By Rob Monroe
IN recent months discussion on Zimbabwe’s political situation has centred on the issue of inter-party negotiations and related matters such as a transitional government, co
nstitutional change and a re-run of the presidential election under free and fair conditions.
However, there appears to be little discussion on the issue of transitional justice, on the processes available and appropriate to secure justice for the victims of gross and systematic human rights violations perpetrated by state officials or with the acquiescence of the state.
Securing justice, to mean accountability and punishment for perpetrators on the one hand, and reparations or redress for victims on the other hand, is not simply a moral imperative. It is a political necessity to combat a culture of impunity stretching unbroken from colonial times through the Smith regime and the Gukurahundi violations in Matabeleland and Midlands in the 1980s to the present wave of organised violence and torture which have been particularly marked since April 2000. Only true justice will convey the hard message to present and future generations that perpetrators of politically-motivated acts of torture and assault will be held accountable and punished. Equally, only true justice for the victims of such gross human rights abuses will assuage their feelings for revenge through unlawful means.
What little discussion there has been concerning transitional justice has largely been confined to the question of amnesty for perpetrators of gross human rights violations, notably for President Robert Mugabe himself. While amnesty may be politically expedient for contesting political parties and may facilitate a smooth political transition in the name of reconciliation, it will not deliver truth or justice.
In any event, national amnesties do not protect individuals from international prosecution either by other states using the principle of universal jurisdiction or by the recently-established International Criminal Court. This reflects the requirement under international law that states have an obligation to ensure reparation for victims of systematic human rights violations, as so clearly spelt out by the UN Human Rights Committee in its reference to the torture provision in the International Covenant on Civil and Political Rights (which Zimbabwe has ratified): “Amnesties are generally incompatible with the duty of states to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.
States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.” This explains why the UN decided to prosecute the notorious Foday Sankoh of Sierra Leone.
Clearly, if perpetrators of organised violence and torture in Zimbabwe are to be held accountable for their crimes, and if victims are to receive redress including restitution, compensation and rehabilitation, a mechanism that reflects the country’s particular circumstances must be established to achieve this – circumstances that include the nature and extent of the gross and systematic human rights violations that have taken place, the profile of the perpetrators from so-called “war veterans”, youth militia and political party supporters through to police and army personnel, and the profile of the victims themselves, from victims of specific acts of violence and torture to those who have generally suffered from civil and political conflict. And the views of all Zimbabweans, not just politicians but victims, their families and civil society as a whole, must be sought in determining a national process likely to deliver truth, justice and an end to impunity for state-sanctioned violence and torture.
However, failure to provide justice at the national level for gross and systematic human rights violations does not mean that justice shall be denied. The last 10 years have witnessed remarkable developments in the machinery of international justice and the application of international conventional and customary law regarding genocide, war crimes and “crimes against humanity” where these include torture and other crimes committed against civilians as part of a widespread or systematic process induced by a state or government. Such developments in international human rights law that spring to mind include the establishment of the International Criminal Court in April 2002, the arrest of General Pinochet in 1998 under the principle of universal jurisdiction, and the establishment in quick succession of international criminal tribunals for the former Yugoslavia, Rwanda, East Timor and Sierra Leone and the subsequent stream of indictments, trials and convictions under these tribunals.
Not only is torture prohibited in terms of various international treaties, such as the UN Covenant on Civil and Political Rights and the UN Convention against Torture, but its prohibition has the status of jus cogens, the highest status in international law. This status means that states, as members of the international community responsible for upholding international law, are obliged to prosecute and punish alleged torturers regardless of their nationality or where the torture was committed. In terms of the Convention against Torture parties are required to prosecute alleged torturers or extradite them to countries that will do so and it was under this principle of universal jurisdiction that Pinochet was arrested in Britain and his extradition sought by Spain. And as the Pinochet case established as an historic precedent, the jus cogens status of torture means that former heads of state and their officials are no longer immune from international prosecution for crimes against humanity committed whilst in power.
Article 27 of the Statute of the International Criminal Court states that no government official, elected or otherwise, shall be immune or exempt from “criminal responsibility under this Statute”, and Article 29 reflects international convention in declaring that “the crimes within the jurisdiction of the court shall not be subject to any statute of limitation”. Whilst Zimbabwe has not ratified the Statute and is therefore not bound by it, ratification by a future government in Zimbabwe or jurisdiction through a UN Security Council resolution means that those responsible for directing, inflicting or condoning torture and like crimes may well find themselves before the court or must live with this prospect for the rest of their lives.
To borrow the words of the eminent jurist, Geoffrey Robertson QC, “the concept of universal jurisdiction for crimes against humanity is the solution that international law offers to the spectacle of impunity for tyrants and torturers who cover themselves with domestic immunities, amnesties and pardons. They can still hide, but in a world where jurisdiction over their crimes is universal, they cannot run.”
Rob Monroe is a civic activist.