Against Humanity Zimbabwe (CAHZ) - Jurisdiction
There are many future options for trying Zimbabweans who are alleged
to have committed acts of genocide or crimes against humanity.
The UN Declaration Against Torture, for example, clearly states that
there are never any extenuating circumstances that can justify its
use, either in war, peace or even a dire threat to the nation. Torture
is defined as any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted by, or at the instigation of,
a public official for such purposes as obtaining information or confession,
or as an act of punishment or intimidation.
In 2005, Afghan warlord Faryadi Zardad, who had committed acts of torture
in Afghanistan, was successfully prosecuted and jailed in Britain,
even those the crime had no link to that country. (See www.payvand.com/news/05/jul/1183.html)
The UK attorney-general Lord Goldsmith, argued that torture anywhere
was such "an affront to justice" that perpetrators could
be tried in any country.
When the verdict and 20-year sentence were announced, Lydia Aroyo,
a press officer with Amnesty International, said that henceforth, “Torture
is an international crime and there is no hiding place for torturers.
By definition, crimes against humanity offend people, everywhere, and
therefore can be prosecuted in any willing jurisdiction.
The key word is "willing". Some brave country must consent to have the case heard on its territory. So let's look at some examples which provide useful precedents for Zimbabwe. Back in 1981, the New York Court of Appeals took a decision which changed international justice and even paved the way for Augusto Pinochet's arrest in London almost 20 years later.
The Filártiga family brought an action in New York against a former Paraguayan police chief who had kidnapped their son in Paraguay and tortured him to death. The policeman and the boy's parents were by now both resident in the USA, but the crime had not taken place in that country and the defence held that, since no US law had been broken and no warrant or extradition order existed for the torturer’s
arrest, it was not a matter for local justice.
But the New York Court of Appeals, acting under the Alien Torte Statute, had a different view, even awarding damages to the family. In its ruling the Court held that the act had been in "violation of the law of nations", and that, deliberate torture perpetrated under colour of official authority violates universally accepted norms of the international law, regardless of the nationality of the parties."
Then came the key sentence : "For the purposes of civil liability, the torturer has become - like the pirate and slave trader before him - hostis humanis generis, an enemy of all mankind." The ruling delighted human rights activists : a leading court had decided that those who commit such acts may be prosecuted (albeit in civil rather than criminal action) anywhere in the world, either within or beyond the nation where they did their evil deeds.
In 1998, the House of Lords held the same view when they decided that General Pinochet could be tried in the European Union for crimes committed on the other side of the world. The Lords' went even further than the US ruling, stating that there existed a, "universal jurisdiction over torture wherever committed" and that the guilty were not just criminals in their own land, but, "common enemies of mankind," for which, "all nations have an equal interest in their apprehension and prosecution."
Recent verdicts against other tyrants and warlords have followed suit
and even the African Union which, in the past, has studiously avoided
criticising member states for killing and maiming their citizens, decreed
that there could no longer be a culture of impunity in Africa.
So why, you may ask, has no one from the Mugabe government been arrested
and brought to book? Simple : no hard case, with substantial evidence,
has yet been brought in a willing jurisdiction against Zimbabweans
who have murdered and tortured others.
But that is about to end and, as our dossiers build up, we will be working with lawyers, human-rights groups and interested parties around the world to bring a string of prosecutions. Just talk? Don't you believe it. The clock is ticking, but we need your help in the logging of evidence. We will not be deterred from our goal!
NB For an excellent account of how human-rights law and international jurisdiction has developed, look at Geoffrey Robertson's book, Crimes Against Humanity, published by Penguin in 2000, with updated editions.