The goals of international justice in fragile post-conflict settings are often framed in opposing terms of peace and justice. In some cases, however, it is necessary to step back and ask if either of these objectives is likely to be served by an international intervention.

The October 1 mapping report on the Democratic Republic of Congo (DRC) from the United Nations (UN) Office of the High Commissioner for Human Rights serves both goals so poorly, it raises serious questions about the authors’ motives. Coming at a time crucial for stability in the region, the report dangerously shifts blame to Rwandan troops and obscures the UN’s own role in fueling violence in the region through a lack of historical context and loose definitions.

The 556-page report describes 617 acts of violence allegedly committed by the armed forces of seven countries and several militias in the DRC between 1993 and 2003. A draft that was leaked to the press on August 26 triggered a massive media storm and strong protests from the countries whose troops stood accused.

Of all the serious atrocities documented by the mapping team, however, the allegation that Rwandan troops and their Congolese allies may have committed genocide against Hutu refugees has stirred up the most controversy, triggering yet another wave of damning press reports against the Rwandan government.

The report’s methodology is dubious. Its timing is worse.

On August 6, 2009, President Paul Kagame crossed the Rwandan border with the DRC. He shook hands with his Congolese counterpart and sat with him for almost two hours before the two former enemies answered the questions of a mixed group of Congolese and Rwandan journalists.

The event opened the way for a series of joint initiatives that seemed to announce a new era of peaceful collaboration between the former foes: embassies were reopened in both countries, trade and energy contracts were signed, and joint defense exercises were initiated.

It is at that moment that the UN chose to publish a report, which, by most accounts, had been ready for more than a year. For many Congolese the report revives painful memories of their country’s humiliating occupation by several armies, feeding a powerful anti-Rwandan resentment that has brewed over the years.

At a time when the Great Lakes Region is making remarkable progress in establishing peace, security and economic collaboration, the appearance of this ‘report’ under the guise of human rights can only be regarded as a cynical and dangerous attempt to destroy hard won gains,” Louise Mushikiwabo, Rwanda’s Minister for Foreign Affairs, told reporters.

The report also strengthens the hand of the advocates of the old "double genocide” theory. Hutu extremist forces have attempted to justify their crimes since 1994 by presenting the genocide against the Tutsis as a spontaneous reaction-counter massacres against the partisans of the equally criminal Rwandan Patriotic Forces (RPF) engaged in a war against the governmental forces.

Today, their emboldened voice is once again being given a platform in the international media. Aldo Ajello, the European Union Special Representative in the African Great Lakes Region during the time of the events, said in a recent interview: "[They] have transformed this report into an academic debate on genocide without taking into account what really happened in Rwanda in 1994.

Using this term is a monumental error and also an injustice, which supports the theory of the double genocide, and makes progress more difficult in the entire region.”
Indeed, the weakening Front Democratique pour la Liberation du Rwanda (FDLR), a military organization comprised of many alleged perpetrators of the 1994 genocide based in the Democratic Republic of the Congo, has leapt on the UN’s new allegation of "possible genocide” as the ultimate evidence that the RPF was always the true villain of the story.

The FLDR’s supporters all over the world have embraced this campaign, which implies that it may have a legitimate cause to fight Rwanda. Facing them is the RPF-led Rwandan government whose defense policy is still defined in terms of national survival and whose readiness and capacity to act against external threats can hardly be doubted.

Once again, the stage is being set for more death and destruction in the region.
The report claimed it would "help [the Congolese people] build a better future where impunity has no place.” After decades of catastrophic failures by the UN in the region, given the "leak” and subsequent release of this report at a time of relative stability, it is hard to see how the report can achieve its goals.

The "G” word and the quest for justice

"It was the same thing.”-Luc Cote, Head of the UN mapping team, comparing the 1994 Genocide in Rwanda to the alleged crimes in the Congo. AFP - Aug 27, 2010.
Independent of timing, the use of the ‘G’ word in the report is particularly troubling. The report asserts that "even if only a part of the Hutu population in Zaire was targeted and destroyed, it could nonetheless constitute a crime of genocide.”

