Since the coup d'état that deposed Zimbabwe’s former President Robert Mugabe in November 2017, Zimbabwe’s ruling party the Zimbabwe African National Union-Patriotic Front (Zanu-PF) led by Emmerson Mnangagwa has been committing unabated crimes against humanity. This has however been met by inertia of the international community including regional bodies such as the Southern Africa Development Community (SADC) and the African Union. 

DEFINING CRIMES AGAINST HUMANITY  

The Trial Chamber of the International Criminal Tribunal of the former Yugoslavia (ICTY) in Prosecutor v Duško Tadić held that crimes against humanity are perpetrated under international law if murder, imprisonment, torture, enforced disappearance, serious injury to body, rape, and other forms of sexual violence are committed as part of a widespread or systematic attack directed against any civilian population. This definition of crimes against humanity has since been codified by article 7(1) of the Rome Statute. Additionally, article 7(2) of the Statute adds that these acts must have been committed in furtherance of a State or organisational policy. There is also a requirement under international law that the perpetrator must act with the knowledge that his or her act fits within the widespread or systematic attack against a civilian population. In the Media Case, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) held that “except for extermination a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population”. 

It is imperative to unpack what constitutes a widespread or systematic attack under international law. The ICTY Trial Chamber held in Prosecutor v Tihomir Blaškić that an attack is widespread if “conducted on a large scale and results in a large number of victims”. It should be noted that there is no numerical threshold in this regard. The ICTY Appeals Chamber in Prosecutor v Dragoljub Kunarac et al held that a systematic attack refers to the “organized nature of the acts of violence, such as repetition of similar criminal conduct on a regular basis”. The jurisprudence of the ICTY posits that there are four factors which are indicative of a widespread or systematic attack, namely “(i) the existence of a political agenda or ideology to destroy, persecute or weaken a particular community coupled with the institution of efforts to implement that policy, (ii) the involvement of political and military authorities at a high level, (iii) the extent of financial and military support or other means and (iv) the extent of the repetitious, uniform, and continuous perpetration against the same civilian population”. Having established the definition of crimes against humanity under international law, it is pertinent to apply this definition to the conduct of Zanu-PF and its supporters as well as state security agencies linked to the party.

MAKING A CASE FOR CRIMES AGAINST HUMANITY

In light of the fuel protests that occurred in January 2019, civil society groups in Zimbabwe raised the alarm stating that there were “multiple random home invasions and beatings. People sleeping in their homes were being pursued by the military, the police and Zanu-PF militia, and fished out of their homes, women raped and men tortured. Children as young as nine years were being targeted for torture and assault”.  The ruling party has also been accused of systematically murdering political opponents, the most prominent being the murders of opposition councillor Lavenda Chiwaya in August 2020, opposition supporter Mboneni Ncube in February 2022 and opposition party member Moreblessing Ali in May 2022. Furthermore, there has been a systematic imprisonment and deprivation of liberty of perceived political opponents of the ruling party. In 2020, there were 179 illegal detentions and arrests including the arrest of investigative journalist Hopewell Chin'ono who was imprisoned for exposing the corruption of the ruling party. Similarly, 2021 saw an increase in illegal detentions and arrests of opponents and critics including the detention of opposition party spokesperson Fadzayi Mahere and award-winning Zimbabwean author Tsitsi Dangarembga. The trend of arbitrary detention of political opponents has intensified in 2022 including the political detention of opposition party members such as Job Sikhala and 14 others. Leading human rights lawyer Beatrice Mtetwa alludes to the fact that the ruling party is consistently imprisoning perceived opponents and critics without trial.  

The ruling party is also alleged to be using torture against the civilian population, for instance, in 2019 alone, 49 cases of abductions and torture linked to the country’s ruling party were reported including the abduction and torture of Zimbabwe top comedienne Samantha Kureya. The most evident pattern of abduction and torture was documented in 2020 with 70 cases of torture including the abduction and torture of Tawanda Muchehiwa by state security agencies linked the ruling party. In June 2020, UN human rights experts called on Zimbabwean authorities to end their pattern of disappearances and torture. Amnesty International in March 2022 also raised the alarm over the repeated use of torture against civilians in Zimbabwe. The South African Constitutional Court ruled in 2015 that South African authorities are obligated by international law to investigate and prosecute torture committed by Zimbabwe state police who, allegedly acting on instruction from the ruling party, arrested and tortured at least 100 people in March 2007. In addition to this, rape and other forms of sexual violence have been used by the ruling party against a civilian population. Human Rights Watch reports that at least 17 women were raped by the army in January 2019. More recently, a documentary released by Camilla Nielsson titled ‘The President’ details the sexual violence which opposition party polling agents were subjected to by the ruling party in the 2018 elections. In 2020, opposition party members Joana Mamombe, Cecilia Chinembiri, and Nastai Marova were also subjected to sexual violence by security agencies linked to the ruling party. There have also been attacks on Zimbabwe’s opposition leader Nelson Chamisa in Masvingo and Gokwe, which came after incitement to violence by Zanu-PF official Abton Mashayanyika calling for the death of Mr. Chamisa and his family. Also, Zanu-PF Vice President Constantine Chiwenga warned the opposition, saying his party would “crush the [opposition] party like lice” and subsequently opposition supporters have faced an increasing myriad of assaults that have led to serious bodily injury.

