Genocidal violence in Burundi: should international law prohibit domestic humanitarian intervention?

• Author: Reyhan, Patricia Y.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

Nowhere else in Africa has so much violence killed so many people

on so many occasions in so small a space as in Burundi during the

years following independence.(1)

On July 25, 1996, leaders of the Burundian Army, which is comprised almost entirely of members of the Tutsi tribe, announced that they had staged a successful coup, ending the democratically established coalition government headed by a member of the Hutu tribe, and had installed a Tutsi, Major Pierre Buyoya, as the head of state.(2) Major Buyoya, who had been widely regarded in the West(3) and by the leadership of the United Nations(4) as a moderate committed to democratic institutions in Burundi,(5) immediately announced that the purpose of the coup and of his assumption of power was to stem, if not eliminate, the escalating genocidal violence between the Tutsi and Hutu, something the ousted coalition government had proved unable to do.(6) In Major Buyoya's words, the coup "was not a change of regime through ambition, glory or anything else. What happened today was an action of salvation."(7)

The reaction of members of the international community clearly demonstrated widely divergent views on both the proper response to the coup and the developing genocide that was offered as its justification.(8) First to react were Burundi's neighbors in the Lake region of East Africa. These nations, Tanzania, Kenya, Uganda, Rwanda and Zaire, under the leadership of former Tanzanian President Julius Nyerere, had in the months before the coup offered everything from "good offices"(9) to a regional peacekeeping force(10) to assist the Burundian coalition government in its efforts to control tribal violence. When the coup occurred, these nations, which landlock Burundi, immediately announced a total trade embargo against Burundi.(11) These nations intended the embargo to last until Major Buyoya and the Army restored the Parliament and sat down at the negotiating table with the major Hutu political party and Hutu rebels.(12)

Perhaps because "[o]utsiders have often criticized African governments for doing little to halt disasters in their midst, such as the large-scale massacres in Rwanda and Burundi, let alone to oppose military coups and support democracy,"(13) the embargo caught Western diplomats and the United Nations by surprise.(14) The decision is understandable, however, given recent events in Africa, some hopeful, some horrific. Although it has not been the subject of major political or media attention outside Africa, the last five years have seen a shift toward democracy in many of the nations now engaged in the embargo. Kenya and Tanzania held their first multi-party elections, Uganda held its first presidential election, and the long-time dictator of Zaire has planned democratic elections for next year.(15) These elections, while not flawless exercises in democracy, have nonetheless "given leaders in the region what they see as a democratic mandate . . . and so they can no longer so easily accept coups meant to cancel out the voters' wishes."(16)

The event in East Africa that most influenced these nations, and that did command international attention, was the genocide that left at least 500,000 dead in Rwanda in 1994 and created a refugee problem that has itself exacerbated the ethnic tensions in Burundi.(17) In President Nyerere's opinion, hindsight has led many of the region's leaders to believe that they should have intervened in Rwanda, rather than having stood on the sidelines with most of the world.(18)

If the African nations surprised the West by their reaction to the Burundi coup, the African nations were no less surprised by the tepid reaction of the West and the United Nations. The reaction of the international organization and most of its members has been characterized by hesitation and caution. Although Secretary General Boutros Boutros-Ghali condemned the coup saying that "the international community will on no account accept a change of government by force or other illegitimate means in Burundi,"(19) he had kind words for Major Buyoya, noting that he knew the man well.(20) The United Nations Security Council took no action other than publicly criticizing the coup.(21) The Secretary General recommended to the Security Council that a peacekeeping force of 60,000 be assembled and made available to prevent further violence in the Lake region but "acknowledged that of 60 nations approached to lead the force or contribute to it, only 21 had replied and 11 of them declined to participate. Of the remaining 10, only three offered soldiers."(22) The United States government also condemned the coup, but officials nearly simultaneously praised Major Buyoya as a moderate who had in the past brought democracy to Burundi.(23) Other nations clearly shared the view of one White House official who described Buyoya as representing possibly "the last chance at stability and the resolution of Hutu and Tutsi problems."(24)

