President Robert Mugabe of Zimbabwe cannot be arrested for the crime of torture, according to Judge Timothy Workman. As a serving head of state, he has “absolute immunity” from criminal charges under both British and international law.
Judge Workman’s verdict, delivered on 14 January at Bow Street Magistrates’ Court, rejected my application for a warrant for the arrest and extradition of the Zimbabwean leader on charges of torture. Under Section 134 of the Criminal Justice Act 1988, which incorporates the 1984 UN Convention Against Torture into UK law, anyone who commits, authorises, colludes, acquiesces or condones acts of torture anywhere in the world can be prosecuted in Britain. But not, appar-ently, presidents and prime ministers who orchestrate some of the world’s worst human rights abuses. Protected by the doctrine of state immunity, they are, the judge ruled, legally untouchable.
Had a warrant been granted, President Mugabe could have been arrested and extradited to Britain if he set foot in any of the 100-plus countries with which Britain has an extradition treaty. These include countries he has visited over the past year and is likely to visit again, such as Switzerland, France, Malaysia, Singapore, Thailand and South Africa. The judge’s decision gives Mugabe and other heads of state a free hand to torture with impunity, denying justice to thousands of victims. It highlights the inadequacies of British and international human rights legislation. What is the point of having anti-torture laws if the main abusers – heads of state – are exempt from prosecution? We may as well tear up Section 134 and the UN Convention Against Torture, and chuck them in the bin. They offer no protection or redress to people who are tortured at the behest of heads of state.
Judge Workman’s ruling followed the precedent set by the International Court of Justice (ICJ) in 2002. In a case concerning the Democratic Republic of the Congo v Belgium, the court ruled that high state officials are immune from legal action even if they commit the most heinous crimes against humanity.
Despite this decision, evolving customary 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, including Britain, accepted that heads of state cannot plead that 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 Wilhelm II.
The 1946 Nuremberg Tribunal reiterated this precedent by ruling that the top Nazi leaders, including Karl Donitz, Hitler’s successor as German leader, did not enjoy immunity for crimes against humanity. Donitz was found guilty and sentenced to ten years in jail.
Number three of the Nuremberg principles, agreed by Britain and other nations, 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 Britain now to 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.
Continuing the trend to void immunity for heads of state who have committed grave human rights abuses, Charles Taylor, then the president of Liberia, 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 standard over immunity for heads of state reached its zenith during last year’s Iraq war, with two US attempts – on 20 March and 7 April – to assassinate the then Iraqi president, Saddam Hussein. The UK government asserted the lawfulness of both 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?
Content from our partners
Related
