Monday, October 25, 2021

Khama’s pronouncements on ICC don’t help Moitoi’s campaign

With just 35 ill-chosen words, President Ian Khama may have sunk Pelonomi Venson-Moitoi’s bid to become the next chairmanship of the African Union Commission.

“We have reaffirmed our commitment to the International Court and international criminal justice system. We are, furthermore, at an advanced stage in domesticating the Rome Statute, and making it part of our national laws,” Khama said in his state-of-the-nation address last Monday.

Venson-Moitoi, who is the Minister of Foreign Affairs and International Cooperation, is the Southern African Development Community candidate for the AU post but her main undoing is Botswana’s position on the International Criminal Court (ICC). With the exception of Botswana, all African states are opposed to the ICC’s brand of justice, which consistently targets Africans while turning a blind eye to atrocities committed elsewhere in the world. The treaty that established the ICC was adopted at a diplomatic conference in Rome on July 17, 1998 and entered into force on July 1, 2002. The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

With South Africa leading the pack, some African states have announced that they will be pulling out of the Rome Statute. Through a press statement, Venson-Moitoi’s ministry expressed Botswana’s “regret” over the decision of South Africa to leave the ICC. The same Venson-Moitoi has to canvass for support from countries that she knows to be opposed to the ICC. That Botswana is at an advanced stage of domesticating the Rome Statute will certainly harden feeling towards both Botswana and her candidacy. Ironically, a win by Venson-Moitoi, who didn’t garner enough votes at the AU Summit in July, would erode Botswana’s ability to antagonise the AU on this and other issues where the country has been repeatedly caught out of formation with the rest of the continent.

While Khama is the one who nominated Venson-Moitoi for the AU post, there is a context in which he continues to imperil her path forward. The absence of a codified foreign policy in Botswana means that such policy is largely refracted through the prism of a sitting president’s own conception of the world. Following old-school protocol, former presidents Sir Ketumile Masire and Festus Mogae maintained a SADC staple – silent diplomacy – in dealing with other countries. However, upon taking over in 1998, Khama (whom WikiLeaks cables adjudge to be sympathetic to the west) reoriented Botswana’s foreign policy towards what can best be described as logically inconsistent rooftop diplomacy. Atypically for a small, powerless Third World country, Botswana has tossed off a barrage of condemnatory pronouncements at leaders near (Robert Mugabe) and far (Kim Jong Un). Such pronouncements typically smack of western sentiment. In February this year and following in the footsteps of the west, the country tangled with China over the South China Sea controversy. The inconsistency takes the form of lambasting Mugabe for his autocracy but failing to do the same with Swaziland’s King Mswati III, in excoriating Syria for killing innocent people but staying mum when its next-door neighbour ÔÇô Israel ÔÇô rains down bombs on innocent Palestinian civilians. The government has not even been able to state whether it recognises Israel outside its 1967 borders which might lead some to credibly speculate that it does.

On the continent, Khama’s foreign policy is largely defined by not marching in lockstep with other African leaders, notably on the raw-nerve issue of the ICC. However, more than is often realised, Botswana is severely compromised on this issue but oddly, has consistently sought to rub itself in virtue. While Khama reaffirmed Botswana’s commitment to cooperating with the ICC, he did not qualify that assertion by adding that such cooperation does not include handing over American war criminals to the ICC. Ten days before President George Bush paid a brief, six-hour visit to Gaborone in 2003, Botswana became the second in Africa (after The Gambia) to sign the Bilateral Immunity Agreement (BIA) with the United States. In terms of this agreement, Botswana has pledged not to extradite American citizens to the ICC tribunals unless those tribunals are established by the United Nations Security Council or if America expressly agrees to the surrender. In return, Botswana receives aid “contingent on the continuation in force of the BIA.” Stripped to its essence, this deal means that if Sudanese leader Omar al-Bashir – who is wanted by the ICC – could provide the same goodies as Americans, he would be able to maintain radio contact with marauding bands of the Janjaweed militia while holidaying in the Okavango Delta. Following in the footsteps of her predecessor, Venson-Moitoi is the chief executer of this deeply problematic foreign policy.

Bush makes an interesting contrast with al-Bashir. Botswana rightly considers the latter to be a war criminal on the basis of what he did ÔÇô unleashing a pogrom against a group of black people who live in a part of what is now South Sudan. With the active assistance of Tony Blair, who was Prime Minister of the United Kingdom at the time, Bush waged a war against Iraq, which war the former United Nations Secretary general, Kofi Annan, explicitly declared illegal because it was neither sanctioned by the UN Security Council nor in accordance with the UN’s founding charter. Article 2(4) of the charter says in unequivocal terms: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Legal scholars around the world have made a very strong case for why both Bush and Blair should be tried as war criminals. The evidence notwithstanding, Bush, a war criminal, can visit Botswana any day he wants and each time he does, the Botswana government rolls out a red carpet for him. Rarely is Botswana called out on its hypocrisy but when it regretted South Africa’s plan to exit the Rome Statute, its High Commissioner to Botswana pointed out this particular irony.

The situation is tragic all the way round because what African states are themselves proposing in place of the ICC (the African Criminal Court) doesn’t sound too promising. The continental criminal court would fall under the ambit of the AU which, historically, has maintained a see-no-hear-no-evil approach to atrocities committed by national leaders on the continent.

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