Mapping report, from page 288 to page 294
"4. Crime of genocide
510. There has been extensive debate on the question of genocide directed at the Hutus, and to date it remains unresolved. It can only be decided by a court decision based on proof beyond all reasonable doubt. The Mapping Exercise is not a judicial mechanism and the evidence gathered is not sufficient to satisfy the high standard required by the courts. Nonetheless, as described previously, the Terms of Reference of the Mapping Exercise required it to carry out a general legal classification of the crimes committed, including genocide.
"Ethnic massacres against Hutu from Burundi, Rwanda and Zaïre"
511. Two separate United Nations reports have examined the existence, or not, of crimes of genocide committed in respect of the Hutus in the DRC, whether refugees or others. In July 1997, a joint mission authorised by the Commission on Human Rights, charged with investigating the allegations of massacres and other violations of human rights taking place in eastern Zaire since September 1996 reported to the General Assembly that :
“There is no denying that ethnic massacres were committed and that the victims were mostly Hutus from Burundi, Rwanda and Zaire. The joint mission's preliminary opinion is that some of these alleged massacres could constitute acts of genocide. However, the joint mission cannot issue a precise, definitive opinion on the basis of the information currently available to it. An in-depth investigation in the territory of the DRC would clarify this situation.”
512. Subsequently, the Secretary-General sent an investigative team, charged with “investigating grave violations of human rights and international humanitarian law allegedly committed in the DRC (former Zaire) since 1 March 1993”. Although limited in its mandate, the Team concluded in its report that: “the systematic massacre of the Hutus 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 aspect is the most momentous one included in the mandate given to the Team, and one which requires further investigation.”
"It was not a question of people killed unintentionally in the course of combat"
513. The systematic attacks, in particular killings and massacres perpetrated against members of the Hutu ethnic group, are described extensively in section I of the report.
These attacks resulted in a very large number of victims, probably tens of thousands of members of the Hutu ethnic group, all nationalities combined. In the vast majority of cases reported, it was not a question of people killed unintentionally in the course of combat, but people targeted primarily by AFDL/APR/FAB forces and executed in their hundreds, often with edged weapons. The majority of the victims were children, women, elderly people and the sick, who posed no threat to the attacking forces. Numerous serious attacks on the physical or pyschological integrity of members of the group were also committed, with a very high number of Hutus shot, raped, burnt or beaten. Very large numbers of victims were forced to flee and travel long distances to escape their pursuers, who were trying to kill them. The hunt lasted for months, resulting in the deaths of an unknown number of people subjected to cruel, inhuman and degrading living conditions, without access to food or medication. On several occasions, the humanitarian aid intended for them was deliberately blocked, in particular in Orientale Province, depriving them of assistance essential to their survival.
The Hutus were targeted as such
514. 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 Convention on the Prevention and Punishment of the Crime of Genocide. Moreover, as shown previously, the intention to destroy a group in part is sufficient to be classified as a crime of genocide. Finally, the courts have also confirmed that the destruction of a group can be limited to a particular geographical area.947 It is therefore possible to assert that, 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. Finally, several incidents listed also seem to confirm that the numerous attacks were targeted at members of the Hutu ethnic group as such. Although, at certain times, the aggressors said they were looking for the criminals responsible for the genocide committed against the Tutsis in Rwanda in 1994, the majority of the incidents reported indicate that the Hutus were targeted as such, with no discrimination between them. The numerous attacks against the Hutus in Zaire, who were not part of the refugees, seem to confirm that it was all Hutus, as such, who were targeted. The crimes committed in particular in Rutshuru (30 October 1996) and Mugogo (18 November 1996), in North Kivu, highlight the specific targeting of the Hutus, since people who were able to persuade the aggressors that they belonged to another ethnic group were released just before the massacres. The systematic use of barriers by the AFDL/APR/FAB, particularly in South Kivu, enabled them to identify people of Hutu origin by their name or village of origin and thus to eliminate them. Hundreds of people of Hutu origin are thus thought to have been arrested at a barrier erected in November 1996 in Ngwenda, in the Rutshuru territory, and subsequently executed by being beaten with sticks in a place called Kabaraza. In South Kivu, AFDL/APR/FAB soldiers erected numerous barriers on the Ruzizi plain to stop Rwandan and Burundian refugees who had been dispersed after their camps had been dismantled.
