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.