Much of the concern underlying the muted reaction by most governments is the fear that the current alternative to Major Buyoya is not the former coalition government, but rather hard-line Tutsi Army leaders.(25) In fact, many officials fear that the East African embargo will undermine Buyoya and lead to hard-liners directly assuming control.(26) Clearly, officials also fear a complete collapse into the kind of genocidal chaos that gripped Rwanda.(27)

As of the end of October 1996, Major Buyoya remains in power and the leaders overthrown by the Army remain in the protective sanctuary of foreign embassies. The embargo remains in place, although the participating East African nations have allowed limited supplies to be brought into Burundi for humanitarian purposes.(28) Under the pressure of the embargo and the United Nations Security Council, Major Buyoya restored the Parliament.(29) Most Hutu legislators boycotted its first session.(30)

The purpose of this Article is to examine the tension between two international legal norms, the emerging right to democratic governance and the prohibition on genocide, as that tension presents itself in Burundi. The question is not whether the various reactions of international actors to the coup are legal under current international law. Clearly, each reaction is legal. Instead, the question is whether the prohibition on genocide and that prohibition's status under international law represent a goal of sufficiently high order and urgency that nations ought to tolerate a breach of the right of democratic governance where that breach is motivated by the primary purpose of halting or de-escalating genocide.

This Article proceeds in five stages. In Part I, a skeletal history of the current crisis in Burundi is offered. Part II contains a brief discussion of the prohibition on genocide, the right of democratic governance, and the status of those two norms under international law. Part III examines the doctrine of unilateral humanitarian intervention and asserted criteria for its legal use. Part IV tests whether those criteria are appropriate for judging "internal" humanitarian interventions in the form of, and with the justifications that accompanied, the Burundian military coup. Part V applies an adjusted set of criteria to the Burundian coup. Part VI concludes that those criteria, as applied to the Burundian coup, should have led the West and the United Nations to a more strenuous objection to the coup, and should now lead the entire international community to hold Major Buyoya and his military backers strictly accountable for fulfillment of the humanitarian goals that purportedly drove their actions.

1. A SKELETAL BACKGROUND OF THE CURRENT BURUNDI CRISIS(31)

   Seldom have human rights been violated on a more massive scale,

   and with more brutal consistency, anywhere else on the [African]

   continent.(32)

   The population of Burundi is approximately 5.7 million, 81.9% of whom are Hutu and 13.5% of whom are Tutsi.(33) While tensions between the Hutu and Tutsi tribes have existed by all accounts for centuries,(34) it is believed by many historians that Belgian colonizers exacerbated this tension by requiring Burundians to carry identification cards designating their tribal affiliations and by treating the Tutsis in every respect as superior to the Hutus.(35) When Burundi achieved independence in 1962, the favored position the Tutsis enjoyed during the colonial era continued. Tutsis controlled virtually all aspects of political, military and economic power. That domination and the enormous Hutu resentment that accompanied it has continued and deepened to this day.(36)

   Burundi's post-independence history is strikingly characterized by two rituals: military coups and mass killings. A constitutional monarchy after independence, Burundi's first monarch ceded power by his son in 1966.(37) A few months later the son was deposed by a military coup headed by his prime minister who then declared Burundi a republic.(38) After a 1972 attempt to restore the monarchy failed,(39) the Tutsi-led government blamed Hutu factions and in the next few months at least 150,000 Hutus were slaughtered by the Tutsi Army and Tutsi civilians, thus creating the first of three distinct genocidal chapters in Burundi history.(40)

   The prime minister turned president who had declared Burundi a republic in 1966 was removed in 1978 by a military coup led by Lt. Colonel Jean Baptiste Bagaza.(41) Bagaza restored civilian rule in 1979.(42)

   Bagaza was overthrown in a military coup in 1987 led by Major Buyoya.(43) The next year tribal hostilities again erupted and in the second chapter of genocide, tens of thousands of Hutus were massacred.(44) As a result of the escalating violence, Major Buyoya began a campaign of national reconciliation. By mid-1993, "he had written a charter of human rights and set up an election, pushing Burundi into its brief moment of democracy."(45) In that election he "gracefully" lost to the Hutu candidate, Melchior...