ZIMBABWE Situation

Unstoppable Problem

With no end in sight to the worsening scenario of Zimbabwe's human rights abuses, pressure is now beginning to mount on southern African countries to break the silence and join hands to help resolve the neighbouring country's crisis.

"All SADC (Southern African Development Community) member states must move into Zimbabwe to organize elections and to make the people come together" says Wisdom Gondwe, a Lusaka-based political observer.

"As far as the situation in Zimbabwe is concerned, President Robert Mugabe is ruling by default, he is not the president of Zimbabwe because his mandate expired before the (March 29) election. So, that country's chief justice should have been in control during the period of preparing for the election re-run. He is ruling by default, and even his government officials are all ruling by default."

Zimbabwe is in its eighth year of an economic recession that has seen inflation soar to unofficial estimates of one million per cent - the highest ever in the world - and unemployment levels rising to above 80 per cent. Shortages of key commodities such as fuel and food, have over the years been commonplace in literally every corner of the once-buoyant southern African economic giant.

According to international donor organizations, nearly five million Zimbabweans are in need of emergency food assistance this year alone. It is estimated that as many as three million Zimbabweans could have left the country for neighbouring states, such as Zambia, Botswana, Malawi and South Africa, or have gone further outside the continent to England and the United States.

Inside Zimbabwe, a myriad of glaring cases of violent attacks has been reported with about 86 people, mostly supporters of the opposition Movement for Democratic Change (MDC) killed in targeted attacks since the March 29 election, according to the MDC.
The first round presidential election was won by the MDC's Morgan Tsvangarai, but he fell short of the required 50 per cent plus one vote for an outright victory, forcing a re-run with Mugabe, 84,who has ruled Zimbabwe since independence in 1980. -The Times of Zambia

UN takes part

The U.N. Security Council has unanimously condemned the Zimbabwean government because of violence that has marred the campaign leading up to a scheduled presidential election runoff, which forced the withdrawal of the opposition candidate from the race.

The council's statement that questioned the legitimacy of any election held under such circumstances but did not directly call for the runoff, scheduled for Friday, to be postponed.

Earlier, U.N. Secretary-General Ban Ki-moon made that appeal, saying the vote runoff as currently scheduled "would only deepen divisions within the country and produce a result that could not be seen as credible."

But Boniface Chidyausiku, Zimbabwe's ambassador to the United Nations, said after the Security Council vote that the runoff would take place as planned.

"The Security Council cannot micromanage political elections in any country," he said. "They have expressed their view, and we take note of their view. But as far as we're concerned, the date is set." HARARE, Zimbabwe (CNN)

In the past, United Nations Emergency Coordinator Jan Egeland, said that the humanitarian situation in the southern Africa is “extremely serious and it is worsening as we speak.”

The UN and donor countries could contribute to breaking the vicious circle which had locked the Zimbabwean people into declining standards of living. The country that had enjoyed a life expectancy of more than 60 years about 16 years ago now has seen that cut to only 32 years today.

It’s heartbreaking to meet with people who are fearing the future because of food insecurity, which is affecting the majority of the people. Prices are spiralling as food is becoming increasingly scarce. It was heartbreaking to meet victims of the eviction campaign last summer, who now are back in the same place, only in much worse shelter than the house that was bulldozed.”

The UN wants to do more to help, he said, noting that it launched an appeal last week for $276 million for food aid, medical assistance, safe water and sanitation, as well as general assistance for Zimbabwe’s people.

Security Council to standstill

China last week once again demonstrated its willingness to opportunistically trade diplomatic favors for access to African riches. Joining with Russia, the People's Republic vetoed a UN Security Council resolution that would have imposed tough sanctions on Zimbabwe's President Robert Mugabe and other members of his illegitimate regime for rigging the country's presidential election.

In Zimbabwe, it's not petroleum that China covets. Rather, the African nation is the world's second-largest exporter of platinum, a key input for China's auto industry. China is also the world's largest steel producer, and Zimbabwe controls more than half of the world's known chromium reserves, used in making stainless steel.

That China implements this imperialistic strategy by leveraging its position as a permanent member of the UN Security Council with veto power is arguably one of the most reprehensible aspects of an amoral foreign policy. That foreign policy is founded on a principle that China's own President Hu Jintao has preached like the lowliest of rug merchants across Africa and Latin America: "Just business, no political conditions."

