Crime of genocide

Since it was initially formulated in 1948, in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, the definition of the crime has remained substantially the same. It can be found in article 6 of the Rome Statute, which defines the crime of genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The definition is followed by a series of acts representing serious violations of the right to life and the physical or mental integrity of the members of the group. The Convention also provides that not only the acts themselves are punishable, but also conspiracy to commit genocide, direct and public incitement to commit genocide, the attempt to commit genocide and complicity in genocide.²⁶ It is the specific intention to destroy an identified group either in whole or in part that distinguishes the crime of genocide from a crime against humanity.

The question of whether the numerous serious acts of violence committed against the Hutus (refugees and others) constitute crimes of genocide has attracted a significant degree of comment and to date remains unresolved. In practice, this question can only be decided by a court decision on the basis of evidence beyond all reasonable doubt. Two separate reports by the United Nations, in 1997 and 1998, examined whether or not crimes of genocide had been committed against Hutu and other refugees in Zaire, subsequently the DRC. In both cases, the reports concluded that there were elements that might indicate that genocide had been committed but, in light of the shortage of information, the investigative Teams were not in a position to answer the question and requested that a more detailed investigation be carried out.²⁷ The Mapping Exercise also addressed this question in accordance with its ToR and made the following observations.

At the time of the incidents covered by this report, the Hutu population in Zaire, including refugees from Rwanda, constituted an ethnic group as defined in the aforementioned Convention. Several of the incidents listed suggest that multiple attacks targeted members of the Hutu ethnic group as such, and not only the persons responsible for the genocide committed in 1994 against the Tutsis in Rwanda and that no effort was allegedly made by the AFDL/APR to distinguish between Hutu members of the ex-FAR/Interahamwe and Hutu civilians, whether or not they were refugees.

The intention to destroy a group in part is sufficient to constitute a crime of genocide and the international courts have confirmed that the destruction of a group can be limited to a particular geographical area.²⁸ According to relevant jurisprudence, even if only a part of the Hutu population in Zaire was targeted and destroyed, it could nonetheless constitute a crime of genocide if this was the intention of the perpetrators.

Several incidents listed in this report, if investigated and judicially proven, point to circumstances and facts from which a court could infer the intention to destroy the Hutu ethnic group in the DRC in part, if these were established beyond all reasonable doubt.²⁹The scale of the crimes and the large number of victims, probably several tens of thousands, all nationalities combined, are illustrated by the numerous incidents listed in the report (104 in all). The extensive use of edged weapons (primarily hammers) and the apparently systematic nature of the massacres of survivors after the camps had been taken suggests that the numerous deaths cannot be attributed to the hazards of war or seen as equating to collateral damage.³⁰ The majority of the victims were children, women, elderly people and the sick, who were often undernourished and posed no threat to the attacking forces.³¹ Numerous serious attacks on the physical or mental integrity of members of the group were also committed, with a very high number of Hutus shot, raped, burnt or beaten. 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. ³² The pursuit lasted for months, and on occasion, the humanitarian assistance intended for them was allegedly deliberately blocked, particularly in the Orientale province, thus depriving them of resources essential to their survival.³³ 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.

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.³⁴

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.