INTRODUCTION

To what extent does the European Convention on Human Rights (ECHR) apply to armed conflict? The overwhelming majority of complaints before the European Court on Human Rights relates to incidents in otherwise peaceful situations: undue delays occurring in civil proceedings, decisions to place children into public care or disputes concerning the presence of crucifixes in State schools, for example. One might therefore be inclined to assume that the ECHR standards are not designed for the rough circumstances of warfare. And indeed, they are not suited: decades of careful tendering by the Strasbourg judges have resulted in rights that are simply too delicate for the battlefield. The realities of war have led to the development of a separate branch of law, i.e. international humanitarian law, which has clear similarities to human rights law but is specifically designed to protect the vulnerable in situations of large-scale violence.

On the other hand, the text of the Convention does not reserve human rights for situations of peace and stability. Quite the opposite: the very existence of Article 15 ECHR, which allows for derogations in times of war or public emergency, shows that the drafters presumed that the Convention would continue to apply in situations of armed conflict. Indeed, in actual practice the Strasbourg judges have not been confined to a haven of brotherhood and tranquillity. It depends, of course, on our understanding of what is an ‘armed conflict’, but arguably the very first case before the Strasbourg Court – Lawless v. Ireland – was exactly about the significance of the Convention in a sometimes very violent situation. Since then, the troubles in Northern Ireland, the conflict between Turkey and the PKK, and the Chechen wars in the Russian Federation have given rise to extensive case law.

Against this background, the present contribution will focus on a sub-species of Strasbourg case law. Luckily – for us, that is – conflicts tend to occur outside the territories of the 47 Member States of the Council of Europe. May we assume that the Convention continues to bind the Member States when they become involved in ‘out-of-area conflicts’? Or is it ‘out of sight, out of mind’? The wellknown case of Bankovic (2001) offered a first occasion for the Strasbourg Court to address this question in considerable detail.

INTRODUCTION

The 50th anniversary of the European Court of Human Rights this year is an occasion for both celebration and apprehension. The Court started functioning in 1959 as the heart of the Council of Europe, an organization set up after World War II to protect democracy against dictatorship and thereby to avoid the recurrence of the massive human rights violations of the war. From a timid beginning the Court has grown into a full-time institution, successfully dealing with thousands of cases each year. Its case law is generally perceived to be among the most developed and extensive of all international human rights institutions and most of its judgments are routinely implemented by the State Parties to the European Convention on Human Rights (ECHR).

However, for over a decade dark clouds have been gathering above Strasbourg. First, the number of applications has been rising so sharply – partly due to the accession of a large number of new State Parties to the ECHR – that the very work and survival of the Court seems to be at risk. As one scholar has put it, the Court is fighting with its back to the wall. Secondly, after decades of adjudicating peace-time human rights problems, the Court has since the 1990s been starkly reminded of the issues which for long seemed to belong to the past. Armed conflicts in the Balkans and the Caucasus have brought cases to Strasbourg concerning arbitrary killings, enforced disappearances, destruction of housing, and large-scale displacement. The two problems have one thing in common: their high numbers. It is precisely because of these numbers that the Court has started to deal creatively with massive violations of human rights by way of so-called pilot judgments. This article will specifically assess whether pilot judgments can be a useful tool to deal with large-scale violations as a result of armed conflict. First, it will look at what pilot judgments are and in which cases the Court has applied the pilot methodology. Secondly, the main reasons for setting up the pilot judgment procedure will be considered. Thirdly, this article will analyze the problems of the pilot procedure, such as its legal basis and the position of applicants in comparable cases.

INTRODUCTION

Conflict situations, whether national or international, often go hand in hand with gross human rights violations. In fact, gross human rights violations occur most often in situations of conflict. One such violation is that of enforced disappearance. An enforced disappearance is the act by State agents, or with the indirect involvement of the State, of depriving someone of his liberty while at the same time denying this act or refusing to give information on the whereabouts or fate of this person. As a result, the person is outside any control other than that of the State authorities who detained him. One of the reasons why conflict situations are prone to enforced disappearances is that it is an effective instrument to eliminate opposition while at the same time creating unrest, fear and anguish among the population. Another reason is that this human rights violation generates impunity for the act. These consequences result from the very nature of an enforced disappearance, which is escaping accountability by cloaking the act in complete secrecy and intending to leave no traces of evidence behind. As a result, the perpetrators are hardly traceable. Establishing responsibility in conflict zones is even more challenging since many different actors, such as the State, groups acting with the acquiescence of the State, and belligerent groups may commit human rights violations or acts similar to such violations. As a consequence, the required standard of proof is difficult for relatives to attain. At the same time, it does not matter in essence for either the relatives of the disappeared or the victim himself who exactly is the perpetrator; the suffering and anguish is grave. The situation is aggravated significantly when the State authorities refuse to act diligently in their efforts to search for the disappeared person and bring the perpetrators to justice.

