Congo Report Significantly Tones Down Language on Genocide Accusations

The controversial report on human rights violations in the Democratic Republic of the Congo was issued yesterday by the Office of the High Commissioner for Human Rights. It takes a much more nuanced approach to the genocide charges in the final version compared with the draft.

About a month ago, Le Monde reported on a leaked draft of the report that contained charges that Rwandese military forces in eastern Congo had engaged in genocide against Hutu populations. The leak seems to have been related to ongoing debates within the Office of the High Commissioner for Human Rights concerning the wisdom of even using the term genocide, with its inflammatory connotations. Whoever leaked the draft report probably meant to pre-empt the debate and make it impossible for the High Commissioner to withdraw the paragraphs concerning genocide. The Rwandan government was furious, although it has apparently calmed down somewhat after a visit from Secretary-General Ban Ki-moon a few weeks ago.

A comparison of the draft report and the final version issued yesterday shows that although the High Commissioner has not withdrawn the references to genocide, the relevant paragraphs have been somewhat toned down. Moreover, there are several additional paragraphs that explain the difficulties and problems in sustaining genocide charges.

There are two relevant portions of the report concerning genocide. The first is paragraphs 27 to 33.

The original text of paragraph 31 included the following: ‘The systematic, methodological and premeditated nature of the attacks listed against the Hutus is also marked: these attacks took place in each location where refugees had been screened by the AFDL/APR over a vast area of the country.’ In the final version, it becomes: ‘If proven, the incidents’ revelation of what appears to be the systematic, methodological and premeditated nature of the attacks listed against the Hutus is also marked: these attacks took place in each location where refugees had allegedly been screened by the AFDL/APR over a vast area of the country.’ Later in the same paragraph, he draft report states: ‘Thus the systematic and widespread attacks described in this report reveal a number of damning elements that, if proven before a competent court, could be classified as crimes of genocide.’ In the final report, it becomes: ‘Thus the apparent systematic and widespread attacks described in this report reveal a number of inculpatory elements that, if proven before a competent court, could be characterized as crimes of genocide.’

The adjustments are more dramatic in paragraph 32, where the arguments against a finding of genocide are set out. In the draft report, the discussion was brief:

It should be noted, however, that certain elements could cause a court to hesitate to decide on the existence of a genocidal plan, such as the fact that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities. Whilst in general the killings did not spare women and children, it should be noted that in some places, particularly at the beginning of the first war in 1996, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

Here is the final version:

There are however a number of countervailaing factors that could lead a court to find that the requisite intent was lacking, and hence that the crime of genocide was not committed. First, it must be proven that the intent of the alleged perpetrators was to destroy a part of the Hutu ethnic group ‘as such’. It does not suffice to prove that members of the group were targeted because they belonged to the group, or that there were deliberate killings of members of the group. Second, in the absence of direct evidence of intent to destroy the group, such intent can only be inferred from circumstantial facts and evidence, that is, from the conduct of the alleged perpetrator, if it is the only reasonable inference possible. Where an alternative inference can be drawn from the conduct of the alleged perpetrator, the clear ‘intent to destroy’ required is difficult to establish. A number of alternative explanations or inferences could be drawn from the conduct of the RPA/AFDL in attacking the camps in Zaire in 1996 to 1997. The intent underlying the killings could be deemed as collective retribution against Hutu civilians in Zaire suspected of involvement with the ex-FAR/Interahamwe, reinforced by the RPA/AFDL’s conviction that upon destroying the camps, all Hutu remaining in Zaire were in sympathy with the perpetrators of the 1994 genocide in Rwanda. Finally, facts which tend to show that the RPA/AFDL spared the lives, and in fact facilitated the return to Rwanda of very large numbers of Hutu militate against proving a clear intent to destroy the group. Additionally, whilst in general the killings did not spare women and children, it should be noted that in some places, particularly at the beginning of the first war in 1996, Hutu women and children were apparently separated from the men, and allegedly only the men were subsequently killed.

