THERE are many people who believe that our problems will be solved by continuously appealing to international institutions to intervene in our internal affairs. Recently we had the concerted effort by Western capital to have full blown sanctions slapped on the country through the Security Council.
Fortunately this came to nought.
Encouraged by the pronouncement made by the Prosecutor of the International Criminal Court to indict Sudan’s Head of State, Omar Al Bashir for genocide, my fellow countrymen and women have now clutched on to the idea or possibility of bringing the leadership of Zimbabwe to ‘account’ for crimes against humanity ― against the people of Zimbabwe.
The desperation exhibited in pursuit of possible censure of Harare, has led many to clutch on to straws. Save to say Zimbabwe’s challenges will be solved by Zimbabweans themselves as and when the procrastinating party finally realizes the implications of its behaviour to the man on the street.
It is very easy to allude to possible indictments under International Law but case law has proved it is easier said than done. The argument for criminal sanctions is an old beaten path.
The argument that trials and punishment are an essential element to a nation undergoing transition and therefore essential to achieve some degree of justice and confidence in the new government, is misplaced.
Consideration has to be given to the complex ethical, legal and practical concerns always accompanying decisions of this nature. The way forward on the road to democracy and economic prosperity is always a difficult exercise. The concept of justice and the legacy of past political repression can be both an emotional and practical burden affecting the stability of a nation in transit, trying to deal with past atrocities. These so–called atrocities may often be resultant retaliations on those being attacked. Hence much depends on who is making the allegations.
On the ongoing negotiations between the ruling party and the opposition in Zimbabwe questions will arise on how to peacefully integrate officials associated with past repression with its victims. Officials associated with repression may come from both sides of the political divide. How then do the negotiating parties address the needs of the people without creating new injustices for others?
It remains to be said that both parties will always have its 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.
The solution therefore so often arrived at in most transitional or governments of national unity governments depending on which route the negotiating parties decide to take, usually take into consideration the various historical, cultural, and political realities of our country. (viz: he Liberation war legacy, sovereignty, the land question, etc.. )
It is easy for the ruling party to consider criminal sanctions for the violence perpetrated by the opposition MDC-T party and vise versa. Whatever decisions taken will have long-term implications on the stability and economic and political development of Zimbabwe.
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 to anarchy, is going to be 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 the current negotiations and decisions often tire the various actors including the South African government and its head of State President Thabo Mbeki. Attempting to get the most on the accountability continuum without risking the stability of the new government of national unity is real. It is therefore important that as Zimbabweans we seriously start engaging constructively and guard against this destructive path that we seem to love so much.
The International Criminal Court has limitations
The pronouncement by the ICC Prosecutor to indict the Sudanese Head of State, Omar al-Bashir for genocide in Sudan has put ideas into the heads of my fellow Zimbabweans who now for some reason consider this as a possible option for Zimbabwe.
This argument is misplaced.
International Criminal law does not provide a precedent whereby a sitting Head of State is indicted for any crime, nor will it do so in the foreseeable future. The ICC – a construct of the Rome Statute – opened its doors in July 2002 and its maiden indictments include Thomas Lubanga Dylo and more recently Charles Taylor, the deposed president of Liberia.
The ICC Statute does not provide for retrospective prosecutions. Therefore, any alleged crimes committed before July 2002 are not admissible. In other words, the ICC has no jurisdiction on these. The precursors to an ICC indictment are threefold.
The first one is that the country of the suspect has to sign up, and most important of all, ratify the Rome Statute, hence bringing that particular country under the jurisdiction of the ICC. The second scenario is that the host government (of the suspect) makes the necessary recommendation to the ICC Prosecutor for an investigation to take place.
This was the scenario with Thomas Lubanga Dylo a warlord from the Democratic Republic of Congo. It is important to note that the country has to have ratified the Rome Statute in order for this to happen.
The third scenario is that the Security Council – backed by at least nine of the rotating members and a full bench of the permanent members – recommends an investigation.
Following the recent defeat at the Security Council of a sanctions bid against Zimbabwe, it is almost predictable that the world (and the Superpowers) is split between the traditional aggressors and the traditional liberators. It would be foolhardy for anyone to think that China and Russia, having spent the better part of the pre-cold war years supporting liberation movements in Zanu and Zapu, both materially and financially would today turn around and dump them and leave them at the mercy of the United Kingdom, America, France, theaggressors of this world.
The unprecedented position taken by the ICC Prosecutor of attempting to indict a sitting Head of State of a country that has not ratified the Rome Statute will face a lot of legal battles. Setting such a precedent will leave the likes of America who have refused to ratify the Rome Statute wide open to criminal sanctions. American soldiers are committing war crimes and crimes against humanity in Iraq and Afghanistan and at Guantanamo and Abu Ghraib prisons everyday.
Universal Jurisdiction
Lately, we have had calls mainly from the White Liberal Democratic Party members for the National Prosecution Authority (NPA) in South Africa to consider possible prosecutions of Zimbabwe’s leaders based on the Universal Jurisdiction principal.
Universal Jurisdiction is part of customary International Law and is applied in the domestic courts in most national legislations as an alternative basis for jurisdiction. It has been used to start legal proceedings in the Congo and Belgium.
