There was nothing diplomatic between Pretoria and Gaborone this week as South Africa’s High Commissioner to Botswana Mdu Lembede rapped Botswana on the knuckles for its “unfortunate view” on his country’s decision to withdraw from the International Criminal Court (ICC).
Botswana this week expressed disappointment at how “…the Government of South Africa reached this decision (quitting the ICC).”
In an interview, Lembede wondered why South Africa’s withdrawal from the ICC “has created a hullaballoo.”
“Namibia has announced recently that it is pulling out and there was no hullaballoo. If people see it the way Botswana sees it then it is unfortunate. We welcome Botswana’s statement that it respects our sovereignty. But we have a foreign policy and a position like other countries,” he said.
Ministry of Foreign Affairs Assistant Director in the department of Public Relations Wame Phetlhu said the information available to Botswana is that South Africa is the only country in the region that has formally submitted her intention to withdraw from the Rome Statute of the ICC on 21 October 2016.
“We are not aware that Namibia has deposited a similar instrument,” she said.
Botswana urged all States Parties to remain committed to and also respect their obligations under the Rome Statute by cooperating with, and providing political support to the ICC in order to ensure that the maintenance of minimum international standards of justice are observed.
Lembede said South Africa does not shout from the mountaintops but has played an important role in efforts aimed at brokering peace in the continent.
“We respect the rights of others to criticise us. But we spend our resources and send our soldiers for peace keeping missions,” he said.
As founding member of the ICC, Lembede said South Africa respects the court for the role it has done.
“South Africa will never shy away from speaking along those lines. We have spoken out against atrocities in Gaza and Palestine and atrocities s happening in the continent,” he said.
Explaining the reasons for his country reaching a decision to quit ICC, Lembede said South Africa has been troubled by the inconsistencies in the Rome Statues and other international obligations that South Africa has signed.
“Being a member of the ICC has put South Africa in a difficult position; when we look at our relationship to countries like Sudan that are non-states members and are therefore not bound by the Roman Statues. Rome Statutes want a member to arrest and surrender those arrested to the court,” he said.
Lembede said other legal obligations such as the Customary International law and privileges which guarantee immunities to the Heads of States under the Geneva Convention were also in conflict with South Africa’s obligation to ICC. He reiterated that the relationship between South Africa and non-state parties is not governed by the ICC.
He cited an incident in which a warrant of arrest was issued against Sudanese President Orma Al-bashir while attending an African Union meeting in South Africa.
“South Africa found itself in a difficult position because it had a host agreement with the African Union. The host agreement on the privileges of 1965 guarantees immunity to the heads of states. When you host, you sign this agreement and we had to respect the host agreement,” he said.
He said South Africa is involved in peace making in the continent and by their nature peace negotiations are complex and multi faceted.
“For instance let’s say South Africa is involved in peace making in one of the parties and its head of state is wanted by the ICC, the peace process is going to collapse, how then we become a peace broker if our decision is tied by the ICC. For us to remain a peace broker our hands should not be tied,” he said.
Ha added that “If our hands are going to be tied by the ICC, we must stop being involved in peace keeping. It does not mean that South Africa’s withdrawal from the ICC will collapse the ICC. As long as it has loyal members like Botswana and other countries it will continue to exist.”
He said South Africa has nothing against the ICC and it is not promoting impunity.
“We feel contradicted. Our hands are tied by the ICC and peace making process. When the courts ruled that Al-bashir should be arrested, they cleared the matte for us. Some of the international obligations we have signed give privileges to heads of states but by signing the Rome Statutes we have given away our rights on those privileges. That is what the Appeals Court said it made the ICC more supreme than any other obligations,” he said.
He added that: “For us not to be allowed to be tied let us withdraw from the ICC. We felt seriously conflicted. South African government is of the view that for it to continue to be an ICC member it will compromise efforts to promote peace and security in the continent and to play an essential part in peace making in Africa.”
He said South Africa will never allow impunity; it will continue to have jurisdiction over crimes relating to genocide, and crimes against humanity.
“Our commitment to justice and accountability remains unwavering. Human rights and dignity are enshrined in our constitution,” he said. Lembede believes that Africa is capable of dealing with its own problems. He cited Chad’s ex-ruler Hissene Habre who was convicted of crimes against humanity and sentenced to life in prison at a landmark trial in Senegal saying he not have go to the ICC.
Lembede said a South African court has sentenced Nigerian oil militant Henry Okah to an effective 24 years in jail after he was found guilty of 13 terrorism-related charges.
“We feel there is an urgent need to assess whether the ICC is still reflective of the principles which guided its creation,” said Lembede.
As long as five security members of the UN being China, Russia and USA are not keen to join the ICC, its credibility will continue to be questionable.