6 July 2007
Is Operation Murambatsvina a Crime Against Humanity? An international law opinion
The following document is extracted from this file, a study by a group based in Oxford on the illegality of slum clearances in Zimbabwe.
ARE THE ACTIVITIES CONDUCTED DURING OPERATION
MURAMBATSVINA CRIMES AGAINST HUMANITY WITHIN THE
MEANING OF ARTICLE 7 OF THE ROME STATUTE?
International Law Opinion
Oxford Pro Bono Publico Group
University of Oxford, November 2005
TABLE OF CONTENTS
EXECUTIVE SUMMARY…………………………………………………………………………………………..2
INTRODUCTION………………………………………………………………………………………………………5
Rome Statute of the International Criminal Court………………………………………………6
About the Authorities and Methodology Used in this Opinion…………………………….7
Facts……………………………………………………………………………………………………………9
Mens Rea…………………………………………………………………………………………………….12
Structure of the Opinion………………………………………………………………………………..14
PART I: DEPORTATION OR FORCIBLE TRANSFER OF POPULATION……………..15
Forcible Transfer in the ‘Elements of Crimes’…………………………………………………18
PART II: LEGALITY OF THE EVICTIONS UNDER ZIMBABWEAN LAW……………19
The Meaning of ‘Lawfully Present’ In the Rome Statute…………………………………..20
The European Court of Human Rights…………………………………………………………….21
The African Commission on Human and Peoples’ Rights…………………………………24
The United Nations Human Rights Committee………………………………………………..26
PART III : ARE THE ACTS PART OF A WIDESPREAD OR SYSTEMATIC ATTACK
DIRECTED AGAINST A CIVILIAN POPULATION?………………………………………………27
Widespread or Systematic attack……………………………………………………………………27
PART IV: THE LEGALITY OF THE EVICTIONS……………………………………………………33
Doctrine of Abrogation by Disuse………………………………………………………………….35
PART V: THE COMPATIBILITY OF THE EVICTIONS WITH INTERNATIONAL
LAW………………………………………………………………………………………………………………………..37
Grounds under international law permitting the forcible transfer of population……40
International Covenant on Civil and Political Rights…………………………………….42
The International Covenant on Economic Social and Cultural Rights……………..46
The African Charter of Human and Peoples’ Rights……………………………………..47
PART VI: CONCLUSION…………………………………………………………………………………………48
APPENDIX………………………………………………………………………………………………………………50
EXECUTIVE SUMMARY
1. Oxford Pro Bono Publico has been requested to assist in the preparation of an
opinion considering whether the evictions that have taken place in various towns
and cities in Zimbabwe in the context of ‘Operation Murambatsvina’ (Operation
Restore Order) constitute crimes against humanity as defined in the Statute of the
International Criminal Court1 (hereinafter ‘the Statute’).
2. Article 7 of the Rome Statute provides that:
(1) For the purpose of this Statute, “crime against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
[…]
(d) Deportation or forcible transfer of population;
[…]
(2) For the purpose of paragraph 1:
[…]
(d) “Deportation or forcible transfer of population” means forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under international law;
3. To determine whether there has been a violation of Article 7 of the Rome Statue, a
number of questions need to be answered in the affirmative. These are:
3.1. Whether there was, in fact, a ‘deportation or forcible transfer of population’ in
Zimbabwe in Operation Murambatsvina, through ‘expulsion or other coercive
acts’.
3.2. Whether the persons subject to the ‘deportation or forcible transfer’ were
‘legally present’ in the area from which they were removed;
3.3. Whether the acts in question constituted a ‘widespread or systematic attack
directed against any civilian population’?
1 Rome Statute for the Establishment of an International Criminal Court (adopted 17 July 1998, entered
into force 1 July 2002) UN Doc A/Conf 183/9; (1998) ILM 999 2187 UNTS 90 [hereinafter ‘Statute’ or
‘Rome Statute’].
3.4. Whether there are grounds under international law under which the deportation
or forcible transfer could take place.
4. On the question of whether there was in fact a deportation or forcible transfer of
population as defined in the Statute, it is concluded herein that the requirements of
the Statute, namely, that there be the transfer of one or more persons and that such
transfer be coerced or forced, have been met insofar as the factual situation as
detailed in this opinion is correct. Because the transfers were executed without the
consent of the individuals concerned and a range of coercive measures were
employed, it is reasonable to conclude that the acts fall within the range of practices
proscribed in the Rome Statute. Zimbabwe would therefore have to establish
whether the impugned acts fall under the international law exceptions allowing for a
forcible transfer of population.
5. On the question of whether the forcible transfer of population was committed as
part of widespread or systematic attack directed against any civilian population it is
concluded herein that the requirements of the Statute have been fulfilled. Taking
into consideration the size of and the manner in which the Operation was
conducted, it is reasonable to conclude that it constituted an attack both widespread
and systematic against a civilian population. Furthermore, the orchestration of the
Operation has led to the conclusion that it was conducted pursuant to a State policy
to commit such attack.
6. On the question of whether those subject to forcible transfer were ‘legally present’,
the word ‘lawfully’ in ‘lawfully present’ requires that the laws that define the
legality or illegality of one’s presence in a particular area comply with the principle
of legal certainty. In terms of the case law of the European Court of Human Rights,
the laws in question must be sufficiently precise to allow the individual to foresee,
to a degree that is reasonable in the circumstances, the consequences of his or her
actions. In the present case, while the Housing and Planning Acts are themselves
sufficiently clear, the Zimbabwean government’s actions in largely ignoring this
legislation after independence, and adopting contrary policies, arguably undermined
the requirement of reasonable foreseeability and thus the principle of legal
certainty. This, in turn, undermines the Zimbabwean government’s case that the
evictees were unlawfully present in the areas in which they had settled.
7. If, however, the preceding argument is not accepted, and a narrow reading of
‘lawfully present’ is adopted, it appears that most of those subject to evictions in
Operation Murambatsvina were not lawfully present within the meaning of the
Rome Statute.
8. It may, however, be possible to argue that since the Planning Act has not been
enforced for a significant period, that the doctrine of abrogation through disuse,
renders the Act void. However, no definite opinion on this issue is expressed herein,
and it has been mentioned merely to draw attention to the doctrine for further
consideration by a specialised Zimbabwean constitutional lawyer. Should it be
decided that the doctrine is still operable in Zimbabwe, then those subject to the
evictions were, arguably, ‘lawfully present’ since there was no legislation
prohibiting their settlement in the area.
9. Even if it is accepted that most of those evicted were not ‘lawfully present’, many
of those evicted were ‘lawfully present’ within the meaning of the Rome Statute.
Those evicted should therefore be constituted as those who were ‘lawfully present’
and those who were not for the purposes of the Rome Statute. The Rome Statute
does not require that all of those in a group of displaced persons be lawfully
present’ and it would therefore appear to be sufficient to constitute those lawfully
present as a separate group.
10. Moreover, since the Zimbabwean authorities did not seek to distinguish between
these two groups in carrying out Operation Murambatsvina, it could be argued that
they should not be permitted to rely on that distinction for the purposes of asserting
the legality of the evictions and demolitions under the Rome Statute.
11. Zimbabwean legislation regulating evictions is consistent with international law.
The evictions, however, were not carried out consistently with Zimbabwean law.
12. On the question of whether, assuming that a forcible transfer of population as
defined in the Rome Statute has occurred, Zimbabwe might be able to invoke one of
the international law exceptions allowing for such forcible transfers in exceptional
circumstances, it is concluded herein that the requirements under international law
allowing for the limitation of these individuals’ rights to mobility, namely, that they
be temporary, necessary and proportional to the threat, have not been met.
INTRODUCTION
13. Oxford Pro Bono Publico has been requested to assist in the preparation of an
opinion considering whether the evictions that have taken place in various towns
and cities in Zimbabwe in the context of ‘Operation Murambatsvina’ (‘Operation
Restore Order’ or ‘Operation’) constitute crimes against humanity as defined in the
Statute of the International Criminal Court2 (hereinafter ‘the Statute’).
14. Zimbabwe is not party to the Statute. Therefore, according to Article 12 of the
Statute,3 and given that nationality-based jurisdiction thereunder is extremely
unlikely, it is assumed herein the International Criminal Court (hereinafter ‘the
Court’) does not already have jurisdiction over alleged crimes committed on the
territory of Zimbabwe. Nevertheless, the Court may still exercise its jurisdiction if,
according to Article 13 (b) of the Statute, ‘[a] situation in which one or more of
such crimes appears to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the United Nations’;
this occurred in 2005 with regard to the situation in the Sudan.4
15. For the Security Council to refer a case to the Court acting under Chapter VII, it
must first determine that a ‘threat to the peace, breach of the peace or act of
aggression exists’ as required under Article 39 of the UN Charter. Such a
determination constitutes a prerequisite for the activation of Chapter VII. An
overview of prior Security Council practice demonstrates that there have been
situations where it has found certain human rights violations to constitute a threat to
international peace and security. For example, in 1991 the Security Council
2 Rome Statute for the Establishment of an International Criminal Court (adopted 17 July 1998, entered
into force 1 July 2002) UN Doc A/Conf 183/9; (1998) ILM 999 2187 UNTS 90 [hereinafter ‘Statute’ or
‘Rome Statute’].
3 ibid at Article 12, which reads as follows:
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in Article 5.
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance
with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime
was committed on board a vessel or aircraft, the State or registration of that vessel or aircraft; (b) The
State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State
may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with
respect to the crime in question. The accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.
4 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593.
determined that the consequences of the repression of the Kurdish population in
Northern Iraq, in particular the refugee flows and cross-border incursions,
constituted a threat to the peace.5 In the case of Somalia, the Security Council
determined that ‘the magnitude of the human tragedy … constitutes a threat to
international peace and security’.6 Furthermore, both in the cases of Rwanda and
Eastern Zaire, the Security Council found the threat to the peace in the ‘magnitude
of the humanitarian crisis’.7 It should be emphasised, however, that all these
findings were in the context of internal armed conflicts. The Security Council itself
has stated that ‘the deliberate targeting of civilian populations or other protected
persons and the committing of widespread violations of international humanitarian
law and human rights law in situations of armed conflict may constitute a threat to
international peace and security’.8 Nevertheless, there have been examples where
the Security Council has exercised its Chapter VII powers in the context of human
rights violations in the absence of an internal armed conflict: with both Southern
Rhodesia9 and South Africa, the Security Council found that a threat to international
peace and security existed despite no actual armed conflict,10 although other
motivating factors animated the passing of these resolutions.11
16. Therefore, although the lack of armed conflict makes it unlikely that the Security
Council might consider the situation in Zimbabwe to constitute a threat to the
peace, such a finding would not be unprecedented.
Rome Statute of the International Criminal Court
17. Article 7 of the Rome Statute provides that:
5 UNSC Res 688 (5 April 1991) UN Doc S/RES/688.
6 UNSC Res 794 (3 December 1992) UN Doc S/RES/794.
7 UNSC Res 929 (22 June 1994) UN Doc S/RES/929 (Rwanda); UNSC Res 1078 (9 November 1996)
UN Doc S/RES/1078 (Zaire).
8 UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296; UNSC Res 1314 (11 August 2000) UN Doc
S/RES/1314.
9 UNSC Res 217 (20 November 1965) UN Doc S/RES/217; UNSC Res 221 (9 April 1966) UN Doc
S/RES/221.
10 UNSC Res 418 (4 November 1977) UN Doc S/RES/418.
11 For an overview of Security Council practice, see J Frowein and N Krisch ‘Article 39’ in B Simma
(ed) The Charter of the United Nations, A Commentary (2nd edn Oxford University Press Oxford 2002)
717–29.