As described at the 1948 International Convention on Genocide, the term refers to a certain number of acts "committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The final version of the UN report acknowledges that the intent to commit genocide would be particularly difficult to prove in this case. It correctly states that "[f]irst, 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....”
It is ludicrous that the thirty-three UN experts considering this description and using what they termed a "low standard of evidence” felt justified to suggest that Rwandan troops may have "intended to destroy, in whole or in part” the Hutu refugees on the sole basis of their "Hutu-ness” when the pre-announced objective and the largest outcome of the Rwandan offensive was the return of more than a million people-every bit as Hutu as the alleged victims.

It is disturbing how so little consideration was given to the verifiable fact that a large part of the attacking Rwandan forces were freshly integrated troops from the defeated armed forces-Hutus, like the alleged victims. It is finally bewildering how, in this comprehensive report, the million-plus former refugees who survived the fighting and returned home from the DRC camps were never asked to provide their version of the story. Indeed, more than eighty percent of the Rwandan Hutu refugees who fled the country in 1994 have been repatriated and reintegrated into their country, leading the UN High Commission for Refugees to envisage the cessation of the "group refugee” status for Rwandans by 2011.

The 566-page UN report generally suggests, as Philip Gourevitch, a longtime analyst and author on Rwanda, notes: "extraordinary documentary thoroughness, but in a ‘background note’ the U.N. Human Rights Commission explains that it required no more than two accounts from self-described witnesses to an incident for it to be included in its findings. This is a minimum standard in journalism, but beyond minimalist in international law.”

The missing context

"The extremists who had taken control of the camp were receiving food and assistance on the basis of swollen figures […]. They were talking of 200, 000 refugees who had disappeared, but in reality many of them never existed.”-Aldo Ajello, Special Representative of the European Union in the Great Lakes Region (1996-2007)1
The bulky document suffers from another major flaw.

It makes minimal reference to the highly exceptional circumstances under which, in 1996, Rwandan troops crossed the border of Congo (former Zaire), and it glosses over the controversial role of humanitarian organizations in the Zaire refugee camps.

The historical context, certainly, could not justify any of the unspeakable acts described in gruesome detail in the report. It could, however, significantly alter their interpretation and shape the appropriate response.
A good place to start would be where it could have all been ended.

Setting the stage for mass violence

After their military defeat in July 1994, the former Rwandan army and the militias, as well as the whole governmental apparatus, fled to neighboring Zaire, pushing ahead of them more than a million civilians in a gigantic forced exodus.

This was only the first phase in the systematic use of civilians, women, and children as human shields and propaganda tools in the DRC conflict. Indeed, Jean Bosco Barayagwiza, a Hutu Power extremist sentenced to 35 years’ imprisonment by the UN tribunal for Rwanda for his role in the 1994 Tutsi genocide, soon boasted from Goma (Eastern Zaire) that "even if [the RPF] has won a military victory, it will not have the power. We have the population!”

In late 1995, as militiamen and ex-FAR soldiers trained and re-armed, getting ready for "operation insecticide” aimed at re-invading Rwanda to finish off the remaining "cockroaches,” various humanitarian agencies called for measures to isolate the perpetrators of the genocide within the camps. Their pleas fell on deaf ears.

Realizing that refugees had become hostages, leaving relief workers to support the extremists, Médecins Sans Frontières (MSF – "Doctors Without Borders”), one of over 200 humanitarian organizations present in the camps, tried to document and report the military control of the camps.

In a move that should have set the example, MSF and a few other non-governmental organizations (NGOs) withdrew from the militarized refugee camps on the grounds that aid was strengthening the Genocidaires and setting the stage for further mass violence.

In contrast, the team from the UN High Commissioner for refugees in eastern Zaire and most of the remaining NGOs remained, often fostering closer relationships with the extremist forces. Until the Rwandan military offensive disrupted their operations, international humanitarian organizations regularly delivered large quantities of food and supplies, often directly in the hands of the extremists.

This situation, Linda Polamn argues in her book ‘War Games: The Story of Aid and War in Modern Times,’ was comparable to providing aid to the Nazis at Auschwitz’ gates in hopes that it would be fairly distributed.

In November 1994, the UN Secretary General concluded that the "most effective way of ensuring the safety of the Rwandan refugees and their freedom to return to Rwanda would be the separation of political leaders and former Rwandan government forces and militia from the rest of the refugee population.”

