analysis
James Michael
In his private moments Robert Mugabe probably wonders (as has been reported) what will happen to him if he does not stay in power and where he could go safely to avoid legal action for his alleged crimes against humanity.
Having two law degrees, he may be paying particular attention to decisions by national and international courts about the immunity, or lack of it, provided to government officials for such alleged crimes.
Augusto Pinochet was refused immunity by the House of Lords in the United Kingdom, only to be returned to Chile, where he still faces possible prosecution. Slobodan Milosevic was handed over by the new Yugoslav government to the Hague Tribunal, where now he is arguing vehemently that it has no jurisdiction to try him. And on Valentine’s Day the International Court of Justice, also in the Hague and more commonly known as the World Court, decided a case brought by the Democratic Republic of Congo against Belgium that on first reading could reassure him though it may not.
Belgium has universal jurisdiction under a 1993 law to arrest people and try them for crimes against humanity, wherever they are and wherever the crimes were committed. Under that law an arrest warrant was issued for war crimes and crimes against humanity for the Congo Foreign Minister Abdulaye Yerodia Ndombasi. The Congo took Belgium to the World Court, arguing the warrant violated the minister’s immunity under customary international law. The Congo won, and the court ordered Belgium to cancel the warrant. So perhaps Mugabe can be reassured.
Or perhaps not. Most of the World Court judges limited their opinions to the narrow questions put before them, and narrowed them again so that almost all the ruling stands for is the proposition that Belgium should not have issued this arrest warrant for this person. The 16 judges limited their ruling to foreign ministers, and to such ministers who are still in office when the warrant is issued. Only 10 thought that Belgium should cancel the warrant. Some of the judges, while agreeing with the majority in all of the findings except the order to cancel the warrant, thought the court should have gone much further.
The judges from the UK, the United States and the Netherlands thought the court should at least have said that crimes against humanity were crimes of universal jurisdiction, even if that did not apply in this case. But Judge Van den Winger (from Belgium, appointed for the case) criticised the majority for focusing on a very narrow technical question, and missing an opportunity to contribute to the development of international law. She accused the court of opening a Pandora’s box of immunity and impunity for government officials accused of crimes against humanity in its effort to prevent abusive prosecutions.
So the case should not, after all, reassure Mugabe. The World Court may have effectively ducked the question of whether he and other high officials are entitled to immunity; other courts, perhaps including some in South Africa, might be more assertive.
Such a case could arise in South Africa if Mugabe were to be given refuge here. If he tried to search the Internet using ‘immunit*’, he might have been given reason by another development to be optimistic .
On February 28 the Diplomatic Immunities and Privileges Act 2001 came into effect in South Africa. It gives effect to various treaties providing immunity from criminal and civil proceedings for heads of state and diplomats. But if Mugabe were to lose the election he would no longer be head of state and would lose his immunity, of course. Perhaps. Section 7 of the Act says that agreements between South Africa and other states about reciprocal immunities must be published in the Government Gazette. It also says: ”The Minister may in any particular case if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette.” A scroll through the grants made by Nelson Mandela and President Thabo Mbeki shows only grants of immunity to worthy United Nations and other international missions.
It is not beyond possibility that Comrade Bob could be on the telephone to Mbeki calling in old favours and offering to go quietly if only South Africa could provide a place where he would be safe from prosecution or civil actions for, say, the Matabeleland massacres. He might keep to himself, for the time being, the provision in the South African Act that provides a penalty of a fine and up to three years’ imprisonment for anyone who ”issues any legal process against a person who enjoys immunity under this Act whether as party, attorney or officer concerned with issuing or executing such process”.
Why would Mugabe choose South Africa over other nearby states?
Some, like the Congo and Angola, are divided. Perhaps most relevant is that it is not immediately ascertainable using the Internet whether any of these states have clear legal provisions for individual grants of diplomatic immunity. And some of the capitals might be beyond the range of the presidential AS532 Cougar helicopter reportedly sitting on the presidential lawn. Another few keystrokes would reveal that the distance between Harare and Johannesburg is about 992km, and that the range of the Cougar is about 899km, unless it is fitted with extra fuel tanks.
Of course the validity of any presidential decree of immunity made under the new statute, and perhaps the constitutionality of the statute itself, would be a matter for the courts, ultimately the Supreme Court of Appeal, the Constitutional Court, or perhaps both.
James Michael, from University College London, is a visiting Professor in human rights law at the University of Cape Town