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Historically, international law referred to rules that governed relations between nations. However, in recent years, international law has been redefined and interpreted to include relations and dealings between States and individuals as well.
Tichawana Nyahuma
It also encompasses relations between international organisations such as the Southern African Development Community, the United Nations, the G8, the Non-Aligned Movement and so on. The International Criminal Court, better known as the ICC, also falls within the realms of international law.
From where I am sitting, the major challenge with international law is the effectiveness of its enforcement mechanisms. In fact, it would appear as if there is no apparatus at all with which to enforce international law. This is unlike in a domestic situation where a country has the police, the courts and other law enforcement agents that work in unison to enforce local or internal law.
Remember, the police department of every country only has jurisdiction within the borders of that particular country. Any act by a police department of one country in another country without the authority of that other will be seen as aggression and can be a source of friction and can even cause war.
Equally, the courts of every country only have authority to try cases whose judgments they are able to enforce and that is only possible if the person or property that is the subject of the case is within the jurisdiction of the court. Normally, courts do not have extra-territorial jurisdiction.
So, the effectiveness of international law depends, to a very large extent, on the weather, be it political or economic, between the nations involved.
Let us take as an example, the recent incident in South Africa involving Sudanese President Omar Al-Bashir who was reportedly “allowed” by his hosts to flee that country despite a High Court interim order that he be detained pending its decision on the validity of his arrest warrant that had been issued by the ICC.
You can, therefore, see that were it not for the good relations between Pretoria and Khartoum, President Bashir would most probably have been extradited to the ICC to answer to a raft of criminal charges that the ICC wishes to prefer against him.
In fact, if president Bashir knew that he could be arrested upon setting his foot in South Africa, he would never have travelled to that country in the first place.
Besides, his arrest in South Africa could have caused a diplomatic incident between, not only the two countries, but also among the majority of the members of the African Union.
There were going to be loud voices from across Africa and even beyond, condemning president Jacob Zuma and his government. Who knows, maybe some people back in Sudan could have called for a war against South Africa.
As it is, some might say by allowing president Bashir to escape from its territory in the face of imminent arrest, South Africa violated international law. But what did the ICC or any other country do as a result. Nothing. The reason is that there are other various considerations at play which are mainly political and economic as I have already said.
The effectiveness of international law, therefore, depends on the willingness of the member States to co-operate with each other in enforcing it.
I have said in this column before that it is the quality of enforceability by the State that distinguishes law from other rules and regulations that govern human conduct.
From that perspective, therefore, one might come to the conclusion that international law is no law at all for its lack of effective enforceability by the member States.
This brings me to the story of the now posthumously famous Cecil, the Lion. I must admit that like many Zimbabweans, I did not know anything about Cecil until after his demise.
In fact, I only got to know about him while watching one of the international news channels.
It has been alleged that Cecil was illegally killed in early July, 2015 by an American, a certain Walter Palmer who apparently is now back in his country, the United States of America. Under international law, if a person commits an offence in another country then escapes back to his country, the “wronged country” has a right to ask that other country to bring back the alleged offender so that he or she may be tried for that offence. The technical term for that process is called extradition.
Now, it is well known that there is no love lost between Harare and Washington. Talk about the Zimbabwe Democracy and Economic Recovery Act passed by former US president George Walker Bush in 2001 and the “smart sanctions” against the Zimbabwe Government by the US. Also, statements by President Robert Mugabe against the US government at various local and international fora confirm that the two governments can never eat from the same plate.
So when it comes to the issue of Cecil and Walter Palmer, it remains to be seen how relations between the two countries will influence the extradition of Walter Palmer to face trial in Zimbabwe.
If one considers the warm relations between Harare and Moscow and if Walter Palmer was Russian, then I can bet my last bond coin that Walter Palmer would by now be languishing at Hwange Remand Prison awaiting his trial.
The same may be said if Cecil had been inhabited at the Kruger National Park in South Africa or the Nairobi National Park in Kenya. Relations between these two countries and the US may be described as warm and cordial given the recent visit by US president Barack Obama to Kenya and to South Africa in 2013.
As it is, the US can do as it pleases with Walter Palmer. It can choose to protect him and reject Zimbabwe’s request to have him extradited and there is absolutely nothing in the whole wide world that anyone or any government can do about it because international law is difficult to enforce.
No wonder some have said that international law is no law at all.
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