(1) For the purpose of this Statute, “crime against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
[…]
(e) Deportation or forcible transfer of population;
[…]
(2) For the purpose of paragraph 1:
[…]
(e) “Deportation or forcible transfer of population” means forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under international law;
18. To determine whether there has been a violation of Article 7 of the Rome Statue, a
number of questions need to be answered in the affirmative. These are:
18.1. Whether there was, in fact, a ‘deportation or forcible transfer of population’ in
Zimbabwe in Operation Murambatsvina, through ‘expulsion or other coercive
acts’.
18.2. Whether the persons subject to the ‘deportation or forcible transfer’ were
‘legally present’ in the area from which they were removed;
18.3. Whether the acts in question constituted a ‘widespread or systematic attack
directed against any civilian population’?
18.4. Whether there are grounds under international law under which the
deportation or forcible transfer could take place.
19. This opinion will examine each of these questions in turn.
About the Authorities and Methodology Used in this Opinion
20. The expansive rule of interpretation regarding the Rome Statute’s definition of
‘crimes against humanity’ and ‘deportation or forcible transfer’, as well as the
understanding thereof as a codification of customary international law, were
articulated by jurist Rodney Dixon, and were respected throughout the drafting of
this opinion:
The desire to prohibit only crimes “which either by their magnitude and savagery or by
their large number or by the fact that a similar pattern was applied … endangered the
international community or shocked the conscience of mankind” is, without dispute, the
essential feature of crimes against humanity. It should guide the interpretation of the
elements of these crimes.
Consequently, the definition of crimes against humanity contained in article 7 of the Statute
accords with the traditional conception of crimes against humanity under customary
international law. The long line of recognised authorities and practices that underpin the
customary law position must be drawn upon to interpret the elements of crimes against
humanity under the Statute.12
21. Although the case law of the International Criminal Tribunal for the Former
Yugoslavia (hereinafter ‘ICTY’) and the International Criminal Tribunal for
Rwanda (hereinafter ‘ICTR’) (hereinafter collectively referred to as the ‘ad hoc
tribunals’) is extensively referred to throughout this opinion, there are certain
institutional and practical differences between the ad hoc tribunals and the Court
which merit brief consideration.
22. The first consideration is the difference between the subject matter jurisdiction of
the ad hoc tribunals and the Court. Article 5 of the ICTY Statute requires a nexus
between the crime and ‘an armed conflict, whether international or internal in
character’ and ‘does not require explicitly that the crime be part of a widespread or
systematic attack’13, both of which differ from the Statute. Article 3 of the ICTR
Statute requires that the crime be committed ‘on national, political, ethnic, racial or
religious grounds’,14 whereas such requirement is only demanded under customary
international law for the crime of persecution and is not required under the Statute.
This difference in emphasis should be borne in mind when considering judgements
from the ad hoc tribunals.
23. Article 7 of the Statute clearly requires, as a component of crimes against humanity,
that the acts be done ‘pursuant to or in furtherance of a State or organizational
policy to commit such attack’.15 However, the Tadic decision of the ICTY observed
that there was no particular motive requirement for crimes against humanity in
12 R Dixon ‘Crimes Against Humanity’ in O Triffterer (ed) Commentary on the Rome Statute of the
International Criminal Court, Observers; Notes, Article by Article (Nomos Verlagsgesellschaft Baden-
Baden 1999) 123.
13 Statute of the International Criminal Tribunal for the former Yugoslavia UNSC Res 827 (25 May
1993), UN Doc S/RES/827 (1993).
14 Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955 (8 November 1994) UN
Doc S/RES/955 (1994).
15 Article 7(2)(a) of the Statute.
general (the act of ‘persecution’ has a motive requirement built into its definition).16
Furthermore, subsequent to the adoption of the Rome Statute, the Appeals Chamber
of the ICTY in the Kunarac judgement held that the policy component was not,
from the standpoint of customary international law, an element of crimes against
humanity at all.17
24. One can therefore reasonably infer that the case law of the ad hoc tribunals has
gravitated towards broadening the concept of crimes against humanity and has
even, on some aspects, appeared to diverge from the text of Article 7 of the Rome
Statute.18 The distinction is immaterial for the case at hand, given that the
Government of Zimbabwe’s statements clearly demonstrate that a policy existed to
perform the acts in question; however, given that the International Criminal Court
and the ad hoc tribunals do not necessarily share a common understanding as to the
nature of crimes against humanity, we caution against excessive reliance on the case
law of the ad hoc tribunals.
Facts
25. The facts cited in the following paragraphs are based, unless otherwise indicated,
both on the ‘Report of the Fact-Finding Mission to Zimbabwe to Assess the Scope
and Impact of Operation Murambatsvina’19 by the UN Special Envoy on Human
Settlements Issues in Zimbabwe, Mrs Anna Kajumulo Tibaijuka, and the Response
of the Zimbabwean Government thereto, issued in a press release on August 2005.20
26. The first official announcement that a comprehensive ‘operation’ was underway in
Zimbabwe came in a speech by the Chairperson of the Government-appointed
Harare Commission, Ms Sesesai Makwavarara at the Harare Town House on 19
May 2005. She characterized it as a ‘programme to enforce bylaws to all forms of
16 Prosecutor v Tadic (Judgement) ICTY IT-94-1-A Ch (15 July 1999) [hereinafter Tadic].
17 Prosecutor v Kunarac (Judgement) ICTY IT-96-23, IT-96-23/I-A (22 February 2001) [98].
18 W Schabas An Introduction to the International Criminal Court (2nd edn Cambridge University Press
Cambridge 2004) 45–46.
19 A Kajumulo Tibaijuka (UN Special Envoy on Human Settlements Issues in Zimbabwe ‘Report of the
Fact-Finding Mission to Zimbabwe to assess the Scope and Impact of Operation Murambatsvina’ (United
Nations Human Settlement Programme) (31 October 2005)
http://www.unhabitat.org/documents/ZimbabweReport.pdf [hereinafter ‘Report’].
20 Government of Zimbabwe ‘Response by Government of Zimbabwe to the Report by the UN Special
Envoy on Operation Murambatsvina/Restore Order’
http://www.zimfa.gov.zw/speeches/president/UNresp.pdf (31 October 2005) [hereinafter ‘Response’].
illegal activity’ and said it would be enforced ‘in conjunction with Zimbabwe
Republican Police’. Five days later, the City of Harare issued a notice indicating to
the people of the Greater Harare area that persons who had erected illegal structures
should demolish them by 20 June 2005. There is no evidence that advance notice
was given in other cities in Zimbabwe to which the Operation was extended. On 25
May 2005, only a few days after the notice appeared, and in complete disregard of
the deadline announced, a massive military-style operation started.21
27. The Operation started in the capital, Harare, but was quickly extended to practically
all urban centres, including Bulawayo, Chinhoyi, Gweru, Kadoma, Kwe Kwe,
Marondera and Mutare.22
28. According to the Government of Zimbabwe the Operation had been undertaken,
inter alia, for the following purposes:
a) to stem disorderly or chaotic urbanisation and the problems that
hinder the Government and local authorities from enforcing national and
local authority by-laws from providing service delivery, water,
electricity, sewage and refuse removal;
b) to minimise the threat of major disease outbreaks due to
overcrowding and squalor;
c) to stop economic crimes especially illegal black market transactions
in foreign currency;
d) to eliminate the parallel market and fight economic sabotage;
e) to reorganise micro-, small and medium enterprises;
f) to reduce high crime levels by targeting organized crime syndicates;
g) to arrest social ills among them prostitution which promotes the
spread of HIV/AIDS and other communicable diseases;
21 ibid 12.
22 ‘Zimbabwe’s Operation Murambatsvina: The Tipping Point?’
http://www.crisisgroup.org/library/documents/Africa/souther_africa/097_zimbabwe_s_operation_murambatsvina_the_tipping_point.pdf (31 October 2005) [hereinafter ‘International Crisis Group’] 1.
h) to stop the hoarding of consumer commodities, and other
commodities in short supply; and
i) to reverse the environmental damage and threat to water sources
caused by inappropriate and unlawful urban settlements.23
29. Irrespective of whether the above justifications were the real motivations behind the
Operation or not, or whether, for example, the Operation was an act of retribution
against areas known by the Government to have voted for the opposition during the
recent presidential and parliamentarian elections,24 it has been established that the
Operation was initially targeted at street vendors and those operating in the informal
urban economy.25 Also, it rapidly extended to the demolition of informal and formal
settlements, and small and medium enterprises countrywide.26
30. Official government figures released on 7 July 2005 revealed a total of 92 460
housing structures that had been demolished directly affecting 133 534
households.27 At the same time, the structures of 32 538 micro-, small and medium-
sized enterprises were demolished. Based on average household size derived from
the 2002 census, and authoritative studies on the informal economy, the population
having lost their homes can be estimated at 569 685 and those having lost their
primary source of livelihood at 97 614.28 This present opinion only considers the
lawfulness of the situation of those actually deprived of their households.
31. However, the Government of Zimbabwe, in its Response to the Report of the UN
Envoy, denies the findings contained therein. First, it states that the persons made
temporarily homeless in the major cities were the same persons placed in transit
centres visited by the UN Envoy. The numbers of households in Transit Centres
23 Response (n 20) 15–16.
24 Report (n 19) 20, International Crisis Group (n 22) 4–5. However, the Government of Zimbabwe
claims that: Contrary to the allegations by its critics that the operation targeted opposition supporters, the
exercise has also affected ZANU PF supporters, war veterans and civil servants including members of
the uniformed forces. Response (n 20) 20.
25 Report (n 19) 31.
26 ibid.
27 For the purposes of the Report (n 19) 32 (fn 46), households include conventional family structures,
multi-generational and/or extended family structures and individuals. The average family size has been
taken to be 4.2 persons.
28 Report (n 19) 32. Crisis Group’s own extensive research, including inside Zimbabwe, has unearthed no
basis for disagreement with UN Envoy’s findings.
were as follows: Harare 1,077; Bulawayo 892; and Mutare 726.29 Second, it states
that most of the structures removed were one-room structures, which were
extremely small in surface area. It therefore argues that, they could not have been
housing an average of five people, the number used in the Report and extrapolated
to arrive at the final figure of 700,000 people deprived of their households.30
32. Institutionally, the Operation was conducted by central Government authorities,
including the military.31 The demolitions were conducted as a national police and
military exercise.32 The operation was still underway as the UN Mission left the
country.33
Mens Rea
33. The present opinion does not deal with the criminal responsibility, if any, of
specific or identifiable individuals; thus, the mens rea requirements for a conviction
under international criminal law will only be discussed in general terms.
34. In order for an individual to be criminally responsible for crimes against humanity,
in the case under question for forcible transfer of population, he or she must have
committed the relevant act with knowledge of the attack. The element of knowledge
should not be interpreted as requiring proof that the perpetrator had knowledge of all
characteristics of the attack or the precise details of the plan or policy of the State or
organization. In the case of an emerging widespread or systematic attack against a civilian
population, the intent clause of the last element indicates that this mental element is
satisfied if the perpetrator intended to further such an attack.34
The perpetrator must therefore have actual or constructive knowledge of the broader
context of the attack, meaning that he or she must know that his or her act is part of
a widespread or systematic attack on a civilian population and pursuant to some
29 Response (n 20) 28–29.
30 ibid 21.
31 Report (n 19) 31.
32 ibid 67.
33 It has been argued that the Operation remains ongoing: Carole Gombakomba, ‘Zimbabwe Carries Out
New Evictions in Harare Township’ (Voice of America)
http://www.voanews.com/english/Africa/Zimbabwe/2005-10-07-voa47.cfm (31 October 2005).
34 ‘Elements of Crimes’ adopted by the Assembly of States Parties to the International Criminal Court (9
September 2002) ICC Doc ICC-ASP/1/3 [hereinafter ‘Elements of Crimes’] 518.
kind of policy or plan.35 The accused need not necessarily share the purposes or
goals behind the broader attack.36
35. The individual’s actions themselves need not be widespread or systematic,
providing that they form part of such an attack. Indeed, the commission of a single
act—such as one murder—can, in the context of a broader campaign against the
civilian population, constitute a crime against humanity.37
36. It should be noted that under the Statute, a person need not be the actual perpetrator
of a crime against humanity in order to bear individual criminal responsibility.
