[2007 July 22]
A significant number of cases of crimes against humanity have been reported in Zimbabwe to date. It has become painfully clear that torture is state-sanctioned at the highest echelons of power in Zimbabwe. There have been reports of such atrocities like torture, rape, murder, arbitrary detention and arrest among other crimes against humanity being committed against ordinary Zimbabweans. Rape cases have escalated since 2000, and thousands have been tortured in different ZANU PF Bases for either supporting the opposition party, or defending human rights. The question then is what will happen to a leader who has become so drunk with his own power that he has no regard for the lives and human rights of innocent citizens? How can those who serve him face justice? Several avenues are available for exploration and their shortcomings will be discussed.
Considering the ICJ option
Torture belongs to the genre of the most horrible and repulsive of crimes against humanity. Every nation has the mandate and is obliged to punish torture and crimes against humanity no matter where they have occurred. The extent of the atrocities in Zimbabwe has led to Zimbabweans sometimes hoping for Mugabe’s trial by the International Court of Justice (ICJ). This idea however is based on the erroneous belief that the ICJ can hear cases involving personal accountability for crimes against humanity. The jurisdiction and procedures before the ICJ allow only for the appearance of state parties hence such a personal showdown with Mugabe and other perpetrators can not possibly be entertained before it. This could however be done before a different court altogether, the International Criminal Court (ICC).
Considering the ICC option
The setting up of the (ICC) brought new hope that offenders against humanity of Mugabe’s calibre can be tried by it. Thus, the heinous crimes being committed by the Mugabe regime can therefore be entertained since the ICC has jurisdiction over crimes such as genocide (Article 6) and crimes against humanity (Article 7) that encompass widespread and systematic torture. Unfortunately Zimbabwe has not ratified the Rome statute of the ICC. Also, the Rome statute cannot operate retrospectively, that is, for crimes committed before it went into force on the 1st of July 2002. Thus, Mugabe and others can only be tried for crimes committed on and after that date under the ICC. This therefore means that Mugabe cannot be tried for the 1980-1984 Gukurahundi massacre (which when translated means ‘the first rains that wash away the chuff’) in the Matebeleland region. Such a crime would continue unpunished under the ICC.
The Security Council
Since Zimbabwe has not yet ratified the Rome Statute, Mugabe’s trial can happen if the Security Council of the United Nations refers Zimbabwe to the Court. The Security Council may also order military intervention under Chapter 7 of the UN Charter. Presently, this seems unlikely since countries like China and Russia who wield the veto power in the Security Council are friendly towards Mugabe and his regime. Also in this scenario, a state which is not party to the Rome Statute may also accept the jurisdiction of the Court so that those who committed serious crimes may be tried. This route is also unlikely in the situation because those who are responsible for committing these crimes are still in office. Thus, presently it seems that there is no hope of ending impunity through the ICC as long as Mugabe remains in power and there has been no regime change. However, tremendous work is being done by various organisations to document atrocities and their perpetrators so that in future, the culprits may be brought to account.
Universal Jurisdiction
Apparently, the most feasible way by which Mugabe and his henchmen can be brought to book would be for them to be arrested by another state under the doctrine of universal jurisdiction. South Africa, Canada, United Kingdom, Belgium, Spain, the United States and many others are well placed to do this since most Zimbabweans fearing for their lives at home fled to these countries and may lodge complaints against the perpetrators in these jurisdictions. Once warrants of arrest have been issued, the issuing state may apply for the extradition or surrender of from another country. The limitation in this picture is that for political reasons, states are reluctant to arrest a sitting Head of State or even her/his ministers lest the same happens to them.
Special UN courts
It therefore used to be that hybrid courts as in Sierra Leone or special tribunals as in the case of Rwanda would be set up under the auspices of the UN. With the advent of the ICC and lack of resources at the UN, this again seems a dead end. In any case, these courts are ordinarily established after regime change. It would therefore seem that intervention of the type carried out in Afghanistan would be justified and most effective in Zimbabwe. However, this type of engagement does not find favour in international law since it is not sanctioned under the Security Council.
But, head of state immunity
The greatest setback to the arraignment of Mugabe is the principle of head of state immunity under which Mugabe may claim protection. Other culprits cannot avail themselves of this protection. It would seem that the most crucial factor for justice to occur in Zimbabwe is international co-operation to remove Mugabe and ZANU (PF) from power. However, in the meantime, civil society may explore ways in which perpetrators of human rights abuses may be sued in foreign states. The Zimbabwe Exiles Forum (ZEF) has been working with partners in other states towards this. Zimbabweans certainly must make as much effort as possible to expose offences, but they need support from other countries.
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