Survivors at ETO can seek reparation in Belgian courts

On October 5, 1993, the UN Security Council established a peacekeeping operation in Rwanda, known as Mission des Nations Unies pour l’Assistance au Rwanda (MINUAR), which commenced its deployment in late October 1993, operated under Chapter VI as opposed to Chapter VII with a mandate to keep peace and security in capital city, Kigali.

According to MINUAR’s rules of engagement, it was to remain impartial in the Rwandan civil war and in particular to refrain from any favourable or hostile act vis-à-vis the Rwandan army or the then RPF rebel movement.

Its mandate and rules of engagement strictly limited its capacity to resort to force in cases of self-defense against persons or groups who threatened protected sites and populations.

On May 17, 1994, the UN Security Council, in its Resolution 918, expanded the mission’s mandate to the protection of displaced persons, refugees, and civilians in danger.

The military division of MINUAR was composed of different sectors, of which the Kigali sector was commanded by the Belgian Colonel Marchal. Belgium contributed a battalion under the command of Lieutenant-Colonel Dewez.

This battalion was spread over different encampments in Kigali. One encampment was based at the Official Technical School (Ecole Technique Officielle, ‘ETO’). It was placed under the order of captain Lemaire.

Between 7 and 11 April 1994, about 2,000 Rwandans sought refuge in the ETO; Colonel Marchal initially attempted to refuse access to the encampment, but finally access was permitted.

Accordingly, the ETO was de facto transformed into a refugee camp under the protection of Belgian MINUAR soldiers.

On April 11, 1994, French soldiers passed by the ETO to evacuate foreign citizens, after which the Belgian MINUAR soldiers started evacuating their encampment by firing into the air to prevent the Rwandan refugees from hindering their departure.

No measure was taken to guarantee the security of the Rwandan refugees. Shortly after the departure of the Belgian soldiers, the Interahamwe militia entered the ETO and killed the refugees. Most were killed in the hours following the departure of the Belgian soldiers.

Turning to the mandate of MINUAR, it was to act in self-defence and defence of the mandate in case of any attacks. But, moreover, they had mandate and rules of engagement to resort to force in cases of self-defence against persons or groups who threatened protected sites and populations.

This remains one of the basic rules of UN peacekeeping operations.

Admittedly, United Nations peacekeeping operations are not an enforcement tool, but they had a moral obligation to use force at the tactical level to prevent militias from entering at the refugee camp ETO.

This action didn’t require another authorisation of the Security Council, because the mandate had been significantly threatened to warrant use of force. Sadly, MINUAR decided to abandon the vulnerable and destitute refugees in the hands of Interahamwe militia. Just imagine what would be the next fate.

Later on, these refugees were brutally slaughtered without fear of any future consequences.

So, why should the responsibility be attributable to Belgian MINUAR soldiers, rather than to the UN [Security Council] which established the MINUAR?

Article 7 of the Draft Articles on the Responsibility of International Organisations (DARIO) says “the conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct”.

To illustrate, if the troop-contributing country (to the UN peacekeeping operations) exercises effective control or ultimate command, which the UN cannot prevent, therefore, the liability is often attributable to the troop-contributing country. In this particular episode, Belgian MINUAR soldiers exercised effective control at the refugee camp-ETO.

Here, the effective control criterion is the determinant. Belgian MINUAR soldiers bore the legal and moral responsibility.

Can Genocide survivors at ETO - Kicukiro claim for reparation before Belgian Courts?

The precedent of the Mothers of Srebrenica, a group of survivors of the siege of Srebrenica, during the Balkan Wars of the 1990s, who filed a claim against the Dutch government for the Srebrenica massacre citing that a Dutch battalion under United Nations oversight was responsible for the safe haven at Srebrenica in 2007, that both the United Nations and Netherlands breached that duty of care, and they were negligent, is worth considering.

On July 18, 2014, the Hague District Court handed down its ruling that “the Netherlands are liable for the loss suffered in the judgment indicated by relatives as a consequence of the deportation of male refugees in Srebrenica who were deported by the Bosnian Serbs from the Dutchbat compound in Poto?ari on the afternoon of 13 July 1995 and subsequently killed.”

Ultimately, the Mothers of Srebrenica were given reparation by Dutch government.

Similarly, the Genocide survivors at ETO have the right to file a claim before Belgian Courts, seeking reparation. Although this attempt had been made, of which I’m unsure of the end result, they still have the legal right to press ahead for reparation.

The case of Mothers of Srebrenica is an incredibly persuasive precedent.

Email: frednkusi88@gmail.com

The writer is a law expert.

 

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