June 27, 2008
Mugabe and the Hague
As the sham Zimbabwean election proceeds, there is increasing discussion of charging Robert Mugabe with crimes against humanity - with a view to an eventual trial at the International Criminal Court in the Hague.
Many liberals regard the establishment of the ICC as a triumph for international justice and victims’ rights- and a crucial breach in the idea of inviolable national sovereignty. They also argue that future dictators might be deterred by the sight of prosecutions in the Hague.
But - it seems to me - there are two coherent counter-arguments. The first is pragmatic. It will be much harder to persuade dictators to leave power, if they fear they may end up in the dock in the Hague. Some argue that Mr Mugabe might have agreed to go into exile, were it not for the sight of Charles Tayor - the former Liberian dictator - going on trial at the ICC. Taylor himself, it is argued, only quit office because he thought he had an amnesty. Mugabe and others like him will now never believe in amnesty offers - and so they will cling onto power regardless. It is also argued that the Lord’s Resistance Army in Uganda has - perversely - been encouraged to fight on, becauses its leaders face indictments at the ICC.
There are also principled arguments against the ICC. The US has refused to recognise the court and some American conservatives - like John Bolton - are deeply sceptical of the very idea of international law. There is also a left-wing version of this argument that international justice is just politics by other means. Except that the left tends to point to the political impossibility of bringing American politicians before the ICC.
So is the ICC a fatally-flawed concept - or an important first step towards international justice? And what should be done about charging Mugabe?
I’m not sure what I think, but feel I should probably write about this some time soon. All ideas welcome
The ICC will hopefully be effective in deterring FUTURE infractions, and yet might have perverse effects on those facing indictments for past acts, as you have pointed out. There is a principal in law that legislation should not be retroactive. Was something similar considered when setting-up the ICC? That is, a general amnesty on crimes committed before the ICC was established. Tasteless, I agree, but maybe that would have been the way to balance between the twin arguments you proffer.
Posted by: RCS | June 27th, 2008 at 6:29 pm | Report this commentI think you are along the right lines. These kinds of courts will only punish the defeated and not all the guilty.
For example, is there any doubt that Winston Churchill and “Bomber Harris” were war criminals? How about Truman who used two N bombs against civilian populations? How about Stalin’s crimes against all and sundry? Did they stand trials? No. Why? Because they won the war.
It is hard to make a moral arument in favour of partial justice.
The pragmatic argument is also very correct. It must be commonsense to ease the tyrants out rather than make them fight to the bitter end and cause yet more damage.
P
Posted by: Pacifist | June 27th, 2008 at 6:44 pm | Report this commentSo, according to my suggestion, Mugabe would not face indictment for past crimes, but would certainly be brought to justice for what he is perpetrating today. Yet if that were the case, then possibly Zimbabwe would never have been where it is today.
Still, there is a problem. There probably would have been a need for some high-profile early indictments just to establish the court’s credentials (rather like the way the ECB had to be quick to prove its mettle soon after it was established). A general amnesty might have lowered ‘judicial expectations’. But that is not a legitimate argument. If the principal was that there would not be any retroactive judicial review, then wait until the first infraction and hit hard.
Posted by: RCS | June 27th, 2008 at 6:47 pm | Report this commentI meant ‘pardon’ not ‘amnesty’. Pardon.
Posted by: RCS | June 27th, 2008 at 8:30 pm | Report this commentVillifying and focussing all the attention on Mugabe is counterproductive at this stage. He certainly deserves all sorts of punishment in this life, the after life and the following one, but to help Zimbabwe and its population out of current misery more than the threat of international justice is needed. In my opinion Mugabe is still in power because there is a significant minority in Zimbabwe who have a vested interest in his staying in power. In some quarters Mugabe is still seen as the liberator, and even if he has turned tyrant, he might still be able to escape punishment because of that. However the close circle, the generals and the thugs who keep him in power know that when he goes, they fall. There will be reprisals against them and current violence is also about making sure that never happens. I read somewhere that Mugabe is a prisoner of the corrupt and violent system that he has built, in a way that is true.