This principle has developed unevenly as a source of international justice. In its development Universal Jurisdiction has taken a two-thronged approach in its enabling process. For example, the Spanish legal system has relied on domestic implementation of legislation and passive personality to bring about or to enable universal jurisdiction to work.
Belgium has enabled universal jurisdiction based on international obligations. Under this principle of Universal Jurisdiction a country is empowered to bring prosecution proceedings in respect of the most heinous of crimes, namely genocide, torture, crimes against humanity and war crimes irrespective of were the crimes were committed or the nationality of the perpetrator or victim.
The Universal Jurisdiction principle draws its weakness mainly from the fact that it has developed quite unevenly in the domestic courts of most states. Jurisdiction has always been tied to the territorial sovereignty of states. It is very rare for a states jurisdiction to go beyond borders. A form of initiated legal process across boarders has traditionally tended to require a connection with the country seeking to hear the case.
The limitations of prosecutions across borders are largely a result of the issue of sovereignty. Zimbabwe is a sovereignty state .Any attempts to arrest Zimbabwean officials would hit a brick wall because of this principle.
Sovereignty has remained a jus cogen in International Law. (Jus cogen is a norm in international law that can not be deviated from). There is a fundamental tendency for states to respect the principle of non-interference in the affairs of other nations and it is expected that South Africa and indeed any other country will do the same when it comes to Zimbabwe.
The Augusto Pinochet Ugarte case filed in Spain and the Ariel Sharon case filed in Belgium are notable examples of this principle of Universal Jurisdiction at work. Its uneven development is evidenced through a perusal of decisions arrived at by domestic courts, especially in decisions involving a former or sitting head of state or officials.
The use of Universal Jurisdiction is easily challenged by Heads of States as being an affront to the principle of national sovereignty. It is on this basis that Omar Al Bashir’s indictment is null and void at law. It goes against the spirit of Article 2(7) of the UN charter. This spells out the principle of non-interference in the internal affairs of a sovereign state. However one conceives these issues, complex ethical, legal and practical concerns always arise.
The concept of justice, the legacy of the past political repression (colonialism, slavery, etc.) can be both an emotional and practical burden affecting the stability of a nation. Any attempt to use these modern legal norms especially when most of the prosecutions are directed at Africa will not fly. The argument advanced of “international racism” advanced by Zimbabwe recently hit straight on the marker.
Lloyd Msipa (LLM; PhD candidate) is a lawyer resident in the United Kingdom
MrK • bannie2020@hotmail.com Subject: Rhodesians Tue, 22 Jul 2008 22:42:26 • It would be interesting to thin the ranks of the MDC by bringing to account the rhodesian warcriminals in their midst. There is no statute of limitation on murder, and the MDC with all it's rhodesian members should not be exempt. In fact, it is a shame that Ian Smith was never prosecuted and hanged for treason, genocide, torture, and other crimes against humanity. Certainly, the individuals who made up the institutions of apartheid rhodesia will be certain to have blood on their hands.
Maurice Nyanzi • n/a Subject: Legal mind Mon, 21 Jul 2008 20:31:40 • brilliant analysis msipa. for the first time you have taken your route and this is the route that you should now maintain that the politics is getting out of fashion
Bantu Sana • bantusana@googlemail.com Subject: The ICC Sun, 20 Jul 2008 11:31:03 • It is interesting to note that the USA is not a sigantory to the ICC. It is also interesting to note that no western country has ever been accused of crimes against humanity/genocide. Of course a succession of Israeli leaders could be tried for crimes against humanity ( see Gaza), and we all know that will NEVER happen as long as they have the backing of Washington. Talk of duplicity! AFRICA UNITE
mzila • mctootle@instruction.com Subject: Hot air and froth Fri, 18 Jul 2008 17:44:48 • Such a convoluted document and ultimately the same pseudo-intellectual and zanu-pf sympathetic opinions being espoused.
I hope I save a few from wasting their time attempting to find sense from it for there is none..zilch.
That is what we have come to expect from an agent of an evil regime faking business and intellectual integrity.
It will not be long....when the mother ship goes down so will its satellites.
Nova, Edinburgh • na. Subject: IN A NUTSHELL Fri, 18 Jul 2008 15:49:54 • my Sudanese friend put it to me in one short sentence, You are blessed because you dont have oil. I replied, but, i believe we have cobalt and uranium instead, and he said, God help Zimbabwe if you do!
n/a • n/a Subject: Security Council Fri, 18 Jul 2008 10:32:05 • International law still has to evolve to reach the heights they are trying to push it to. The world is still very divided for these instruments to work. America and Britain have to stop their bullying tactics otherwise they will always face rebuttals from China and Russia at the Security Council. Can you imagine if these two countries didn't sit in the Council?
Mutsawashe • n/a Subject: Comeback with a bang Fri, 18 Jul 2008 10:29:53 • You have come back refined Mr Msipa after that brief hiatus, welcome to the real world sir, not that other world. A good article and well done. Enjoyed reading it. I think a lot of people have lost their minds to think al-Bashir can face that court or Mugabe. They should dream on, otherwise Bush and Brown and Blair should also be indicted. Justice is not selective. Besides the statute has to be amended to include indictments against sitting heads of states. These people are loonies to say the least. Rather than send the military to stop the genocide they think of indicting. How will that stop the killing happening right now? The west is clearly running out of ideas and it's pathetic.
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