Instead of embracing Robert Mugabe as an honoured guest, Portugal should arrest him on torture charges.
The Guardian – Comment Is Free – 7 December 2007
This weekend President Robert Mugabe will stride the stage at the EU-African Union Summit in Lisbon. He will be welcomed and feted, alongside all the other leaders of Africa and Europe.
For the people of Zimbabwe it will be a sickening spectacle to see their blood-soaked oppressor wined and dined by the Portuguese President, Aníbal António Cavaco Silva.
Mugabe is not the world’s only tyrant and not even the worst. Nevertheless, he has killed more black Africans than even the murderous apartheid regime in South Africa. His slaughter of 20,000 civilians in Matabeleland in the 1980s was the equivalent of a Sharpeville massacre every day for over nine months.
According to Amnesty International and Human Rights Watch, Mugabe’s despotic regime 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.
Instead of embracing President Mugabe as an honoured guest, the Portuguese government should instruct its police to arrest him on charges of torture.
It is time to end the culture of impunity, which allows tyrannical leaders to get away with human rights abuses. Torture is a crime under international law. Mugabe, and other torture-condoning despots, should be prosecuted. Giving them state immunity is collusion with their crimes.
There is evidence from Amnesty International and from Zimbabwean human rights groups
that President Mugabe and his government have sanctioned and colluded with acts of torture. He should be arrested and put on trial, in the same way that President Milosevic of Yugoslavia was tried in The Hague.
Portugal is legally obliged 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. In other words, Mugabe can be lawfully arrested and tried in Portugal for crimes that he has aided and abetted in Zimbabwe.
Despite past legal rulings granting government leaders exemption from prosecution, the trend in international law is towards rejecting the right of Heads of State to enjoy absolute immunity for crimes against humanity, such as torture.
This legal evolution began with the Versailles Treaty of 1919. The signatory nations accepted that high state officials who stand accused of “offences against international morality” cannot plead that they are above the law. 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 that the top Nazi leaders, including Karl Doenitz, Hitler’s successor as German leader, did not enjoy immunity for crimes against humanity. Article 7 of the Charter of the International Military Tribunal stipulated that: “The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment.” Doenitz was found guilty and sentenced to 10 years jail.
Principle Three of the Nuremberg Principles, agreed by the nations of Europe as international law, 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 Portugal and the EU to now renege on the Nuremberg Principles is 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 given further effect with the enactment of the UN Convention Against Torture (UNCAT) 1984. Article 4 requires each state party, including Portugal and other EU signatory states, to ensure that “all acts of torture” are criminal offences under domestic law. This criminalisation applies to an act by “any person” that “constitutes complicity or participation in torture”. UNCAT grants no exemptions to Heads of State. In other words, any state official who commits, authorises, colludes, acquiesces or condones acts of torture anywhere in the world can be prosecuted by an UNCAT signatory state, such a Portugal.
These precedents were given further practical effect by the International Criminal Tribunal when it indicted Slobodan Milosevic on 26 May 1999, while he was the serving Head of State of Yugoslavia. It was the first time that a prosecution was initiated against a national leader while the crimes with which he was charged were still on-going. 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 Portugal and other EU nations, 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 Portugal to sign up the principle of universal accountability for the crime of torture 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? Since it is apparently acceptable to assassinate a tyrannical President, then surely a tyrannical President can be also put on trial?
In the case if the Zimbabwean President, Portugal and the EU have 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. 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 against humanity.
If Mugabe’s immunity can be curtailed by a travel ban, why can’t he (and other tyrants) be called to account in a court of law for violating the internationally agreed prohibition on the use of torture?