Posted by: Rissa | June 27th, 2008 at 10:12 pm | Report this commentWhat can be done? sanctions against all those who are making sure that the brutal regime stays. As a national from Zimbabwe my heart almost sank a few days ago when hearing Lord Malloch Brouwn talk about condemnation from the UN, the African Union, international disproval bla bla bla…like Mugabe gives a damn. Then he started talking substance about actions that would really hurt such as freezing assets abroad. To this I would like to add stopping wifes from having shopping sprees abroad, sending kids studying abroad back to the country their fathers are destroying, ensuring that when sick they can get no treatment abroad but are forced to use the local broken health system, putting their names in an international black list… This sort of threat had influence in Kenya, it will in Zimbabwe. While the majority of people is back to bartering and struggling to feed everyday, some are riding SUVs and fancy cars on the streets of Harare. If the west is serious about forcing change, international targeted sanctions against ALL those in the close circle of Mugabe responsible for this mess will definitely tilt the balance of risk and rewards.
Thank you, Rissa, for the most sensible contribution to the Mugabe debate I have read to date. I did note myself a few days ago that Zimbabwean oil company shares were, apparently, still trading in London - and wondered why. But your ideas on sanctions are much more likely to hit hard - and to hit home.
Posted by: Derek Tunnicliffe | June 28th, 2008 at 5:57 pm | Report this commentMuch worse is what George W. Bush and Tony Blair have done invading and occupying two sovereign nations of 26 million people and causing half a million murders…
Compared to George W. Bush and Tony Blair Robert Mugabe looks like Robin Hood.
Posted by: Enrique | June 28th, 2008 at 7:40 pm | Report this commentRissa describes the tragic reality in Zimbabwe, something that not many of us in the west who loathe Mugabe are paying much attention to, and that his cowardly supporters in other African countries are heeding even less. Is there really any other solution than to put strong pressure on South Africa, which could most likely boot Mugabe out tomorrow if it wished? And I do not mean more speeches. I mean sanctions.
Certainly, this has a bad connotation because it brings back memories of the apartheid regime. But what Mugabe is doing is in some ways even worse. Then after South Africa dumps him, off to the Hague with him and his military thugs. It sould still be better for them than having to face the wrath of their own people.
Posted by: algasema | June 29th, 2008 at 7:27 am | Report this comment“It would still be better”. Apologies.
Posted by: algasema | June 29th, 2008 at 7:29 am | Report this commentOne additional thought: Perhaps the only positive development is that other African would-be mediators in the Zimbabwe catastrophe seem to be ready to stand up to meet the challenge of ousting the spineless Thabo Mbeki from this role.
Even despite his support of Mugabe and his having in effect condemned millions of South Africans to death by engaging in AIDS denial for much of his term in office, Mbeki will, clearly, still be regarded more favorably by history than South Africa’s white rulers under apartheid. But perhaps not by much.
Posted by: algasema | June 29th, 2008 at 2:37 pm | Report this commentCharles Taylor is being tried before the Special Court for Sierra Leone, not the ICC.
Posted by: Clare | June 30th, 2008 at 3:29 pm | Report this commentDear Clare,
Posted by: Gideon Rachman | June 30th, 2008 at 3:42 pm | Report this commentCorrect - tho’ the trial is actually taking place in the ICC building in the Hague under international law. So I think the general point and the demonstration affect on Mugabe - are unaltered.
“For example, is there any doubt that Winston Churchill and “Bomber Harris” were war criminals?
Compared to George W. Bush and Tony Blair Robert Mugabe looks like Robin Hood.”
OK but what do you suggest doing about Mugabe!?!
Posted by: Jalipa | June 30th, 2008 at 4:03 pm | Report this commentThe effect on Mugabe may be unaltered, however, I would look the differences between the Rome Statute and the SCSL Statute to see how the situation would work practicially if you are going to try Mugabe before the ICC. If we are bringing Mugabe before the ICC we would have to get a United Nations Security Council referral, as is the case with Darfur. If we are setting up an independent tribunal to try him, we would probably have to get the UN to set it up anyway, because they have done the others. Of course these may be things to look into if you decide to write more on the topic. It is an interesting intersection of law and politics.