Under Article 25 of the Statute,38 a person can be liable for punishment if, for
example, they have ordered the commission of the crime or assisted in its
commission. In addition, Article 28 establishes the principle of ‘superior
responsibility’, whereby military commanders or other high-ranked officials may be
held accountable for the acts or omissions of those under their military command
who committed crimes under the jurisdiction of the Court and either knew or ought
to have known that such crimes were about to be committed or failed to take all
necessary and reasonable measures within their power to prevent or repress their
commission. 39
35 Prosecutor v Rutaganda (Judgement) ICTR-96-3 (6 December 1999) [71], Prosecutor v Musema
(Judgement) ICTR 96-13-A (27 January 2000) [206].
36 Prosecutor v Semanza (Judgement) ICTR-97-20-T (15 May 2003) [332].
37 Dixon (n 12) 125.
38 Rome Statute (n 2) Article 25 reads as follows:
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible
and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a
crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an
individual, jointly with another or through another person, regardless of whether that other person is
criminally responsible; (b) Orders, solicits or induces the commission of such a crimes which in fact
occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including providing the means for its
commission; (d) In any other way contributes to the commission or attempted commission of such a
crime by a group of persons acting with a common purpose. Such contribution shall be intentional and
shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group,
where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime; […] (f) Attempts to
commit such a crime by taking action that commences its execution by means of a substantial step, but
the crime does not occur because of circumstances independent of the person’s intentions. However, a
person who abandons the effort to commit the crime or otherwise prevents the completion of the crime
shall not be liable for punishment under this Statute for the attempt to commit that crime if that person
completely and voluntarily gave up the criminal purpose.
39 Rome Statute (n 2) Article 28 reads as follows:
37. The criminal responsibility of each individual who may eventually be indicted must
be determined on the basis of evidence not all of which is currently available and
which is beyond the scope of this opinion.
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction
of the Court: (a) A military commander or person effectively acting as a military commander shall be
criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or
her effective command and control, or effective authority and control as the case may be, as a result of
his or her failure to exercise control properly over such forces, where: (i) That military commander or
person either knew or owing, to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and (ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and prosecution. (b) With respect to
superior and subordinate relationships not described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise control properly over such
subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes
concerned activities that were within the effective responsibility and control of the superior; and (iii) The
superior failed to take all necessary measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for investigation and prosecution.
Structure of the Opinion
Having discussed the preliminary considerations, this present opinion will examine the
evictions carried out under the Operation in light of the definitions of
a) ‘Forcible transfer of population’, to the extent to which these were:1)
coerced;
b) Whether the population so transferred was ‘lawfully present’;
c) The extent to which these attacks were ‘widespread or systematic’,
thus constituting a crime against humanity under Article 7 of the
Statute;
Should a forcible transfer under the Statute be found to exist under the facts as
described supra, a separate discussion of whether there are circumstances under
international law which would otherwise render such forcible transfer lawful will
follow.
PART I: DEPORTATION OR FORCIBLE TRANSFER OF POPULATION
38. Article 7 (2) (d) provides that in order for an act to be considered forcible transfer
of population it needs to be:
i) a forced displacement of the persons concerned by expulsion or other coercive
acts;
ii) from the area in which they are lawfully present;
iii) without grounds permitted under international law.
39. This section of the opinion will examine whether there was in fact a deportation or
forcible transfer of population as defined in the Statute.
40. Article 7 of the Statute, which defines the concept of ‘crimes against humanity’ and
enumerates various individual acts that fall under that definition, excludes, by its
silence, the requirements that the acts in question take place during armed conflict
and occur on discriminatory grounds.40 This definition therefore differs from the
definition of ‘crimes against humanity’ included in the Statutes of the ad hoc
tribunals.41
41. Article 7 of the Statute lists ‘deportation or forcible transfer of population’, which
under subparagraph (2)(d) thereof is defined as ‘forced displacement of the persons
concerned by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law’.42
42. It is imperative that the concepts of deportation and forcible transfer of the
population be properly distinguished: the former emphasises the ‘forced removal of
people from one country to another’; the latter, the ‘compulsory movement of
people from one area to another within the same State’.43 The argument considered
herein proceeds on the observation that nothing in the facts, discussed above,
40 CK Hall in R Dixon ‘Crimes Against Humanity’ in O Triffterer (ed) Commentary on the Rome Statute
of the International Criminal Court, Observers; Notes, Article by Article (Nomos Verlagsgesellschaft
Baden-Baden 1999) 123.
41 See para 22 above.
42 Rome Statute (n 2) Article 7.
43 MC Bassiouni Crimes Against Humanity in International Criminal Law (2nd edn Kluwer The Hague
1999) 312.
indicates that the people affected by the act in question were specifically
transported across international boundaries. It is therefore the specific question of
whether the acts in question constitute a forcible transfer that will be examined.
43. Forced population exchanges have been lawfully executed in the past: Greece and
Turkey, after the First World War, had actually been required to do so by the Treaty
of Lausanne,44 and ethnic Germans and German nationals were expelled from
countries in Central and Eastern Europe after the Second World War.45 The crime
against humanity of ‘deportation’ made its first appearance as an international crime
in the Charter for the Nuremburg Trials, in which Article 6(c) listed a series of acts
constituting crimes against humanity:
murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war, or persecutions on political,
racial, or religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country
where perpetrated.46
The emergence of the specific crime against humanity of ‘forcible transfer of
population’ was first codified in Article II(c) of the 1973 Apartheid Convention.47
Internal displacement is also prohibited within international humanitarian law,
where the forcible transfer of a population during wartime constitutes a war crime
under paragraphs 2(b)(viii) and (e)(viii)) of Article 8 of the Statute, as well as the
Fourth Geneva Convention and the Second Additional Protocol thereto.48
44. Although the latter two instruments find exclusive application during international
or non-international armed conflict, the principles elucidated therein may be useful
when considering the analogous crime against humanity during peacetime. In its
44 Treaty of Peace between the Allied Powers and Turkey (1923), 28 LNTS 11 [hereinafter ‘Treaty of
Lausanne’].
45 Hall (n 40) 135.
46 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8
August 1945, Annex, 59 Stat. 1544; 82 UNTS 279; reprinted in 39 AJIL 257 (Supp. 1945) [hereinafter
‘Nuremburg Charter’ or ‘IMT Charter’]. [Emphasis added.]
47 International Convention for the Suppression and Punishment of the Crime of Apartheid (opened for
signature Nov. 30, 1973, entered into force Jul. 18, 1976), 1015 UNTS 243 [hereinafter ‘Apartheid
Convention’].
48 Geneva Convention [IV] relative to the Protection of Civilian Persons in Time of War (opened for
signature 12 August 1949, entered into force 21 October 1950), 75 UNTS 287, Article 49, Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (opened for signature 8 June 1977, entered into force 7 December
1978), 1125 UNTS 609, Article 17(1).
Rule 61 Decision in Nikolic,49 rendered on 20 October 1995, the Trial Chamber of
the ICTY declared that deportation could be qualified as both a ‘grave breach of the
Geneva Conventions and as a crime against humanity’. The Trial Chamber held
that,
[u]nder the supervision and on the orders of the accused…a large number of detainees are
said to have been transferred from Suzica camp to Batkovic during the summer of 1992.
Dragan Nikolic is said to have organised the transfers, calling out detainees from a list of
names and telling them that they were to be exchanged for Serbian prisoners. In actual fact,
the detainees were transferred to Batkovic camp; they were forced to travel by bus with
their heads down, their hands behind their heads. They were beaten and forced to sing
‘patriotic Serbian’ songs. At Batkovic camp conditions were similar to those at Suzica
camp, if not worse…the Chamber considers that Dragan Nikolic may have committed
grave breaches of the Geneva Conventions of 1949—in particular of Convention IV—
which fall under the Tribunal’s jurisdiction pursuant to Article 2 of the Statute. [The]
Chamber, however, also considers that the same set of facts could be characterised as
deportation and, accordingly, come under Article 5 of the Statute.50
45. Despite the differences between the Rome Statute and the constitutive statutes of
the ad hoc tribunals, the definitions enumerated in the Statute are considered to
codify customary international law on the definition of crimes against humanity.51
The Statute makes no further distinction between the crimes against humanity of
‘deportation’ and ‘forcible transfer of population’. Jurist Christopher Hall has stated
that, ‘given the common distinction between deportation as forcing persons to cross
a national frontier and transfer as forcing them to move from one part of the country
to another without crossing a national frontier, and given the basic presumption that
no words in a treaty should be seen as surplus, it is likely that the common
distinction was intended’.52 The terms, ‘forcible’ and ‘forced’, under this
interpretation, should be given a broad reading consistent with the purpose of the
Statute to include any form of coercion which leads to the departure of people from
the area where they are located.53 The Krstic decision of the Trial Chamber of the
ICTY also stated that ‘deportation presumes transfer beyond State borders, whereas
forcible transfer relates to displacement within a State’ under customary
international law.’54 In that case, about 25 000 Bosnian Muslim civilians were
forcibly bussed outside the enclave of Srebenica to the territory under Bosnian
49 Prosecutor v Nikolic, ICTY IT-94-2-R61 (20 October 1995) Trial Chamber I.
50 ibid at para 23.
51 A Cassese, ‘Crimes Against Humanity’ in Cassese, Gaeta, Jones (eds) The Rome Statute of the
International Criminal Court (Oxford University Press Oxford 2002) vol 1 353, 370.
52 Hall (n 40) 136.
53 ibid.
54 Prosecutor v Krstic, ICTY IT-98-33 (2 August 2001) [531].
Muslim control, but within Bosnia-Herzegovina. The transfer was compulsory and
was carried out ‘in furtherance of a well organised policy whose purpose was to
expel the Bosnian Muslim population from the enclave’.55 The Chamber concluded
that the civilians transported from Srebenica were not subjected to deportation but
to forcible transfer, a crime against humanity.
46. Hall argues further that, ‘considering the recent history of international
displacement of people, “expulsion or other coercive acts” must include the full
range of coercive pressures on people to flee their homes, including death threats,
destruction of their homes, and other acts of persecution, such as depriving
members of a group of employment, denying them access to schools and forcing
them to wear a symbol of their religious identity.’56
47. In light of the foregoing, it is reasonable to add that, when pertinent, any statements
made by a municipal or international court, official government documents, treaties,
conventions or the documents of international organisations concerning
‘deportation’ can assist, as the case may be and, mutatis mutandis, in further
understanding the crime against humanity of ‘forcible transfer of population’.
Forcible Transfer in the ‘Elements of Crimes’
48. The ‘Elements of Crimes’, adopted by the Assembly of States Parties to the
International Criminal Court on 18 September 2002, require that the following
elements exist for the crime against humanity of ‘deportation or forcible transfer of
population’ to be established:
1. The perpetrator deported or forcibly transferred, without grounds permitted under
international law, one or more persons to another State or location, by expulsion or
other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so
deported or transferred.
3. The perpetrator was aware of the factual circumstances that established the
lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
55 ibid [527].