Enforced disappearance cases have come before the European Court of Human Rights (hereinafter: the European Court, or the Court) in respect of two countries: Turkey and Russia. The vast majority of these cases originated in the conflict zones of south-east Turkey and of Chechnya, respectively.

Burundi's post-colonial identity has to a large extent been shaped by diff erent cycles of violence. Violence has served as the most important instrument for obtaining, maintaining or exercising political power and, indirectly, for securing access to economic and financial wealth. This is a common theme of the five cycles of violence this chapter distinguishes.

THE 1965 EVENTS

On 13 October 1961, shortly before independence, Prince Louis Rwagasore, Prime Minister of Burundi, was killed. In the view of many observers and analysts, Burundian and foreign, this event has strongly marked Burundi’s post-colonial history of conflict and violence. Rwagasore was the son of Mwami (king) Mwambutsa IV and one of the founding fathers of the Uprona party (Unité et Progrès National, established in 1958). His death should be understood in light of the power struggles among Ganwa, descendants of Mwami Ntare Rugamba (1795–1850). Rwagasore belonged to the clan of Bezi princes, descendants of Mwami Mwezi Gisabo, Ntare's youngest son (who ruled from 1850 until 1908). Ntare's older sons and their descendants were known as the Batare clan, with Pierre Baranyanka as leading spokesperson. The Batare clan also was the main ally of (first) the German colonizer and (later) the Belgian mandatory and administering authorities. In the 1950’s, the old princely rivalries were, in the wake of electoral politics, transformed into an organised political competition through political parties and factions. The main parties were Uprona, representing the Bezi lineages and the monarchy, and the PDC (Parti Démocrate Chrétien), founded by Baranyanka's sons, representing the Batare lineages and strategically supported by the colonial administration. Contrary to the Rwandan situation around the time of independence, the political context in Burundi did not oppose Hutu and Tutsi, but reflected traditional Ganwa rivalries. The first elections, in November 1960, organised at the local level of the municipalities, were won by the PDC. Less than one year later, however, Uprona won the legislative elections of September 1961, winning around 80 of the votes and reflecting a common desire among Hutu and Tutsi to preserve the monarchy and to accelerate Burundi's independence. Rwagasore became prime minister designate. According to Lemarchand, his personal leadership constituted the most valuable asset of the Uprona party. He embodied the link between the Crown and, also because of his charisma, “he gave the party an enormous appeal among the peasantry”.

This chapter will present a largely chronological overview of transitional justice responses to each of the sets of events mentioned above. These responses will be looked at from the perspective of the four transitional justice objectives of truth, accountability, reparation and reconciliation (obviously taking into account the extent to which each of these intakes is relevant for the particular situation). In order to do so, the transitional justice response will be placed in the prevailing constitutional, institutional and general legal context. For each of the sets of events, the analysis will cover the transitional justice response that followed in their (more or less) immediate aftermath. 3 will cover the transitional justice response insofar as it was part of the Arusha peace negotiations process (starting in June 1998), the Arusha Peace and Reconciliation Agreement of August 2000 and its aftermath, including the negotiations between the UN and the Burundian government on the implementation of the Kalomoh report. The (proposed) transitional justice process dealt with in Chapter 3 is, in fact, not exclusively related to one particular set of events, but to the various sets of events spread in time during all of Burundi's post-colonial history.

THE 1965 EVENTS

As described above, the 1965 massacres should be considered in the context of the leadership crisis that was unleashed within Uprona by the assassination of Prince Louis Rwagasore in October 1961, one month after he and his party won the legislative elections.

THE AFTERMATH OF THE ASSASSINATION OF PRINCE LOUIS RWAGASORE AND OTHER POLITICAL VIOLENCE BEFORE INDEPENDENCE

The assassination of the Prime Minister of Burundi, occurring at a time when Ruanda-Urundi was still a trust territory, prompted an immediate reaction by the UN General Assembly. UN General Assembly resolution 1627 (XVI) called for an investigation into the circumstances of the Rwagasore's death by the UN Commission for Ruanda-Urundi, considering that “an inquiry and punishment of those responsible for the dastardly act are called for”. The Commission submitted a preliminary report on 11 November 1961 and a final report on 26 January 1962.

