EU-AU conference betrays the people of Zimbabwe.
Portugal should honour its human rights commitments by arresting Mugabe.
Mugabe does not have immunity from prosecution for crimes such as torture.
London – 7 December 2007
“The Portuguese government should instruct its police to arrest President Mugabe on charges of torture when he arrives in Lisbon this weekend for the EU-African Union summit,” urged human rights campaigner Peter Tatchell.
“To allow Mugabe to attend the summit unimpeded would be a tragic betrayal of the long suffering people of Zimbabwe. Torture is a crime under international law and President Mugabe should be prosecuted.
“Mugabe has massacred more black Africans than even the murderous apartheid regime in South Africa. His tyrannical government is guilty of detention without trial, torture, rape, extra-judicial killings, media censorship, financial corruption, election fraud, mass starvation and the violent suppression of strikes and protests.
“Portugal has a duty to enforce the UN Convention Against Torture 1984, which it has ratified and pledged to uphold.
“The Convention Against Torture has universal jurisdiction. It allows any signatory state to arrest and put on trial any person who authorises, commits or acquiesces in the infliction of torture anywhere in the world.
“There is strong evidence from Amnesty International and other human rights groups that President Mugabe has sanctioned and colluded with acts of torture, contrary to international law.
“He should be arrested and put on trial, in the same way that President Milosevic of Yugoslavia was tried in The Hague.
“Contrary to diplomatic convention and some controversial, disputed legal rulings, Mugabe does not have absolute immunity from prosecution as a serving Head of State.
“International human rights law and legal precedents have established that Presidents can be indicted for gave crimes against humanity, such as torture,” added Mr Tatchell.
See the article and detailed documentation below.
Why Mugabe does not have immunity from prosecution for torture
By Peter Tatchell
International law increasingly no longer accepts the right of Heads of State to enjoy absolute immunity for grave human rights abuses, such as torture.
This legal evolution began with the Versailles Treaty of 1919. The signatory nations accepted that Heads of State cannot plead they are above the law when they stand accused of “offences against international morality”. Article 227 of the Treaty set the precedent in international law that Heads of State are not immune from prosecution, when it arraigned the German Emperor, William II.
The 1946 Nuremberg Tribunal reiterated this precedent by ruling the top Nazi leaders, including Karl Doenitz, Hitler’s successor as German leader, did not enjoy immunity for crimes against humanity. Doenitz was found guilty and sentenced to 10 years jail.
Principle Three of the Nuremberg Principles declared: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law”.
For any country to renege on the Nuremberg Principles would be a monstrous betrayal of the millions who perished in the Holocaust and the millions more who sacrificed their lives to end the tyranny of the Third Reich.
The Nuremberg ruling that government leaders can be held accountable was reconfirmed with the enactment of the UN Convention Against Torture (UNCAT) 1984. Article 4 requires each state party to ensure that “all acts of torture” are criminal offences under domestic law. This criminalisation must apply to an act by “any person” that “constitutes complicity or participation in torture”. UNCAT grants no exemptions to Heads of State.
These precedents were given further practical effect by the International Criminal Tribunal on the former Yugoslavia when it indicted Slobodan Milosevic on 26 May 1999, while he was the serving Head of State of Yugoslavia. If Milosevic can be indicted, even though he was President at the time, why can’t Mugabe?
The UN Rome Statute of 1998, ratified by the EU member states, created the International Criminal Court. Article 27 explicitly declares that Heads of States cannot plead immunity for crimes against humanity, such as torture: “Official capacity as a Head of State.shall in no case exempt a person from criminal responsibility under this Statute”.
Is it acceptable for EU members to sign up the principle of universal accountability and then refuse to honour it?
Continuing the trend to void immunity for Heads of State for grave human rights abuses, the Liberian leader, Charles Taylor, was indicted on 4 June 2003. Despite being President, he was served an arrest warrant on charges of “serious violations of international humanitarian law”.
Why is there one law for President Taylor and another for President Mugabe?
The double standards over Head of State immunity reached their zenith during the 2003 Iraq war, with two US attempts – on 20 March and 7 April – to assassinate the then Iraqi President, Saddam Hussein. Western governments asserted the lawfulness of these attempts.
How can a Head of State be lawfully assassinated, but not lawfully prosecuted for crimes against humanity? If it is legitimate to assassinate a President, then surely a President can be put on trial?
In Mugabe’s case, the EU has already agreed that his state immunity can be legitimately restricted. The EU travel ban on Mugabe is a punitive abrogation of his immunity as Head of State. It is directed against him in his official capacity as President of a regime that violates human rights on a massive scale. This sanction is an acknowledgement that Heads of State do not enjoy absolute immunity. They should, and can, be held to account for grave crimes.
If Mugabe’s immunity can be curtailed by a travel ban, why can’t he be called to account in a court of law for violating the internationally agreed prohibition on the use of torture?