56 Hall (n 40) 162.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.57
49. Although the ‘Elements of Crimes’ adopted by the Assembly of States Parties are
not in and of themselves binding,58 nor in any way to be construed as modifying the
Rome Statute, throughout the drafting process for the ‘Elements of Crimes’, great
care was taken that the intent of the Statute not be modified when adopting the
Elements of Crimes. Although the Vienna Convention on the Law of Treaties59
declares in Article 31(1) that a treaty provision should be interpreted ‘in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose’, the Elements of Crimes may be of use, as
Article 31(3)(a) of the Vienna Convention also allows for a ‘subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its
provisions’ to be taken into account in interpreting a treaty; Article 31(3)(c)
similarly provides for ‘subsequent practice in the application of the treaty’ to be
taken into account. Important considerations enumerated in the Rome Statute are
emphasised in the ‘Elements of Crimes’, namely, that the persons deported or
forcibly transferred were lawfully present in the area from which they were so
deported or transferred and that the perpetrator was aware of the factual
circumstances that established the lawfulness of such presence.’ [emphasis added]
50. In light of the foregoing, it is therefore reasonable to conclude that Operation
Murambatsvina, as described herein, could fulfil the requirements under Article
7(2)(d) of the Rome Statute of a ‘forcible transfer of population’.
PART II: LEGALITY OF THE EVICTIONS UNDER ZIMBABWEAN LAW
51. This part of the opinion addresses the question of whether the persons subject to
deportation and forcible transfer in Operation Murambatsvina were ‘lawfully
present’ in the area from which they were removed.
52. In order to fully answer this third question, it must be further broken down into
three sub-questions:
57 Elements of Crimes (n 34) 118.
58 United Nations, http://www.un.org/News/facts/iccfact.htm (12 November 2005).
59 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January
1980), 1155 UNTS 331 [hereinafter ‘Vienna Convention’].
52.1. What is the meaning of ‘lawfully present’?
52.2. Were the persons subject to the deportation or forcible transfer lawfully
present under Zimbabwean law?
52.3. Assuming that the persons subject to the deportation or forcible transfer were
not lawfully present under Zimbabwean law, is that law compatible with
international law?
53. These questions will be dealt with in turn below.
The Meaning of ‘Lawfully Present’ In the Rome Statute
54. Article 7(2)(d) of the Rome Statute provides that ‘[d]eportation or forcible transfer
of population’ means ‘forced displacement of the persons concerned by expulsion
or other coercive acts from the area in which they are lawfully present, without
grounds permitted under international law.’
55. This section considers the meaning of the term ‘lawfully present’. These words can
be interpreted as referring to:
55.1. Zimbabwean domestic law, exclusively;60
55.2. International law, exclusively;
55.3. Zimbabwean domestic law, to the extent that it is compatible with
general international law; or
55.4. Zimbabwean domestic law, to the extent that it is compatible with
Zimbabwe’s specific treaty obligations under international law.
56. This section will conclude that the fourth interpretation, namely, that ‘lawfully
present’ should be taken to refer to Zimbabwean domestic law to the extent that it is
consistent with Zimbabwe’s international obligations, is correct. This conclusion
was reached by examining how the European Court of Human Rights (hereinafter
60 This appears to be the interpretation favoured by Mrs Kajumulo Tibaijuka in the Report, 64–66. If the
evictees were not lawfully present under Zimbabwean domestic law, this interpretation of Article 7(2)(d)
would, of course, negate the argument that Operation Murambatsvina constituted a crime against
humanity.
‘European Court’), the African Commission on Human and Peoples’ Rights
(hereinafter ‘African Commission’) and the United Nations Human Rights
Committee (hereinafter ‘Human Rights Committee’) have interpreted similar
provisions in the European Convention on Human Rights, the African Charter on
Human and Peoples’ Rights, and the International Covenant on Civil and Political
Rights, respectively. Although divergent approaches are evident, all of these bodies
take the view that the words ‘lawfully’, when appearing in instruments such as
these, should not be taken to refer solely to domestic law – an interpretation that
would, after all, accord the State party carte blanche to behave as it liked, provided
that it did so in accordance with pre-established domestic rules.
The European Court of Human Rights
57. Article 5 of the European Convention on Human Rights contains numerous
provisions in which the word ‘lawful’ is used. By way of illustration, Article 5(1)
provides that: ‘Everyone has the right to liberty and security of the person. No one
shall be deprived of his liberty save in the following cases and in accordance with a
procedure established by law: (a) the lawful detention of a person after conviction
by a competent court […]’61
58. In interpreting the word ‘lawful’ in these provisions, the European Court of Human
Rights is faced with a problem analogous to that encountered in interpreting Article
7(2)(d) of the Rome Statute, that is, should ‘lawful’ be taken to refer solely to
domestic law, or is there another possible interpretation?
59. In Amuur v France62 the European Court held that: ‘Where the “lawfulness” of
detention is in issue, including the question whether “a procedure prescribed by
law” has been followed, the Convention refers essentially to national law and lays
61 The remainder of Article 5 provides for the following cases: (b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any
obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority of reasonable suspicion of having committed and
offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing
after having done so; (d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person
to prevent his effecting an unauthorized entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
62 (1996) 22 EHRR 533.
down the obligation to conform to the substantive and procedural rules of national
law, but it requires in addition that any deprivation of liberty should be in keeping
with the purpose of Article 5, namely to protect the individual from arbitrariness.’63
In other words, ‘these words do not merely refer back to domestic law … they also
relate to the quality of the law’.64
60. This interpretation of Article 5 has both procedural and substantive consequences
for the ‘quality’ of domestic law. Procedurally, the Court has insisted that:
Where deprivation of liberty is concerned it is particularly important that the general
principle of legal certainty be satisfied. It is essential that the conditions for
deprivations of liberty under domestic law be clearly defined and that the law itself be
foreseeable in its application, so that it meets the standard of “lawfulness” set by the
Convention, a standard that requires that all law be sufficiently precise to allow the
person—if need be, with appropriate advice—to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail.65
61. In this area, the European Court has dealt with cases in which domestic law has
been found to be of insufficient procedural ‘quality’ either because it is
impermissibly vague66 or simply non-existent.67 The circumstances of Operation
Murambatsvina are somewhat different. There, legislation in the form of the
Regional Town and Country Planning Act 1976 (Chapter 29:12) (hereinafter
‘Planning Act’) and the Housing Standards Control Act 1972 (Chapter 29:08)
(hereinafter ‘Housing Act’) had been retained from the Rhodesian era. However,
according to the United Nations Special Envoy, this legislation was ‘mostly
ignored’ after independence.68 Furthermore, the Zimbabwean government had
adopted policies that directly contradicted these statutes, without engaging in the
necessary legislative reform, before relying on these statutes to justify the campaign
of evictions.69
62. These circumstances were, it is submitted, equivalent to the government of
Zimbabwe acting in accordance with statutory norms that were either ill-defined or
non-existent. In other words, in the face of legislation that was not enforced, and
63 ibid [50].
64 ibid.
65 Baranowski v Poland [2000] ECHR 120 [hereinafter Baranowski].
66 Hashman and Harrup v United Kingdom (2000) 30 EHRR 241.
67 Baranowski (n 65).
68 Report (n 19) 56.
69 ibid 24–25.
policies that directly contradicted such legislation, it cannot be said that the victims
of Operation Murambatsvina could reasonably have foreseen the consequences of
settling as they did. In the context of what the United Nations Special Envoy
describes as the ‘general deterioration of the rule of law’70 in Zimbabwe, it cannot
be said that the principle of legal certainty—itself an aspect of the rule of law—was
satisfied. If so, then the victims of Operation Murambatsvina cannot be said to have
been unlawfully present in the areas in which they had settled, as the government of
Zimbabwe alleges, which is tantamount to saying that they were lawfully present.
63. In these circumstances, a better course would have been for the Government of
Zimbabwe to have promulgated new legislation that was consistent with its own
policies, met its obligations under international law,71 and which recognised the
present position of the evictees of Operation Murambatsvina, thereby signalling a
return to the rule of law.
64. The European Court’s interpretation of ‘lawfulness’ in Article 5 of the European
Convention also has substantive consequences for domestic law. Even where a
national law is clear and has been complied with, a deprivation of liberty will not be
‘lawful’ if domestic law allows for arbitrary or excessive detention.72 Thus, in
Varbanov v Bulgaria73 the Court held that, in order for detention to be lawful under
Article 5(1)(e), it is necessary for less severe measures to have been considered. As
several commentators have noted, in assessing the ‘substantive’ lawfulness of such
laws under the Convention, the Court effectively engages in a proportionality
inquiry that recognises the right to liberty and security of the person, and balances
the interests of the State against that.74
65. This aspect of the European Court’s case law is important insofar as it demonstrates
the Court’s unwillingness to interpret ‘lawfulness’ in Article 5 of the Convention as
70 ibid 56.
71 As argued below in paragraphs 110–115, the Planning Act and Housing Acts are inconsistent with
Zimbabwe’s obligations under the International Covenant on Economic, Social and Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
72 C Ovey & R White Jacobs and White, The European Convention on Human Rights (3rd edn Oxford
University Press Oxford 2002).
73 App 31365/96, Judgement of 5 October 2000.
74 R Clayton & H Tomlinson The Law of Human Rights (Oxford University Press Oxford 2000) 10. 93; J
Murdoch ‘Safeguarding the Liberty of the Person: Recent Strasbourg Jurisprudence’ (1993) 42 ICLQ
494.
referring solely to domestic law – an approach that would drain the right of
substantive content and reduce it to a purely formal requirement. However, it is
submitted that the Court’s judgements in this area are not otherwise relevant to the
correct interpretation of Article 7(2)(d) of the Rome Statute, given that this
provision does not establish a specific right and then demand that derogations from
that right must be ‘lawful.’ As such, it does not lend itself to the type of enquiry
employed by the European Court of Human Rights.
The African Commission on Human and Peoples’ Rights
66. The African Charter on Human and Peoples’ Rights likewise includes several
provisions that establish a right and then provide that derogations from that right are
permissible provided that they accord with ‘law.’ For instance, Article 10 thereof
provides that ‘every individual shall have the right to free association provided that
he abides by the law.’ In a similar vein, Article 9(2) states that ‘every individual
shall have the right to express and disseminate his opinions within the law.’75
67. In interpreting these provisions of the African Charter, the African Commission is
faced with a problem analogous to that encountered in interpreting Article 7(2)(d)
of the Rome Statute, that is, should ‘lawful’ be taken to refer solely to domestic
law, or is some other interpretation available?
68. The African Commission has chosen to interpret the term ‘lawful’ in light of what it
loosely terms ‘international standards’: a law which infringes upon a right will not
pass muster unless it accords with international human rights law.76 Thus in its
‘Resolution on the Right to Freedom of Association’ (1992) the African
Commission noted, inter alia, that ‘[t]he competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international standards.’77 Likewise, in the African Commission’s
‘Resolution on Freedom of Expression’ (2001), the Commission undertook to
75 See also African Charter Articles 6 (the right to liberty and security of the person); 8 (freedom of
conscience, the profession and free practice of religion); 12 (the right to freedom of movement); and 13
(the right to participate freely in the government of one’s country).
76 This appears to be the approach favoured by Kriangsak Kittichaisaree who states, with reference to
Article 7(2)(d) of the Statute, ‘[a]lthough lawfulness or otherwise of the presence is determined by
national law, that national law must also be measured against the yardstick of international law,’ K
Kittichaisaree International Criminal Law (Oxford University Press Oxford 2001) 109.
