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Accountability
or Impunity? Gross and Systematic Human Rights Violations in Zimbabwe
and the Search for Justice
AfricaRights
July 14, 2003
By Rob Monroe
In recent months
discussion on Zimbabwe's political situation has centred on the
issue of inter-party negotiations and related matters such as a
transitional government, constitutional change and a re-run of the
presidential election under free and fair conditions. However, there
appears little discussion on the issue of transitional justice,
on the processes available and appropriate to secure justice for
the victims of the gross and systematic human rights violations
perpetrated by state officials or with the acquiescence of the state.
Securing justice, to mean accountability and punishment for perpetrators
on the one hand, and reparations or redress for victims on the other
hand, is not simply a moral imperative. It is a political necessity
to combat a culture of impunity stretching unbroken from colonial
times through the Smith regime and the Gukurahundi violations in
Matebeleland and Midlands in the 1980s to the present wave of organised
violence and torture which has been particularly marked since April
2000. For only true justice will convey the hard message to present
and future generations that perpetrators of politically motivated
acts of torture and assault will be held accountable and punished,
a message that could presage an end to these cycles of political
repression and violence that have afflicted Zimbabwe for decades.
Equally, only true justice for the victims of such gross human rights
abuses will assuage their feelings for revenge through unlawful
means, feelings which would simply undermine a fragile peace and
fuel further cycles of violence.
What little
discussion there has been concerning transitional justice has largely
been confined to the question of amnesty for perpetrators of gross
human rights violations, notably for Mugabe himself. Whilst amnesty
may be politically expedient for contesting political parties and
may facilitate a smooth political transition in the name of reconciliation,
it will not deliver truth or justice. And this equally applies to
amnesties that may be sought and granted in terms of a 'truth and
reconciliation commission' process, as in the recent case of South
Africa. Indeed, as one expert recently stated "many so-called
truth commissions have offered little truth, hardly any accountability
and no reparation at all: they are no more than organised forms
of amnesia" - unless, as in the case of El Salvador, the purpose
of the truth commission is to name perpetrators with a view to advancing
their criminal prosecution.
In any event,
national amnesties do not prevent individuals from international
prosecution either by other states using the principle of universal
jurisdiction or by the recently-established International Criminal
Court. This reflects the requirement under international law that
states have an obligation to ensure reparation for victims of gross
or systematic human rights violations, as so clearly spelt out by
the UN Human Rights Committee in its reference to the torture provision
in the International Covenant on Civil and Political Rights (which
Zimbabwe has ratified): "amnesties are generally incompatible
with the duty of States to investigate such acts; to guarantee freedom
from such acts within their jurisdiction; and to ensure that they
do not occur in the future. States may not deprive individuals of
the right to an effective remedy, including compensation and such
full rehabilitation as may be possible". This explains why
the UN decided to prosecute the notorious Foday Sankoh of Sierra
Leone and why UN Secretary General Kofi Annan himself recently announced
that it is not the practice of the UN to condone crimes against
humanity, let alone genocide or war crimes.
Despite the fact that amnesty does not secure justice for the victims
of gross human rights abuses, that it violates an international
obligation to ensure reparations for victims, and that it is contrary
to international law, it would be naïve to think that such
considerations would much concern those involved in negotiations
for political transition in Zimbabwe. Justice, in terms of accountability
of those persons responsible for criminal acts and redress for the
victims of such acts, is likely to be sacrificed at the altar of
peace and reconciliation. But we need to challenge, as did the family
of the late South African Black Consciousness leader, Steve Biko,
the right of the State to so deprive victims or their families of
their right to seek redress through the courts. On the other hand,
practical and procedural constraints, including that of financial
cost, would prevent the vast majority of victims or their families
from securing justice through legal proceedings. Clearly, if perpetrators
of organised violence and torture in Zimbabwe are to be held accountable
for their crimes, and if victims are to receive redress including
restitution, compensation and rehabilitation, a mechanism that reflects
the country's particular circumstances must be established to achieve
this - circumstances that include the nature and extent of the gross
and systematic human rights violations that have taken place, the
profile of the perpetrators from so-called 'war veterans', youth
militia and political party supporters through to police and army
personnel, and the profile of the victims themselves, from victims
of specific acts of violence and torture to those who have generally
suffered from civil and political conflict. And the views of all
Zimbabweans, not just politicians but victims, their families and
civil society as a whole, must be sought in determining a national
process likely to deliver truth, justice and an end to impunity
for state sanctioned violence and torture.
However, failure
to provide justice at the national level for gross and systematic
human rights violations does not mean that justice shall be denied.