The proposal to deploy UN peacekeepers to separate the refugees from those responsible for the 1994 genocide in Rwanda was rejected for lack of international political will, a rather common problem in the region. An alternative solution was implemented with disastrous consequences: a million U.S. dollars a month would be paid to the Zaire government in order to "enhance security in and around the camps.”

It seemed the UN suddenly forgot the decades long alliance between Mobutu’s Zaire and the Rwandan genocidal government.  As MSF’s James Orbinski and Françoise Bouchet-Saulnier noted in their briefing to the Security Council, "It did not seem to matter that this ‘feasible solution’ did not solve the problem of insecurity, but, in fact, fueled it by encouraging the viability of the camps as military sanctuaries.”

As the incursions from Zaire were becoming increasingly lethal, killing hundreds of genocide survivors in Western Rwanda, the UN Security Council, the U.S.-all major diplomatic missions in Rwanda-were approached.

The message was similar to the one sent a few months earlier as the Tutsi genocide went on. This time, something had to be done before it was too late. Rwanda was determined not to watch as the same cycle of purposeful inaction and lack of will repeated itself with the tragic consequences the country had witnessed just two years ago. Just like in 1994, however, the international community was not prepared to do what it took to prevent another human tragedy. Nothing was done, and the rest is history.

Francois Soudan, a French journalist, contends in the Jeune Afrique that if the UN report is to become the basis for the implementation of a special court, there is no doubt that accountability should begin at its own doors.

Similarly, Colette Braekman, a Belgian investigative journalist who has been reporting on the region for several decades, blogged that "there is no good and bad truth, and if the UN intends to take the lead in [this] exercise, it should also [take] its own responsibilities. […] It would be totally unjust to only charge African countries in the region as if the UN and the Security Council’s great powers had not been actively involved in those events from which the people of the Great Lakes region would suffer for decades.”
Is it fair, in this context, to suggest that the Rwandan troops that crossed the Zairian border in 1996 may have done so "with an intent to destroy as a whole or in part the Hutu people”? The Rwandan forces, instead, crossed the border to free more than a million hostages that the UN had failed to repatriate.

It also did so to put an end to deadly cross-border attacks by the same people who took close to a million Rwandan lives in the space of three months. From their perspective, the "terrorist threat” was not some extremist group based on another continent. It was an army larger than their own, based at a walking distance from the Rwandan border in violation of international regulations, fed by the UN and international humanitarian organizations, and actively armed by its host government.

The attacks on the refugee camps in Zaire were not a surprise. They were the predicted and preventable consequences of a situation created and sustained for two years by international humanitarian organizations. "In the literature of aid work, the UN border camps set up after the Rwandan genocide, and particularly the Goma camps, figure as the ultimate example of corrupted humanitarianism-humanitarianism in the service of extreme inhumanity,” Philip Gourevitch notes in the New Yorker. "That there would be another war because of the camps was obvious long before the war came.”

There may have been no war in the DRC if the defeated army had not been accommodated at a walking distance from the Rwandan border. No "refugee camps” would have been attacked if the genocidal forces had not been allowed to reorganize, rearm, and use UN camps as the rear basis of terrorist attacks. Thousands of Rwandans would not have perished from exhaustion, hunger, cholera and bullets in Congo’s forests.

There has been too much preventable suffering in the Great Lakes. Too many deaths can be linked to the repeated failures of the UN and international organizations in the region. Time and again, "reputable” international organizations have put everything in place for the eruption of bloodshed and then turned around to claim legitimacy and capacity to deescalate the resulting cycle of violence, often downplaying their own role in further worsening the situation. It is time to recognize that no genuine progress in the quest for sustainable peace and justice in the Great Lakes Region of Africa will be achieved as long as international justice remains a one-way street where "international community” is synonymous with endless legitimacy and unaccountability.

Patrick Karuretwa is a Rwandan lawyer studying at Tufts University’s Fletcher School of Law and Diplomacy as its first ever LL.M./M.A.L.D. joint degree candidate.

Stephanie Nyombayire is a Rwandan Masters degree student at NYU Wagner and an intern at the International Criminal Court at The Hague. She is the co-founder of the Genocide Intervention Network and is starring in The Rescuers: Heroes of the Holocaust a documentary that sheds light on the heroic rescuers who went against their governments to save the lives of targeted victims in Europe and Rwanda.

Havard Law Record