Sunday, February 28, 2021

Is Botswana’s position on the International Criminal Court principled?

President Lieutenant General Dr. Ian Khama has, for the umpteenth time, reaffirmed Botswana’s commitment to the International Criminal Court.

“Botswana further remains committed to the International Criminal Court and international Criminal Justice system. We will continue to support the ICC and cooperate with its operations,” said Khama when opening the parliamentary year last Monday.

To demonstrate its commitment to the ICC, Botswana has broken ranks with other African countries, by publicly expressing its support for the arrest of Sudanese leader, Omar al-Bashir, who is accused of committing atrocities in the Darfur region. Botswana has stated that should al-Bashir set foot in its territory, he will be arrested and handed over to the ICC. In June this year, the Sudanese leader attended the African Union summit in Johannesburg and almost immediately found himself in hot water. The Southern African Litigation Centre, which is based at the University of Witwatersrand, filed papers at the North Gauteng High Court in Pretoria seeking to bar al-Bashir from leaving the country while hearings to determine the fate of the ICC arrest warrant were held. While this application was successful and it had almost looked like the end of the road for the Sudanese president, the host (President Jacob Zuma) intervened in a manner whose lawfulness is being challenged. Disregarding the court order, Zuma made secret arrangements for al-Bashir to leave the country. Reacting to this incident, Botswana said that it would have made good its promise to the ICC.

Another African leader who has come under the ICC radar is Kenyan president, Uhuru Kenyatta who has been implicated in the post-election violence in 2007 that claimed the lives of more than 1000 people and displaced 600 000. Following his election as president in 2013, Botswana’s immediate past foreign affairs minister, Phandu Skelemani said that if Kenyatta refused to go to The Hague to answer charges he was facing, then “he won’t set foot here.” Skelemani would later apologise but in as far as alleged African war criminals are concerned, Botswana has maintained a steadfast position. However, something akin to protection racketeering begins to take shape upon considering the manner in which Botswana has handled the Sudan/Kenya situation as opposed to that of the United States.

On June 30, 2003, Botswana became the second in Africa (after The Gambia) to sign the Bilateral Immunity Agreement (BIA) with the US. The agreement was signed by Foreign Affairs Minister and future Vice President, Mompati Merafhe, and United States Ambassador to Botswana, Joseph Huggins, 10 days before President George Bush paid a brief (six-hour) visit to Botswana. In terms of this agreement, Botswana has pledged not to extradite American citizens to the ICC tribunals unless those tribunals are established by the UN Security Council or if America expressly consents to the surrender.

According to the Institute for the Study of Human Rights at the Columbia University in the US which monitors these treaties, Botswana is one of 95 countries whose BIA with the US is still in force. One interesting detail of this particular BIA is that it is “non-reciprocal” which means that “the agreement does not address the surrender of nationals of this country by the US to the ICC.” Conversely, Angola’s BIA is reciprocal ÔÇô “the US has agreed not to surrender nationals of this country to the ICC.” Built into Botswana’s BIA is a “permanent waiver” in terms of which “President Bush declared that the country would continue to receive aid, contingent on the continuation in force of the BIA.”

As the ICC neared implementation in 2001, the US began to negotiate BIA with other countries, threatening termination of economic aid, withdrawal of military assistance and other painful measures for those unwilling to play ball. As would later be confirmed by the Ministry of Foreign Affairs after a fortnight of denials, this is pressure that was brought to bear on Botswana. Then Permanent Secretary, Ernest Mpofu, was quoted in the media as saying that while the government had misgivings about the agreement, a number of issues ÔÇô including military assistance from the US, were considered before the signing of the agreement.

 “The country’s interests dictated that Botswana should sign,” said Mpofu, adding that US military aid was at stake if Botswana did not sign the agreement. 

Taken to its logical conclusion, Botswana’s stance ÔÇô as articulated by Mpofu, would mean that if Sudan gave Botswana economic aid and military assistance, then the latter’s interests would dictate that some treaty be signed with the North/East African country. Such treaty would make it impossible for Botswana to extradite al-Bashir if he came to Botswana. 

Reverend Biggie Butale, who chairs parliament’s Defence, Foreign Affairs and Government Assurances Committee, appreciates this issue within a context that rejects the latter conclusion. However, he prefaces his central argument by quoting an authority whose position hews closer to that conclusion.

“Some people say that you can’t bring morality into foreign policy: you must be pragmatic and look at what benefits your country. That is not my thinking but how some people perceive foreign policy,” Butale says.

In the next breath – and in attempting to find a sweet spot for his government’s ICC policy, the Tati West MP notes that while such pragmatism is important, it has to be counterbalanced with principle. His understanding of the BIAs is that the US wants American suspects to be handed over to it. He has no problem with that because he considers the American judicial system to be “robust.” In elaborating on this point, he makes an uncharitable comparison between the US and Burundi which he says would not be able to try someone like its power-mongering leader, Pierre Nkurunziza. He concludes his argument by stating that Botswana’s position on the ICC is principled because the country is looking not just after its economic interest but that through its BIA, ensures that suspects will have their day in court.

According to Khama, the drafting of legislation for the domestication of the Rome Statutes (the 1998 treaty that created the ICC) is at an advanced stage “and should soon be brought before parliament.”

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