Finally, paragraph 33 of the draft:

Nonetheless, neither the fact of only targeting men in the massacres, nor the fact of allowing part of the group to leave the country or even facilitating their movements for various reasons are sufficient in themselves to entirely do away with the intention of certain people to in part destroy an ethnic group as such and thus to commit a crime of genocide. It will be for a competent court to make a decision on the issue.

This becomes considerably more cautious in the final version:

In light of the competing considerations reviewed above, a full judicial investigation into the events that occurred in Zaire in 1996 to 1997 will be necessary, in order to permit a competent court to decide on the matter.

There is also a very significant discussion of the genocide issue later in the report, beginning at paragraph 500. As in the earlier portion, after a recital of the basis for charging genocide, the arguments against such a conclusion are set out. This is once more relatively brief in the draft report, and is included, almost as an afterthought, in the second portion of paragraph 517:

It should be noted that certain elements could cause a court to hesitate to decide on the existence of a genocidal plan, such as the fact that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities prior to the start of the first war. Whilst, in general, the killings did not spare women and children, it should be noted that in some places, at the beginning of the first war, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

Paragraph 518 of the draft attempts to claw this back:

Nonetheless, neither the fact that only men were targeted during the massacres, nor the fact that part of the group were allowed to leave the country or that there movement was facilitated for various reasons, are sufficient in themselves to entirely remove the intention of certain people to partially destroy an ethnic group as such. In this respect it seems possible to infer a specific intention on the part of certain AFDL/APR commanders to partially destroy the Hutus in the DRC, and therefore to commit a crime of genocide, based on their conduct, words and the damning circumstances of the acts of violence committed by the men under their command. It will be for a court with proper jurisdiction to rule on this question.

This discussion is quite dramatically changed in the final version. Rather than place the arguments in the concluding portion of a paragraph, almost as an afterthought, the report sets out in considerable detail the difficulties in making out the charge of genocide. It does this in several distinct paragraphs:

518. There are a number of factors that could lead against a finding of the requisite intent, and hence the crime of genocide. First, is the need to establish that the intent of the alleged perpetrators was to destroy (a part of) the Hutu ethnic group ‘as such’, and distinguishing such intent, from the discriminatory (but not necessarily genocidal) intent to kill persons on account of their belonging to a group. The International Court of Justice, in ruling on the intent required, has emphasized that genocide requires the establishment of the intent to destroy the protected group, in whole or in part, ‘as such’. It is neither enough to establish that deliberate unlawful killings of members of the group occurred, nor that members of the group were targeted because they belonged to the group, which only shows the alleged perpetrator had a discriminatory intent. The words ‘as such’ emphasize that intent to destroy the protected group.

 

519. Second, is the essential requirement to establish clearly, the intent to destroy the group. This clear view of the intent is critical to distinguish situations of targeting members of a group because of their group identity – which does not by itself constitute genocide – and intending to destroy the group in whole or in part, which does. In the absence of direct evidence of intent, a judicial assessor must observe stringent standards in drawing inferences from circumstantial evidence, in order to establish intent. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia has ruled that such an inference may not be drawn unless it is ‘the only reasonable inference available on the evidence’, and that convictions for genocide can only be entered ‘where the intent has been unequivocally established’. When inferring intent from circumstantial evidence of the alleged perpetrator’s conduct, the availability of a plausible alternative explanation for the conduct in question, makes it difficult to  establish a clear intent to destroy a group in whole or in part.

 

520. Third, in the specific context of the events in Zaire in 1996 to 1997 documented in this report, a number of alternative explanations for the actions of the RPA/AFDL may be raised. If proven, these would militate against concluding that an intent to destroy Hutu ‘as such’ is the only inference that can reasonably be drawn from their actions as documented in this report. The RPA/AFDL attacks on the camps and fleeing Hutu in Zaire could be interpreted as a campaign of collective retribution against Hutu civilians in Zaire suspected of involvement or sympathy with the ex-FAR/Interahamwe, who perpetrated the 1994 genocide in Rwanda. The return to Rwanda of very large numbers of Rwandan Hutu refugees during the 1996 to 1997 RPA/AFDL attacks on the camps, may have reinforced the perception that those Hutu civilians remaining in Zaire did so either because they were part of, or in sympathy with, the ex-FAR/Interahamwe. The U.N. Secretary General’s Investigative Team, which was deployed to the Democratic Republic of the Congo shortly after the events, demonstrated – in its final report – the challenge of inferring the clear intent underlying the killings of Hutu in DRC, as follows:

