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Crimes against humanity and the Zimbabwe transition
A P Reeler
Regional Human Rights Defender, Idasa [Kutlwanong Democracy Centre] Pretoria
May 06, 2003

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"The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal--the torturer -could find no safe haven." [Browne-Wilkinson, ex parte Pinochet(3)(1999].

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 favours the retirement of Robert Mugabe, but also wants the MDC to drop their petition on the Presidential Election in order 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 favours a Government of National Unity, probably with the support of the Southern African business community. On the other hand, the US and the EU have raised the pressure with increased personal sanctions, and the US raised the matter at the forthcoming Human Rights Commission meeting in Geneva , but this was less than successful, with a decision to take no action - the decision has been implicitly criticised by the Secretary-General of the United Nations. The International Bar Association believes that Robert Mugabe and his henchmen should be tried for crimes against humanity . The Commonwealth has now decided upon the maintenance of the presently imposed sanctions, and it will be hard to see how it will not adhere to this decision until the Heads of Governments meeting later in the year. The Mugabe regime provides a simple explanation of the crisis, and likes to characterise the diplomatic problem as a clash between the white and black nations, but few really give this view credit. The problem is that the Zimbabwe crisis seems to have arraigned the forces of principle on one hand against the forces of pragmatism on the other hand. Or should it be more properly described as a clash between principle and expediency?

ZanuPF argues that land is the central problem, and that the political crisis is exacerbated by the MDC and its international allies in the West. In contrast, the MDC argues that the crisis is over governance and accountability, and the refusal of ZanuPF to accept their political eclipse at the polls. The MDC further argues that the ZanuPF state is guilty of human rights violations on the largest scale in its pursuit of maintaining political power. Indeed, the assertions by the MDC are gaining greater and greater credibility, and the most recent violence has even drawn criticism from South African President, Thabo Mbeki.

This raises the central problem in the probable transition; that of accountability, and accountability in turn depends upon whether there is evidence requiring such accountability. In the case of Zimbabwe, the evidence of gross human rights violations is disconcerting at the least and, at the most, draws the kind of conclusion that the International Bar Association has done. What place will the allegations of crimes against humanity have on the negotiating table for the political transition in Zimbabwe?

This is not a trivial problem, but perhaps the most serious issue to be discussed in all the negotiations over the transition. The manner in which this is dealt with have an enormous effect upon the future of Zimbabwe, as was the case with South Africa. To use the South African example, apartheid was defined by the international community as a crime against humanity, and it was scarcely sensible that such a crime was not an issue in the discussions over the transition. The ANC insisted that apartheid and the crimes committed in its defence were dealt with, even though it may be debatable now whether the Truth and Reconciliation Commission was an adequate response. The ANC repudiated the amnesty given by the Nationalist Party government, and insisted upon an accounting for apartheid.

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 allegations of crimes against humanity are valid, and the second problem is what to do about this.

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