Executive Summary
Legal options available in holding accountable President Robert Mugabe for possible international crimes
For almost three decades Robert Mugabe has ruled Zimbabwe. Under his regime Zimbabwe has declined into a state of anarchy. Recent political unrest around the elections for President has resulted in death, destruction of property, persecution of political opponents, and theflight of Zimbabweans out of the country.
This political unrest has caused the withdrawal of the opposition candidate from the run-off election. Mugabe himself has refused to back down and has called for “war”. He was recently “elected” and sworn in as President.
These actions have brought condemnation from various capitals, few from Africa. This did not change after the African Union meeting. The withdrawal of the only viable opposition candidate in the run-off election in order to quell the unrest and destruction of life and property appears to have been the line that, when crossed, has now forced the international community to take action. The recent G8 Summit noted the turmoil in Zimbabwe.
There are numerous legal, political and diplomatic options available to the international community which include doing nothing to the creation of a justice mechanism by which Mugabe would be held accountable for alleged domestic and international crimes committed while President of Zimbabwe.
This discussion paper will highlight the parameters of the legal options available to hold President Robert Mugabe accountable for various international crimes. It must be stressed that political and diplomatic options impact on the legal options. To a large degree it will be a political decision as to whether Mugabe should be held accountable, though the development of an accountability/justice model to be used, should the decision be taken to investigate Mugabe, isappropriate now.
Based on the extant facts and circumstances, Mugabe could either be tried by a hybrid international war crimes tribunal or an internationalized domestic court. The location should be in Harare or within the region. The International Criminal Court has limited jurisdiction as the gravamen of the offenses took place prior to July 2002.
The mandate should be prosecuting either Mugabe himself alone or those who bear the greatest responsibility for the crimes committed in Zimbabwe, to include Mugabe and selected henchmen. The facts will bear out who those possible indictees are.
The crimes committed are both international and domestic in scope. It appears the international crimes are largely crimes against humanity. Using the Rome Statute as a guide, Article 7, crimes against humanity, some charges would include persecution, imprisonment and other severe deprivation of personal liberty, as well as other inhumane acts that intentionally cause great suffering, all pursuant to a state policy.
The practical aspects of this initiative call for local, regional, and international political support and action. At the local level both the people and the Diaspora will need to be a part of the process. At the regional level the African Union, along with the European Union will have to support this effort, calling upon the United Nations Security Council to take appropriate action. The Commonwealth of Nations will also need to step up and endorse the initiative. The African Union will be reluctant to do this, but without their support the effort will be weakened indeed.
It is also important to dialog with and get support from key NGO’s, e.g. the International Commission of Jurists, the Venice Commission etc.
At the international level the United Nations Security Council will need to pass a resolution calling for some type of legal sanctions on Mugabe and his henchmen, to include an endorsement of a regional court or a domestic court with international aspects to it to ensure fairness and efficiency.[1]
A truth and reconciliation aspect to this overall initiative should beconsidered, as well, as a way of building a sustainable peace.
Due to his age, it is realistic to consider an amnesty or a type of immunity arrangement (under the threat of indictment) if he agrees to step aside and leave Zimbabwe for good. This is only an option because of his advanced age. Other potential indictees should not get the benefit of this amnesty.
The bottom line is that there should be accountability at the local and regional level, with international support, for those who bear the greatest responsibility for the crimes against humanity committed in Zimbabwe over the rein of Robert Mugabe. Due to his age this needs tobe done within the next year or two at the latest.
Prepared by: Professors David M. Crane, Syracuse University College of Law and Tom Zwart, School of Human Rights Research, Utrecht, 9 July 2008
Endnotes
[1]Russia’s and China’s decision to veto a recent resolution on Zimbabwesanctions demonstrates that achieving consensus on accountabilitymeasures for Zimbabwe will require concerted international diplomacy.