PERPETRATORS of Gukurahundi massacres in Zimbabwe — many of whom have now died, including the principal architect former president Robert Mugabe, although some key ones still remain — can be held individually criminally liable under international criminal law, a prominent local human rights lawyer says.
President Emmerson Mnangagwa is widely regarded as one of the perpetrators, although he has tried to deny personal criminal responsibility over the atrocities.
Mnangagwa has of late been trying to resolve the issue, but his initiatives driven by the perpetrators have fallen flat so far.
In a 49-page article titled Evaluating the Individual Criminal Responsibility of Gukurahundi Perpetrators under International Law, published by the Comparative and International Law Journal of Southern Africa, Dr Siphosami Malunga says those who committed the heinous crimes can still be pursued and punished under international law.
“In light of the fact that the atrocities committed in Matabeleland and Midlands between 1982 to 1987 constitute international crimes, Gukurahundi perpetrators of these crimes can be held individually criminally liable under (International Criminal Law) ICL,” Malunga says.
“In this regard the amnesties granted under national law cannot shield perpetrators from prosecution.”
In his article, which is part of his doctoral thesis, Malunga sought to evaluate the individual criminal responsibility (ICR) of Gukurahundi perpetrators under international law.
Malunga, who is an international criminal lawyer, also deals with several concepts under which perpetrators can be held responsible and accountable for the killings.
Individual criminal responsibility
In evaluating individual criminal responsibility, Malunga assessed different modes of liability under international criminal law which include system criminality, commission, co-perpetration, multiple perpetrators, complicity and common purpose, instigation, ordering, planning, aiding and abetting, joint criminal enterprise, and command and superior responsibility.
He applies different elements of these modes of liabilities to the perpetrators of atrocities committed in Matabeleland and Midlands in the 1980s.
Although rooted in domestic law, the sui generis nature — uniqueness — of ICR to international law has been explained, as well as the influence it has had on international law jurisprudence through the decisions of international criminal tribunals.
System criminality is used to explore the international crimes committed by the Five Brigade and other state security agencies.
The research concludes that the top Zanu leadership, government and the military at the time were liable for co-perpetration, instigation, ordering, planning, aiding and abetting the genocide, crimes against humanity and war crimes as well as participating in a political and ethnic project design to crush the minority Ndebele population and Zapu supporters in pursuit of a one-party state.
Malunga also evaluates the superior or command responsibility principle and finds that a civilian, a political and military leaders that had effective control over the actions of Five Brigade, the Police Internal Security and Intelligence unit and the Central Intelligence Organisation can also be held liable for the crimes committed by these security agencies as they had the authority to prevent and punish the commission of these crimes but failed to do so.
The consequence of the establishment of ICR and superior and command responsibility for Gukurahundi perpetrators is an international obligation to investigate, prosecute and punish them for these international crimes via a range of options, including domestic, hybrid and international criminal tribunals.
The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars.
Firstly, the article provides an overview and historical development of the concept of ICR under international law.
Secondly, it examines the theories of criminality under international law. Thirdly, it analyses the forms and modalities of ICR, including relevant specific crimes. Fourthly, it addresses the individual and superior responsibility of Gukurahundi perpetrators.
Malunga says the atrocities have been categorised and classified as international crimes — namely war crimes, genocide and crimes against humanity by several writers and international criminal law scholars.
In light of the historical and scholarly evidence regarding the crimes, Malunga says it is necessary to interrogate the implications of this evidence on the question of criminal liability of perpetrators pursuant to the international legal obligation to investigate, prosecute and punish perpetrators of international crimes.
International law provides for the ICR of perpetrators of international crimes and thus Malunga set out to assess whether ICR exists for Gukurahundi perpetrators for international crimes — war crimes, genocide and crimes against humanity.
Having established, in broad terms, how ICR with its collective elements has been adopted and affirmed on the international level, the concept of “system criminality”, a term that is often used when discussing ICR in international law, is dealt with.
