August 13 marked 22 years since 166 Banyamulenge refugees were killed and 108 others injured in an attack on a UNHCR transit camp in Gatumba, in western Burundi.

The victims, mostly women and children, had fled violence and persecution in DR Congo's South Kivu province. Instead, they were attacked inside a camp where they were supposed to be protected.

The attack was not treated as an unexplained act of violence. A United Nations investigation found that the victims had been deliberately targeted because they were Banyamulenge.

Another investigation found that many of the attackers belonged to Burundi's FNL rebel movement, which had a record of hostility towards Tutsi communities.

The FNL also publicly claimed responsibility for the massacre, while the involvement of other armed actors, including Congolese elements, became part of subsequent investigations and demands for accountability.

Yet, 22 years later, no one has been tried for the killings.

For the Banyamulenge, who have spent 22 years waiting for justice, one question remains: who will deliver it?

Innocent Nteziryayo, a lawyer, told The New Times that complaints were first filed in Burundi, where the killings occurred, before the legal team engaged authorities in DR Congo, as well as the International Criminal Court (ICC).

"We demonstrated to the ICC that neither country had delivered justice, despite the crimes falling within the court's jurisdiction and urged the ICC to intervene; yet, nothing is being done,” Nteziryayo said.

Nteziryayo argues that responsibility is spread across national, regional and international institutions, but says that the Burundian and Congolese government should be at the forefront of the judicial pursuit.

Burundi

As the country where the refugees were killed, Burundi should have taken the first step by investigating and prosecuting the perpetrators, Nteziryayo said.

"We had called upon Burundi, as the site of the killings, to prosecute those responsible, especially given that some suspects had publicly admitted to the crimes yet remained on Burundian territory, moving freely,” the lawyer said.

The lawyers also raised the Burundian government's responsibility to protect refugees who were under its jurisdiction when they were attacked.

Nteziryayo said failure to act has continued into the present, he said. The Banyamulenge community in Burundi requested permission to hold this year's commemoration at Gatumba, where the victims are buried, but received no response.

"There will be no commemoration ceremony in Burundi this year; we requested permission, but they refused. Usually, one applies for authorization and it is granted, but this time they did not even respond,” he said.

DR Congo

Kinshasa also has a responsibility, Nteziryayo said, because the victims were Congolese nationals and UN investigations pointed to the involvement of Congolese government troops.

"Since Congolese nationals were implicated in this plot, we filed a complaint to Kinshasa demanding their prosecution,” he said, adding that the alleged perpetrators included Congolese military personnel.

"We called upon the Congolese government to attend to its citizens who were killed in Burundi and to prosecute the perpetrators residing within DR Congo so that they could be punished,”

The complaint also sought reparations for victims and their families.

Nteziryayo said DR Congo’s status as a member of the ICC provided a legal avenue for pursuing the case internationally.

ICC

After years without prosecution of the alleged perpetrators, the lawyers formally filed their complaint with the ICC in 2024.

Nteziryayo said the legal team conducted its own investigations, collecting testimonies and other available evidence. But two years after the filing the case with the ICC, Nteziryayo says there has been no meaningful movement.

He attributes the delay partly to political interests surrounding the wider conflict and ethnic tensions in the Great Lakes Region.

UN Security Council

Nteziryayo also places responsibility on the UN Security Council, particularly because the victims were killed in a refugee camp under UN Refugee Agency.

He argues that the Council still has tools available to push for accountability, including its ability to refer situations to the ICC, but says political interests have kept it from acting.

"It issued numerous resolutions following the massacre, calling for cooperation in securing justice for the victims, yet it has since remained silent, driven by political interests unknown to us, despite possessing the authority to act.”

Regional actors

The legal team also approached Rwandan authorities over the reported involvement of the FDLR in the Gatumba massacre. Nteziryayo said the group, whose members included people linked to the perpetrators of the 1994 Genocide against the Tutsi, was among those implicated in the killings.

He said Rwanda was asked to use its legal framework on genocide-related crimes to pursue those responsible, particularly given the reported cross-border movement of perpetrators and their links to the FDLR.

"We therefore requested that Rwanda invoke its relevant laws to ensure these crimes are prosecuted,” he said.

The East African Community and the East African Court of Justice have also been approached.

However, Nteziryayo said the regional court cannot directly hear the Gatumba case because the killings occurred when Burundi and DR Congo were not members of the EAC.

The African Union has also received complaints, although he said the legal team has yet to see action.

'Impunity encourages further violence'

For Aggée Shyaka Mugabe, an expert in transitional justice, peacebuilding and regional politics, the failure to punish Gatumba perpetrators has consequences far beyond the victims of the 2004 massacre.

He said the delivery of justice has a deterrent function. "Therefore, impunity, in other words, is encouragement of further violence,” he said.

Mugabe said some people linked to previous violence have continued to move freely and, in some cases, become involved in subsequent activities of armed groups.

He sees a connection between unresolved past crimes and continuing violence against Banyamulenge and other Congolese Tutsi communities in eastern DR Congo.

"There is a direct link,” he said.

He said Gatumba should not be viewed as an isolated event.

"These people were killed in a refugee camp when they were protected by the host government, which is Burundi. And the UN was deployed in Burundi for peacekeeping and it did not manage to protect them. So Gatumba is unique for that reason.”

Mugabe argues that accountability is also essential in confronting genocide ideology.

"Justice, particularly criminal justice, is the most important tool to deal with genocide ideology,” he said.

"If criminals in the past were not held accountable for what they did, what will prevent new criminals from emerging and committing crimes?”

He also pointed to similarities between hate speech in eastern DR Congo today and rhetoric that preceded the 1994 Genocide against the Tutsi, arguing that such language should be confronted before it translates into further violence.

Yolande Mukagasana, a historian and survivor of the Genocide against the Tutsi, said impunity carries a particularly painful meaning for survivors. It can leave them without the sense of safety and closure that justice is supposed to provide, she said.

"When justice is denied to a survivor of such genocidal attacks, it means the genocide is effectively continuing. For if you believe you have survived, yet the person who killed your loved ones remains unrepentant, that same person could still kill you today simply to avoid having to see you.”

Mukagasana says the presence of an unpunished perpetrator can also keep survivors psychologically tied to the crime and unable to heal.

She questions how survivors can realistically expect justice when the institutions that should provide it are themselves accused of involvement in violence or genocide ideology.

"If our countries have failed to deliver justice, then let us stop relying on them and take the necessary actions ourselves.”

She says the challenge extends beyond Gatumba, arguing that unresolved crimes and the spread of genocide ideology continue to affect younger generations.

'The pursuit of justice has not ended'

Nteziryayo said the Gatumba case remains connected to the broader question of whether the Banyamulenge and other Congolese Tutsi communities can expect protection when targeted because of their identity.

"When we speak of Gatumba today, we are looking at the past attempt to exterminate the Banyamulenge, as well as the ongoing events affecting that community; the current situation represents a continuation of the effort to annihilate the Banyamulenge and the Congolese Tutsi people,” Nteziryayo said.

And despite the long wait, the lawyer said the survivors' demand remains unchanged.

"While the prospects for justice may seem slim, we will never cease our pursuit of justice and our efforts to defend ourselves so that we, the Banyamulenge, may survive.”