Public Health in Zimbabwe: The Crisis of Resolution
Mark Grime explains how resolving the public health crisis in Zimbabwe may be a crisis in its own right.
The collapse of Zimbabwe’s public health infrastructure has enlivened debate on the inherent contradiction that exists between the international legal and international political approaches to the resolution of humanitarian crises. Whilst the international legal approach can be seen in arguments for humanitarian intervention, the international political approach is exemplified by the resurgence of the realist paradigm, with politicisation limiting the reach of international criminal law. Consequently, each approach to a resolution is limited by the other. International legal jurisdiction is thwarted by global realpolitik, while political will is constrained by burdensome and inflexible international legal doctrines.
The Case of Zimbabwe
The health crisis in Zimbabwe is a direct result of human rights violations by the Mugabe Government. The political crisis and resultant economic collapse have led to the implosion of the health system and basic infrastructure, which has given rise to a massive cholera outbreak of an unprecedented scale. Over 90,000 cases were documented between August 2008 and March 2009. Approximately 4,000 were fatal. However, cholera is just one aspect of a multifaceted humanitarian crisis that includes poor access to health care, collapsed infrastructure, a high prevalence of HIV, political violence, internal displacement, food shortages, and malnutrition. The situation has worsened significantly in recent months, while the political impasse continues and the economic collapse accelerates.
The Political Solution Constrained by Doctrines of International Law
A number of NGOs, including Médecins Sans Frontières, have called for Zimbabwe’s public health infrastructure to be placed in complete receivership. This could arguably be achieved through a UN-led and supported intervention under the ‘Responsibility to Protect’ (R2P) principle. However, the existing ambiguities within international legal instruments indicate that any derogation from the principle of non-intervention is unlikely to be permitted, unless the strict procedural and evidentiary caveats of the R2P principle can be satisfied. Within the public health context, this is unlikely.
Historically, the presumption of non-intervention under Article 2(7) of the UN Charter has precluded coercive intervention solely in domestic affairs, even for egregious state conduct, in the absence of state consent. However, the normative advancement of the R2P doctrine has increasingly challenged the dominance of non-intervention. R2P is based on the principle that governments have a responsibility to protect their citizens and people within their territories from the most abhorrent crimes, including crimes against humanity.
“The presumption of non-intervention under the UN Charter has precluded coercive intervention solely in domestic affairs, even for egregious state conduct, in the absence of state consent.”
In the public health context, the state has a responsibility to protect against the spread of epidemic diseases. It thus has a dual responsibility under international law to protect individual health as an individual right recognised by international human rights instruments, and to protect the health of society more generally. Moreover, states have a legal duty under the International Health Regulations to prevent the spread of diseases domestically and internationally, and are obliged to respond adequately to “public health emergenc[ies] of international concern”.
Although the international legal framework therefore provides a degree of political responsibility within the public health context, there are currently no binding enforcement mechanisms contained within any international legal agreements to address a state’s failure to respond to an infectious threat or to force it to comply with its international obligations under the Regulations. These instruments may place moral and political pressure on states, but they do not give the international community legal authority to intervene.
For R2P to legally legitimate the use of “coercive force” under Article 39 of the UN Charter, criminal culpability in the major crimes recognised under the Rome Statute of the International Criminal Court (ICC) must be demonstrated. Therefore, the Security Council would not be authorised to act without permission, even in assuming control of public health infrastructure, where the non-cooperating government acted only recklessly or negligently. Mugabe’s acts must be manifestly intentional.
Moreover, the legal caveats and qualifications of the R2P doctrine preclude effective political action and consequently restrain timely political conduct. Under the ‘right authority’ concept, which aims to ensure the primacy of state sovereignty, states must submit a formal request for a coercive humanitarian intervention to the Security Council in advance, which then assesses the allegations, seeks adequate verification of the facts, and decides whether to intervene, and which measures to use. This is particularly problematic in a public health context, as evidence with a narrow focus on the threat, or occurrence, of mass-scale deaths could obscure other medical considerations unique to an infectious outbreak and response, including the significant risk of disease spread through infectious individuals who are still alive.
Additionally, the Security Council may not have the expertise to evaluate the evidence. The application of the ‘right authority’ concept in the context of health-related interventions may ignore the role of medical expertise and the complexity of analysis and response beyond that typically encountered in humanitarian interventions. This would give force to Zimbabwean claims that the Security Council has no legitimate business in intervention, solely based on public health grounds.
