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Diplomacy's immunity
Conor Foley, The Guardian (UK)
December 10, 2007

http://commentisfree.guardian.co.uk/conor_foley/2007/12/diplomacys_immunity.html

Should Robert Mugabe be arrested while he is in Lisbon for the European Union-Africa summit at the weekend? Peter Tatchell argues that he should and that:

"It is time to end the culture of impunity, which allows tyrannical leaders to get away with human rights abuses. Torture is a crime under international law. Mugabe and other torture-condoning despots should be prosecuted. Giving them state immunity is collusion with their crimes."

Tatchell has some previous "form" on this issue as he once attempted to make a citizen's arrest of Mugabe, when he visited London in October 1999, accusing his regime of condoning "murder, torture, detention without trial, and the abuse of gay human rights". I am fairly sure the charges are true and Mugabe has committed numerous more crimes against his own people since then. I like and admire Tatchell's work, but I think he is wrong on this issue.

The case that Tatchell makes for Mugabe's arrest is based on what has become known as the "Pinochet principle", which led to the former Chilean dictator being arrested in London, on the foot of a Spanish extradition warrant in October 1998. I was working at Amnesty International UK at the time and we were given leave to intervene in the case to argue that international law creates a requirement on states to prosecute those responsible for grave human rights violations irrespective of where these have been committed.

The UN convention against torture has universal jurisdiction and since Britain, Chile and Spain had all ratified it, the law lords ruled that Pinochet could be prosecuted for acts of torture that he was alleged to have ordered after the date it came into force in the three countries. Pinochet claimed both state and diplomatic immunity, arguing that, as a former head of state, he could not be held personally liable for every act that his government committed. The law lords, however, held that, since torture is defined as something that can only be committed by public officials, it would be absurd to give public officials immunity, since this would mean that no one could ever be prosecuted. Quoting the Nuremburg judgment condemning Nazi criminals, they noted: "the principle of international law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law."

This principle is important. If it could ever be proved, for example, that Donald Rumsfeld, or other previous members of the Bush administration, had personally ordered the torture of detainees, they would liable to prosecution. Ideally this should be done in a US court, but it is conceivable that a case could be taken against them elsewhere. So what is the objection to arresting Mugabe, who almost certainly has ordered such acts?

Mugabe is currently head of state in Zimbabwe and so enjoys absolute diplomatic immunity when travelling abroad in his official duties. The concept of diplomatic immunity has customary law status. Without it heads of state could not attend international conferences, negotiate directly or sign treaties. When a Belgian court issued an arrest warrant for the foreign minister of the Democratic Republic of Congo, its government complained to the international court of justice, which ruled in
2002 that such prosecutions couldn't be pursued while someone is currently in office. Once they step down there is no reason why charges cannot be brought at this stage.

Mugabe is not likely to step down from office any time soon and Tatchell cites the issuing of indictments against both Slobodan Milosovic and Charles Taylor by international tribunals while both were still heads of state. The newly created international criminal court (ICC) has also recently indicted a serving Sudanese government minister. But these are international tribunals and that is the crucial distinction. If Europe's courts have the right to arrest serving African heads of state then Africa's have the right to reciprocate. The courts of Iran, Saudia Arabia and North Korea could also order the arrest of the heads of State of Canada, New Zealand and Sweden and so on.

This not a recipe for global stability and the problem of impunity which Tatchell identifies is precisely the one that the ICC was created to deal with. Unfortunately, and despite claims to the contrary, its statute currently does not give it universal jurisdiction. It can currently only charge people, including heads of state, either if they are nationals of a state that has ratified the statute or have committed crimes on the territory of a state which has done so. Zimbabwe has not ratified the Rome statute or the UN convention against torture and so Mugabe cannot be prosecuted on this basis. The only other way for the ICC to gain jurisdiction is through a referral from the UN security council, which can be vetoed by any of its permanent members.

The statute is up for an amendment in 2009 and I have argued previously that one of the issues that it will need to discuss is how to define the crime of aggression. The existing statute was the product of a series of messy compromised that were primarily designed to win the approval of the US. It failed in this objective, which means that the US, and a number of other states like Zimbabwe, which participated in the original negotiations, have excluded themselves from subsequent discussions.

For those who really want to combat impunity, these negotiations provide an opportunity to create a court that really can advance the cause of universal justice. Calling the cops on Mugabe, unfortunately, is just a diversion.

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