Obstacles to Mugabe’s prosecution under International law-Lloyd Msipa

Obstacles to Mugabe’s prosecution under International law-Lloyd Msipa
Tuesday, 27 January 2009
A lot has been written in the media concerning the possible indictment of President Robert Mugabe to the International
Criminal Court (ICC) relating to crimes against humanity or other. Whilst condemnation of the humanitarian situation
obtaining in Zimbabwe today is called for, one wonders what will be the efficacy of these prosecutions. The most
fundamental question that confronts Zimbabwe is whether to undertake prosecutions of the leaders of the former or
ousted regime together with its officials for the violations inflicted on the nations during their rule or to pardon them.
Political concerns are important. Making them accountable for their crimes on the nation might actually upset the oftenfragile
transitional peace settlement that would have been reached in most instances at great cost in terms of loss of life.
In most cases the outgoing regime would have made their departure conditional that they will be no prosecutions after
their departure. There are those that are arguing that trials and punishment of the Mugabe regime are an essential
element to a nation undergoing transition and therefore essential to achieve some degree of justice and confidence in the
new government. Prosecutions it is argued are necessary in order to draw a line between the old and the new regime
The more sober will argue that trials are unbefitting of a democracy and that they manifest a victors’ justice. They
further argue that to use criminal sanctions against those that lead the old regime may actually not have the desired
effect and may in fact run directly counter to the development of a democratic nation. They further argue that a program
of forgiveness is the best way forward in order to reconcile and rebuild a nation by leaving the past behind by means of
an amnesty. Whatever decision Zimbabwe takes, it will have long-term implications on its stability, economic and political
development. In an ideal world a balance is often required between justice and peace. Any attempt to hold those
accountable without risking instability or the country reverting back into anarchy is often a major consideration. Whilst
those who are guilty of committing crimes of impunity against the people should be held to account, the idea of
accountability is often fraught with contradictions in that trade offs and compromises are often the norm. The reality of
these negotiations and decisions often involve various actors that may include international organisations attempting to
get the most on the accountability continuum without risking the stability of the new regime. The old adage “no
one size fits all” probably sums the inherent dilemma faced by Zimbabweans in reckoning with how to deal with
past atrocities committed by previous regimes. Competing interests often derail agreements often contemplated by the
various parties to the decision making process. The solution so often arrived at in most transitional governments usually
take into consideration the various historical, cultural, and political realities of the country in question. Zimbabwe despite
having ratified other treaties under international law, the Rome statute is not one of them. This is the statute that brought
into existence the International Criminal Court. The International Criminal Court opened its doors in July 2002 and its first
indictment was the former warlord Thomas Lubanga Dyilo from the Democratic Republic of Congo. The International
Criminal Court was able to indict Thomas Lubanga Dyilo for war crimes and other crimes against humanity because the
Democratic Republic of Congo has ratified the Statute of the International Criminal Court. The recent arrest of General
Nkunda by the Rwandese authorities has brought this topic back into the limelight. It excites many. The Congolese
government issued an international arrest warrant against him for alleged war crimes in 2005.It says it wants Gen
Nkunda to be sent back home to face trial. The International Criminal Court has been conspicuously quiet over whether
to bring him to the ICC. The old adage kicks in again “no one size fits all” probably sums the inherent
dilemma faced by the International Criminal Court. This is because General Laurent Nkunda has long sought to portray
himself as the only man who can protect his Tutsi community in eastern Democratic Republic of Congo from Hutu forces.
This led to accusations that he was a stooge of the Tutsi-led Rwandan government. In other words in some African
circles he is regarded as the friend of the people. He is considered by some countries in the region a necessary evil for
the balance of power in the region. Power politics I might add. Remember the Rwandan genocide. In Zimbabwe, despite
the continued call for President Mugabe to be indicted for crimes against humanity or other no statement has been forth
coming from the ICC or the UN Security Council for that matter. It is usually the competing interests of the parties, the
trade offs and the compromises considered that largely determine what decision a government or institution takes. It is
the magnitude and the quality of physical repression, the extent and degree of the impunity by way of atrociousness that
will often determine the approach taken by governments attempting to strike a balance between peace and justice. The
more brutal the crimes against its people, the more the number of perpetrators taking part, or the existence of large
numbers of collaborators, supporters, the more transparency that is required in dealing with it. It is argued that if
institutions of the state, the army and the police were used in the repression and brutality, this will contribute significantly
to the approach used. A standard so often used to determine this is to what extent those outgoing regimes had
militarised the state institutions. It is generally argued that the more a regime relied on the military for its day-to-day
governance issues; it would normally follows that there would be a direct correlation or an ambiguous link between the
armed forces and the commission of atrocities. Zimbabweans can readily point to two major events in their history that
possibly fit this criteria, notably the Gukurahundi massacres in the 1980’s and more recently Operation
Murambatsvina. Unfortunately, since the ICC Statute does not provide for retrospective investigations or trials (that is
trials for events before July 2002), the Gukurahundi massacres do not fall within its Jurisdiction. The second event raising
the possibility of Mugabe being brought before the ICC is for the Operation Murambatsvina human rights violations under
Customary International Law .This makes the assumption that a country does not have to ratify the ICC treaty in order for
it to be bound by international laws for crimes against humanity. Custom or an established pattern of behaviour by States
binds all States. I would, however, hasten to say that Customary International Criminal law has not been tried and tested
yet on a sitting or former head of State. The Security Council route whereby a unanimous vote by all the permanent
members to prosecute President Mugabe is also fraught with its own problems. China and Russia are long time friends of
Mugabe dating back to the war of liberation. Any hope of a Security Council mandate to arrest Mugabe is wishful thinking. Anyway, however one conceives these issues, complex ethical, legal and practical concerns always accompany
decisions in transitional democracies. The way forward on the road to democracy and economic prosperity for Zimbabwe
is going to be a difficult exercise. The concept of justice, the legacy of the past political repression can be both an
emotional and practical burden affecting the stability of Zimbabwe as it tries to deal with past atrocities. Questions will
arise on how to peacefully integrate former officials associated with past repressions with its victims. How does a new
Zimbabwe respond to the demands of a new democracy, address the needs of the people without creating new injustices
for others? It remains to be said that even after his ouster from power, President Mugabe will still have his defenders,
who will either deny that the atrocities ever took place or will claim they were committed by somebody else or worse still
argue that at the time these atrocities were committed they were legal under the country’s laws and therefore
justified. Lloyd Msipa is a Lawyer writing form the United Kingdom. He can be contacted at lmsipalaw@googlemail.com