The last ten years in particular have witnessed remarkable developments
in the machinery of international justice and the application of
international conventional and customary law regarding genocide,
war crimes and 'crimes against humanity', where crimes against humanity
includes torture and other crimes committed against civilians as
part of a widespread or systematic process induced by a state or
government. Such developments in international human rights law
that spring to mind include the establishment of the International
Criminal Court in April 2002, the arrest of General Pinochet in
1998 under the principle of universal jurisdiction, and the establishment
in quick succession of international criminal tribunals for the
Former Yugoslavia, Rwanda, East Timor and Sierra Leone and the subsequent
stream of indictments, trials and convictions under these tribunals.
Not only is
torture prohibited in terms of various international treaties, such
as the UN Covenant on Civil and Political Rights and the UN Convention
against Torture, but its prohibition has the status of jus cogens,
the highest status in international law. This status means that
states, as members of the international community responsible therefore
for upholding international law, are obliged to prosecute and punish
alleged torturers regardless of their nationality or where the torture
was committed. In terms of the Convention against Torture parties
are required to prosecute alleged torturers or extradite them to
countries that will do so and it was under this principle of universal
jurisdiction that Pinochet was arrested in Britain and his extradition
sought by Spain. And as the Pinochet case established as an historic
precedent, the jus cogens status of torture means that former heads
of state and their officials are no longer immune from international
prosecution for crimes against humanity committed whilst in power.
Similarly, in the civil action brought by torture victims and relatives
of the 'disappeared' against ex-President Marcos of the Philippines,
his plea for immunity was rejected by the court on the same grounds.
Immunity in the present does not mean impunity in the future.
Article 27 of
the Statute of the International Criminal Court states that no government
official, elected or otherwise, shall be immune or exempt from 'criminal
responsibility under this Statute', and Article 29 reflects international
convention in declaring that 'the crimes within the jurisdiction
of the court shall not be subject to any statute of limitation'.
Whilst Zimbabwe has not ratified the Statute and is therefore not
bound by it, ratification by a future government in Zimbabwe or
jurisdiction through a UN Security Council resolution means that
those responsible for directing, inflicting or condoning torture
and like crimes may well find themselves before the Court.or because
of no time limitation, must live with this prospect for the rest
of their lives. And if they are lucky enough to avoid the Court,
they may find themselves in that of another country applying the
principle of universal jurisdiction.
The UN's indictment
in June 2003 of Liberia's Charles Taylor for war crimes in Sierra
Leone and subsequent request for his extradition from Ghana is not
a good omen for Mugabe and his senior officials with 'dirty hands'
in the DRC. For it is not unlikely that war crimes in the DRC will
be a priority on the agenda of the International Criminal Court
now that its judges have been appointed and it gets down to work
- and a good 'start' has been made with the October 2002 UN Report
on illegal activities in the DRC detailing the alleged involvement
of senior Zimbabwe government officials.
For those individuals
responsible for genocide, war crimes or crimes against humanity,
the net of international justice is closing. And the net is wide:
ranging from Heads of State, such as ex-Prime Minister Jean Kambanda
of Rwanda convicted to life imprisonment in 1998, ex-President Hissene
Habre of Chad prosecuted in 2000, and Prime Minister Ariel Sharon
of Israel indicted by Belgium in 2001 for the 1982 Sabra and Shatila
refugee camp massacres when he was defence minister; through to
senior military leaders such as Colonel Tharcisse Muvunyi of Rwanda
arrested in Britain in 2000 and extradited to face charges for crimes
against humanity; down to lowly militia leaders such as the Bosnian
Serb Dusko Tadic sentenced in 2000 to twenty years imprisonment.
And the guilty 'still at large' know the net of universal jurisdiction
is closing in on them for it is their fear of this which inclines
Idi Amin not to venture from his asylum in Saudi Arabia, which deterred
Ariel Sharon from travelling to Europe, and which keeps Mengistu
in Zimbabwe - although he did go for medical treatment in South
Africa but hurried back to Mugabe's 'protective custody' to avoid
the prospect of extradition from South Africa when his presence
there was made public!
To borrow the
words of the eminent jurist, Geoffrey Robertson QC, "the concept
of universal jurisdiction for crimes against humanity is the solution
that international law offers to the spectacle of impunity for tyrants
and torturers who cover themselves with domestic immunities and
amnesties and pardons. They can still hide, but in a world where
jurisdiction over their crimes is universal, they cannot run."
But even when hiding in foreign countries the 'safety' of such tyrants
and torturers is only secure whilst their host governments are in
power, and as shown in the case of the Serbian dictator, Slobodan
Milosevic, hiding at 'home' is no guarantee that your successors
in government will not deliver you up to international justice if
not immediately then later when the threat of 'going back to the
bush' has been emptied of its potential.
For more information
on this article, contact:
Henry Humamondira, Secretary
africarights@hotmail.com
AfricaRights
was formed in Kampala, Uganda in the wake of the 1994 genocide in
neighbouring Rwanda. We are committed to the protection and promotion
of human rights in Africa and the dream of an end to internecine
conflict and the emergence of a permanent peace and a genuine African
brotherhood and sisterhood on the continent.
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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