By Mark S Ellis
THE recent United Nations Security Council’s resolution authorising the International Criminal Court (ICC) to prosecute Sudanese war crime suspects is a significant advancement of inter
national law. It is the first time that the UN Security Council has used the “trigger mechanism” to initiate proceedings before the ICC for the prosecution of international crimes.
The resolution also marks a fundamental shift by the United States in acknowledging the ICC’s potential role in maintaining international peace and security. The United States, which has vehemently opposed the ICC, took the extraordinary step of dropping its opposition to the resolution in order to ensure that the perpetrators of the atrocities in Sudan’s western Darfur region are brought to justice.
The UN Security Council should now turn its attention to Zimbabwe in order to end the government’s policies that sanction systematic human rights abuses. It should request the ICC to investigate President Robert Mugabe for committing crimes against humanity.
The ICC was established on July 1 2002 as the first permanent international court to investigate and try individuals for the most heinous violations of international humanitarian law, including genocide, war crimes and crimes against humanity.
Under the UN Charter, the Security Council can decide what measures should be taken to maintain or restore international peace and security. Ending crimes against humanity has long been considered a crucial step in maintaining this peace and security. Thus, the referral to the ICC to immediately investigate the crisis in Zimbabwe would fall squarely within the powers of the Security Council.
Furthermore, in the exercise of its wide discretionary powers under the UN Charter, the Security Council could specifically name Mugabe as per se an ongoing threat to the peace and security of the region and authorise an ICC investigation. This request for an investigation of the crimes committed by Mugabe could occur even though Zimbabwe has refused to acquiesce to the jurisdiction of the ICC.
It is the right time for the UN Security Council to instruct the ICC to initiate a preliminary investigation against Mugabe for crimes against humanity. The recent flawed parliamentary election in Zimbabwe means that the country will languish in crisis and Mugabe’s flagrant violations of international law will continue unabated.
It would be decisively straightforward for the ICC prosecutor to show a prima facie case that Mugabe has committed crimes against humanity. It requires showing that the general policy of the government is to commit multiple crimes that are part of a widespread and systematic attack against any civilian population.
The crimes could include, among others, murder, enslavement, torture, imprisonment and rape. The well-documented and mounting evidence of these same crimes committed by Mugabe’s regime is both staggering and indisputable.
However, Mugabe’s atrocities are not limited to inflicting egregious physical pain on his own citizens. Under the ICC statute, Mugabe can be held accountable for other inhumane treatment perpetrated by his government that causes severe mental or physical suffering.
This would include the deprivation of access to food through Mugabe’s widespread and systematic policy of using food as a political weapon. It is widely acknowledged that those Zimbabweans who support Mugabe’s Zanu PF party have access to the dwindling supply of government food aid. However, if you are in opposition to Mugabe, you will be refused even a single morsel of this life-sustaining maize.
This nefarious government policy is particularly deadly in the current drought that is prevailing in the country. Zimbabwe’s agricultural output had already been so ravaged by the government’s policies that the country now has the highest number of citizens starving in Africa.
Zimbabwe is a country in ruin. Its people are destitute. Zimbabwe’s demise has been long and painful. Since 1998, annual foreign investment inflows have dropped from US$436 million to less than US$5 million today. The unemployment rate exceeds 80%. Zimbabwe is experiencing hyperinflation that is over 100%, and climbing.
The country’s pandemic Aids crisis means that one in four Zimbabweans is HIV-positive. Life expectancy has plummeted from 61 to 34 during the last 15 years. Primary school completion rates in Zimbabwe have dropped by 20% during the last 13 years. Unicef has estimated that over one million children are orphaned; this number will dramatically increase during the next year.
The people of Zimbabwe have been courageous in their struggle to defeat Mugabe, and, in turn, regain their liberty and their country. However, Mugabe’s state machine is simply too powerful and too corrupt to be defeated by a weakened and demoralised citizenship. The citizens of Zimbabwe need to hear a stronger international voice for holding Mugabe accountable for his crimes.
A request by the UN Security Council for the ICC to investigate Mugabe for crimes against humanity will provide an enormous boost to the people of Zimbabwe. Those who have been victimised by Mugabe’s policies will know that justice is not expendable.
An ICC investigation will also send an unmistakable message to Mugabe that he can try to manipulate and evade domestic justice, but he will not escape international justice. There is no impunity for those who commit crimes against humanity.
*Mark Ellis is executive director of the International Bar Association, London.