Botswana and South Africa are caught up in a diplomatic tiff after President Ian Khama’s administration openly criticised Pretoria’s decision to withdraw from the International Criminal Court (ICC).
In an interview with Sunday Standard this week South Africa’s High Commissioner to Botswana Mdu Lembede stopped short of dismissing Botswana as two-faced.
Pushing Botswana from her moral high-ground, Lembede recalled that on June 30, 2003, it became the second country in Africa to sign a Bilateral Immunity Agreement (BIA) with the USA. The Gambia was the first country to sign such an agreement.
In terms of this agreement, Botswana has pledged not to extradite American citizens to the ICC tribunals unless they are established by the UN Security Council or if America expressly consents to the surrender.
“When South Africa heard this it was surprised but we respected Botswana’s sovereignty and we never questioned their motive. We did not issue a statement to regret the decision that they took,” said Lembede.
He also observed that the Botswana and USA agreement was non-reciprocal. “While Botswana cannot surrender USA citizens to the ICC, the USA does not say it cannot surrender Botswana citizens to the ICC. The USA has signed the same agreement with Angola but that one is reciprocal,” he said.
Lembede further stated that while the UN could surrender people to the ICC, its members have unfettered powers as to who can be investigated by the ICC and this will always put the credibility of the ICC in question.
He said at the time the ICC was formed and Rome Statutes were implemented, the USA went around the world negotiating with countries and Botswana was one of them.
“A few years later, Botswana signed an agreement with the USA. At the time we were surprised but I don’t remember South Africa saying anything about that,” he said when asked if South Africa had criticised Botswana at the time.
Lembede also recalls that 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,” Mpofu was quoted as saying, adding that US military aid was at stake if Botswana did not sign the agreement.
Lembede also expressed shock at Botswana’s decision to express disappointment at South Africa’s withdrawal from the ICC through the media.
Botswana said in a statement that South Africa’s decision to withdraw from the ICC “betrays the rights of the victims of atrocious crimes to justice and also undermines the progress made to date in the global efforts to fight impunity”.
But Lembede shot back stating that “nobody can tell us about encouraging impunity. Nobody has a right to say that”.
Lembede said of Botswana’s decision to criticise his country publicly: “Botswana is proud of speaking out. As South Africa we believe in talking to people not about people.”
Lembede noted that: “As a founding member of the organisation, we cannot have blind loyalty to the ICC. We have to question if we feel our own organisation is no longer serving our interests. There is no problem leaving the ICC.”
He said when the ICC was set up everybody believed it was going to try numerous crimes regardless of countries they come from.
“If you look at this issue thoroughly, you will find that most of the atrocities (are) committed outside Africa and nobody has been investigated by the ICC. Is it the same ICC that was set up to deal with all perpetrators equally?” he asked rhetorically. He said the practice is “that when faced with a situation like this, as ministry (Foreign Affairs) you call the ambassador and have a meeting for clarification”.
Lembede added that: “…and if the clarification is not satisfactory the Head of the State calls his counterpart. I would have explained this issue to the Government of Botswana. We practice diplomacy differently and they have a right to speak out”.
He said: “Anytime the Botswana Government wants to know about this issue of withdrawal they should contact me.”
Botswana said it had been its sincere hope and expectation that South Africa would use the opportunity presented by the upcoming meeting of the Assembly of States Parties (ASP) on November 16 to 24, 2016 at The Hague to ventilate its concerns.
Lembede dressed down that suggestion saying “We don’t complain about the ICC through the media”.
He also noted that last year South Africa had wanted to explain the circumstances surrounding the failed arrest of Sudan President Al-Bashir but they were ignored.
“The meetings of ASP cannot solve our problems; we tried that and failed. Nothing was discussed at the last meeting. We had wanted to explain the issue surrounding the arrest of Al-bashir following a court order. Minister of Foreign Affairs did not show up. It became a fallacy,” said Lembede.
He added that: “One wonders if Botswana’s minister (Foreign Affairs Minister Dr Pelonomi Venson-Moitoi) was in attendance. For Botswana minister to tell us to have raised our concerns there is ingenious.”
He further noted that: “We wanted to clarify the issue of how do you balance the Rome Statutes with other international obligations. Our decision to quit ICC is not a knee-jerk reaction.”
Asked why Botswana did not use diplomatic channels to raise its concerns about South Africa’s withdrawal from the ICC, Ministry of Foreign Affairs’ Assistant Director in the Department of Public Relations Wame Phetlhu said whilst it was critical for States to use laid down diplomatic channels in bilateral engagements, it should, however, be noted that South Africa’s intention to withdraw from ICC was already in the public domain.
“Botswana therefore decided to issue a public statement to reiterate her commitment and strong support to the Rome Statute of the International Criminal Court (ICC), as the only permanent international criminal tribunal,” she said.
She said Botswana was not aware that South Africa was disappointed at the lack of attendance by Minister of Foreign Affairs at the last meeting ASP.
“To Botswana’s knowledge, the meeting of the ASP was attended at an appropriate decision making level, and Botswana was represented at the appropriate level,” she said.
Asked to comment on whether Botswana’s position on ICC is principled or not in light of the agreement with USA, Phetlhu said: “You may wish to note that the Rome Statute of the ICC itself provides that countries may conclude bilateral non-surrender agreements. This does not diminish States Parties obligations and commitment to the ICC.”
Asked further if it was not the right time for Botswana to reconsider its agreement with USA because such an agreement raises questions about Botswana’s position on ICC, she said.
Botswana is well known for its unequivocal support to the ICC and there have been no instances that have necessitated calling into question its commitment.
“Botswana, like many other countries, entered into this Agreement (with USA) in good faith and it does not in any way betray “the rights of the victims of atrocious crimes to justice … and progress made to date in the global efforts to fight impunity,” said Phetlhu.