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We can do something about Mugabe
Mark S Ellis, The Times (UK)
April 30, 2008

http://business.timesonline.co.uk/tol/business/law/article3841142.ece

The UN Security Council is to hold a critical session this week to discuss the crisis in Zimbabwe. Conventional wisdom suggests that there are limited options available for the international community to quell the crisis. This is a misconception. There is an effective legal mechanism available to counter Mugabe and demand justice and accountability.

The Security Council should immediately authorise the International Criminal Court (ICC) to investigate the chain of command behind the most heinous crimes committed by Robert Mugabe's regime against the people of Zimbabwe. An ICC investigation will not only open the doors to justice - long overdue in this embattled country - but could deter Mugabe and others from further crimes. The continued failure to act will likely result in a higher death toll, and increasing violence against the Zimbabwean people. We are already witnessing an escalation of widespread government violence against opposition activists.

After his 28-year reign Robert Mugabe has left his country and people destitute. Zimbabwe is mired in corruption and political tyranny; its economy has all but disintegrated. Mugabe is not just a despot; he is a criminal, liable for crimes against humanity that go unpunished. The crimes perpetrated by Mugabe's repressive regime make a mockery of the most basic principle of international criminal law: accountability.

The international community's response to the crisis has been feeble. The African Union has generally refused to condemn human rights abuses. South Africa's "quiet diplomacy" has been an unmitigated failure. The United Nations' response has been underwhelming. The collective failure of the international community to intervene has enhanced Mugabe's belief that he can act with impunity.

Yet, international law is unequivocal in demanding that those who commit crimes against humanity be held accountable. Global action is essential because the crimes are so egregious. Crimes against humanity are committed as part of a widespread or systematic attack against a civilian population, and are usually carried out to a preconceived policy or plan by the Government. Criminal acts can include killings, sexual violence, torture, displacement and other inhuman acts such as using the distribution of food aid as a political weapon, or depriving housing and medical care to those who oppose the Government. Mugabe has committed or been complicit in all of these.

Under international law, Mugabe can be prosecuted under the concept of "command responsibility". This legal principle holds that those in a position of authority can be held personally responsible for crimes committed by subordinates, including the army and police. So long as Mugabe knew or had reason to know that crimes were being committed by his henchmen and did nothing to stop them, he can be held criminally liable; he did not have to commit the crimes himself. The concept of command responsibility provides the legal linchpin to ensure that government officials who mastermind, incite or order the commission of crimes are brought to justice. The legal basis for holding Mugabe accountable is straightforward.

The ICC was established in 2002 to end impunity for the most heinous crimes. Because Zimbabwe has not recognised the court's jurisdiction, the United Nations Security Council can authorise the ICC to investigate crimes committed by Mugabe and his regime. To do this, the UN Security Council need determine only that crimes against humanity "appear to have been committed" by Mugabe's regime and that Zimbabwe's crisis is a threat to regional peace and security. These are not steep legal hurdles. The crisis is real and evidence of Mugabe's complicity is well-documented and overwhelming. The UN Security Council used this same referral process to bring indictments relating to the crimes committed in Darfur; the international precedent has been set. As with Darfur, what is needed now in Zimbabwe is a collective affirmation that justice is not expendable.

For beleaguered Zimbabweans suffering under Mugabe's brutal regime, the international community's attempts at condemnation are ineffective and disheartening. Condemnation is not enough. The international community must take action. If the UN Security Council fails to refer the case to the ICC, it must explain to the world why Mugabe is given safe harbour by the UN and allowed to act with impunity.

* The author is executive director of the International Bar Association

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