By�Filip Reyntjens*

The report on serious violations of international humanitarian law in the Democratic Republic of Congo (DRC) between 1993 and 2003, compiled by the UN High Commission on Human Rights, was published on October 1st. A leak of the report in the French daily Le Monde on August 27th led to great controversy. Rwanda, accused of the most serious crimes, called the report �malicious, offensive and ridiculous�, and threatened to withdraw its peacekeeping force from Sudan.

Rwanda�s reaction was actually the cause, rather than a consequence of the leak. The draft report was communicated to the parties involved in July, and Rwanda did everything in its power to avoid publication. On August 8th, Rwanda�s foreign affairs minister wrote to UN Secretary General Ban Ki-Moon that �attempts to take action on this report – either through its release or leaks to the media – will force us to withdraw from Rwanda�s various commitments to the United Nations, especially in the area of peacekeeping.�

‘Genocide credit’

It seems, then, that the leak was organised in order to counter Rwanda�s attempts to smother the report. For Kigali this was a crucial issue: the government was now officially accused of genocide against Hutu refugees in Congo, while for the past 15 years that same government gained legitimacy from the 1994 genocide against the Tutsis. The so called �genocide credit� was exploited by Kigali as a trading tool and has gained the government sympathy, aid and impunity.

Kigali�s blackmail failed: the published report is not substantially different from the leaked version. It confirmed what was already widely known: during the ten year period studied by the report, wide scale war crimes, crimes against humanity and �probably� genocide have taken place in Congo. The report must be praised for compiling information scattered over dozens of sources into a coherent entity, and for documenting a number of previously unknown episodes.

‘G-word’

The most serious and systematic crimes are placed on the doorstep of Paul Kagame�s Rwanda. The report not only mentions dozens of occurrences of war crimes and crimes against humanity, but also points at �circumstances and facts from which a court could infer the intention to destroy the Hutu ethnic group in the DRC in part�, a reference to the genocide convention. A UN investigative team already came to a similar conclusion in 1998: �The systematic massacre of those (Hutu refugees) remaining in Zaire was an abhorrent crime against humanity, but the underlying rationale for the decision is material to whether these killings constituted genocide, that is, a decision to eliminate, in part, the Hutu ethnic group�. The psychologically charged discussion on the �g word� is not that relevant: the other documented crimes are serious enough to warrant the prosecution of suspects. The report does not even address the tens of thousands of civilians killed by the RPF in Rwanda in 1994 and between 1997 and 1998.

Besides Rwanda, many other regional players were responsible for serious human rights violations: the armed forces of Za�re/Congo, Angola, Burundi and Uganda are mentioned, but also unofficial armed groups ranging from ethnic militias to rebel movements from Congo and neighbouring countries. Apart from a few militia leaders from Ituri and former rebel leader Jean-Pierre Bemba, no one has ever been prosecuted.

Prosecutions

What needs to be done, now that it has been convincingly shown that violations of international humanitarian law have taken place on a massive scale�crimes for which no limitation applies? In the past, the answer has been impunity, which led to new and ever more serious crimes. For example, it is likely that if the Rwanda Tribunal (ICTR) were to have given the signal that perpetrators of crimes committed by the RPF in Rwanda in 1994 would be indicted, the Kigali regime would have acted with more restraint in Za�re/Congo in 1996 and 1997.

The report points out that prosecutions are not just a necessity, but an international legal duty. It also explores a number of scenarios. Although the Congolese judiciary has, in principle, the authority over crimes committed on Congolese soil, it is too weak and has too little independence to take on such an immense task. The report calls for a mixed judicial mechanism consisting of national and international members. It also urges that national judicial authorities act in a similar way, applying the principles of universal jurisdiction. In the past, a few countries have already judged Hutus suspected to be involved in the 1994 genocide. However the victor, the RPF, has been left untouched so far, including by the Rwanda Tribunal, with the known consequences.

Legally and philosophically the situation is clear and simple: hundreds of suspects must be prosecuted. But there is such a thing as Realpolitik.
? Will President Kagame, his defence minister General James Kabarebe, who was very �active� in Congo, and dozens of other high Rwandan officers be arrested, indicted and sentenced to many years in jail?
? Are some political leaders, such as those in Washington DC and London who have systematically supported the Rwandan regime and rolled out the red carpet for Kagame, willing to accept such a prospect?
? Would the African Union, the syndicate of heads of state who have resisted handing over Sudanese President Omar al-Bashir to the International Criminal Court, let that happen?
? Would the European Commission, which likes to lecture Kabila on human rights, insist on prosecutions?

I fear the answer to these questions is �no�. My bet is that Rwanda and other states and players in the region will suffer some political damage, but that the perpetrators will again escape prosecution and punishment. We will all be guilty of the fact that millions of vulnerable civilians in Central Africa continue to be threatened by strategies of violence unleashed by leaders who enjoy total immunity.

*Filip Reyntjens is Professor of Law and Politics,�Institute of Development Policy and�Management (IOB), University of Antwerp.

[Radio Netherlands]