The veto power of the permanent members of SC (Big5) corrupts the functions and UN’s purpose. It makes it a slave of its own organization.

UN finds another way

U.N. Secretary-General Ban Ki-moon welcomed a deal between Zimbabwe's President Robert Mugabe and opposition leader Morgan Tsvangirai on Monday that paves the way for talks on forming a power-sharing government.

The preliminary agreement was signed in Harare's Rainbow Towers Hotel after weeks of deadlock since Mugabe was re-elected on June 27 in a widely condemned poll boycotted by Tsvangirai because of violence against his supporters.

"The Secretary-General encourages all sides to engage, in good faith, in serious talks that would lead to a lasting solution to the political crisis and address the urgent economic and humanitarian needs of the Zimbabwean people people," Ban's spokeswoman, Michele Montas, said in a statement.

Monday's meeting was the first in 10 years between Mugabe and Tsvangirai, who have long traded insults, but shook hands at the end of the ceremony, with the opposition leader referring to Mugabe as "comrade".

"The handshake is a good sign and we hope that something will be achieved," French U.N. Ambassador Jean-Maurice Ripert told reporters. "We hope it's the beginning of good work together between Mr Tsvangirai and Mr Mugabe.

"Ripert said that any political solution had to be built on the results of the first round of the presidential poll on March 29, which was won by Tsvangirai who fell short of an absolute majority, and that things "seem to be aiming in the right direction, so we're fully supportive."

France holds the rotating six-month presidency of the European Union.

Mugabe and Tsvangirai have been under heavy pressure to enter negotiations. They have both demanded to be recognized as Zimbabwe's rightful president.

Russian U.N. Ambassador Vitaly Churkin said the deal justified Moscow's decision to veto earlier this month, along with China, a Western-backed U.N. Security Council resolution to impose sanctions on Zimbabwe."It's very good news," Churkin said of the pact.

"It shows we were right when we said that there is potential (for) contacts between the parties in Zimbabwe and that this should be encouraged by the international community." -The Times of Zambia

SUDAN Conflict

Historical Background

A rebellion started in 2003 against the Arab-dominated Sudanese government, with two local rebel groups - the Justice and Equality Movement (JEM) and the Sudanese Liberation Army (SLA) - accusing the government of oppressing non-Arabs in favor of Arabs. The government was also accused of neglecting the Darfur region of Sudan. In response, the government mounted a campaign of aerial bombardment supporting ground attacks by an Arab militia, the Janjaweed. Literally translated, Janjaweed means 'devils on horseback'. The government-supported Janjaweed were accused of committing major human rights violations, including mass killing, looting, and systematic rape of the non-Arab population of Darfur. They have frequently burned down whole villages, driving the surviving inhabitants to flee to refugee camps, mainly in Darfur and Chad; many of the camps in Darfur are surrounded by Janjaweed forces. By the summer of 2004, 50,000 to 80,000 people had been killed and at least a million had been driven from their homes, causing a major humanitarian crisis in the region.

United Nations : First Intervention

On September 18, 2004, the UN Security Council passed Resolution 1564, which called for a Commission of Inquiry on Darfur to assess the Sudanese conflict. On January 31, 2005, the UN released a 176-Page report saying that while there were mass murders and rapes, they could not label it as genocide because "genocidal intent appears to be missing".[30] [31] Many activists, however, refer to the crisis in Darfur as a genocide, including the Save Darfur Coalition and the Genocide Intervention Network. These organizations point to statements by former U.S. Secretary of State Colin Powell, referring to the conflict as a genocide. Other activists organizations, such as Amnesty International, while calling for international intervention, avoid the use of the term genocide.

International Responses

International attention to the Darfur conflict largely began with reports by the advocacy organizations Amnesty International in July 2003 and the International Crisis Group in December 2003. However, widespread media coverage did not start until the outgoing United Nations Resident and Humanitarian Coordinator for Sudan, Mukesh Kapila, called Darfur the "world's greatest humanitarian crisis" in March 2004. A movement advocating for humanitarian intervention has emerged in several countries since then.

UN’s failure to prove existence of GENOCIDE

Genocide - murder of entire ethnic group: the systematic killing of all the people from a national, ethnic, or religious group, or an attempt to do this.

