Council referral138. Nevertheless given several submissions invoking the Rome Statute including Parliamentarians139, church leaders and a broad spectrum of political figures, academics and civil society actors, and their expectations that this issue would be discussed, the Special Envoy has decided to include a brief analysis on the matter based on a legal opinion provided from a confidential source. The presentation below must therefore be understood as preliminary, it remains up to the Secretary General to decide whether an independent and more thorough investigation is warranted. For brevity, within the context of Operation Restore Order, the relevant acts listed by Article 7 as constituting a “crime against humanity” when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack are: r. “deportation or forcible transfer of population”. The Treaty defines deportation or forcible transfer of population as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”; and s. “other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health”.140 The outcome of the legal analysis was complex. But concluded that with available evidence it would be difficult to sustain that crimes against humanity were committed. Four reasons were advanced141. Firstly, with the exception of a few cases, there is general agreement that the building of shacks and extensions without approval, and hawking in streets without licences, were not lawful. Therefore arguably these evictees were not lawfully present in the areas under current Zimbabwean laws. As already discussed above, the strong legal case lies in the argument that it was the procedure of the exercise that did not provide adequate notices as required by law and not in the lawfulness of the occupation. The second issue is related to forced expulsions of people from their homes. According to the legal opinion obtained, this would be countered by the fact that for many people, police threats were imagined rather than real. This would be evidenced by the fact that some people demolished their own structures out of fear, the threat of hefty fines, or to salvage building materials even before the police had arrived . Meanwhile, there were others, who, after demolitions, chose to remain on their demolished property, making it difficult to make a case for systematic forced expulsion. Apart from their relatively small numbers, even evictees sent to camps could be said to have voluntarily opted to do so as the other alternative was to remain out in the open, and many had chosen or were seen to be using this option. After all, not everyone went to the camps, it would be argued. 138 In the Sudan case, where the Security Council referred the case to the International Criminal Court, the decision was made after an international Commission of Enquiry had submitted its report. The Commission of Enquiry’s mandate was given by the Secretary General and was specifically required to investigate violations of international humanitarian law and human rights law. This is not the case for the Zimbabwe Mission 139 See submission by David Coltart, MP for Bulawayo South 140 ibid Article 72 (1)(d) Emphasis added 141 Preliminary Legal Opinion: on the Application or otherwise of the Treaty of Rome to the Situation of Rome, July 2005 Confidential source. 65