“Evidently, the jurisdiction of the ICC is only as broad as political will permits.”
Although Security Council Resolution 1308, passed in 2000, recognises the potential for public health concerns to legitimate political action, it should not be interpreted as suggesting that the Security Council would be willing to intervene in a domestic health emergency in the absence of state consent.
First, Resolution 1308 was not adopted under the Chapter VII powers and thus was arguably not intended to affirm the right of coercive intervention under Chapter VII. Further, the statement appears in the nonbinding preoperative paragraphs.
Second, the intentional omission of the word ‘international’ before “security”, and the use of “risk” rather than ‘threat’, eschews the language of Chapter VII and thus suggests that the infectious public health risk remains within the principle of non-intervention.
Third, the operative paragraphs encourage, rather than require, state conduct of prevention and treatment. These paragraphs thus uphold the state-centric model of local disease control, consistent with the World Health Organization’s position that local governance improves health care.
Fourth, statements by Security Council delegates support an interpretation in favour of state sovereignty. Richard Holbrooke, one of the architects of U.S.-led Resolution 1308, asserts that “this resolution in no way infringes on sovereignty or the authority of countries”.
Despite the potential legal sanctioning of R2P intervention within the public health context, the substance of legal doctrines indicate that unless onerous evidentiary burdens are satisfied, effective political intervention will be constrained by entrenched notions of state sovereignty.
The Judicial Solution Constrained by Global Politics
A number of prominent advocates, including Justice Richard Goldstone, a former international criminal prosecutor, assert that Mugabe’s conduct over many years now warrants the attention of the ICC Prosecutor, Luis Moreno-Ocampo. This proposed judicial solution, which would see the prosecution of Mugabe and his removal from office, has increasingly gained support since the issuance of an arrest warrant for Sudanese President Omar al-Bashir. This is in line with the move away from the pre-WWII mentality that all war criminals, irrespective of their position in government, were immune from prosecution.
However, political developments, and in particular the resurgence of a realist, geo-political power play, may substantially restrict the applicability of international judicial solutions. The Rome Statute of the ICC already contains provisions protecting state sovereignty, yet the efforts of the Security Council and individual States have further limited the ability of the Court to operate. For the ICC to have jurisdiction over Mugabe, Zimbabwe would need to be a party to the Rome Statute. Although Mugabe has signed the Rome Statute, he has refused to ratify it. Accordingly, the only way in which Mugabe may be prosecuted by the ICC is if the Security Council, under Article 41 of the Rome Statute, refers the case to the ICC Prosecutor.
Although it is difficult to predict the outcome of such a referral, the politicised history of the Security Council would suggest that a failed outcome is likely. Russia and China continually veto propositions that involve the intervention of the international community into the domestic affairs of states. In particular, China’s expanding arms trade with African states, including Zimbabwe, as well as its refusal to curb such trade despite increasing violence, would pose a likely barrier. Even the position of the U.S. on this matter is uncertain, owing to its historical refusal to support and accept ICC jurisdiction. President Barack Obama has already called into question the merits of issuing the arrest warrant for President al-Bashir, owing to the degenerative effect that it could have on North African regional stability.
On the other hand, the idea that the Security Council would ever agree to refer Darfur to the ICC for investigation was once regarded as ludicrous. More recently, it was assumed the Security Council, on which South Africa holds a two-year seat, would never question Zimbabwe over the conduct of its elections. Yet both of these actions have come to pass.
Evidently, the jurisdiction of the ICC is only as broad as political will permits. Although a potentially applicable precedent is being established by the al-Bashir case, it is the resurgence of the realist paradigm in international relations, in which states operate purely for self-interest, which promotes an incongruous approach to legal intervention in humanitarian crises. This has effectively created uncertainty as to whether politics will ultimately allow international legal institutions to prosecute Mugabe for crimes arising out of the public health context.
The Quandary of the International System
Political and legal approaches are working against one another in resolving humanitarian crises. Political action is constrained by onerous legal doctrines and the predominance of state sovereignty, while the politicisation of legal jurisdiction is hampering the prosecution of crimes against humanity. The result is a political and judicial stalemate that is costing lives and undermining the capacity of international institutions to deal effectively with increasingly acute humanitarian crises.
