Kader Asmal and Nicole Fritz
18 April 2008
African liberation movements brought about revolutions in government but they also revolutionized the very legal principles and precepts by which governments were to be judged. The concept of sovereignty, signalling the exercise of absolute authority and autonomy within a state's territory and long the central operating principle of international relations and law, was transformed.
No longer attaching to a putative monarch or an abstract entity, like an empire, sovereignty became to be understood as the inalienable right of the people inhabiting a state, the manifestation of their right to self-determination.
And so there is a sad irony in the current impasse: a Zimbabwean regime using outdated, discredited notions of sovereignty, the illegitimacy of which they themselves once made plain, in order to defend what is now, in effect, an autocracy. That the Southern African Development Community (SADC), in part a response to a new international legal order invoked by a revolutionized concept of sovereignty, does not more publicly seek to distance itself from so obvious a subversion of the Zimbabwean people's democratic will makes the situation sadder still.
(...) Legitimately, SADC might have done much more. SADC leaders might, for instance, have invoked the doctrine of responsibility to protect. The doctrine, adopted unanimously at the UN world summit in 2005, has been said to represent one of the most significant developments in international law.
But in reality it is merely a restatement of the principle secured by the anti-colonial struggles for self-determination: that governments may only make claim to sovereignty, the right to non-interference from other states, where such sovereignty safeguards the rights of the people who inhabit the state.
The doctrine of the responsibility to protect takes this principle and applies it in the context of impending and actual grave human rights violations. The ongoing reports of large-scale deployment of military and paramilitary forces throughout rural areas and increasingly numerous accounts of attacks on individuals and communities for having voted for the opposition makes the principle immediately applicable to Zimbabwe.
Simply stated, the principle recognizes that states have the primary responsibility to protect their populations from grave human rights violations, but when a state fails to protect its population, the principles of non-intervention yield to the international responsibility to protect.
The doctrine is not without some controversy, because, at its most extreme, it is understood to justify humanitarian intervention, specifically measures involving force. But such measures are, in fact, envisaged only as ones of last resort. And credible, responsible application of the doctrine, in fact, compels measures short of coercive intervention where such action would be effective.
Some are understandably also wary of the doctrine, believing that it may be used as a pretext for unilateral action on the part of self-interested states. But again, responsible application of the doctrine requires that any response to large-scale threats to populations take the form of a collective response.
The SADC was well-placed to coordinate just such a response. Its Organ on Politics, Development and Security Cooperation is authorized to apply measures of prevention and even enforcement, as a last resort, in carrying out its mandate of resolving conflict, which includes intrastate conflict at the level of gross violation of human rights.
But even if there weren't this added dimension, if there weren't every reason to believe that Zimbabweans will and are being subject to state-sponsored violence and intimidation - if it were simply a matter that vote counts were being manipulated behind closed doors - then the principle at the heart of responsibility to protect would still matter and would still be at risk: namely, the right to self-determination. (...)
Kader Asmal is a professor extraordinary at the University of the Western Cape and Nicole Fritz is the director of the Southern Africa Litigation Centre.