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Justice and Accountability
Mark S Ellis, Executive Director of the International Bar Association (IBA)
Extracted from the IBA Human Rights Violations in Zimbabwe supplement
December 10, 2004

Recent news emerging from Zimbabwe paralyses the senses. Zimbabwe is in crisis, and it’s not the result of some national catastrophe or blind ignorance. Zimbabwe’s descent into this unimaginable chaos is the result of the perverse policies of its president, Robert Mugabe. His systematic oppression of an increasingly impoverished people and his government’s widespread policy of subverting the press, the rule of law and human rights are a desperate and brutal attempt to retain political power at all costs. Mugabe’s latest effort to suspend the last remaining check on his dictatorial rule is to rid Zimbabwe of all independdence organisaent- minded non-government organisations. With the promulgation of the Non-Governmental Organisations Bill, civil society will cease to exist; there will be no mechanism left in Zimbabwe to monitor the criminal acts of Mugabe and his government.

Robert Mugabe’s actions, however – committed in accordance with state policies – are also gross violations of international humanitarian law and he should be held accountable for his reign of terror. The international community has the mechanism to enforce this moral and legal obligation.

The International Criminal Court (ICC), inaugurated on 1 July 2002, is the first permanent international court established to hold individuals accountable for the most heinous international crimes, including crimes against humanity. These crimes embody murder, enslavement, torture, imprisonment, rape, displacement and other inhumane acts of a similar nature that intentionally cause great suffering.

The well-documented and mounting evidence of these crimes committed by Mugabe’s government is staggering. According to the Zimbabwe Human Rights NGO Forum, thousands of Zimbabweans who oppose Mugabe are tortured, murdered, unlawfully arrested and detained, raped or abducted on a regular basis by the government and Mugabe’s henchmen. Other inhumane acts include the systematic policy of using food as an political weapon. If a Zimbabwean is not a member of Mugabe’s ruling party, she will not receive one morsel of the sustaining grain distributed by the government in order to feed her family.

There is a general misconception that the ICC does not have jurisdiction over these and other acts committed by Mugabe in Zimbabwe. It is true that the ICC can exercise jurisdiction only over crimes committed after Zimbabwe has ratified the ICC Statute, which it has not done. Mugabe may think that by not ratifying the Statute he is immune to the Court’s jurisdiction. He is wrong.

There is an obscure but forceful provision in the ICC Statute that pointedly addresses the situation in Zimbabwe. Article 12(3) states in part that a state which is not yet a party to the Statute ‘may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question’. Thus, a post- Mugabe government could immediately accept the jurisdiction of the ICC and so sanction a full investigation and indictment of Mugabe for crimes he has committed since July 2002.

Under the ICC Statute, the UN Security Council could already authorise the Court immediately to investigate crimes committed by Mugabe. Such an investigation can occur even though Zimbabwe has yet to accept the jurisdiction of the Court.

An investigation would help countervail the woeful responses of many African nations to Mugabe’s crimes. The duplicity with which these countries attempt to prop up Mugabe’s regime is depressingly

real. This includes the misguided policy of the African Group at the United Nations, led by South Africa, to block resolutions deploring Zimbabwe’s human rights record. Those who have been victimised by Mugabe deserve better. If Mugabe can manipulate and evade domestic and regional justice, he should not be able to elude international justice.

A fundamental tenet of international law is the repudiation of impunity for those who commit gross violations of international law. Thus, the failure to deter these crimes is not a result of the absence of law, but rather a failure of political will to curtail these violations. A more aggressive response from African nations, coupled with a preliminary investigation against Mugabe by the UN Security Council and the ICC, would send a clear and irrevocable message: justice is not expendable; there will be no impunity for Robert Mugabe.

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