most important of these would be to establish a reasonable ethnic balance at all levels regarding judges, prosecutors and judiciary police. This would require that the appointment and removal of these functionaries be entrusted to an impartial, independent, non political and ethnically balanced body with the necessary power and public credibility. The judicial police, at present an almost non existent body, should be given the necessary manpower and resources and freed from ethnic or political control. It should be a purely civilian body, with no links to the Army of Gendarmerie. The present practice of indefinite detention without formal accusation or prosecution must be abolished.

494. It must be borne in mind that, among the present adult population of Burundi, tens, if not hundreds, of thousands of individuals from both ethnic groups have at one time or another committed homicide. To prosecute every one of them is clearly beyond any system of justice. If those who bear the main responsibility for these crimes are ever to be brought to justice, judges or prosecutors must be empowered to offer immunity or reduced sentences, in exchange for cooperation, to those who were merely ordered or led.

495. The establishment of an impartial and effective system of justice would require considerable international assistance in the form of training and financial support. A transitional period could be envisaged during which, to establish public credibility, foreign observers, recruited from the judiciary of other francophone African nations, would sit in the bi-ethnic courts and, if necessary, mediate between the judges.

496. Having concluded that acts of genocide against the Tutsi minority were committed in Burundi in October 1993, the Commission believes that international jurisdiction should be asserted with respect to these acts.

497. The Commission believes, however, that is it not possible to carry out an adequate international investigation of these acts while the present situation persists in Burundi.

498. If it is decided to assert international jurisdiction regarding acts of genocide in Burundi once a reasonable level of order and security and ethnic harmony are reestablished, the investigation should not be limited to acts committed in October 1993, but should also extend to other acts committed in the past, in order to determine whether they also constituted acts of genocide and, if such is found to be the case, to identify those responsible and bring them to justice. Particular attention should be given to the events that took place in 1972 when, according to all reports, a systematic effort was made to exterminate all educated Hutus. No one was ever prosecuted for these acts.

499. Any international body that is given the responsibility of investigating genocide in Burundi must be given sufficient resources and powers to inspect files and records, to command the disclosure of documents, to make witnesses appear before it, to ensure the punishment of perjury, to ensure the safety of witnesses and to guarantee immunity or reduced sentences to those willing to cooperate.

500. Regarding the assassination of President Ndadaye, the taking of hostages, and the indiscriminate repression of civilians, all of which fall within the internal jurisdiction of Burundi, the Commission considers it evident that there is no hope of fair and effective investigation or prosecution by the present Burundian judiciary, or while the very persons whose conduct is to be investigated share the unrestricted power of life and death throughout the country from high positions in the Government, in the Army, and in the armed rebellion. Such an investigation would require an independent and credible judicial body, endowed with all necessary powers, in conditions of reasonable order and security.