Six years ago, Mark Ellis was invited for tea with the president of Zimbabwe. The chief executive of the International Bar Association, the world’s largest international association of lawyers, remembers Robert Mugabe as a generous and captivating host.
“We were feted as dignitaries, with drinks and food,” says Ellis. His visiting mission of legal experts raised concerns about the rule of law. In response, Mugabe made a number of commitments to his guests — a group whose members included Peter Goldsmith, now Britain’s Attorney General, and South African advocate George Bizos.
They had hardly stepped out of their meeting before the lawyers found themselves surrounded by television cameras from Zimbabwe’s state media. “They asked very prejudicial questions and said we were biased, although the mission had not even given any report on its findings at that time,” Ellis recalls. “Whatever hope we had that Mugabe was serious about resolving serious problems disappeared at that moment.”
These days Ellis campaigns vigorously for the prosecution of Mugabe. He wants the United Nations Security Council to refer Mugabe and senior members of his government for investigation by the International Criminal Court (ICC) for crimes against humanity.
His campaign, launched at a lawyers’ conference in Durban in 2003, has been dismissed by Mugabe. “They are trying to tarnish the image of the president and the country,” commented presidential press secretary George Charamba. “Zimbabwe is not part of the ICC and hence cannot be dragged into its councils.”
The lawyers’ mission in Zimbabwe was intended to address the unfolding crisis in the rule of law. Ellis insists it was not opposed to land reform: “We were sensitive to the land reform programme. I understood the historical context of what was happening over land ownership, but our view was that if you’re going to undertake these reforms, they should be done consistent with the rule of law.”
The meeting with Mugabe dealt instead with the role of the legal system. “The judiciary was at that time an independent one, but already clearly within the radar sight of the government.”
Among the president’s advisers, Ellis remembers noticing Jonathan Moyo, then minister of information: “He played a very important role and had the ear of Robert Mugabe. He sat right next to him and guided Mugabe on a number of issues.”
The Zimbabwean courts had ruled that seizures of commercial farmlands were illegal, but already it was apparent the government would ignore these findings. “If you weaken the traditional pillar of the rule of law, then the rest of the system would crumble, and that’s what was happening,” says Ellis.
He argues that the ICC’s chief prosecutor, Luis Moreno-Ocampo, should look closely at the record of government-sponsored torture, beatings and intimidation. These violate international law, and have contributed to the current climate of despair and economic ruin.
In Ellis’s opinion, these policies constitute crimes against humanity. “The evidence is there to show that for six years Mugabe has been at the forefront of a state policy that has included systematic and widespread attack on anybody who does not agree with him or does not support his party or his views.”
Among the world’s lawyers, Ellis stands out for his doggedness in pressing for a criminal investigation of Mugabe. “There are civilians who have done nothing other than question the rule of Mugabe, and because of this they have suffered. They have been killed, they have been beaten, they have been tortured, they have been starved to death. For those individuals, Mugabe needs to be held accountable.”
The Rome Statute, which established the International Criminal Court, clearly implies that the international community will not tolerate certain criminal acts. “Any individual, and particularly a head of state, who commits international crimes should not be immune from prosecution,” says Ellis.
His interpretation of international law has drawn criticism. Opponents counter that there is no consensus among the international community on how to prosecute international crimes. The US and several other countries are not party to the Rome Statute.
Critics accuse Ellis, the International Bar Association, and much of Western popular opinion, of double standards. Ellis’s organisation has not lobbied for the prosecution of US President George Bush or British Prime Minister Tony Blair, both accused of defying international law. Instead, the first cases before the ICC are all from Africa.
Ellis denies the charge. “There is no distinction between Bush or Mugabe or any other individual who would be accused of violating international law,” he protests. The IBA’s position is that international law standards apply to everyone: “We have spoken out on the illegality of the war in Iraq, of the crimes committed in Guantánamo, on illegal renditions, and so we are very consistent in upholding international standards.”
The Rome Statute makes it clear that the ICC will not intervene in situations where a country’s domestic courts are able and willing to undertake the prosecutions. “Clearly, in Zimbabwe the people are not able to do that. The ICC steps in where the national legal system is unwilling or not capable of holding individuals accountable.”
Other critics object that Ellis’s campaign to prosecute Mugabe may not be in the best interests of a peaceful settlement to Zimbabwe’s crisis. The negotiated end to apartheid in South Africa was helped by a commitment that leaders of the apartheid regime would not face prosecution. A similar process is now under way in Northern Ireland.
Ellis does not accept the comparison. “I cannot understand how one could make the argument that we would be able to have some deterrent factor on future leaders if we’re simply saying, ‘Well you can, if you commit these crimes, negotiate yourself out of any accountability”. He draws a line between leaders and low-ranking officials: “High-ranking military and political leaders should not be allowed to go free.”
Even when leaders are prosecuted, the trial process has been disappointing. The IBA was involved in the preparation and training of some of the judges who presided over the trial of Saddam Hussein. The judicial process in Iraq drew widespread criticism, particularly from lawyers in other parts of the world.
Ellis argues that Iraq, as a sovereign nation, had the right and the responsibility to prosecute the former Iraqi dictator according to international standards. In his view, they failed to meet those standards. “It does not in any way weaken my conviction that the judicial process is absolutely essential and should be undertaken in holding individuals accountable.”
The future for Mugabe is far from clear. Zimbabwe is not party to the Rome Statute. The jurisdiction of the ICC in such cases is restricted to crimes referred for investigation by the UN Security Council. Both China and Russia have maintained close ties to Mugabe’s regime, and could use their veto to block moves to refer Mugabe to the ICC.
But Ellis remains determined. “No one thought the Security Council would muster up sufficient will to undertake the request [to refer Sudan for investigation],” he recalls. “I think Darfur gives us hope that the Security Council could find the will to act against Mugabe.”