The use of violence against members of the civilian population who are perceived to be opponents seems to be the organisational policy of Zanu-PF. Larry May posits that “State policies do not often manifest themselves in ways other than the behaviour of politicians and police”. This is equally applicable to organisational policy which manifests itself from the conduct of the organisation’s members and supporters. Additionally, the Elements of Crimes of the International Criminal Court say that the existence of state or organisational policy can be seen by how “the State or organisation actively promote or encourage such an attack against a civilian population”. Moreover, a state or organisational policy can be inferred, among others factors, from the absence of governmental or organisational action. 

The ruling party has a track record of using violence against civilians perceived to be opponents including the massacre of an estimated 20,000 people in Matabeleland from 1983 to 1987 as well as the unleashing of political violence after losing elections in 2008. As alluded to above, Zanu-PF officials have incited party members to violence and the ruling party has generally used violence to oppress opposition and critics even within the party itself. Therefore, the organisational policy of the ruling party can be inferred from the conduct of its members and supporters and it can be argued that Zanu-PF, as an organisation, actively promotes or encourages attacks against a civilian population coupled with the fact that where the party’s attention is drawn to violent activities of its party members, the organisation fails to take action. From this, the logical conclusion is that the ruling party has a policy of using violence against the civilian population. Furthermore, it can also be inferred from the conduct of state security agencies and Zanu-PF members and supporters who consistently attack critics, that they are aware of the wider context in which their actions fit. It is necessary to analyse the conduct of the ruling party in light of the four indicative factors of a widespread or systematic attack against a civilian population, as established by the jurisprudence of the ad hoc tribunals.

Evidently, the ruling party has a political agenda or ideology to destroy, persecute, or weaken a community of dissenting voices in Zimbabwe coupled with the institutions such as the military, state police, and state intelligence in implementing this policy. Secondly, there is the involvement of Zanu-PF officials and military authorities at a high level as alluded to earlier. The extent of financial and military support is also on the high end, for instance, the ruling party uses state resources in backing local chiefs who weaponise food aid in rural areas against dissenting voices. The ruling party also uses state security agencies including the military, state police, and state intelligence to suppress dissent. As seen above the crimes committed by the ruling party such as torture have been repetitious, uniform, and continuous against the same civilian population. 

RESPONSIBILITY OF THE INTERNATIONAL COMMUNITY 

It is evident that the ruling party has committed murder, imprisonment, torture, serious injury to body, rape, and sexual violence as part of a widespread or systematic attack directed against Zimbabwe’s civilian population in furtherance of its organisational policy. In light of this, the responsibility to protect (R2P) doctrine under international law states that every state has a responsibility to protect its population from international crimes such as crimes against humanity and where the state fails it is incumbent on the international community to intervene in a timely and decisive manner. The intervention envisaged under this doctrine is two-fold, firstly through peaceful means by engaging the state via diplomatic and humanitarian channels. The second option entails the use of force through a UN Security Council resolution. However, due to the increasing polarisation of the Security Council there is an emerging norm under customary international law that in the absence of a Security Council resolution, two or more states may collectively use force for humanitarian reasons. Although the European Union and the United States have exhausted the former option by imposing targeted economic sanctions on the leadership of Zanu-PF and its state security agencies for human rights abuses, this has not been enough to stop the ruling party from committing crimes against humanity. 

Another tool that can be used by the international community is universal jurisdiction which allows any state to prosecute international crimes such as crime against humanity. This is an avenue that provides for the prosecution of Zanu-PF members who bear the most responsibility for international crimes committed by the party. As mentioned above, the South African Constitution Court held that six Zanu-PF ministers and service chiefs can be prosecuted in South Africa for torture committed in Zimbabwe as a crime against humanity. However, South Africa has been reluctant to initiate prosecution due to the fear that it may strain relations with Zimbabwe’s ruling party. In addition to this, another constraint to the application of universal jurisdiction is functional immunity granted to state officials who may be alleged perpetrators. Such immunity bars prosecution of members of the ruling party for international crimes as long as they remain state officials. It is these political considerations that have prevented regional bodies such as SADC and the African Union from taking a tougher stance on the ruling party, despite the deteriorating situation in Zimbabwe.  

Nigel has an LLB in International Law from Near East University (Cyprus). Currently, he is a member of an NGO called VOIS Cyprus which advocates for the rights of international students in Cyprus.

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