Malunga says system criminality emerged at Nuremberg where unprecedented crimes involved complex matrices.
Post-Nuremberg, the issue of collective criminality became prominent. System criminality being systemic, is the fact that the crimes are committed not by one individual, but by a group of individuals.
The mul tiplicity of actors, each performing a part in the crime, make international crimes systemic and distinguishes them from common crimes.
This is a more serious form of criminal responsibility than, for instance, instigating or aiding and abetting.
Commission may also occur through participation in the realisation of a common design of purpose.
That is defined to include or distinguish perpetrators who physically committed the crime and those perpetrators who planned the crime.
Instigation requires that the instigator actually influence the perpetrator of the crime. A causal link is therefore required between the actions of the instigator and the actual commission of the crime or the criminal actions of the direct perpetrator.
By virtue of the organised, widespread and systematic nature of international crimes, instigators of these crimes play a central role in their commission.
There is no requirement for the instigator to be the architect, planner or primary designer of the crime, but it is necessary that the crime be committed as a result of the strong encouragement or persuasion by the instigator.
To be punishable, instigation must constitute “a clear contributing factor to conduct of the direct perpetrator of the crime”.
Malunga says: “It is clear that the top political leadership in Zanu instigated the attacks on the civilian Ndebele population by Five Brigade. Statements by senior cabinet ministers and, most importantly, Mugabe encouraged Five Brigade to go into the Ndebele civilian population and ‘plough and re-construct’. Taken together with the meaning of Gukurahundi, which is ‘the rain that blows away the chaff before the spring rains’ this suggests that the Ndebele population was the ‘rubbish’ which Five Brigade were intent on ploughing or washing away.
“Also, after the 1985 election in which Zapu garnered fifteen parliamentary seats, Mugabe told his supporters to ‘go and uproot weeds from your garden’ and this statement was followed by mass violence towards Zapu supporters in Harare. Statements by the then Minister of State Security Emmerson Mnangagwa, in which he said that ‘the campaign against dissidents can only succeed if the infrastructure that nurtures them is destroyed’ saw Five Brigade attacking the Ndebele civilian population as the perceived infrastructure that nurtured dissidents. The then Minister of Home Affairs Enos Nkala also threatened to wipe out the Zapu leadership stating that the ‘…leadership must be hit so hard’.”
Ordering constitutes an abuse of power in that a person occupying a position of power abuses his authority by ordering others to commit crimes.
There is no requirement under international law for a formal relationship between the person who issues the order and the one who receives and carries it out.
“It is evident that Mugabe had the authority to give Five Brigade orders,” Malunga says.
Since Mugabe gave orders to ministers and army commanders, he was therefore liable for the crimes.
“There is sufficient evidence that the orders by Mugabe and other alleged high-level Gukurahundi perpetrators had a substantial effect on or substantially contributed to the commission of crimes as envisaged by the jurisprudence of the ad hoc tribunals discussed above,” Malunga notes.
Aiding and abetting There are two elements of aiding and abetting: first, the accused must lend practical assistance, encouragement, or moral support, and second, which must have had substantial effect.
As to the first, aiding/abetting may occur at one or more of the three possible stages of the crime: planning, preparation, or execu tion.
“The elements of aiding and abetting as summarised above implicate the top political and military leadership in Zanu and ZNA. As outlined above, the accused must lend practical assistance, encouragement, or moral support at one or more of the three possible stages of the crime namely planning, preparation, or execution,” he says.
Command and superior responsibility
The principle of command or superior responsibility is well-established in international law, Malunga says.
Under the principle, a superior or commander is criminally responsible for acts committed by their subordinates if they knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
“Applying the elements and requirements of command or superior responsibility to Gukurahundi atrocities implicates all civilian, political and military leaders that wielded effective control over the members of Five Brigade who would be liable for all their crimes.”