By Stephanie NolanGlobe and Mail
November 5, 2004
Working alone, moving quickly through the countryside and attracting as little attention as possible, a dozen courageous Zimbabweans are assembling the dossier they hope will drive Canada to indict their President for crimes against humanity. The evidence-gatherers, who cannot be named for their safety, work for the Accountability Commission Zimbabwe, one of a small number of rallying points for the millions of Zimbabweans in exile, who in the face of the seemingly endless deterioration of their homeland are increasingly looking toward drastic measures. They are attempting to collect sworn statements and evidence, including medical photographs of injuries received under torture, from 100 victims of Robert Mugabe's regime, which they hope Canada's Attorney-General will use to charge him.
A year ago, a small group of Canadian and Zimbabwean lawyers presented Martin Cauchon, who was then justice minister, with a draft indictment asking him to take on Mr. Mugabe under the Crimes Against Humanity and War Crimes Act, which they say allows for universal jurisdiction for Ottawa to act against those suspected of gross abuse of human rights.
Their strategy is ambitious and controversial, and experts in international law are divided about whether it is even possible. The government took months to respond to their request, before finally replying in July that there would have to be a Canadian victim or some Canadian connection for a case to proceed.
Justice Minister Irwin Cotler declined to comment on the case. But as a member of Parliament in 2000, he was a key force behind the new war-crimes act. "When we enacted it, we stated that this legislation is an implementation of our obligations under the International Criminal Court treaty to bring perpetrators of international crimes to justice," Mr. Cotler told reporters at the presentation of the draft indictment a year ago. "President Robert Mugabe is responsible for the perpetration of crimes against humanity, including state-orchestrated murder, torture and massive sexual violence," he added.
With those words ringing in their ears, the volunteers in Zimbabwe have been carrying out their surreptitious work, contacting people terrorized by the national youth militia, arrested on suspicion of supporting the political opposition or denied food aid because they cannot produce a membership card for the ruling party.
Although Canada is their best hope, they will also take their case to the African Union and the International Court of Justice, said Gabriel Shumba, a human-rights lawyer who was tortured by intelligence officers in Harare last year and has since fled to South Africa. But "the international legal system does not offer much consolation to victims," Mr. Shumba lamented.
Last year, the Accountability Commission asked a British court to indict Mr. Mugabe as directly responsible for crimes against humanity, but that court refused to hear the case because the President is a sitting head of state. Mr. Mugabe may also be guaranteed immunity by a 2002 International Court of Justice ruling that such leaders cannot be prosecuted in national courts without the permission of the state in question.
However, Canada's war-crimes act itself offers no such protection. "We in Canada have a law that classifies such things as torture and forced starvation and the kind of criminal realities that face the Zimbabwean people every day . . . as crimes against humanity. This is a chance for Canada to lead," said Amir Attaran, a University of Ottawa law professor who teamed up with Mr. Shumba and his colleagues, along with two other Canadian lawyers, Craig Jones of Vancouver and Paul Champ of Ottawa, after the failed British prosecution.
Lynn Lovett, deputy director of the war crimes and crimes against humanity branch of the Justice Department in Ottawa, declined to comment on the case against Mr. Mugabe, but she repeated the government's position that the act's intent is that there be some connection with Canada.
David Matas, a Winnipeg refugee lawyer who works on crimes against humanity, said this is the only reasonable position. "Otherwise, we'd be like Belgium; we could prosecute anybody, anywhere, for anything, no matter what their ties to Canada . . . and it caused all sorts of problems for Belgium," he said, referring to a law in that country that gave courts universal jurisdiction on human-rights issues, but which had to be repealed after people including British Prime Minister Tony Blair and former U.S. secretary of state Henry Kissinger were indicted. "We can't become a criminal court for the whole world; there have to be some ties to Canada before we have jurisdictional right to take over a case," Mr. Matas said.
Mr. Attaran and his team are hunting for a Zimbabwean victim who will provide that "nexus" with Canada, but he contends that the law does not require it. Some experts agree, such as William Schabas, a Canadian who is the director of the Irish Centre of Human Rights and who served on the Truth and Reconciliation Commission in Sierra Leone. "The Justice Department is wrong if they say that the intention of the act is that there be a nexus with Canada. The whole point of the Crimes Against Humanity and War Crimes Act is to give Canada universal jurisdiction, which means you can prosecute people when there is no nexus," he said.
But Prof. Schabas said there is no getting around the head-of-state problem. "If we indict Mugabe in a court in Canada, guess who is going to be indicted in a court of Zimbabwe?" he said. "I don't think [Prime Minister] Paul Martin or the Queen would like it, and that's why you do it; it's out of respect for national sovereignty and you have to give some room to that even when you're trying to hold people accountable."
Mr. Shumba and Mr. Attaran say their ultimate goal is creating a blunt diplomatic instrument of the kind that is now lacking in the international response to Zimbabwe. "If we have a filed indictment against him, we don't need to prosecute to have a meaningful impact," Mr. Attaran said, adding: "It's worked before and it's the only approach that's ever worked before."
The precedent is Charles Taylor, the despotic president of Liberia, who was indicted for crimes against humanity by the Special Court of Sierra Leone in 2003. Mr. Taylor was arrested after travelling to an event in Ghana, and was forced to accept a negotiated solution that sent him into exile in Nigeria.
"How much better of a precedent could we have?" Mr. Attaran asked. "If tiny little Sierra Leone could do it, my God, don't tell me Canada can't."
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