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From the June 2003 issue of World Press Review (VOL. 50, No. 6)

Commentary

Crimes Against Humanity and Zimbabwe

Tony Reeler, Zimbabwe Independent (opposition weekly), Harare, Zimbabwe, March 28, 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 human-rights 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.

Tony Reeler is a regional human-rights defender with the Institute for Democracy in Pretoria, South Africa.

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