Posted by: Clare | June 30th, 2008 at 4:03 pm | Report this commentThomas Barnett on Sebastian Mallaby’s idea for an
International Reconstruction Fund in Blueprint for Action:A Future Worth Creating pages 52 54 65-66.
http://www.foreignaffairs.org/20020301facomment7967/sebastian-mallaby/the-reluctant-imperialist-terrorism-failed-states-and-the-case-for-american-empire.html
http://www.thomaspmbarnett.com/glossary.htm#A-to-Z%20Rule%20Set
http://www.google.com/search?client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&channel=s&hl=en&q=sebastian+mallaby+international+reconstruction+fund+&btnG=Google+Search
Legacies of colonialism and cold war proxy conflicts in the developing world die hard.
Posted by: Jarrod Myrick | June 30th, 2008 at 5:05 pm | Report this commentPlease consider Thomas Barnett’s rule-set for processing criminal regimes: he uses Sebastian Mallaby’s idea for an International Reconstruction Fund.
Posted by: Jarrod Myrick | July 1st, 2008 at 3:12 pm | Report this commentDear Gideon,
1. You argue that it will be much harder to persuade dictators to leave power if they fear they may end up at the ICC, however, the Court is not concerned about official capacity. The fact that a person is a Head of State is irrelevant and does not exempt that person from criminal responsibility. Also, immunities do not stop the ICC for exercising its jurisdiction over a person. In short, the ICC can go after dictators in power.
2. You refer to the US’s refusal to recognize the court as evidence that the ICC may be a flawed concept. I would like to point out that 106 countries (including almost all of Europe and South America, and almost half the countries in Africa) are members of the ICC and that a further 40 countries have signed, though not yet ratified the Rome Statute. The majority of countries support the work of the Court as a key step towards international justice.
The US attitude, under the Bush administration, regarding the ICC only serves to diminish its credibility as an advocate of human rights and justice. However, it is important to mention that there is great support for the Court within the US and that American Conservative John Bolton’s views do not represent the views of a majority of Americans on the ICC. Further, it should be noted that the US acknowledged the ICC’s authority to prosecute war crimes and crimes against humanity in Darfur, Sudan and support the ICC’s investigations and prosecutions of those atrocities.
Posted by: Aurelie Coppin | July 1st, 2008 at 8:31 pm | Report this commentThere is an important moral question of whether or not we should allow dictators of Mugabe’s caliber the power to decide where and how to get out of power. There is a lot to be said for attempting to stop the great suffering that so many Zimbabweans have been through at his hands. To allow him to continue to dictate where and under what conditions he will leave office, however, is a sticky moral point. Right now he is holding all of the citizens of Zimbabwe hostage as he tries to hold onto power. If this were a domestic situation and Mugabe was not a political leader there is no doubt that after he was apprehended he would be tried in a court of law. This is what justice demands. These norms of justice are universal across all cultures. We can’t have Mugabe escaping them just because he is a political leader. This is where bodies such as the ICC can be useful, to extend the norms of justice that all societies subscribe to up into the highest echelons of political power.
Finally, it is difficult to predict how institutions like the ICC are perceived in the minds of people like Mugabe and Joseph Kony. It is true that indictments by the ICC may be keeping Kony from surrendering. It is also true that the ICC indictments appear to be the reason why Kony was amenable to peace talks in the first place. The simple fact is that if we knew how to read the minds of these people we would know how to get them out of power. Institutions like the ICC are vulnerable to political manipulation; however, in this instance the ICC is not in a position to decide if it would start and investigation into the situation in Zimbabwe. Because Zimbabwe is not a State Party to the ICC, the situation would have to be referred by the United Nations Security Council. The international community has an array of options to decide how to deal with Mugabe—sanctions, a special tribunal, referral to the ICC etc. This decision is up to the international community and should not be left up to Mugabe. The ICC is just one option and it is not allowed to make this decision on its own. The way “ICC” has been referenced in this post is misleading about the actual institution.
Posted by: Lucy Betteridge | July 1st, 2008 at 9:04 pm | Report this comment