Could Mugabe be charged with international crimes? Simply put, crimes against humanity are acts such as murder, torture, rape and politically-motivated severe human rights violations “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (see Article 7, Statute of the International Criminal Court). In addition, such an attack must be committed, at least under ICC law, “pursuant to or in furtherance of a State or organizational policy to commit such attack” (see the ICC Elements of Crimes).
A widespread and systematic attack against opposition supporters, planned and orchestrated by Zanu-PF and the government of Zimbabwe certainly appears to have proceeded the second-round presidential elections.
There are two principal obstacles to an ICC indictment for Mugabe. The first is that, as Zimbabwe is not a party to the Court’s Statute, the Security Council would have to refer the situation to Zimbabwe. Given Russia and China’s stance on intervention in another State’s “internal affairs”, that seems unlikely.
The second obstacle, and I say this with some trepidation, is common sense. Counter-intuitive as this may sound, any effort – even a successful one – to remove Mugabe is likely to be an obstacle to a peaceful transition in Zimbabwe.
Mugabe is not necessarily the largest part of the problem. As Allan Little of the BBC puts it:
Robert Mugabe is now cocooned with a group of men who came through the liberation struggle with him. ...
When the opposition talk of allowing Mr Mugabe to retire with dignity, these men know that this magnanimity does not extend to them; that a post-Mugabe Zimbabwe will expect a holding to account.
Mugabe, in a sense, is their prisoner. They won't let him go quietly, leaving them exposed to revenge.
Fear is the means by which they stay in power - the people's fear of them. But they too live in fear, fear of the reckoning that the people will, themselves, one day, demand.
A transition to a peaceful and stable Zimbabwe will, in the short term, require that all these men be bought off – odious a prospect as that may be.
So what role international criminal law? Is Geoffrey Robertson right to claim that justice is a necessary precondition to peace? In my view, yes and no. There will be no lasting peace without justice, but attempting to make it a precondition in every case risks destabilising post-dictatorship transitional societies.
The best option, in many ways, is the Argentine solution: allow the outgoing government to cover themselves in amnesty laws as the price of securing a stable democracy; then allow campaigners, national parliaments and courts, and international attempts at prosecution to progressively repeal those amnesties and put the criminals on trial.
Some might ask, but what would you have the West do? I actually think the very painful answer may be: if there is no reasonable prospect that anything you could do would make things any better, the right thing is to do nothing at all. Indictment of Mugabe, the laughable prospect of sanctions (how do you impose sanctions on a ruined economy?), or outright military intervention will only drive this cabal and their supporters to further violence. Indeed, any such action just makes Mugabe’s cabal and their ridiculous western-conspiracy rhetoric look more credible.
There will come a time to indict these men, but it may have to follow – not precede – a new internal constitutional settlement in Zimbabwe. In that process, only the voices of neighbours are likely to have any influence at all.