Mugabe Still Subject to International Law For Massacres in Foreign Courts

The immunity granted to President Mugabe this Tuesday, while it covers criminal and civil charges in Zimbabwe, does not cover civil lawsuits filed in foreign countries on his person and which seek to have victims of his rule compensated financially. Diplomatic immunity for Mugabe as head of State has now been lifted and this means in a real sense they can be treated as ordinary civilians in foreign courts, especially here in the United States. No nation is under an obligation to honor another country’s “full immunity,” provision – take for example the Nazis’ in Nazi German.
Of concern to us are the following instances in which the victims’ families’ have direct testimony of the orders of Robert Mugabe: Matabeleland Massacres of 1983, Chiadzwa diamond massacres in Mutare and Operation Murambatswina.
Human rights lawyers should properly certify a class and address these actions as class actions against Mugabe. The evidence is still there. I know that the BBC’s Panorama has visual video footage, entitled “Gukurahundi” that documents the shallow graves; in addition, the Catholic commission for Justice also has its evidence of Matabeleland Massacres. As for Chiadzwa, any trip to Mutare, Zimbabwe, will provide the necessary evidence to support any claim proper. For Grace Mugabe, it’s the invasion of a Mazowe farm, in Eastern Zimbabwe that is one example of her human rights record.
Normally a civil lawsuit would involve a family member filing a cause of action in a proper venue (South Africa, Hong Kong or United States) that has assets that can be attached.
If filed in the United States under the Foreign Tort Claims Act, 28 U.S.C 1350, the suit would be filed in a Federal District, and any assets of Mugabe in the States would be used to fulfill that judgment. The act reads as follows:
"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This jurisdiction was upheld in Filartiga v. Pena-Irala, 630 F.2d. 876 (1980), U.S. Circuit Court of Appeals, 2nd Circuit.
To that end, the three countries; Hong Kong, South Africa and United States should hold the assets of the Mugabes in a constructive trust for any purported victim who files a lawsuit.
This is justice, there are serious consequences which full immunity does not cover. The families of the deceased have a right to properly accuse their killers; immunity does not cover this. Immunity is a political tool merely intended to ensure peace during a political transition it does not address transitional justice.
This is indeed a lesson, that justice under a repressive dictator, such as Mugabe - will be delayed and metered on foreign soil. It is of vital importance that African leaders, and dictators in general understand that the rule of law will follow them even after they leave office, this serves as a deterrent for future abuse of power.
*Ken Sibanda is a South African born American Constitutional and Human Rights Lawyer. He is President of – Institute for Peace and Justice in New York. Sibanda has written the following books; The Tragic Circumstances of 1948; International Law: Peace Accords and Lemba Jewish Rights.
Trailer "1948."