Note from Aikande: I am proud to post this blog entry written by Castro Shirima, my former L.L.M (International Law with International Relations) student at Tumaini University-Makumira, Arusha. Castro is an excellent student and he is an Advocate and a District Magistrate in Arusha. Please read and comment…Thank you!
For a long time I used to ask myself “how and why states behave the way they do towards one another? For example, why nations continue with its normal business while in the neighbourhood there’s a bloodshed, massive violation and abuse of human rights and rule of law? or why would a state or a group of them propose to intervene into a certain domestic situation and not another? I further asked myself what’s the role of International Law? Then I came across Realism with its explanatory power to these issues and its proponents such as Hans Morgenthau would agree with me that the role of law in global politics is:- 1) To facilitate rather than constrain; 2) To regulate rather than prevent and 3) To facilitate rather than control. These shortcomings of International Law are highlighted by the ongoing situation in Burundi.
Burundi has seen 40 years of armed violence and civil war since gaining independence from Belgium in 1962. The different analyses indicate that the conflicts, rooted in political and historical tensions between the ethnic Hutu majority and Tutsi minority populations, have killed more than 300,000 people.
Recently and still ongoing, we have witnessed (from April 2015) the conflict in Burundi developing from the move by President Nkurunziza to bid for a controversial third term, which won him disputed presidential vote on 26 June-that violated not only the country’s constitution but the Arusha peace accords that brought an end to the country’s last violent episode and keep the fragile peace.
According to Cameron Hudson of Simon-Sikjodt Centre for the Prevention of Genocide at the U.S. Holocaust Memorial Museum: President Nkurunziza’s allies in the Burundian police, military and intelligence services have continued, violently, to strengthen their grip on power. The hunt to bring plotters and supporters of a short-lived May 2015 coup attempt to “justice” has begun, and the country is rife with fears that Burundian civilians could suffer mass atrocities as a consequence of the paranoia of the Nkurunziza regime. Meanwhile, events are happening, the collective security institution and actors are silent if not reluctantly responding by invoking the law-collective security law of course!
And for that reason I agree with Professor H. L. A. Hart (The Concept of Law 1961 OUP) that law is an instrument of state power and, its main function is to regulate and control. So I do to Hudson who argued that the U.S. and west at large predicted this situation but could not set aside enough funds to deter it. Although I agree resources are a conditional precedent in invoking a collective action but I could not agree with him that: “…Were more flexible funds available other programmatic efforts could have been employed to more proactively defuse tensions and promote resiliency, for example: programs to actively counter hate speech and vile political rhetoric using new Internet and SMS…” .
It does not click the mind that while we don’t have resources for responding to the situation in Burundi we had enough for Afghan in 2001, Iraq in 2003, Libya in 2011 and reserve for Syria. Some of us (save for my teacher!) have forgotten that neither the West nor the UN Security Council are interested to intervene the situation. To underscore this, it is imperative that we go back to Realism and remind ourselves of the core operative tenets of it…that is power, interest and security. Today, I was so much shocked to read from the news headlines that: ‘fighting intensifies in Burundi capital as government forces confront armed group’.
In case the government has confirmed that it has attacked an armed group then the situation is an armed conflict worthy of the attention of the law of armed conflict, international human rights law, international refugee law and collective security law. I am disappointed by the reluctance from governments to acknowledge that they are fighting an armed group in situations like this, which is why I used the phrase ‘in case’. Notwithstanding, these are the first attacks on military targets since the violence began at the fall of April, when President Nkurunziza announced that he would be running for a third term
Despite the confirmation of existence of armed situation, from the government, the parties to this conflict have at all times violated a number of obligations leading into massive abuse of rights and increased human sufferings to civilians-sparking unnecessary refugee crisis across the region. The neighbouring peaceful Tanzania bears the burden. I guess this is, perhaps, due to her open door policy to refugee situations!
In response to this, the EAC and AU-PSC embarked on diplomatic means and judicial approach but nothing seems feasible. My argument is: it is high time that the UN Security Council address the issue by invoking its collective security mandates under Chapter VI if not Chapter VII as the determination may be. For the purpose of comparison, I have written and argued somewhere else that ending the war in Syria was an opportunity lost in 2012 during heated debates in the UN Security Council Chamber (Will be posted in the appropriate time).
Every one of us is aware of how it is very difficult (as of now) to address the situation in Syria despite the ongoing airstrikes’ campaign. I argue that such a case will be to Burundi if the Security Council will continue to put its mandate to rest with regard to the situation in our neighboring Burundi!