Crimes Against Humanity and
Zimbabwe
by Tony Reeler
Zimbabwe Independent, Zimbabwe,
March 28, 2003
(World Press Review, June
2003)
As Zimbabwe moves inexorably into greater
and greater crisis, the prospect of a negotiated transition moves
higher up the agenda of possible solutions. There seems little
consensus on the way forward, however.
The Nigerian president favors the retirement
of Robert Mugabe but also wants the Movement for Democratic Change
(MDC) to drop its petition on the presidential election to remove
a potential obstacle to the transition. Or is this to remove a
source of embarrassment for the African nations that validated
a palpably fraudulent election?
There are indications that the South African
government favors a government of national unity, probably with
the support of the southern African business community. On the
other hand, the United States and the European Union have raised
the pressure with increased personal sanctions, and the United
States has now decided that it will raise the matter at the United
Nations Commission on Human Rights meeting in Geneva [March 17-April
25].The International Bar Association believes that Mugabe and
his henchmen should be tried for crimes against humanity.
The question about whether the violence
in Zimbabwe would conform to international definitions of crimes
against humanity presupposes two problems. The first is whether
the evidence establishes that the violence rises to the level
of crimes against humanity, and the second problem is whether
the definition is jurisdictionally relevant.
Essentially, the regime's position has
been to minimize the scale of the violence, to attack those documenting
it as prejudiced and politically partisan, and to continually
argue that all current wrongs in Zimbabwe stem from the land problem.
Furthermore, the Mugabe regime would argue that there have been
relatively few deaths-as compared with many other countries-and
this too presupposes that there have not been gross humanrights
violations on a large scale.
Against this view, the countervailing
evidence is dramatic and is summarized from a large number of
reports from local Zimbabwean and international human-rights groups
and governments. The following is common cause:
All reports show that the violence has
been disproportionately one-sided, against the MDC and other groups
not supporting Zimbabwe African National Union Patriotic Front
(ZANU-PF).
All reports show that the violence attributed
to ZANU-PF is different from the violence attributed to the other
groups, both in the scale and in the nature. The violence attributed
to ZANU-PF shows evidence of systematic torture, abductions, disappearances,
summary executions, and extrajudicial killings, and this is very
rarely the case with violence attributed to other groups such
as the MDC.
The systematic torture shows a strong
association with officials of the state-members of Parliament,
the police, the Central Intelligence Organization, and other officials-as
well as an association with groups closely affiliated to the ZANU-PF
party, such as war veterans, youth militia, party supporters,
party officials, etc.
The evidence shows that plausible allegations
can be made for the involvement of senior party and government
leaders, and there are many statements from victims implicating
such persons.
The evidence suggests that a strong case
can be made for a planned strategy using militia. Firstly, the
war veterans were deployed to manage the farm invasions and the
parliamentary election, and secondly, a youth militia cadre was
developed and deployed initially for the presidential election
but subsequently deployed all around the country. The evidence
available shows a very strong association between the youth militia
and torture, and it is not contested that training camps exist
for the youth militia or that government funds have been allocated
to such training.
According to the developing international
legal position on crimes against humanity, as well as other gross
human-rights violations such as torture, there shall never be
immunity for such crimes and there shall be universal jurisdiction
over such crimes. In practice, this is not so simple, but the
basic assumptions are relatively straightforward: There is a class
of crimes that concern all nations and peoples, and these crimes
are so horrible that they strike at the heart of humanity and
civilization. Hence they cannot be an issue only for the sovereign
nation in which the crimes occurred. This was the case for apartheid,
for example.
In practice, there are both definitional
and jurisdictional problems, but the Pinochet judgments [the 1998-99
rulings that allowed former Chilean dictator Augusto Pinochet
to stand trial in London] have helped with both. It is clear from
the United Kingdom Law Lords that the modern meaning of crimes
against humanity is that such crimes offend against all peoples
and cannot be seen as merely domestic matters. As Lord Millet
stated: "Since the Second World War, states have recognized
that not all criminal conduct can be left to be dealt with as
a domestic matter by the laws and the courts of the territories
in which such conduct occurs. There are some categories of crime
of such gravity that they shock the consciousness of mankind and
cannot be tolerated by the international community."
There are strong prima facie grounds for
believing that the Mugabe regime's perpetration of gross human-rights
violations must "shock the consciousness of mankind"
and strong grounds for believing that these crimes have involved
"the concerted conduct of many and [are] liable to involve
the complicity of the officials of the state in which they occur,
if not of the state itself." Also, as the Law Lords pointed
out, these human-rights violations are not considered part of
the normal practice of governments and leaders. The effect of
the Pinochet decisions was to limit the immunity that could be
claimed by a government or a head of state.
The notion of immunity is clearly more
complicated than this, but the overall conclusion of the Law Lords
was to point out that heads of state, and their minions, could
commit crimes against humanity; to conclude otherwise was to mock
international law. And lest we think that the ZANU-PF view that
the small number of deaths mitigates against any view that there
have been crimes against humanity, the Law Lords also pointed
out that torture would constitute a crime against humanity if
perpetrated as part of a systematic campaign or policy.
This is clearly the intent of the Convention
on the Prevention and Punishment of the Crime of Genocide, as
well the Rome Statute, it is not merely deaths on a large scale
that define genocide, or crimes against humanity, it is the systematic
perpetration of any of a number of cruel and inhuman practices
that constitute crimes against humanity. This is the conclusion
to be drawn from the evidence in respect of Zimbabwe.
Africa Watch
Index
of Website
Home Page