77 ACHPR /Res.5(XI)92 (9 March 1992) at Art 1.
‘develop and adopt … a Declaration of Principles of Freedom of Expression, drawn
from a comprehensive range of international standards and jurisprudence, to
elaborate and expound the nature, content and extent of the right to freedom of
expression provided for under Article 9 of the African Charter.’78
69. The African Commission has also followed this approach in its decisions. The
Commission has, for example, ‘established the principle that where it is necessary
to restrict rights, the restriction should be as minimal as possible and not undermine
fundamental rights guaranteed under international law.’79 Likewise, the
Commission has drawn upon its resolutions to find that ‘[g]overnment should avoid
restricting rights, and take special care with regard to those rights protected by
constitutional or international human rights law.’80
70. In essence, therefore, the African Commission interprets the term ‘law’ in the
African Charter as referring to domestic law to the extent that it is consistent with
international human rights law. Once again, this is important insofar as it indicates
the Commission’s unwillingness to interpret ‘lawfulness’ as referring solely to
domestic law. Questions can, however, be raised about the appropriateness of
extending this approach to the Rome Statute, given the African Commission’s
understanding of the nature of ‘internationally binding legal rules’. In particular,
‘international human rights law’ is poorly defined, and in fact, the African
Commission does not state whether it should be limited solely to those customary
and treaty norms which bind the State in question, or whether it should it be
extended to include all norms that are well-established in the international
community but which do not have the status of customary international law. The
latter notion does not appear to reflect any recognised source of international law
enumerated in Article 38 of the Statute of the International Court of Justice,81 which
is generally accepted as the definitive list of sources of international law.82 For
78 ACHPR /Res.54(XXIX)01 (7 May 2001) at Art 1.
79 Amnesty International, Comite Loosli Bachelard, Lawyers Committee for Human Rights, Association
of Members of the Episcopal Conference of East Africa v Sudan African Comm. Hum. & Peoples’
Rights, Comm. No. 48/90, 50/91, 89/93 (not dated).
80 Constitutional Rights Project and Civil Liberties Organisation v Nigeria African Comm. Hum. &
People’s Rights, Comm. No. 102/93 (not dated).
81 Statute of the International Court of Justice, as annexed to the Charter of the United Nations (26 June
1945) UKTS 67 (1946), Cmd 7015, art 38.
82 I Brownlie Principles of Public International Law (6th edn Oxford University Press Oxford 2003) 3.
these, and for other reasons, it is not recommended herein that the approach of the
African Commission be followed in interpreting Article 7(2)(d) of the Rome
Statute.
The United Nations Human Rights Committee
71. The International Covenant on Civil and Political Rights (ICCPR) likewise contains
several provisions that refer to ‘law’ and ‘lawfulness.’ Of particular relevance is
Article 12(1) of the ICCPR, which provides that: ‘[e]veryone lawfully within the
territory of a State shall, within that territory, have the right to liberty of movement
and freedom to choose his residence.’
72. In interpreting this provision, the Human Rights Committee has held that: ‘[t]he
question whether an alien is “lawfully” within the territory of a State is a matter
governed by domestic law, which may subject the entry of an alien to the territory
to restrictions, provided they are in compliance with the State’s international
obligations.’83 In this vein, the Human Rights Committee has held that an alien who
entered the State illegally, but whose status has been regularised, must be
considered to be lawfully within the territory for the purposes of Article 12.84 In
other words, for the Human Rights Committee, ‘lawful’ in the context of the ICCPR
refers to domestic law to the extent that it is consistent with that State Party’s
obligations under international law.
73. This approach has numerous advantages, and it is therefore reasonable to conclude
that it should be applied to Article 7(2)(d) of the Rome Statute. Firstly, it avoids the
obvious difficulties involved in interpreting ‘lawful’ as referring solely to domestic
law. As mentioned, such an interpretation would allow the State party to behave as
it liked, provided that it did so in accordance with pre-established laws. Secondly, it
specifies which international laws – those customary and treaty norms that bind the
particular State – should constrain domestic law. Thirdly, it accords with the well-
established principle that, from the perspective of an international body such as the
International Criminal Court, the international law that binds a particular State
83 UN Human Rights Committee ‘General Comment 27: the Rights of Minorities: Freedom of
Movement’ UN Doc CCPR/C/21/Rev.1/Add.5 Article 12.
84 UN Human Rights Committee Celepli v Sweden [1994] IIHRL 53 [9.2].
should prevail over its domestic law.85 In other words, in asking what constitutes
the law of Zimbabwe, it makes sense that, from the international perspective,
Zimbabwe’s international obligations should take precedence over its domestic law.
74. Since the Planning Act has not been enforced for a significant period, the doctrine
of abrogation through disuse might render it void. As no definite conclusion on this
question is expressed herein, and it will be discussed with the sole purpose of
drawing attention to the doctrine for further consideration by a specialised
Zimbabwean constitutional lawyer, it will be relegated to separate discussion in Part
IV. Should it be decided that the doctrine is still operable in Zimbabwe, then those
subject to the evictions were, arguably, ‘lawfully present’ since there was no
legislation prohibiting their settlement in the area.
PART III : ARE THE ACTS PART OF A WIDESPREAD OR SYSTEMATIC ATTACK
DIRECTED AGAINST A CIVILIAN POPULATION?
Widespread or Systematic attack
75. According to Article 7(1) of the Rome Statute, ‘[f]or the purpose of this Statute,
crime against humanity’ means any of the following acts when committed as part of
a widespread or systematic attack directed against any civilian population, with
knowledge of the attack: …(d) deportation or forcible transfer of population;’. The
phrase ‘for the purposes of this Statute’ signifies that the definition is intended to be
applicable only before the International Criminal Court. Such a definition might
extend beyond the Court’s practice only insofar as it might contribute to the
evolution of customary international law. Therefore, our analysis will be strictly
limited to the above definition, irrespective of whether or not it is broader or
narrower in some respects from the one under customary international law.
76. This section of this present opinion aims to determine whether ‘Operation
Murambatsvina’ was committed as part of a widespread or systematic attack against
a civilian population, thus falling under the aegis of the Article 7 definition. This
analysis will be based on the presumption that the findings of the UN Envoy are
85 Vienna Convention (n 59) Art 27: a State Party ‘may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.’
valid insofar as the extent of the Operation and the way it was conducted are
concerned.
77. To conclude whether or not a crime against humanity has taken place, it must first
be determined whether there was an attack against a civilian population. We must
therefore examine all the constituent elements of the notion of ‘attack’.
78. Paragraph 2(a) of Article 7 of the Statute states that ‘attack directed against any
civilian population’ means a course of conduct involving the multiple commission
of acts referred to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organisational policy to commit such attack. The text
adopts the previously recognized threshold test of ‘widespread or systematic’
attack, but defines a simple ‘attack’ as well to assuage concerns about an
unqualified disjunctive test.86
79. As far as the ‘multiple commission of acts’ is concerned there is no requirement
that more than one of the enumerated acts, or combination thereof, be committed.87
This requirement either refers to more than one generic act, even though this is not
required, or more than a few isolated incidents that would fall under one or more of
the enumerated acts.88 Thus, in the case at hand, the numerous incidents of forcible
transfer of population suffice to establish the prerequisite of ‘multiple commission
of acts’.
80. It should be emphasised that the acts need not constitute a military attack.89 As the
ICTR held in Prosecutor v Akayesu: ‘An attack may also be non-violent in nature,
like imposing a system of apartheid, which is declared as a crime against humanity
in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the
population to act in a particular manner, may come under the purview of an attack,
if orchestrated on a massive scale or in a systematic manner’.90 In addition, the acts
86 D Robinson ‘Defining “Crimes against Humanity” at the Rome Conference’ (1999) 93 AJIL 43, 49.
87 Dixon (n 12) 124.
88 ibid 158.
89 Elements of Crimes (n 34) 518.
90 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) [581], Prosecutor v Rutaganda
(n 35) [70], Prosecutor v Musema (n 35) [205]. See also Prosecutor v Semanza (n 36) [327], Prosecutor
v Kamuhanda (Judgement) ICTR-95-54A-T (22 January 2004) [661] where it was held that: ‘An attack
does not necessarily require the use of armed force, it could also involve other forms of inhumane
mistreatment of the civilian population.’
could constitute the attack itself. For example, the mass murder of civilians may
suffice as an attack against the civilian population. There is no requirement that a
separate attack against the same civilians, within which the murders were
committed, be proven.91 Therefore, in the case at hand, the acts of forcible transfer
of population may constitute the attack itself. It is not obligatory to prove that there
was a separate attack against the same civilians in the context where the forcible
transfer took place. The acts of forcible transfer fulfil two requirements of the
Statute. They constitute: a) the acts enumerated in Article 7; and b) the attack itself.
81. A ‘state or organizational policy’ is a necessary component of a ‘widespread or
systematic attack on the civilian population’ as defined in the Statute. It constitutes
a basis for ensuring that random or isolated acts are excluded from the scope of
crimes against humanity. The attack must be committed pursuant to or in
furtherance of this policy irrespective of whether the attack is widespread or
systematic.92 The Appeals Chamber of the ICTY, in Prosecutor v Kunarac held that
the existence of a policy or plan may be evidentially relevant in that it may useful in
establishing that the attack was directed against a civilian population and that it was
widespread or systematic, but that the existence of such a plan is not a separate
legal element of the crime, interpretation which was upheld by the ICTR as well.93
82. However, in the Statutes of the two ad hoc tribunals there was no requirement of
state or organisational policy required for a finding that a crime against humanity
had been committed. In contrast, as regards the International Criminal Court, the
existence of a policy element is provided for explicitly in the Rome Statute and will
be considered herein, notwithstanding critiques of whether this exceeds what is
required under international customary law and unduly restricts the notion of crimes
against humanity.94 According to the ‘Elements of Crimes’ adopted by the Court in
2002,95 it is understood that the policy to commit such attack requires that the State
91 Dixon (n 12) 124.
92 ibid 127.
93 Prosecutor v Kunarac et al (Judgement) IT-96-23&23/1 (12 June 2002) [98], Prosecutor v Semanza (n
36) [329], Prosecutor v Muhimana (Judgement) ICTR-95-1B-T (28 April 2005) [527], Prosecutor v
Gacumbitsi (Judgement) ICTR-2001-64-T (17 June 2004) [299], Prosecutor v Kamuhanda (n 90) [665],
Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-T (1 December 2003) [872].
94 A Cassese ‘Crimes against Humanity’ in A Cassese P Gaeta and J Jones (eds) The Rome Statute of the
International Criminal Court: A Commentary (Oxford University Press Oxford 2002) 353, 375–76.
95 See section on Elements of Crimes (n 34) in paragraph 48 above.
or organisation actively promote or encourage such an attack against a civilian
population.96 A policy which targets a civilian population as the object of an attack
could also be implemented by State or organisational action.97 In the case at hand,
given that the execution of the Operation was announced by governmental officials
and was carried out by the police and military, there is no doubt that the State itself
actively promoted and implemented the Operation and, by extension and should the
Operation be deemed as such, an attack against the civilian population.
83. The term ‘civilian population’ has been defined as people who are not taking any
active part in the hostilities, including members of the armed forces who lay down
their arms and those persons placed hors de combat by sickness, wounds, detention
or any other cause. Where there are certain individuals within the civilian
population who do not come within the definition of civilians, this does not deprive
the population as a whole of its civilian character.98 It also follows that the specific
situation of a victim at the moment the crimes were committed, rather than their
status, must be taken into account in determining their standing as a civilian.99
84. In the instant case, the victims were predominantly civilians. The fact that some of
the victims, according to the Government of Zimbabwe, were members of the
uniformed forces100 is of no importance, because: a) the presence of non-civilians
within the civilian population does not alter the civilian character of the population;
and b) the members of the uniformed forces under these circumstances were not
exercising any military duties. It is therefore reasonable to conclude that their
specific situation was of a civilian character.
85. Furthermore, it should be noted that the heading of Article 7 does not incorporate an
element of discriminatory intent, in contrast with the ICTR Statute. Because of this,
it has been said with regard to the International Criminal Court that ‘[t]herefore,
although a policy will often involve an element of discrimination, the Prosecutor
does not have to prove that the perpetrator acted pursuant to or in furtherance of a
96 ibid 518.
97 ibid fn 6.
98 Prosecutor v Akayesu (n 90) [582], Prosecutor v Kajelijeli (n 93) [873], Prosecutor v Rutaganda (n
35) [72], Prosecutor v Kamuhanda (n 90) [667], Prosecutor v Musema (n 35) [207].
99 Prosecutor v Kajelijeli (n 93) [874], Prosecutor v Bagilishema (Judgement) ICTR-95-1A-T (7 June
2001) [79], Prosecutor v Blaskic (Judgement) IT-95-14 (3 March 2000) [214], Kamuhanda (n 90) [668].