While the first part of this monograph adopted a largely inductive, empirical perspective, this final chapter is fundamentally based on two normative foundations. First of all, it reflects a preference for a transitional justice process that is determined by and shaped in accordance with the relevant international legal framework as it applies to Burundi. This is in turn related to a more general normative preference for a political transition that results in States being governed increasingly by the rule of law (both in its formal and its substantive dimension) and decreasingly by the arbitrary rule of power. Secondly, in line with the jurisprudence of international human rights bodies, it reflects a preference for law – in particular international human rights and humanitarian law, including insofar as they are incorporated or reflected in constitutional and overall domestic law – to produce its intended effects rather than for law to be (systematically) ineffective, neglected, violated and/or circumvented. Though focusing on the question of how to increase the impact of international law on Burundi's transitional justice law, policy and practice, we acknowledge that calling upon international law may not be the most efficient way of promoting a more equitable transitional justice process for Burundi. Indeed, other perspectives, such as those focusing on the impact of civil society, the input of religion, the role of enlightened political leadership, the impact of carrots and sticks at the disposal of international donors, etcetera, may deal with factors that have a higher potential leverage than the one adopted here. However, because of the dominant (legal) disciplinary perspective of this study, and while again calling for ‘legal humility’ and acknowledging the dominant impact of other determinants, this Chapter addresses the question how, through constitutional adjudication, Burundi's transitional justice process can be more in line with international law and less determined by political expediency.

A FOCUS ON CONSTITUTIONAL ADJUDICATION

What are the ‘comparative advantages’ or other reasons that justify our attention for the role of constitutional adjudication as a way of enhancing the impact of international law on Burundi's transitional justice process?

Burundi's transitional justice response to the five sets of events is intimately linked to the peace process it has gone through. This Chapter will therefore, firstly, briefly summarise the peace process and the subsequent peace agreements. Next, a general presentation will be made on how the overall issue of dealing with the past is included in the agreements. This also includes a summary of substantive references to Burundi's past. While not the outcome of a typical truth telling process, involving a wide range of societal actors, these substantive statements about Burundi's past, about the nature of the violence it has lived through and about the need to deal with the past constitute in themselves an important acquis of the peace process. This Chapter is structured along the lines of the four above-mentioned objectives of transitional justice: truth, accountability, reparation and reconciliation. This structure is obviously somewhat artificial, since some of the policy measures and institutional mechanisms put forward may not be exclusively related to just one or any of these objectives. This chapter also analyses the negotiations process between the UN and the Government of Burundi on the establishment of transitional justice mechanisms. This process has its roots in the Arusha Agreement and was more directly prompted by UN SC Resolution 1606 of 20 June 2005. At the time of completion of this research, as of December 2009, this negotiations process remained de facto suspended.

BRIEF OVERVIEW OF THE BURUNDIAN PEACE PROCESS AND PEACE AGREEMENTS

Burundi's peace process is not in itself the subject of analysis of this research. However, the linkages between the peace process and transitional justice in Burundi are important and manifold. The question how to deal with Burundi’s legacy of large scale human rights abuses has been a constant and prominent aspect during all of the peace process, between June 1998 and September 2006. For instance, the issue of “political prisoners” (see Section 3.4.4) was put forward as a condition for its participation in the Arusha negotiations process by the CNDD-FDD. Conversely, the way the issue of transitional justice was dealt with has undoubtedly shaped the transition from war to peace in Burundi. For instance, the enactment of legislation to give effect to the agreement on provisional immunity for FNL members and the release of FNL supporters (see Section 3.4.2) constituted two major stumbling blocks for the early implementation of the agreement with the Palipehutu-FNL.

Since its accession to independence in 1962, the history of Burundi has been marked by cycles of essentially political violence. Adopting an empirical and largely chronological perspective, Part I of this study describes the national and international response in the aftermath of the cycles of violent conflict and human rights abuses that were committed in 1965, 1972, 1988, 1991 and 1993 and the ensuing civil war. This is done through the lens of transitional justice, defined as “the process through which States and societies deal with a legacy of large-scale human rights abuses in the context of a change of political regime”. While using the standard ideal objectives identified in much of the transitional justice literature (truth, accountability, reparation and reconciliation) for analytical purposes, Part I reconstructs the transitional justice response adopting an inductive approach (i.e. based on what has been done, if anything), leaving the normative perspective (i.e. what should be done, because of ethical or, in this case, international legal considerations) to the analysis contained in Part II. Though fully aware of the overwhelming impact of other determinants on the actual practice of transitional justice in Burundi, Part II of this study also analyses how Burundi's transitional justice process could be shaped more in accordance with its obligations under international law, most notably international human rights and humanitarian law. We suggest the combination of international standards and a domestic mechanism. More specifically, in light of the constitutional and institutional context that prevails in Burundi, this study proposes – but at the same time also critically evaluates – the use of constitutional adjudication as a way of incorporating the transitional justice process in a wider effort of promoting the rule of law in Burundi.

Methodologically, we conclude that understanding (and, a fortiori, enhancing) the effectiveness of (human rights and humanitarian) law as a source of transitional justice in a given society requires a ‘thick’ appraisal of the use of law and of the concept of the State (the main institution that produces and enforces legal norms that pertain to transitional justice). This conclusion applies to Burundi but, most probably, also to other situations where a transitional justice process occurs at a time of radical reconfiguration of the relationship between law, politics and the State, most notably after extended periods of armed conflict or authoritarianism.