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Crimes
against humanity
The
Economist
June 26, 2008
http://www.economist.com/world/africa/displaystory.cfm?story_id=11636475
Morgan Tsvangirai,
Zimbabwe's opposition leader, has called for the United Nations
to help manage a transition of power in his ravaged country. Others,
including Jacob Zuma, leader of South Africa's ruling African
National Congress, have begun calling on the "international
community" to intervene. At the same time, the International
Criminal Court (ICC) is being urged to investigate Zimbabwe's
president, Robert Mugabe, for crimes against humanity. What is the
legal basis for such moves, and how likely are they to take place?
Under the new concept
of an international "responsibility to protect", adopted
unanimously by world leaders (including Mr Mugabe) at a UN world
summit in New York in 2005, intervention in a state's internal
affairs is permitted in the event of genocide, crimes against humanity,
ethnic cleansing and other mass atrocities, if that state is unwilling
or unable to protect its own people. Indeed, R2P, as it has become
known in diplomatic jargon, places an actual obligation on governments,
usually acting through international bodies such as the UN, to intervene
in such cases.
Natural disasters and
human-rights violations on a less gross scale do not qualify, which
is why such an intervention was not possible in Myanmar after May's
cyclone. But it is arguable that Zimbabwe could qualify. Under the
ICC's Rome statute, crimes against humanity are defined as inhumane
acts, such as torture or murder, that are "widespread or systematic
. . . intentionally causing great suffering and serious injury
to the body or to mental and physical health". That seems
to fit the pattern of systematic rape, torture, murder and other
atrocities being perpetrated against Mr Tsvangirai's supporters.
But qualifying for R2P
is only the first (and easiest) step. Any intervention involving
sanctions or armed force requires authorisation by the UN Security
Council, meaning no opposition from any of the council's five
permanent veto-wielding members: Britain, China, France, Russia
and the United States. For the council to have issued a statement
for the first time condemning Zimbabwe's government for the
violence and intimidation surrounding its presidential elections
is regarded as a tour de force. The idea that it may actually agree
to send in UN peacekeepers is considered by many to be ludicrous.
But it was once regarded
as ludicrous that the council would ever agree to refer Darfur to
the ICC for investigation—yet it did. Almost everyone said
that China, with its close ties to Sudan, would never agree to send
UN peacekeepers to Darfur—yet it did. More recently, it was
assumed that the Security Council, on which South Africa holds a
two-year seat, would never say boo to Zimbabwe over the conduct
of its elections, surely an internal matter if there ever was one.
Yet it has.
So the "presidential
statement" issued by the Security Council on June 23rd was
something of a triumph, given South Africa's presence and
China's and Russia's traditional reluctance ever to
intervene in a state's internal affairs. For, unlike council
resolutions, such non-binding presidential statements can be adopted
only unanimously. And, though it was a watered-down version of a
British draft reportedly calling for Mr Tsvangirai to be regarded
as Zimbabwe's legitimate president, it contained some tough
language, squarely blaming Zimbabwe's government for the humanitarian
and political crisis at a time when Thabo Mbeki, South Africa's
president, was still refusing to do so.
True to form, the UN's
recently revamped Human Rights Council, based in Geneva, which might
have been expected to be taking a keen interest in what is going
on in Zimbabwe, has not even raised the issue. Unlike its discredited
predecessor, the Commission on Human Rights, it has the power to
call for an emergency session to address a particularly egregious
violation of human rights, for example in Zimbabwe. All that is
required is for one-third of the council's members to back
the move. But not a single country, not even Britain, has even suggested
putting forward such a motion; the United States is not a member.
In theory, calling an
emergency session on Zimbabwe should not be so difficult. Of the
council's present 47 members (elected for three-year terms
on a rotating basis by the UN General Assembly), 23—just one
shy of an absolute majority—are deemed "free"
by Freedom House, an American think-tank, on the basis of their
civil-liberties and political-rights records; ten (including China,
Pakistan, Russia and Saudi Arabia) are judged "not free",
with the rest considered "partially free". But with
its 16 members, the Organisation of the Islamic Conference, supported
by 13 African members, has a stranglehold over the council. Together,
they repeatedly fend off moves to look into the human-rights records
of Muslim or African countries.
As for an eventual indictment
at The Hague by the ICC—which is backed by the UN but independent
of it—this, too, is tricky. Though the atrocities being perpetrated
by Mr Mugabe and his army, police and party militias could well
be considered crimes against humanity and may therefore fall within
the court's jurisdiction, Zimbabwe is not a party to the court.
So the UN Security Council would have to refer Zimbabwe to the ICC,
a step that China or Russia may be expected to veto. But as the
Beijing Olympics draw near, China just may be willing to abstain
on such a resolution, as it did over Darfur. And Russia, not wanting
to be left out on a limb, may agree to do the same. So Mr Mugabe
is not out of the court's sights yet.
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