100 Response (n 23) 20.
discriminatory policy in which the victims are selected on certain grounds, notably
because they are members of a particular group. The reasons underlying an attack
against a civilian population are thus irrelevant for qualifying conduct as a crime
against humanity under Article 7’.101 Thus, the verity of the allegations concerning
the targeting of supporters of the opposition is immaterial.
86. In addition, the term ‘population’ does not require that crimes against humanity be
directed against the entire population of a geographic territory or area. The victims
of the enumerated act need not necessarily share geographic or other defining
features with the civilian population that forms the primary target of the underlying
attack, but such characteristics may be used to demonstrate that the enumerated acts
form part of the attack.102 Thus, using the instant case as an example, it need not be
proven that the whole population of Harare was forcibly transferred in order to
establish the existence of a crime against humanity.
87. On the basis of the above analysis and the conclusion that the acts under question
constitute forcible transfer of population under the Rome Statute, it is reasonable to
conclude that Operation Restore Order constituted an attack against a civilian
population. However, we must further examine whether this attack was ‘widespread
or systematic’. This requirement is expressly stipulated in Article 7 of the Rome
Statute. The same requirement was stipulated in Article 3 of the ICTR Statute and
although not expressly mentioned in Article 5 of the ICTY Statute, the ICTY has, in
its case law, consistently upheld the requirement that the attack be directed against a
civilian population to imply the widespread or systematic nature of the attack.103
Although the test is explicitly disjunctive (‘or’), there is considerable debate as to
whether the policy element transforms it into a conjunctive (‘and’) test.104 That
debate, however, is immaterial for the purposes of this opinion; it will be argued
below that both requirements have been met.
101 M Boot Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court (Intersentia Antwerp-Oxford-New York 2002)
585.
102 Prosecutor v Semanza (n 36) [330], Prosecutor v Kamuhanda (n 90) [669-670], Prosecutor v
Kajelijeli (n 93) [875-876].
103 Prosecutor v Tadic (n 16) [271], Prosecutor v Blaskic (n 99) [202–3].
104 Robinson (n 44) 48–51. His argument is that the policy element constitutes a lower threshold test
compared to the other two.
88. It should be noted in the first place that the act in question can be part of a
widespread or systematic attack and need not be part of both.105 The concept of
‘widespread’ may be defined as massive, frequent, large-scale action carried out
collectively with considerable seriousness and directed against a multiplicity of
victims. The concept of ‘systematic’ may be defined as thoroughly organised and
following a regular pattern on the basis of a common policy involving substantial
public or private resources.106
89. In the case under question, the features of Operation Restore Order fall under the
definition of both ‘widespread’ and ‘systematic. The 569 685 people who were
rendered homeless and the fact that the Operation took place in numerous cities of
Zimbabwe both serve to justify the conclusion that the attack was widespread as it
was a large-scale action directed against a multiplicity of victims. The Operation
can also be characterised as systematic since it was organised and conducted on the
basis of a common State policy (the policy was announced by governmental
officials) and involved substantial public resources (it was carried out by the police
and the military).
90. Even if the above figures were not entirely accurate and we were to base our
estimation on the figures given by the Zimbabwean Government in its Response,
which mentions roughly 6 000 people, the Operation may still amount to a crime
against humanity on the basis of being, if not widespread, at least systematic, as it
was pursuant to a State policy. Although it is correct that isolated, random acts
should not be included in the definition of crimes against humanity, that concern is
assuaged by requiring that the acts be directed against a civilian population; thus
even an isolated act can constitute a crime against humanity if it is the product of a
political system based on terror or prosecution.107 Therefore, it is reasonable to
conclude that there has been a widespread and systematic attack as defined in
Article 7 of the ICC Statute.
105 Prosecutor v Akayesu (n 90) [579].
106 ibid [580]; Prosecutor v Rutaganda (n 35) [69], Prosecutor v Musema (n 35) [204].
107 Prosecutor v Tadic (Opinion and Judgement) IT-95-1 (7 May 1997) [649].
PART IV: THE LEGALITY OF THE EVICTIONS
91. While it is possible that some of those evicted were not lawfully present (under a
narrow construction of that term),108 it is clear that all of those evicted were evicted
unlawfully both with respect to Zimbabwean law and international law. The legality
of the evictions under both domestic law and international law will be considered in
turn.109
92. Although not strictly relevant to a discussion of the Rome Statute it is important to
note that the evictions themselves were not in accordance with Zimbabwean law.
This is relevant insofar as it counters any objections made by the Zimbabwean
government that it’s actions were in accordance with its domestic legislation, and
further contributes to the general understanding of the nature of the Operation that
took place in Zimbabwe.
93. The Zimbabwean authorities have purported to carry out the evictions in Operation
Murambatsvina through the Planning Act.110 For this reason, we have focussed on
the Planning Act, rather than on other legislation which could potentially have been
used to provide justification for Operation Murambatsvina.111 There are two types
of orders which could be issued under the Planning Act which are relevant to
Operation Murambatsvina.
94. Section 32 of the Planning Act provides that if it appears to any local planning
authority, that any development is in contravention of the Planning Act, then the
local planning authority is empowered to serve on the owner of the land, or anyone
else potentially affected, an enforcement order.112 The enforcement order must state
the nature of the contravention, and specify the action required to be taken,113 and
108 This would be the interpretation discussed above in paragraphs 55.1.
109 See the discussion of the legality of the evictions under international law at paragraphs 110–115
below.
110 Report (n 19) 57.
111 ibid 58, where the Report points out that both the Housing Standard Control Act 1972 (Zimbabwe
Chapter 29:08) and the Urban Councils Act 1997 (Zimbabwe Chapter 29:15) contain provisions similar
to that in the Planning Act authorising the issue of enforcement orders. These Acts, however, do not
make provision for the publication of notices through the newspaper. It would therefore appear that, since
the orders were issued by newspaper, that the only Act the government of Zimbabwe could purport to
rely on is the Planning Act.
112 Planning Act s 32 (1).
113 ibid s 32(1)(a), (b).
may require the demolition of any building.114 The notice period for the
enforcement order must be at least one month from the date on which the order is
served115 and a person on whom the order is served is entitled to appeal such an
order in terms of section 38 of the Planning Act. An appeal then suspends the
operation of the enforcement order.116
95. A second type of order, known as a prohibition order, is also available under section
34 of the Planning Act. A prohibition order must be issued by the local planning
authority at the same time or after the issuing of an enforcement order, but before
the enforcement order becomes operative. The effect of the prohibition order is to
order that operations in contravention of the Planning Act (and which are the
subject of the enforcement order) cease, pending the enforcement order becoming
operative.117 The Zimbabwean local government authorities could therefore have
issued a prohibition order to prevent the continuation of illegal trading once the
enforcement order was issued (assuming an enforcement order was validly issued).
The prohibition order could not, however, have been used to authorise demolitions
under the Planning Act.
96. In Harare, on 24 and 26 May 2005, the City of Harare issued an enforcement order
in one of the local newspapers.118 In terms of section 32 of the Planning Act, this
notice is required to provide at least one month’s notice, before any action can be
taken. Despite these requirements, the ‘military-style’ demolitions began on 25 May
2005.119 There is no evidence that any of those evicted, apart from those in Harare,
were given notice of the evictions.120
97. In addition, again with the exception of the Harare enforcement notice, Operation
Murambatsvina was carried out without consultation with local government, who
are responsible for the enforcement of the Planning Act and the issuing of
114 ibid s 32(2)(c).
115 ibid s 32(3).
116 ibid s 32(3).
117 ibid s 34(1).
118 Report (n 19) 58. Note that the enforcement order appears to have been published twice, on 24 and 26
May 2005. Page 96 of the Report contains a copy of the order published on 26 May 2005.
119 ibid 12.
120 ibid 58.
enforcement notices.121 Moreover, it is local government who should have been
responsible for carrying out any demolitions in terms of the Planning Act, while it
was in fact the national police and military who did so.122
98. Some of those evicted were in possession of valid permits and leases issued by the
local authority or by the then Ministry of Local Government and National Housing
or by both institutions.123 Some of these persons obtained court interdicts
prohibiting State authorities from proceeding which the evictions. These interdicts
were apparently ignored and the evictions and demolitions continued
notwithstanding.
99. Thus, for all of these reasons, the evictions and demolitions carried out in Operation
Murambatsvina were not in accordance with the Planning Act and are therefore
inconsistent with Zimbabwean domestic law.
100. The question then arises as to whether ‘lawfully present’ could be extended to
incorporate a duty to evict those present (lawfully or unlawfully) in accordance with
domestic and international law. It is concluded herein that this interpretation is not
possible; therefore, the fact that the evictions were unlawful does not have a bearing
on the legality of the original occupation.
Doctrine of Abrogation by Disuse
101. Zimbabwe’s common law is Roman-Dutch in origin. Under Roman-Dutch
common law, it is possible for legislation to come to an end through tacit consent or
through contrary custom.124 The rationale for this doctrine is that the authority for
legislation comes from the people.125 This position stands in contrast to the English
common law’s rejection doctrine of desuétude.126
121 ibid 26.
122 ibid 58.
123 ibid 57–58.
124 Green v Fitzgerald 1914 AD 88; Glazer v Glazer NO 1963 (4) SA 694 (AD), South African
judgments giving authority for this proposition. South Africa shares the same Roman-Dutch common law
as Zimbabwe.
125 HR Hahlo and E Kahn The South African Legal System and Its Background (Juta, Wynberg 1968)
174.
126 Ashford v Thompson (1818) 1 B & Ald 405, 59 George III Ch 46 (1819).
102. For the doctrine to operate under Roman-Dutch common law, it must be
demonstrated that the legislation has ‘been long out of use’ and that it is ‘out of
keeping with contemporary views’.127
103. It may therefore be possible to argue that the Planning Act has been abrogated
through disuse, if it can be shown that it has not been applied for a considerable
period of time, and if it can be shown to be contrary to contemporary values.
104. The first consideration will depend on a detailed analysis of the facts, but we
would argue that, given Zimbabwe’s obtaining independence in 1980, if the
Planning Act has not been enforced since that date, this would constitute a
‘considerable period of time’ as it would constitute the entire post-independence
period.
105. A further consideration which may lend weight to the argument that the
Planning Act has not been applied is the issuing of SI 216. This statutory instrument
had the effect of encouraging development of the informal sector in residential
areas and suspending the requirements set out in the Planning Act. Unfortunately, a
copy of SI 216 was not obtained for the drafting of this opinion, so to what extent to
which it purports to suspend the Planning Act has not been considered. This issue
would need to be explored by a Zimbabwean lawyer with detailed knowledge of the
planning laws and application of those laws in Zimbabwe over the past 25 years.
Nevertheless, based on the Report, it is possible to make a cautious proposition that
the government of Zimbabwe, through issuing SI 216, expressed its intention to
override the Planning Act, thereby abrogating its use in planning law in Zimbabwe
through ‘contrary custom’.
106. The second consideration, that the Planning Act is contrary to the values of
contemporary Zimbabwe, is of some weight given the fact that the Act itself was
implemented by the former white regime of Ian Smith in order to set standards for
urban dwellings so high as to exclude most (black) persons from moving into urban
areas.128
127 Hahlo and Kahn (n 125) 174.
128 UN Report (n 19) 25, 56. This is also discussed in para 61 above.
107. Another consideration is whether the doctrine has been expressly repealed in
legislation or through the Constitution. In South Africa, for example, the doctrine
was rendered inoperative by the South Africa Act 1909 and later the Republic of
South Africa Constitution Act 1961. The doctrine was expressly overridden in this
legislation, and in the 1961 Constitution, for example, section 107 expressly stated
that all legislation continues in force until repealed or amended by the competent
authority.129 This legislation has now been replaced by the Constitution of the
Republic of South Africa Act 1996, which does not confer sole authority on
Parliament to repeal legislation. It is therefore possible that the doctrine may be
revived in contemporary South African law.