515. Several incidents listed in this report 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. The apparently systematic and widespread nature of the attacks, which targeted very large numbers of Rwandan Hutu refugees and members of the Hutu civilian population, resulting in their death, reveal a number of damning elements that, if they were proven before a competent court, could be classified as crimes of genocide. Firstly, the scale of the crimes and the large number of victims are illustrated by the numerous incidents described above. The extensive use of edged weapons (primarily hammers) and the systematic massacre of survivors, including women and children, after the camps had been taken show that the numerous deaths cannot be attributed to the hazards of war or seen as equating to collateral damage. The systematic nature of the attacks listed against the Hutus also emerges: these attacks took place in each location where refugees had been identified by the AFDL/APR, over a vast area of the country. Particularly in North Kivu and South Kivu but also in other provinces, the massacres often began with a trick by elements of the AFDL/APR, who summoned the victims to meetings on the pretext either of discussing their repatriation to Rwanda in the case of the refugees, or of introducing them to the new authorities in the case of Hutus settled in the region, or of distributing food. Afterwards, those present were systematically killed.
Cases of this kind were confirmed in the province of North Kivu in Musekera, Rutshuru and Kiringa (October 1996), Mugogo and Kabaraza (November 1996), Hombo, Katoyi, Kausa, Kifuruka, Kinigi, Musenge, Mutiko and Nyakariba (December 1996), Kibumba and Kabizo (April 1997) and Mushangwe (around August 1997); in the province of South Kivu in Rushima and Luberizi (October 1996), Cotonco and Chimanga (November 1996) and Mpwe (February 1997) and on the Shabunda-Kigulube road (February-April 1997); in Orientale Province in Kisangani and Bengamisa (May and June 1997); in Maniema in Kalima (March 1997) and in Équateur in Boende (April 1997). Such acts certainly suggest premeditation and a precise methodology. In the region south of the town of Walikale, in North Kivu (January 1997), Rwandan Hutus were subjected to daily killings in areas already under the control of the AFDL/APR as part of a campaign that seemed to target any Hutus living in the area in question.
516. Several of the massacres listed were committed regardless of the age or gender of the victims. This is particularly true of the crimes committed in Kibumba (October 1996), Mugunga and Osso (November 1996), Hombo and Biriko (December 1996) in the province of North Kivu, Kashusha and Shanje (November 1996) in the province of South Kivu, Tingi-Tingi and Lubutu (March 1997) in Maniema Province, and Boende (April 1997) in Équateur Province, where the vast majority of victims were women and children. Furthermore, no effort was made to make a distinction between Hutus who were members of the ex-FAR/Interahamwe and Hutu civilians, whether or not they were refugees. This tendency to put all Hutus together and “tar them with the same brush” is also illustrated by the declarations made during the “awareness-raising speeches” made by the AFDL/APR in certain places, according to which any Hutu still present in Zaire must necessarily be a perpetrator of genocide, since the “real” refugees had already returned to Rwanda. These “awareness-raising speeches” made in North Kivu also incited the population to look for, kill or help to kill Rwandan Hutu refugees, whom they called “pigs”. This type of language would have been in widespread use during the operations in this region.
The final stage in the hunt for Hutu refugees:
The existence of a genocidal plan
517. The massacres in Mbandaka and Wendji, committed on 13 May 1997951 in Équateur Province, over 2,000 kilometres west of Rwanda, were the final stage in the hunt for Hutu refugees that had begun in eastern Zaire, in North and South Kivu, in October 1996. Among the refugees were elements of the ex-FAR/Interahamwe, who were disarmed by the local police force as soon as they arrived. In spite of everything, the AFDL/APR opened fire on hundreds of defenceless Hutu refugees, resulting in large numbers of victims. The behaviour of certain elements of the AFDL/APR in respect of the Hutu refugees and Hutu populations settled in Zaire at this time seems to equate to “a manifest pattern of similar conduct directed against that group”, from which a court could even deduce the existence of a genocidal plan. “Whilst the existence of such a plan may contribute to establishing the required genocidal intention, it is nonetheless only an element of proof used to deduce such an intention and not a legal element of genocide.”
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’.955 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 the interior 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."