atmosphere was too charged with politicians uttering inciting messages that made the actions of the police look like they were permissible. Gray notes that: “law enforcement agents have a right to know, beforehand that their acts are punishable under the law. If there is no law, or if the law is too vague and ambiguous, then it is not fair to punish an agent who had no warning that his actions would be punished”. ⁷³ Gray further outlines that, it is an affirmative defense for the actor engaged in the conduct charged to constitute an offence if the act reflects a reasonable interpretation of the prevailing public face of law. Extension of the excuse to agents of pre- transitional abuse recognizes that many, if not most, pre transitional wrongful acts were committed by individuals who, given the nature of the public face of law under the abusive regime, were justified in believing that what they did was right, necessary, or at least not subject to legal punishment. However, this argument goes contrary to emerging norms in international law. The ICTY has stated that because of the internationally recognized status of the prohibition of torture, “torture may not be covered by a statute of limitation‟.⁷⁴ When trials could fail or would not be possible? Under international law a state is entitled to derogate from its duty to punish when there is an existence of a grave threat to the life of a nation⁷⁵ and impossibility of performance. Van Zyl explains the conditions for a state to comply with in terms of derogations.⁷⁶ He notes firstly that a state must provide reasons to justify its failure to punish. Secondly, it must outline the exceptional nature of the threat, which prevents punishment. Thirdly, it must demonstrate that the measures taken for example, an amnesty are proportional to the threat posed. Lastly, while it may be permissible, under certain exceptional circumstances, not to punish, it is never permissible to derogate from certain inalienable rights such as the right to life and the right not to be subjected to torture. Arguments against prosecutions For a long time, there has been argument in Zimbabwe that there should be considerations for other methods to deal with past human rights violations by the police which do not necessarily resemble or are equal to prosecutions by courts of law. For example, practical considerations have always taken the forefront with proponents of alternative policies noting that if for example those who used to hold power, “are treated too harshly – or if the net of punishment is cast too widely – there may be a backlash that plays into their hands”.⁷⁷ A second practical argument that has been put forward is that since the time of the Zimbabwe crisis when the Forum started recording cases of state sponsored and politically motivated human rights violations criminal offences and potential defendants have become so large that it is unrealistic to expect that all or even most will be prosecuted. Yet still others have argued that the duty to bring perpetrators in such a scenario as Zimbabwe's should extend only to persons most directly responsible or otherwise. ⁷³ Ibid Gray. ⁷⁴ Anto Furundzija case, Judgement of 10 December 1998, IT – 95 – 17/1, paragraph 157. ⁷⁵ See ICCPR supra note 33, Article 4 and a commentary on derogations in Lawless v Ireland, Series no. 31 European Human Rights Report 15, 1961), at 31-2. ⁷⁶ P Van Zyl, „Justice Without Punishment: guaranteeing human rights in transitional societies‟ in C Villa �� Vicencio and W Verwoerd (eds), Looking Back Reaching Forward (University of Cape Town Press London 2000) at 51. ⁷⁷ F Marvin, Out of the Shadow of the Night: The Struggle for International Human Rights (Delarcote Press, New York 1989). 38 Anti-Impunity Report