108. Section 32(1) of the Zimbabwean Constitution provides as follows: ‘The
legislative authority of Zimbabwe shall vest in the Legislature which shall consist
of the President and Parliament.’ The Constitution contains no further reference to
the authority of Parliament to repeal legislation or to legislation remaining in force
until expressly repealed. It would appear, therefore, that the doctrine is not
explicitly overridden in the Zimbabwean Constitution.
109. Thus, it may be possible that the doctrine of abrogation by disuse remains valid
under Zimbabwean common law. It is strongly suggested, however, that further
consideration of this issue should be undertaken by a specialised Zimbabwean
constitutional lawyer and this opinion should not be taken to express any definite
view that the doctrine is still valid law in Zimbabwe. Moreover, a detailed factual
evaluation would need to be undertaken as to whether the Planning Act had indeed
fallen into disuse. Again, such an evaluation would need to be undertaken by a
Zimbabwean lawyer with close knowledge of the Planning Act.
PART V: THE COMPATIBILITY OF THE EVICTIONS WITH INTERNATIONAL LAW
110. The forced evictions in Zimbabwe are clearly in conflict with international law
(as well as with domestic law, discussed above in paragraphs 91–100). The
prohibition against forced evictions derives from Article 11(1) of the ICESCR and
Article 17(1) of the ICESCR.130 Article 11(1) of the ICESCR provides that: ‘The
129 Section 107 of the Republic of South Africa Constitution Act 1961.
130 General Comment 7 [8].
States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions. The
States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international co-operation
based on free consent.’ Similarly, Article 17(1) of the ICCPR provides that: ‘No
one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.’
111. It should be repeated here that General Comment 4 of the UN Committee on
Economic, Social and Cultural Rights (hereinafter ‘CESCR’) provides that
‘instances of forced eviction are prima facie incompatible with the requirements of
the Covenant and can only be justified in the most exceptional circumstances, and
in accordance with the relevant principles under international law.’131
112. The CESCR elaborates on the prohibition on forced evictions in General
Comment 7. It defines a forced eviction as:
the permanent or temporary removal against their will of individuals, families and/or
communities from the homes and/or land which they occupy, without the provision of, and
access to, appropriate forms of legal or other protection. The prohibition on forced evictions
does not, however, apply to evictions carried out by force in accordance with the law and in
conformity with the provisions of the International Covenants on Human Rights.132
The evictions carried out under Operation Murambatsvina thus fall under the
definition of ‘forced evictions’ as defined by the CESCR.
113. General Comment 7 further provides that States, when carrying out (lawful)
large-scale evictions, should ensure that the following procedural protections are
provided:
(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable
notice for all affected persons prior to the scheduled date of eviction; (c) information on the
proposed evictions, and, where applicable, on the alternative purpose for which the land or
housing is to be used, to be made available in reasonable time to all those affected; (d)
especially where groups of people are involved, government officials or their representatives to
be present during an eviction; (e) all persons carrying out the eviction to be properly identified;
(f) evictions not to take place in particularly bad weather or at night unless the affection persons
131 General Comment 4 [18].
132 General Comment 7 [3].
consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal
aid to persons who are in need of it to seek redress from the courts.133
In addition, ‘[e]victions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights.’134
114. The Report discusses the Zimbabwean Government’s compliance with these
requirements in some detail. In brief, the Report makes the following factual
findings:
114.1. No effective consultations had taken place prior to Operation
Murambatsvina. The government of Zimbabwe has argued that consultations
took place through a notice on a monthly bill, but clearly (on the assumption
that this assertion is factually correct), this is inadequate to constitute ‘genuine
consultation’.
114.2. Adequate and reasonable notice was not given.
114.3. Information was not made available on Operation Murambatsvina within a
reasonable time.
114.4. Although uniformed policemen and the military were used in carrying out
the Operation, the UN Report argues that, since evictions are a local
government competence, they should not have been carried out by national
military and police officers.
114.5. Operation Murambatsvina began in early winter in Zimbabwe, leaving many
of those affected in the cold of winter. Rains are forecast to begin in October or
November and it is feared that many of those affected will still not have
adequate shelter by the time the summer rains start.
114.6. Legal remedies are inadequate, due to both insufficient legal aid (which is
provided primarily by NGOs and not by the State), and a compromised
judiciary.
133 ibid [15].
134 ibid [16].
114.7. Lastly, the evictions clearly resulted in many people being rendered
homeless, as the State had not made adequate arrangements for alternative
accommodation.
Thus, the Report concludes that, for all of these reasons, Operation Murambatsvina
has clearly failed to comply with the requirements in international law regarding
forced evictions.135 On the assumption that the factual findings of the Report are
accurate, the conclusions reached therein are adopted for the purposes of this
opinion.
115. In addition, Zimbabwe has committed itself to a number of United Nations
Resolutions on forced evictions, including Resolution 1993/77, Resolution 1998/9,
and Resolution 2004/28.136 In each of these resolutions, Zimbabwe recommitted
itself to a prohibition on forced evictions, recognising that forced evictions
constitute a ‘gross violation of a broad range of human rights’.137
Grounds under international law permitting the forcible transfer of population
116. This part of the opinion will deal with the question whether, in the eventuality
that Operation Murambatsvina constitutes a forcible transfer of population as
understood in Article 7(2)(d) of the Rome Statute, there exist grounds under
international law that would justify or otherwise permit such a transfer.
117. There exist a very limited number of exceptions under international law which
empower States to restrict the freedom of movement of nationals and aliens who are
lawfully present within the territory. Briefly summarised, these restrictions must be:
in accordance with law and necessary in a democratic society in the interests of
national security or public safety; for the maintenance of public order (ordre
public); for the protection of health or morals or for the protection of the rights of
others, provided such restrictions are consistent with other human rights’.138
135 Report (n 19) 59–62.
136 ibid 57.
137 UN ECOSOC Res 2004/28, UN Doc E/C.4/RES/2004/28 (2004) [1].
138 Hall (n 40) 162.
118. These exceptions are codified in a slew of human rights instruments: Article
13, paragraph 1 of the Universal Declaration of Human Rights139 recognises the
right to freedom of movement and residence within the borders of a State; Article
12, paragraphs 1 and 3 of the International Covenant on Civil and Political Rights140
recognise the right of everyone lawfully within the territory of a State to liberty of
movement and freedom to choose one’s residence, subject to certain restrictions;
Article 2, paragraphs 1 and 3 of Protocol 4 to the European Convention on Human
Rights141 recognise the right of everyone lawfully within the territory of a State to
freedom of movement within the territory and freedom to choose one’s residence,
subject to certain restrictions; and Article 22, paragraphs 1, 3 and 4 of the American
Convention on Human Rights142 recognise that everyone lawfully within a territory
has a right to movement and residence in it, subject to certain restrictions. Taken as
a whole, it has been argued that they establish the ‘circumstances when forced
displacement of persons within a territory is prohibited’ under international law.143
119. With regards to those grounds under which forced displacement is permitted
under international law, the Report of the Representative of the Secretary-General,
Mr Francis Deng, adopted by the Commission on Human Rights144 would not be
binding upon the Court, but may reasonably be considered as of a persuasive
character. Mr Deng recognises that in human rights law, the prohibition of arbitrary
displacement is only implicit in various international human rights instruments. In
particular, Mr Deng’s report refers to ‘the right to freedom of movement and choice
of residence, freedom from arbitrary interference with one’s home and the right to
housing. These rights, however, do not provide adequate and comprehensive
coverage for all instances of arbitrary displacement, as they do not spell out the
circumstances under which displacement is permissible.’145
139 UNGA Res 217 A (III) (10 December 1948) UN Doc A/810, 71 (1948).
140 International Covenant on Civil and Political Rights (adopted (1966) 999 UNTS 171 [hereinafter
‘ICCPR’].
141 European Convention on Human Rights (1948), 213 UNTS 222 [hereinafter ‘ECHR’].
142 American Convention on Human Rights (1969), 1144 UNTS 123 [hereinafter ‘ACHR’].
143 Hall (n 40) 136.
144 UNHCHR Res 1997/39, ‘Legal Aspects Relating to the Protection against Arbitrary Displacement,
UN Doc E/CN.4/1998/53/Add.1 (11 February 1998).
145 E/CN.4/1998/53/Add.1 para. IV, 1
120. Mr Deng’s report provides an overview of the rights in main human rights
instruments that can be interpreted to have an element of arbitrary displacement and
transfer of population. These rights are subject to restrictions and derogation under
certain grounds, but there are also safeguards that the restricting authority must
meet as well. The safeguards are summarised in the conclusions of the Deng Report
as follows:
[D]isplacement of persons should not be discriminatory and may be undertaken exceptionally
and only in the specific circumstances provided for in international law, with due regard for
the principles of necessity and proportionality. Displacement should last no longer than
absolutely required by the exigencies of the situation. Displacement caused by, or which can
be reasonably expected to result in genocide, ‘ethnic cleansing’, apartheid and other
systematic forms of discrimination, or torture and inhuman and degrading treatment is
absolutely prohibited and might entail individual criminal responsibility of the perpetrators
under international law … Prior to carrying out any displacement, authorities should ensure
that all feasible alternatives are explored in order to avoid, or at least minimize, forced
displacement. … Persons to be displaced should have access to adequate information
regarding their displacement, and the procedures of compensation and relocation, as well as
effective remedies, and, where appropriate, compensation for loss of land or other assets …
Where these guarantees are absent, such measures would be arbitrary and therefore
unlawful.146
121. Most human rights instruments permit States to place restrictions on freedom
of residence and movement when specific and limited circumstances are met. These
restrictions may permit certain, limited forced movement of persons or their
settlement in other areas. The grounds permitted under each international treaty are
discussed below:
International Covenant on Civil and Political Rights
122. Zimbabwe deposited its instrument of ratification for the ICCPR on 13 May
1991. Article 12 (3) of the ICCPR provides that the freedom of movement and
choice of residence ‘shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.’ The right to
freedom of movement as it related to coerced displacement is addressed in UN
Resolution 1994/24 of 26 August 1994, adopted at its forty-sixth session, entitled
‘The right to freedom of movement’. It affirms ‘the right of persons to remain in
their own homes, on their own lands and in their own countries’ and urges all
146 ibid para IV, 3–4.
countries to ‘cease at once all practices of forced displacement’.147 A General
Assembly resolution does not constitute a source of international law and would not
be directly binding upon the Court; however, this particular resolution may be
considered to be of a persuasive character, especially as it was adopted without a
vote.
123. It has been argued that restrictions to freedom of movement and choice of
residence must be set down by a legislative body and it must be widely accessible to
all those subject to it, and must therefore possess an adequate degree of certainty.148
For a detailed discussion of the legality of the evictions under Zimbabwean law, see
Part II above.149 Moreover, the evicted individuals did not have adequate access to
information regarding their displacement. Even though the government of
Zimbabwe did issue a notice to the individuals who occupied the evicted dwellings,
it is possible to argue that the warning was not appropriately displayed and the date
of the warning was not respected, as the evictions began mere days after the notice
was displayed.150
124. These limitations to the right must also be ‘consistent with the other rights’ in
the ICCPR. The Report of the Secretary-General’s Representative explains that, for
instance, ‘banishment within the State’s territory is only permissible as punishment
when it is imposed in conformity with the guarantees in criminal proceedings set
down in articles 14 and 15 of the ICCPR’.151 From the facts detailed in the report by
the UN Special Envoy on Human Settlements Issues in Zimbabwe, it is arguable
that the evictions in Operation Murambatsvina’ were not consistent with other
rights in the ICCPR. For example, the way in which the state conducted the
147 UNHCHR Res 1995/13 ‘The right to freedom of movement’ (18 August 1995) UN Doc
E/CN.4/Sub.2/1995/6.11/Add.3.
