Yarik Turianskyi
6 August 2008
guest column
Johannesburg — Whether Robert Mugabe, Zimbabwe’s ruler for the past 28 years, relinquishes power now or in a few years’ time, Yarik Turianskyi of the South African Institute of International Affairs believes the prospects of him being tried for forced removals of his people or the election violence of his militia are remote.
Will the current negotiations between rival Zimbabwean political parties end the 28-year rule of Robert Mugabe? The leader of the Movement for Democratic Change (MDC) Morgan Tsvangirai seems to think so, stating that talks are meant to devise Mugabe’s “honorable exit.” But will Mugabe face legal action for crimes committed while in office, as have many other deposed leaders in recent years?
There are two legal means potentially available for putting Mugabe on trial. One would deploy the principle of “universal jurisdiction” and the other would be to seek an indictment before the recently-established International Criminal Court (ICC), based in The Hague.
The former is an international legal concept stating that certain actions should be considered crimes against all, punishable by any state, even if they were committed outside of its territory. The most notable example of the principle being applied was when former Chilean dictator Augusto Pinochet was arrested in the United Kingdom in 1998, even though his crimes were committed in Chile, which had made no demand for his prosecution.
The ICC has been set up as a permanent institution to hear cases involving crimes against humanity, genocide and war crimes. It is currently considering cases arising from conflict in the Democratic Republic of the Congo, Uganda, the Central African Republic and Sudan. (The high-profile trials of the former presidents of Yugoslavia and Liberia – Slobodan Milosevic and Charles Taylor – and those of the perpetrators of the Rwandan genocide have been conducted by specially-constituted tribunals.)
The statute which established the ICC defines crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder… forcible transfer of population… torture … rape… [or] other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
It is important to bear in mind that the ICC is legally able to deal only with crimes committed after its establishment in July 2002. Some of the worst allegations against Mugabe – of involvement in the killing of thousands in Matabeleland in the 1980s and of allowing the violent seizure of farms by war veterans beginning in 2000 – took place before that date.
However, the expulsion from their homes of tens of thousands of people living in informal settlements (“Operation Murambatsvina”) in 2005 and the acts of violence committed by his militia preceding and during the 2005 and 2008 elections took place after the treaty establishing the ICC came into effect.
According to the MDC, this year’s polls have led to the death of 100 opposition supporters, with an estimated 6,000 people tortured and 200,000 displaced. Mugabe himself could be liable for prosecution under the concept of “command responsibility,” according to which authority figures can be held accountable for acts committed by their subordinates, including the army and police forces.
However, accepting there is a legal basis on which to indict Mugabe, what are the chances of him ever facing trial? The prospects are extremely unlikely.
Firstly, applying “universal jurisdiction” would require two ultimately political decisions – a state would have to decide to prosecute Mugabe, and Zimbabwean authorities would have to hand him over for trial. Guarantees of immunity from prosecution – domestically and internationally – are likely to form a key issue in negotiations.
(Mugabe would be well advised to stay away from Canada. Its ‘Crimes Against Humanity and War Crimes Act’ allows for prosecution of anyone who is present in Canada and allegedly committed such crimes.)
Secondly, the ICC can exercise jurisdiction only over states which have ratified its founding statute, and Zimbabwe is not one of them.
That does not prevent the ICC’s prosecutor from starting legal proceedings against Mugabe – last month the prosecutor asked the court to issue a warrant for Sudanese President Omar al-Bashir for genocide, crimes against humanity, and war crimes. However, just as South Africa and Libya have led efforts by developing countries, with support from Russia and China, to defer the Sudanese indictment, so can action to save Mugabe from a similar fate be expected. Russia and China have already quashed a bid in the United Nations Security Council to impose tighter sanctions on the Zimabwean elite.
So while there are legal instruments and precedents for Mugabe’s indictment, political considerations are likely to trump the quest for justice in the current scenario. Right now Zimbabwe would benefit more from dislodging Mugabe from power than from putting him on trial. To quote Henry Kissinger, “it is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well.”
Thus the main goal of the MDC is likely to be to secure Mugabe’s removal from office – whether now or in a few years’ time, depending on the deal struck in negotiations – even if the price is granting him immunity from prosecution.
Yarik Turianskyi is an intern in the Governance and APRM Programme at the South African Institute of International Affairs in Johannesburg.
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Enslavement of Afrakans by the same people calling for the prosecution of the one and only one Afrakan voice of conscience and re-awakening are leading the way. Millions of the enslaved afrakans are mathing on clapping hands, dancing, and singing the slave master's stale songs out of sheer ignorance! And slavery of Afrakans continental and abroad is supposed to have ended some two hundred years ago? Wake up people, this is the twenty-first century!!!!!!
Yarik Turianskyi is an intern in the Governance and APRM Programme at the South African Institute of International Affairs in Johannesburg.
Give us a break!!!!!!!!!!!!!!!!!!!
Like activists for meaningful change in society, I am terribly upset by the twisting of truth by admirers of murderous Mugabe, anti-west bashers and dubious africanists!
The author of the article referred to existing pieces of legislation under which perpetrators of crime against humanity can be prosecuted outside one's own country. He then speculated as to lunatic Mugabe's possible status under the two existing legislations. He did not invent anything!
Admirers of Mugabe should know that Hitler also had admirers. Even today! But sanity prevails and laws are around to tackle them in a firm but fair manner.
