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Subliminal terror? Human rights violations and torture in Zimbabwe during 2008
Tony Reeler, Centre for the Study of Violence and Reconciliation
June 30, 2009

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Background

Although human rights violations have taken place in Zimbabwe over the past three decades, the major focus in this monograph will be upon the period 2000 to 2008, with special reference to 2008. It is evident from reports published over the years that there have been serious violations of human rights prior to this time, both during the Liberation War, and during the 1980s in Matabeleland and the Midlands, and, of course, neither of these two periods should be excluded from any process of accountability. Indeed, Zimbabweans have themselves already argued that there should be a full accounting for all human rights violations since the original occupation of the country in 19th century. The kinds of accounting will obviously be very different for the various time periods: prior to 1965, it would seem that a Truth Commission process would be most appropriate, whilst, subsequent to this time, there have been strong arguments that a Truth, Justice, and Reconciliation Commission would be the appropriate mechanism.

However, the major reason for selecting the period from 2000 onwards is to reflect a number of developments. Firstly, the UN Convention Against Torture only came into force in 1984, whilst the Rome Statute for the International Criminal Court only became operative in 2002. Thus, as regards international jurisdiction, no case of torture prior to 1984 could be considered by an international court, and no case regarding crimes against humanity can be considered in respect of events prior to July 2002, although the UN Security Council could act on its own as it did in the cases of the Former Yugoslavia and Rwanda. Of course, there could be no international objection to Zimbabwe examining all previous human rights violations through the setting up of its own domestic tribunal. After all, domestic remedy is a considerable improvement over international remedy, and indeed international remedy is there mostly to provide for situations where domestic remedy is not possible, for whatever reason.

There is also no reason why an appeal to international customary law may not be considered in respect of any time period. Whether such an appeal to international customary law would have more than either political or symbolic significance is a moot point, but the point should nonetheless be made. However, the period from 2000 to 2008 has mainly been chosen because of the political significance of the various elections during this period, and the particular significance of gross human rights violations perpetrated in the subversion of normal democratic activities. Here the point is to highlight a new and sinister use of violence, what may be termed "subliminal terror". The violations during 2008 are given especial emphasis as, from all reports; it would appear to the worst year for gross human rights violations since 2000.

Secondly, and this is important, there is considerable evidence that the period since 2000 has seen the most sustained human rights violations in Zimbabwe's history. This is not to argue that this period has seen a great number of deaths, for, compared to the Liberation War or the Gukurahundi of the 1980s, this is not the case, but it is certainly the case, as will be seen below, that the numbers of people affected by the violations since 2000 is much greater than even during the Liberation War. The difference lies in the kinds of violations, and, as will be seen, in the very sinister application of widespread torture in pursuit of political aims.

Thirdly, the violations since 2000 conform strongly to the four-part definition of torture contained in the UN Convention against Torture. To re-iterate this definition, torture:

• Involves the infliction of severe pain and suffering, whether physical or mental;
• Done intentionally;
• Done with a purpose in mind - to intimidate, a force confession, etc;
• Done with the consent or acquiescence of a public official or other person acting in an official capacity.

Torture is significant because it can not only form the basis for individual actions under the 1984 UN Convention Against Torture, but it can also form the basis for a charge of Crimes Against Humanity, as defined in the Rome Statute, where torture can be shown to be widespread and/or systematic.

An indictment for Crimes Against Humanity can be brought if any or more of the following can be demonstrated:

• Murder;
• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rule of international law;
• Torture;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Furthermore these abuses must have taken place outside of obvious war, against a civilian population, and be either widespread or systematic, or both.

As will be seen below, the evidence shows clearly that such violations have taken place on a very large scale since 2000, and, in addition, they have been geographically very widespread.. This monograph will establish the existence of systematic torture, and demonstrate its widespread application. It is necessary to establish the existence of systematic and widespread torture, for, whilst any clear case of torture will demonstrate that the Convention Against Torture has been violated, it is necessary to show that torture has taken place on a widespread or systematic scale to bring these crimes within the purview of the Rome Statute as crimes against humanity. Here it will be seen that the violations since 2000 are both widespread, both geographically and in the types of perpetrators involved, and, furthermore, that the violations are systematic in that they are significantly more frequent at times of elections, and not perpetrated in a manner that suggests inter-party political violence.

Thus, this monograph will focus upon two related issues, with particular emphasis on 2008. Firstly, can it be established that there are credible reports of torture and other gross human rights violations, and, secondly, are these reports widespread and systematic?

Widespread can have two meanings. In the first meaning, widespread can be taken to mean "geographically" widespread; that is, occurring in many different places in the country. In the second sense, it can mean applied by many different agencies, and, here, it refers to the widespread use of torture by many different government agencies - police, army, etc - and government-affiliated bodies - politicians, party supporters, etc. Both meanings will be examined here against some of the available data. In either sense, the implication can only be that the violations have taken place with the active consent or the condonation of the Government, and hence both acts of commission or omission can render the Government liable.

As regards systematic, does the pattern of violations suggest some form of plan by the perpetrators and those responsible for the violators? Here it would be crucial to show that the targets of the violence are a specific group in Zimbabwe, suggesting some form of persecution. It would also be significant if the pattern was temporally specific, such as occurring predominantly during elections.

If the violations can be shown to be both widespread and systematic, then, as the Human Rights Forum has argued, an allegation can be made that these constitute crimes against humanity. Thus this report, using the publicly available reports, will examine to what extent such an allegation can be sustained.

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