 

“When the camps in North Kivu were attacked in October and November 1996, it is clear that one of the objectives was to force the refugee population in the camps to return to Rwandan territory. To some extent the return was voluntary, since many genuine refugees had been prevented from returning by the military elements in the camps. However, it also is clear that, at some times and in some areas, the attacks on former camp populations which fled westward into theinterior of Zaire were not intended to force them to return but simply to eliminate them. (…) There are at least two possible interpretations of the intent to eliminate the Rwandan Hutus remaining in the country: either there was a decision to eliminate them rather than repatriate them, for whatever reason, or there was a decision to eliminate them because the breaking up of the camps in effect separated the ‘good‘ Hutus from the bad: those who had little involvement in the 1994 genocide against Tutsis had returned and those who fled rather than return were those who had participated in or supported the genocide. In either case the systematic massacre of those remaining in Zaire was an abhorrent crime against humanity but the underlying rationale for the decisions is material to whether these killings constituted genocide, that is, a decision to eliminate, in part, the Hutu ethnic group. The underlying reason for the massacres of Zairian Hutus in North Kivu is also material. This question is the most momentous one included in the mandate given to the Team, and one which requires further investigation”.

 

521. Fourth, facts which tend to show that the alleged perpetrator spared the lives of members of the group whom they had the means and opportunity to kill, may militate against proof of a clear intent to destroy the group. As this report and previous inquiries (such as the Secretary General’s Investigative Team in 1998) have noted, a very large number of Rwandan Hutu present in Zaire were able to return to Rwanda – including with the RPA’s assistance – during the 1996-1997 RPA/AFDL military campaign in Congo. It should be noted that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities prior to the start of the first war. Whilst, in general, the killings did not spare women and children, it should be noted that in some places, at the beginning of the first war, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

 

522. In light of the competing considerations mentioned above, it is important that a full judicial investigation take place, in order to shed light on the reported incidents which occurred in the territory of the DRC in the period from 1996 to 1997. Only such an investigation and judicial determination would be in a position to resolve whether these incidents amount to the crime of genocide.

It is obvious that while the references to genocide are retained, the ‘spin’ on the issue is changed dramatically. The discussion in the final version is much more balanced and appropriate.

In virtually any conflict with an ethnic dimension where there are significant numbers of killings it is possible to raise the issue of genocidal intent in a theoretical sense. Generally, however, it is not very helpful to throw the 'g word' around cavalierly. And it does nothing to mitigate the effect to add words like 'this will have to be addressed in a court of law'. By the way, such a statement is not even accurate. We make assessments about the existence of genocide, crimes against humanity and war crimes even when there is no relevant judgment by a court of law. Does the report really mean to say it is impossible to use the word genocide to describe the massacre of the Herero in Namibia in 1904, or of indigenous peoples throughout the world in the 18th and 19th centuries, simply because this cannot be adjudicated by a 'court of law'?

It is unfortunate that the issue of genocide arose at all. The reference in the draft report was quite gratuitous. It reminded me of the charge in the UN General Assembly, in 1982, that Israel had been involved in genocide in the massacres at the Sabra and Shatilla refugee camps in Beirut. In both cases, use of the term genocide is provocative and demagogic, aimed, as it is, at undisputed victims of genocide. Even the existing references to genocide in the final version of the report will nourish those who advocate a nefarious 'double genocide' thesis.

The consequence is to distract us from the important issues. Use of the term genocide has done great harm to what is otherwise a very professional and highly useful mapping exercise. As the High Commissioner explained yesterday, “no report can adequately describe the horrors experienced by the civilian population’ in the Democratic Republic of the Congo, where ‘almost every single individual has an experience to narrate of suffering and loss’.