148 M Nowak United Nations Covenant on Civil and Political Rights – CCPR Commentary, (1st edn Engel
Publisher Kehl-Strasbourg-Arlington 1993) 208.
149 Moreover, it has been argued that the proportions advanced by Special Envoy suggest that the number
of legal dwellings evicted were ‘significant given the total number of demolitions’ and that ‘many of the
homes and businesses existed in a legal gray zone’. See M Langford ‘Accountability for Forced
Evictions? A Response to The UN Special Envoy’s Report on Zimbabwe’ COHRE, available online at
www.cohre.org (3 November 2005).
150 See para 26 above.
151 Nowak (n 148) cites relevant case law of the Human Rights Committee: Mpaka-Nsusu v Zaire,
Communication No. 157/1983, and Ngalula Mpandanjila v Zaire, Communication No. 138/1983.
evictions was carried out with disregard to the right to property in some reported
instances.152
125. Furthermore, these restrictions on the right must be necessary for achieving
one of the listed purposes for limitation. The requirement of necessity is subject to
an objective minimum standard and the principle of proportionality, striking ‘a
precise balancing between the right to freedom of movement and those interests to
be protected by the interference’. 153 The permissible reasons for interference under
Article 12 (3) of the ICCPR are ‘national security’, ‘public order (ordre public)’,
‘public health’, ‘public morals’, and the ‘rights and freedoms of others’. The Report
of the Secretary-General’s Representative expands on their scope:
125.1. National security is endangered only in grave cases of political or
military threat to the entire nation, such that persons may have to be
temporarily relocated in such situations. This was not the case in Zimbabwe, as
any threat coming from the settlements, whether perceived or real, did not
necessarily constitute a threat to the entire nation. Moreover, the government of
Zimbabwe does not refer to the settlements as a matter of national security in
any part of the Response.154
125.2. Permissible restrictions on freedom of internal movement and residence
on the ground of public order (ordre public) that could exceptionally justify
displacement may include cases of development and infrastructure projects
where the interests of the general welfare are clearly overriding. Even though
the government of Zimbabwe claims to be reducing high crime levels and
economic crimes through the Operation, the arbitrary eviction of all those who
gained a livelihood in the involved settlements is unlikely to pass a
proportionality test used to evaluate the means of combating crime.
125.3. The ‘public health’ exception might include relocation away from areas
where acute health dangers exist (for example, areas contaminated as a result of
a catastrophe). It must be noted that the emphasis of this ground under which
displacement is permissible is the physical area as posing a threat to public
152 Report (n 19) 62-63.
153 Nowak (n 148) 211.
154 See para 28 above.
health due to contamination. In this case the government of Zimbabwe claimed
that, among the reasons for launching the Operation, they aimed to ‘arrest the
social ills among them prostitution which promote the spread of HIV/AIDS and
other communicable diseases’.155 However, there is no demonstrated link
between the alleged social ills, the spread of diseases and the contamination of
the physical area of the evicted dwellings. It should be noted that it is not the
physical area of the settlements that causes the spread of HIV/AIDS and other
communicable diseases; therefore, the relocation of the population was not
strictly necessary. Even if it was deemed necessary, it could be argued that the
means of evicting all the population form the area is not reasonably linked or
proportional to the objective of preventing the spread of communicable
diseases.
125.4. Finally, restrictions on freedom of movement and residence imposed in
the interest of ‘the rights and freedoms of others’ may justify evictions to
respect private property. However, States parties are obliged to ensure that
interference in favour of private owners is proportional, that is, that it remain at
a level which the public can tolerate.156 Any interference must be reasonable,
objective, and non-discriminatory. The extent and scope of the Operation, even
if alleged by the Zimbabwe Government to be reasonable and objective,
necessarily fails on the point of non-discrimination, because although the
Zimbabwe Government claimed that some of the individuals concerned were
illegally present, it failed to take the necessary measures to properly distinguish
between those individuals who were legally and illegally present.
125.5. Finally, restrictions on Covenant rights are always exceptional and must
therefore not become a generalised rule.
126. In addition, it must be noted that Article 17 of the ICCPR states that ‘no one
shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation’.
[emphasis added] According to Nowak, the protection of ‘home’ relates not only to
dwellings but also to all types of residential property regardless of legal title or
155 Nowak (n 148) 211.
156 ibid 216.
nature of use: ‘[a]n invasion of this sphere without the consent of the individual
affected represents interference, as does any activity that deprives one of his/her
home.’157
The International Covenant on Economic Social and Cultural Rights158
127. Zimbabwe became a State Party to the ICESCR on 13 August 1991. Article 4
of the ICESCR recognised that the rights included therein are subject only to ‘such
limitations as are determined by law only in so far as this may be compatible with
the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society’. In such cases, important procedural guarantees in
the conduct of such limitations must be followed. In the case of Zimbabwe, the
government of Zimbabwe did not make any attempt to follow the procedural
guarantees; therefore, it is reasonable to conclude that the evictions carried out
under the Operation in Zimbabwe as restrictions to ICESCR rights are not justified.
128. Moreover, it should be noted that the CESCR, in its General Comment 4 on
the right to adequate housing, stated at paragraph 18 that ‘[t]he Committee
considers that instances of forced eviction are prima facie incompatible with the
requirements of the Covenant and can only be justified in the most exceptional
circumstances, and in accordance with the relevant principles of international
law.’159 It its Response, the Zimbabwean government has not specifically spoken of
exceptional circumstances, but of social and economic problems that could amount
to exceptional circumstances.160 It is not clear what the CESCR would deem as
‘exceptional’; however, most international human rights that are derogable in
emergency circumstances require explicit recognition of the state of emergency
before they may be suspended.161
157 ibid 303.
158 See n 71.
159 UN Committee on Economic, Social and Cultural Rights (CESCR) ‘General Comment 4 on the Right
to Adequate Housing’. UN Doc E/1992/23 Article 11 (1).
160 See para 28 above.
161 eg Article 4(1) of the ICCPR (n 140).
The African Charter of Human and Peoples’ Rights162
129. Zimbabwe ratified the African Charter on Human and Peoples’ Rights on 30
May 1986. The African Charter does not specifically provide for protection against
forced evictions, but has extensive provisions on the protection of human rights that
are typically affected by the practice of forced evictions, such as the right to
freedom of movement and residence and the right to education. The right to
freedom of movement and residence (Article 12(1)) is applicable to individuals
provided that they abide by the law. As explained above,163 the right to freedom of
movement relates to coerced transfers of population in the right of persons to
remain in their homes. The right to education of the children of the evicted families
would have been affected by Operation Murambatsvina, since the long commutes to
and from educational institutions as result of displacement to isolated areas would
make constant education impermissible.
130. Similarly, the war crime, during international or non-international armed
conflict, of ‘the displacement of a civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons
so demand’164, as articulated in Article 8 para. 2(d)(viii) of the Statute, strongly
suggests that the powers of States to displace a civilian population are similarly
limited in peacetime to equally compelling grounds. It is possible that the forced
displacement of population for public projects, such as the construction of a
highway or dam, might fall within the scope of Article 7 paragraph 1(d) of the
Statute if the individuals are not provided with adequate compensation and given
freedom of choice concerning their new homes. The evictions carried out under the
Operation were not done with the purpose of building public projects, and the
evicted individuals received no compensation.
131. It should be noted that there is a distinction that must be drawn between the
Statute on the one hand, which enumerates certain acts it deems to be crimes against
humanity, and the Report of the Secretary-General’s Representative and the various
international human rights instruments on the other, which merely consider such
162 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October
1986), 21 ILM 58 [hereinafter ‘African Charter’].
163 See para 122 above.
164 Hall (n 40) 162.
acts to be unlawful. The abundant case law available from the regional human
rights courts and the United Nations Human Rights Commission is therefore of
limited utility for assisting in finding that the facts in the instant case constitute or
do not constitute a crime against humanity.
PART VI: CONCLUSION
132. Part I examined whether there was in fact a deportation or forcible transfer of
population as defined in the Statute. It was concluded herein that the requirements
of the Statute, namely, that there be the transfer of one or more persons and that
such transfer be coerced or forced, have been met insofar as the factual situation as
detailed in this opinion is correct. Because the transfers were executed without the
consent of the individuals concerned and a range of coercive measures were
employed, it is reasonable to conclude that the acts fall within the range of practices
proscribed in the Rome Statute. Zimbabwe would therefore have to establish
whether the impugned acts fall under the international law exceptions allowing for a
forcible transfer of population.
133. Part II examined whether those subject to forcible transfer were ‘legally
present’, the word ‘lawfully’ in ‘lawfully present’ requires that the laws that define
the legality or illegality of one’s presence in a particular area comply with the
principle of legal certainty. In terms of the case law of the European Court of
Human Rights, the laws in question must be sufficiently precise to allow the
individual to foresee, to a degree that is reasonable in the circumstances, the
consequences of his or her actions. In the present case, while the Housing and
Planning Acts are themselves sufficiently clear, the Zimbabwean government’s
actions in largely ignoring this legislation after independence, and adopting contrary
policies, arguably undermined the requirement of reasonable foreseeability and thus
the principle of legal certainty. This, in turn, undermines the Zimbabwean
government’s case that the evictees were unlawfully present in the areas in which
they had settled.
134. Part III examined whether the forcible transfer of population was committed
as part of widespread or systematic attack directed against any civilian population.
It was concluded herein that the requirements of the Statute have been fulfilled.
Taking into consideration the size of and the manner in which the Operation was
conducted, it is reasonable to conclude that it constituted an attack both widespread
and systematic against a civilian population. Furthermore, the orchestration of the
Operation has led to the conclusion that it was conducted pursuant to a State policy
to commit such attack.
135. Part IV examined the question of whether, since the Planning Act has not been
enforced for a significant period, the doctrine of abrogation through disuse renders
the Act void. However, no definite conclusion on this question was expressed
herein, and it has been mentioned merely to draw attention to the doctrine for
further consideration by a specialised Zimbabwean constitutional lawyer. Should it
be decided that the doctrine is still operable in Zimbabwe, then those subject to the
evictions were, arguably, ‘lawfully present’ since there was no legislation
prohibiting their settlement in the area.
136. Even if it is accepted that most of those evicted were not ‘lawfully present’,
many of those evicted were ‘lawfully present’ within the meaning of the Rome
Statute. Those evicted should therefore be constituted as those who were ‘lawfully
present’ and those who were not for the purposes of the Rome Statute. The Rome
Statute does not require that all of those in a group of displaced persons be lawfully
present’ and it would therefore appear to be sufficient to constitute those lawfully
present as a separate group.
137. Part V examined the question of whether, assuming that a forcible transfer of
population as defined in the Rome Statute has occurred, Zimbabwe might be able to
invoke one of the international law exceptions allowing for such forcible transfers
in exceptional circumstances. It was concluded herein that the requirements under
international law allowing for the limitation of these individuals’ rights to mobility,
namely, that they be temporary, necessary and proportional to the threat, have not
been met.
APPENDIX
Article 7 of the Rome Statue of the International Criminal Court
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the
following acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or
other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) “Attack directed against any civilian population” means a course of conduct
involving the multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b) “Extermination” includes the intentional infliction of conditions of life,
inter destruction of part of a population;
(c) “Enslavement” means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such
power in the course of trafficking in persons, in particular women and
children;
(d) “Deportation or forcible transfer of population” means forced displacement
of the persons concerned by expulsion or other coercive acts from the area
in which they are lawfully present, without grounds permitted under
international law;
(e) “Torture” means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions;
(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g) “Persecution” means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group or
collectivity;
(h) “The crime of apartheid” means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term “gender” refers to
the two sexes, male and female, within the context of society. The term “gender” does
not indicate any meaning different from the above.