In January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of the Sudan has not pursued a policy of genocide." Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide."

To address the dire human rights and humanitarian emergency in Darfur, the United Nations has taken several steps, but all of these have been frustrated by the Government of Sudan with the support of a number of other governments, including Egypt and Algeria.

In January 2005, the UN Secretary-General's International Commission of Inquiry on Darfur issued a well documented report that indicated that there was by then already some 1.6 million internally displaced persons as a result of the ongoing violence, more than 200,000 refugees from Darfur into neighbouring Chad, and that Government forces and allied militia had committed widespread and consistent war crimes and crimes against humanity including murder, torture, mass rape, summary executions and arbitrary detention. The Commission found that technically there was not a genocide in the legal sense of the term but that massive violations of human rights and humanitarian law were continuing. The Commission also found that the Janjaweed militia operated alongside or with ground or air logistical support from the Government's armed forces.

UN : Paralyzed

The United Nations Human Rights Council appointed seven UN human rights special rapporteurs to form a group of experts on Darfur.

On 11 December 2007, the group of experts issued its final 106-page report to the Human Rights Council which details the status of the Government's implementation of the recommendations the group had brought together and which concluded that the Government's implementation of human rights recommendations has been largely inadequate.
Attacks in January 2008 and February 2008 by Sudanese forces on Darfur villagers are described in a U.N. report, from March 20, 2008, as "violations of international humanitarian and human rights law."

As Sudan has not ratified the Rome Statute the International Criminal Court can not investigate crimes that may have taken place in Darfur unless the United Nations Security council asks them to under Article 13.b of the Rome 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").

In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the report of the International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution. As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.
In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. The Sudan Government says that the ICC had no jurisdiction to try Sudanese citizens and that it will not hand the two men over to its custody.

Criticisms of International Response

On October 16, 2006, Minority Rights Group (MRG) published a critical report, challenging that the UN and the great powers could have prevented the deepening crisis in Darfur and that few lessons appear to have been drawn from their ineptitude during the Rwandan Genocide. MRG's executive director, Mark Lattimer, stated that: "this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late." On October 20, 120 genocide survivors of the Holocaust, the Cambodian and Rwandan Genocides, backed by six aid agencies, submitted an open letter to the European Union, calling on them to do more to end the atrocities in Darfur, with a UN peacekeeping force as "the only viable option."

China : Criticized of supporting Sudan

As based on Security Council’s YALTA formula, substantive issues which requires the Security Council under it’s responsibility of maintaining or restoring world peace to invoke measures of enfrocement – the approval of which needs 9 votes including the Big Five (China as one of the Big 5). With the veto power vested to the so-called Big 5 , one vote from any of them will totally reject a draft of resolution or proposal of possible preventive measures. Under this Rule of Great-Power Unanimity, the Security Council is unable to function once any of the Big 5 exercises it’s veto power.

"Human Rights First" claimed that over 90% of the light weapons currently being imported by Sudan and used in the conflict are from China; however, according to Stockholm International Peace Research Institute (SIPRI)'s "Arms Transfers Data for 2007", between 2003-2007, Sudan received 87 per cent of its major conventional weapons from Russia and 8 per cent from China.[ Human rights advocates and opponents of the Sudanese government portray China's role in providing weapons and aircraft as a cynical attempt to obtain oil and gas just as colonial powers once supplied African chieftains with the military means to maintain control as they extracted natural resources. According to China's critics, China has offered Sudan support threatening to use its veto on the U.N. Security Council to protect Khartoum from sanctions and has been able to water down every resolution on Darfur in order to protect its interests in Sudan. In response to these allegations, Chinese Ambassador to Sudan Li Chengwen said that "China played an important role in promoting the agreement of the Sudanese government, the African Union and the UN for the deployment of the Hybrid Force in Darfur. China's view is that intensive economic development of the region is a more effective means than harsh economic sanctions, in the effort to stabilize the crisis and alleviate the suffering of the people".[60] Chinese Premier Wen Jiabao reiterated these views on February 20, 2008, and "pointed out that China was the first non-African nation to send peacekeepers to Darfur and the biggest development aid provider to the region". However accusations of the supply of weapons from China in breach of a UN embargo continue to arise.