Dubious Africanists! So many crimes have been committed under the disguise of this slogan. How on earth can an Africanist condone killings, maiming and rape of fellow citizens in a so-called liberated country?
Talking about the land issue, how Western sanctions prevent owners of large tracks of land from planting maize in sufficient quantity in Zimbabwe to feed its people? Instead of bashing the West, Mugabe cronies have just to put to good use the recovered land. Once a country can feed its citizens with the basic neccessities, sanctions or no sanctions the country is set to accumulate wealth throught the broadening of its industrial sector. Sanctions do not prevent Zimbabwe to export to the SADC region!
Stacking together all Mugabe opponents and branding them colonizers, pro-West, white racists does not help move forward the ideas in debate.
Let us not immitate lunatic Mugabe who has sikfully whipped up emotions around the land issue and colonialism in order to divert attention from his own dismal failure to improve the quality of life in the once prosperous country.
The silent majority of Zimbabweans know the naked facts about murderer Mugabe and cronies. The civil society organisations will have to continue to be vigilant even under Tsvangirai. It's not one person that can deliver! Constant pressure and vigilance are required on politicians, be they in West or East or Africa and what not.
The fundamental point still to be attended to is about whether somebody who has committed crimes against humanity and who wants to continue to cling to illegitimate power can be pardoned? Will the pardon granted in Zimbabwe be legal outside Zimbabwe? The author says there are 2 pieces of legislation that will guide future action.
A pardon in Zimbabwe does not prevent an aggrieved Zimbabwean now settled in Canada, after running away from vampire Mugabe, to drag him to court there. The ICC also may disregard such a pardon under a UN request to prosecute the lunatic.
Mugabe is in hot soup anyway, like his cronies!
Now, may I plead with Mugabe admirers to go back to their promised land and start planting maize. It's more valuable an action than branding people, not thinking like you, pro-West, racists, colonialists!! These empty slogans won't feed a hungry child.
This article is way off Zimbabwe’s discourse. Some so-called intellectuals are lunatic in their attempts to find lime light. Apologies for being dishonorable to sane thinking by commenting on this ignominious pathetic article.
This post was deleted because it contravenes AllAfrica's commenting guidelines.
Yes Baasi ... how come you have such a selective mind? You would not dare apply the same rules to the catholic IRA in Northern Ireland because they are wazungu. The same explanatioin would go to explain non of the leaders of apartheid were tried for the sufferings of millions of unborn and living bantu. Actually one of the apartheid rulers was awarded a NOBEL prize ...what a wonkie sense of justice. Australia is overpopulated by rhodies with blood on their hands and yet the Ozzie political leadership goes on and on about RMG ad nauseam. Tell me what you intend to do with Adams and McGuiness who are now in the Stormont government? Do you realise that you used "lunatic" so many times. Believe it or not, my friend, NOTHING IS GOING TO HAPPEN TO OUR PRESIDENT, His Excellence RGM. We love him in the same way the English loved Queen Elizabeth I and winston Churchill.
Here's the difference in this example aka, and please listen carefully, Adams and McGuinness were elected by the Irish electorate under their own free will ..... Sinn Fein is a political party, and though their members may have had IRA affiliations (or even been IRA) in the past, that is no longer the case. Sinn Fein has never taken up arms, they have tried to solve the problems through legal and political channels.
Mugabe on the other hand has (albeit indirectly) murdered, tortured, raped and displaced hundreds of thousands of Zimbabweans. You seem to forget that, like the situation in this article, one of the conditions that was obtained to gain the ceasefire was (in effect) immunity from prosecution for the IRA members that came forward.
Please do your research before posting this grade of junk, because some people here DO actually know the history of the troubles in both Ireland and Zimbabwe ..... Don't make the mistake of making yourself look a fool any more than you have because people will eventually catch on and treat you as comic relief.
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Lunatic Mugabe has dug his own grave by causing millions of his country folks to seek refuge in countries across the world! One can come across Zimbabwean refugees in such diverse countries as Belize and Bermuda (The Caribbean), Japan and Tonga (Asia-Pacific), Austria and Poland (Europe), Argentina and Peru (Latin America) - not to speak about countries with well known ties to Zimbabwe.
The danger for Mugabe comes from these "aggrieved" refugess who may sue the murderer in local courts in many of these countries that have legalised “universal jurisdiction”. hence Pinochet's trial in the UK.
Lunatic Mugabe and cronies must be mortified at the grim prospects of being dragged to courts in innumerable! May be they realise that they should just become "forced refugees" in their own country by not daring to undertake travels. Kenya, Botswana, Liberia, Tanzania may jump into the moving bandwagon in order to send a strong signal to fellow African leaders not to imitate the Mugabe, Déby, Mobutu, Taylor and co.
The recourse to the ICC would rather be an initiative by countries than aggrieved individuals. In both instances, Mugabe and cronies are trapped!
Are they sleeping well or are they going through nightmares already? The speculation that MUgabe is continuing to cling to power suggests that his nightmares are dictating his lunatic tendencies to entertain chaos. "Let me rule or else you all sink with me" must be his current motto!
Fortunately, there is the collective voice of CSOs exerting maximum pressure on the MDCs to live up to their stated objectives to bring freedom, justice and a democratically elected regime. Indirectly, that means without lunatic Mugabe and cronies!
let's be vigilant!