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01 July 2008
MORGAN TSVANGIRAI, Zimbabwe's opposition leader, has called for the United Nations to send peacekeepers to his ravaged country. Others, including Jacob Zuma, leader of South Africa?s ruling African National Congress, have begun calling on the "international community" to intervene.
At the same time, the International Criminal Court (ICC) is being urged to investigate Zimbabwe?s president, Robert Mugabe, for crimes against humanity. What is the legal basis for such moves, and how likely are they to take place?
Under the new concept of an international "responsibility to
protect", adopted unanimously by world leaders (including Mr Mugabe) at
a UN world summit in New York in 2005, intervention in a state's
internal affairs is permitted in the event of genocide, crimes against
humanity, ethnic cleansing and other mass atrocities, if that state is
unwilling or unable to protect its own people.
Indeed, R2P, as it has become known in diplomatic jargon, places an
actual obligation on governments, usually acting through international
bodies such as the UN, to intervene in such ases.
Natural disasters and human-rights violations on a less gross scale do not qualify, which is why such an intervention was not possible in Myanmar after May's cyclone.
But it is arguable that Zimbabwe could qualify. Under the ICC's Rome statute, crimes against humanity are defined as inhumane acts, such as torture or murder, that are"widespread or systematic, intentionally causing great suffering and serious injury to the body or to mental and physical health". That seems to fit the pattern of systematic rape, torture, murder and other atrocities being perpetrated against Mr Tsvangirai?s supporters.
But qualifying for R2P is only the first (and easiest) step. Any
intervention involving sanctions or armed force requires authorisation
by the UN Security Council, meaning no opposition from any of the
council's five permanent veto-wielding members: Britain, China, France,
Russia and the United States. For the council to have issued a statement
for the first time condemning Zimbabwe's government for the violence and
intimidation surrounding its presidential elections is regarded as a
tour de force. The idea that it may actually agree to send in UN
peacekeepers is considered by many to be ludicrous.
But it was once regarded as ludicrous that the council would ever
agree to refer Darfur to the ICC for investigation--yet it did. Almost
everyone said that China, with its close ties to Sudan, would never
agree to send UN peacekeepers to Darfur--yet it did. More recently, it
was assumed that the Security Council, on which South Africa holds a
two-year seat, would never say boo to Zimbabwe over the conduct of its
elections, surely an internal matter if there ever was one. Yet it has.
So the "presidential statement" issued by the Security Council on June 23rd was something of a triumph, given South Africa's presence and China's and Russia's traditional reluctance ever to intervene in a state's internal affairs. For, unlike council resolutions, such non-binding presidential statements can be adopted only unanimously. And, though it was a watered-down version of a British draft reportedly calling for Mr Tsvangirai to be regarded as Zimbabwe's legitimate president, it contained some tough language, squarely blaming Zimbabwe's government for the humanitarian and political crisis at a time when Thabo Mbeki, South Africa's president, was still refusing to do so.
True to form, the UN's recently revamped Human Rights Council, based in Geneva, which might have been expected to be taking a keen interest in what is going on in Zimbabwe, has not even raised the issue. Unlike its discredited predecessor, the Commission on Human Rights, it has the power to call for an emergency session to address a particularly egregious violation of human rights, for example in Zimbabwe. All that is required is for one-third of the council's members to back the move. But not a single country, not even Britain, has even suggested putting forward such a motion; the United States is not a member.
In theory, calling an emergency session on Zimbabwe should not be so
difficult. Of the council's present 47 members (elected for three-year
terms on a rotating basis by the UN General Assembly), 23--just one shy
of an absolute majority--are deemed "free" by Freedom House, an American
think-tank, on the basis of their civil-liberties and political-rights
records; ten (including China, Pakistan, Russia and Saudi Arabia) are
judged "not free", with the rest considered "partially free". But with
its 16 members, the Organisation of the Islamic Conference, supported by
13 African members, has a stranglehold over the council. Together, they
repeatedly fend off moves to look into the human-rights records of
Muslim or African countries.
As for an eventual indictment at The Hague by the ICC--which is backed by the UN but independent of it--this, too, is tricky. Though the atrocities being perpetrated by Mr Mugabe and his army, police and party militias could well be considered crimes against humanity and may therefore fall within the court?s jurisdiction, Zimbabwe is not a party to the court. So the UN Security Council would have to refer Zimbabwe to the ICC, a step that China or Russia may be expected to veto. But as the Beijing Olympics draw near, China just may be willing to abstain on such a resolution, as it did over Darfur. And Russia, not wanting to be left out on a limb, may agree to do the same. So Mr Mugabe is not out of the court's sights yet.
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