Prosecutor for the International Criminal Court (ICC) has put countries providing arms to Sudan on notice that they are arming a potentially indicted war criminal, as well as likely violating the Genocide Convention, said Human Rights First.

China's trade and oil interests in Sudan have induced the permanent U.N. Security Council member to provide diplomatic cover for the government accused by many of war crimes against its own people, analysts say.

Sudan has had its back against the wall of the U.N. headquarters in New York during the past 18 months over the conflict in Darfur, where tens of thousands of people have died as a result of violence the United States called genocide. But the spectre of a Chinese veto has shielded Sudan from possible sanctions over the conflict and in turn protected a growing source of much-needed oil for Beijing. "This is RealPolitik," said Adwoa Kufuor, a human rights analyst on Sudan. "Yes China has economic interests ... and yes China will not risk offending the government of Sudan."
China's heavy but understated presence in Sudan is symbolised by the vast, walled compound housing its embassy on prime real estate in Khartoum. It dominates Sudan's crude oil sector, which produces around 330,000 barrels per day, and is building roads, bridges and dams. China has become Sudan's biggest foreign investor with $4 billion in projects.

China has in the past "sold" its UN veto power to protect Sudan from sanctions over the killing of people in Darfur in exchange for access to Sudanese oil. China is now Sudan's biggest customer.

Just Recently

On July 14, 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir, three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors have claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for al-Bashir.[19]
ICC Prosecutor Luis Moreno Ocampo referred President Bashir to the Court's Pre-Trial Chamber I, and requested that the chamber issue a warrant for his arrest for his role in perpetrating genocide in Darfur from 2003-2008, resulting in deaths of more than 300,000 people. The prosecutor’s request for a warrant marks the end of the initial phase of what is thus far a three-year investigation into crimes committed in all of Darfur, as well as the first time a sitting president has been charged with genocide.

MONTEVIDEO Convention

The Montevideo Convention on the Rights and Duties of States was a treaty (which was later accepted as part of customary international law) signed at Montevideo, Uruguay, on December 26, 1933, at the Seventh International Conference of American States.

A state as a person of international law should possess the following qualifications :

1. a permanent population – consist of a group of people, both sexes living together as a community. They must be sufficient in number to maintain and perpetuate themselves.
2. a defined territory – a known fixed portion on the earth’s surface occupied by the inhabitants.
3. government – must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in government.
4. capacity to enter into relations with the other states – has an external sovereignty capable of conducting both its internal and foreign affairs.

The federal state constitute a sole person in the eys of international law. Thus, its fundamental rights are not susceptible of being affected in any manner whatsoever.

Determinative Factor of Statehood
- the political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

- the exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

Judicial Equality among States
-states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

What is a recognition of a state ?
The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.

Domestic Jurisdiction of states
-no state has the right to intervene in the internal or external affairs of another
-the jurisdiction of states within the limits of national territory applies to all the inhabitants
-nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Inviolability of states
-the contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure.
-the territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Montevideo Convention’s ratification
-defines the mode of it’s applicability based on contracting parties’ respective procedures
-involves the transmission of the aunthentic certified copies to the governments and the instrument of ratification shall be deposited in the archives of Pan American Union in Washington
- the signatory governments will be notified of the said deposit and thus, considered as an exchange of ratification

Effects of the Montevideo Convention
-the present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.
-the present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.

Coventions’s enforceability duration
General Rule : the present Convention shall remain in force indefinitely.

Exemption : may be denounced by means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.

Signatories of the Convention
The states that signed this convention are:
Honduras, United States of America, El Salvador, Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Paraguay, Mexico, Panama, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, Cuba.

Non- signatories of the Convention
- the present Convention shall be open for the adherence and accession of the States which are not signatories.

RESERVATIONS
(codification)
The Delegation of the United States of America, in signing the Convention on the Rights and Duties of States, does so with the express reservation presented to the Plenary Session of the Conference on December 22, 1933 :
“No time within which to prepare interpretations and definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations. In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every government. The United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted".
The delegates of Brazil and Peru recorded the following private vote with regard to article 11: "That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification".

Montevideo Convention’s Impact
-as a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles and therefore does not apply merely to the signatories, but to all subjects of international law as a whole
-Switzerland, although not a member of the European Union, adheres to the same principle, stating that "neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it."