AC Grayling wants President Robert Mugabe tried in The Hague.
He has called on the “international community” to “arrest him, arraign him for human rights crimes (and) lock him up in the Netherlands while trial pends”.
But the “international community” will do no such thing, not because, as Grayling says, it is a “pusillanimous and feeble creature” but because there is no basis in international law for any such arrest.
There is, of course, nothing to prevent Grayling from trying anyway: he could have bought Peter Tatchell a ticket to fly to Rome to arrest Mugabe, or, if Peter Tatchell was not available, there is always George Monbiot, Citizen Cop. Grayling believes that such an arrest would be “the cleanest, quickest, simplest way to give Zimbabwe real help”.
It is unfortunate that Grayling has chosen to swell the ranks of the Western critics who have made gesture politics their own particular brand of action on Zimbabwe.
Let’s take away his honorary degrees. Let’s remove his knighthood. We won’t play games with him, it’s simply not cricket. Keep him away from international summits. And if he goes, we won’t go. Or dine with him. Let’s lock him up in The Hague and throw away the key. Put his effigy on a donkey and do a skimmity ride through the town.
Calls for Mugabe to be tried in The Hague may seem like substantive proposals, and not dramatic stunts, but they are more of the same ineffectual busy nothingness; the West must be seen to be doing something even if ultimately it is doing nothing.
Not only do these empty gestures fail to address the problem, they prevent proper analysis and examination, and, by setting the terms of the debate, become part of the problem.
Grayling says the world should “put the wretched dictator within reach of international law: nab him and put him on trial”. But what international law is he talking about? Grayling clearly means for Mugabe to be arraigned for crimes against humanity before the International Criminal Court (ICC), but how would this work exactly?
The ICC is a treaty-based tribunal; the court has no automatic jurisdiction over Mugabe. Matters are referred to the ICC either by a state party to the Rome Statute establishing the ICC, or by the ICC prosecutor in respect of a situation arising in the territory of a state party. Zimbabwe is not a party to the Rome Statute, and Mugabe is unlikely to ratify the treaty and sign a declaration that would enable him to be tried there.
There is also the possibility of a UN Security Council referral that would enable the treaty to apply to a non-signatory. But given the presence on the Security Council of Russia and China with their veto powers, it is hard to conceive circumstances under which the council would be able to pass a resolution to refer Mugabe to the ICC.
China was willing to send arms to Zimbabwe even as the eyes of the world were on the post-electoral crisis, and Russia is the only country in Europe that consistently sends a mission to observe and endorse Zimbabwe’s flawed polls.
And even if the Security Council were to make such a referral, it is unclear that many of the “crimes” committed by Mugabe actually amount to international crimes.
Not every human rights violation is an international crime. In any event, some of the most egregious violations for which Mugabe may be responsible took place in the 1980s and are beyond the reach of the ICC: it only has jurisdiction to investigate situations occurring after July 1 2002, the date on which the Rome Treaty entered into force.
The Hague mesmerises with the promise of justice stamped with the international imprimatur. But missing from Grayling’s proposal is an acknowledgement that international tribunals, as in the case of Slobodan Milosevic, are more often the theatre for a prohibitively expensive form of international politics than a venue for justice.
More crucially, missing is any recognition of Zimbabweans as agents in their own fate. There is something incredibly paternalistic in the view that Zimbabweans cannot be trusted to deliver their own justice. Writing for the Independent, Gugulethu Moyo presented a layered picture of Zimbabwe’s current judicial system.
The restoration of the rule of law will mean restoring faith in the judiciary, which should not be too difficult to achieve; under Chief Justices Enoch Dumbutshena and Anthony Gubbay, Zimbabwe had a reputation for excellence, and even on the current bench are judges who have refused to be bought.
Waiting in the wings are any number of gifted lawyers who would flourish in the judiciary. There is no reason to suppose that, when the time comes, it will be impossible to establish a panel of fair and independent judges or a commission to examine the excesses of Mugabe’s regime. If Mugabe is to be tried, he cannot be tried alone.
And it will not be only for the alleged most recent human rights violations that have inflamed the imaginations of Grayling and other critics, but also alleged economic crimes that the ICC cannot touch.
In a world in thrall to the idolatry of human rights, the crisis in Zimbabwe has been mislabelled as a human rights crisis, when it is in fact a crisis of political and economic governance in which human rights violations are a symptom.
Zimbabwe is facing some hard issues. Futile gestures and simplistic arguments not only detract from the work to be done, they also feed into Mugabe’s propaganda machine; Mugabe and his party wax fat on all the hot air and empty rhetoric.
Thabo Mbeki is correct in one thing: the problem of Zimbabwe is for Zimbabweans to resolve. This is not to say that the “international community”, however defined, has no role to play. Indeed, the section of the “international community” that has the most significant role to play is not the West, with its futile gestures, but African leaders who need to find the moral courage to stop providing political succour to Mugabe.
But ultimately, this is a battle for Zimbabweans: if the majority of Zimbabweans who wish for change turn up in sufficiently large numbers, they will deal with Mugabe, first, by voting him and his party out of office at the end of the month, then, by the bitterly painful process of talking to him, if it becomes necessary, and, if the circumstances demand it, try him before Zimbabwean judges on Zimbabwean soil for his supposed crimes against the Zimbabwean people and economy.
The rest of the world should support Zimbabweans in this process, and not distract it with empty rhetoric and futile gestures. – newzimbabwe.com.
By Petina Gappah/Silas Chekera