Botswana risks isolation over ICC stance

Gaborone- Analysts have previously warned that Botswana’s unwavering backing of the International Criminal Court (ICC) resolve to arraign a sitting Head of State in Africa in The Hague over alleged war crimes could result in the isolation of the Southern African nation.

Botswana is one of the few countries on the continent that supports the ICC stance especially the arresting of African presidents who are still holding office.

When Africa Union member states at the just ended 25th summit held in South Africa threatened to pull out of the ICC following a court order to have Sudanese President Omar al-Bashir arrested, Botswana expressed its disappointment over the failure by Pretoria to implement the court order.

A South African High Court judge had issued the order while the AU summit was underway.

The Ministry of Foreign Affairs said Botswana welcomed the South African High Court ruling that called for the arrest and incarceration of President Al-Bashir in South Africa, owing to an outstanding warrant of arrest against him by the International Criminal Court.

Botswana said President Al-Bashir has been indicted by the international court for allegedly committing crimes against humanity and genocide in Darfur, in which more than 300 000 people were killed.

Therefore, Botswana said, the decision taken by the courts against President Omar Al-Bashir while attending the African Union Summit in Johannesburg, was “a positive development that will send a clear message to others, that the days of impunity are numbered”.

“We commend this action, that gives hope and optimism to the victims of these atrocities and brutality,” the Foreign Affairs Ministry said in a statement.

It noted that as a Party to the Rome Statute, which sets out the crimes falling within the jurisdiction of the ICC, it strongly supports international efforts to hold those responsible for genocide, crimes against humanity and war crimes accountable.

“We have consistently indicated that should President Al-Bashir come to Botswana, we will pursue the spirit of the law as outlined in the Rome Statute. We therefore find it disappointing that President Al-Bashir avoided arrest when he cut short his visit and fled, in fear of arrest, to his country,” reads the statement.

Botswana called on all countries that are a State Party to the Rome Statute of the ICC to cooperate with the court in ensuring that President Al-Bashir is made to account for the alleged atrocities committed in Darfur and to support the international community’s efforts to provide justice for the victims.

It said the African Union should lead by example in this regard.

However, the University of Botswana (UB) political expert, Professor Zibani Maundeni said Botswana’s move encourages disunity within the continent, something which he believes was in contrast to the spirit of unifying AU member states.

Professor Maundeni warned that Gaborone was unnecessarily isolating itself adding that the Southern African country is a “dependent state”.

Another University of Botswana political lecturer Lesole Machacha is of the view that Botswana is not qualified to be making such announcements because it does not have a codified foreign policy.

“We do not have a codified foreign policy which is recognisable by international standards. When you comment on something that borders on foreign diplomacy without a codified foreign policy it becomes a problem.

“In addition to that no convincing reasons have been proffered thus far except that the country is doing that on principle,” he said.

He said that despite Botswana being the only lonely voice that supports the ICC position its effect won’t be felt. 

“I don’t think Botswana’s position would affect its membership at AU. In addition, this is an arguable case because some people might view Botswana’s stance as a way of trying to legitimize its democratic credentials as one of the transparent and shining example in the continent,” Machacha said.

On the other hand, Machacha said the position adopted by Botswana should be welcomed and that in the event that a head of state from Botswana is called upon to appear before the ICC, he or she should comply as the country is supporting the international court.

He said African countries were disappointed with the ICC because 90 percent of leaders that the court wants to be arrested are from the continent.

He said there is need for ICC to undergo some reforms to avoid being seen as a court that was formed to target only African heads of states.

“Unless the ICC adopts some reforms African countries will always have a legitimate claim that it is unfairly targeting their leaders,” said Machacha.

Efforts by the ICC to cause the arrest of a sitting Head of State and Government was roundly  condemned by progressive African organisations with Mr Joseph Chilengi of the Economic, Social and Cultural Council of the African Union (AU-ECOSOCC) saying it was time for the court to “organise itself or bury itself”.

“President Al-Bashir was in South Africa at the invitation of the AU not at the invitation of South Africa. South Africa was a mere host. The jurisdiction of Al-Bashir is situated in the AU,” said Mr Chilengi.

“The entire African civil society movement will defend the credibility and integrity of this union. No Kangaroo Court shall ever come and disturb the political-social environment we have,” he said.

Dr David Hoile, a director for the London based African Research Centre described the ICC as a judicial scandal.

“The court is not the same court Africa finds with today. It said it will pursue justice without fear or favour but it is a deeply dysfunctional court mired in irregularities. It has boiled down to a European Court for Africa. It only represents one-third of the world’s population – the US, Russia, China are not members. It is a very flawed European court for Africa. Politicians have prosecutorial interests.”

He noted that 60 percent of the ICC funding comes from the EU.

“It is EU funded, EU directed. It is nothing more than an instrument for EU foreign policy. The funders are former colonial powers. It is an instrument of neo-colonialism. It has appointed its full ICC judges who have never been lawyers or judges. Their qualification is that they speak English,” added Dr Hoile.

In 2013 when the African Union passed a resolution calling into question the conduct of the ICC and claiming that it had unfairly targeted African leaders, it was only Botswana which did not support the AU’s resolution.

Al Bashir, accused of genocide in Darfur, has refused to stand trial, as Sudan, unlike Kenya, does not recognise the ICC’s jurisdiction.

His indictment in 2008 led to relations between the 54-member AU and the ICC plummeting, with the AU calling on countries to ignore an ICC arrest warrant for the Sudanese leader, saying that he enjoyed presidential immunity and that putting him on trial could jeopardise peace efforts in Darfur

South Africa, a major power-broker in the AU, which has been reticent to publicly criticise the ICC up to now, has joined the fray.

The country’s ruling African National Congress (ANC) is considering dumping the ICC and the ruling party will start proceedings in Parliament to release South Africa from the International Criminal Court.

According to a EWN report this week, which referred to an article in The Star, the ruling party has now clarified its position, saying it’s of the view that the ICC is no longer useful to prosecute crimes against humanity amid the political, diplomatic and legal fallout over the al-Bashir debacle.

AU chairperson President Robert Mugabe of Zimbabwe said the AU is not the headquarters of the ICC and there was no way the continental body would have allowed President Al Bashir to be arrested.

When journalists sought his sentiment on the Al-Bashir saga at the end of the summit, President Mugabe said: “This (venue of summit) is not the headquarters of the ICC. There is this view that we should distance ourselves from the ICC. The treaty was signed not by the AU, but by individual countries. Of those that signed the treaty, they are now regretting.”

The AU and Sadc chairman said Zimbabwe was not a signatory to the controversial judicial institution.

“We did not sign as Zimbabwe to submit ourselves to justice outside the country.”

The African Union Commission chairperson Dr Nkosazana Dlamini Zuma said South Africa had no legal status to cause the arrest of President Al-Bashir during the AU summit.

“Sudan is a member of the African Union. They always attend its summit be it in Addis Ababa. There is nothing different. He always attends the summit and here was no different,” she said.

Added Dr Zuma: “The AU summit is not a bilateral meeting. It is hosted according to the AU. This venue up to now is an AU venue. It is not a South African venue. It can be located geographically in South Africa but it is an AU venue. ICC has State parties, AU has no State party. For us there was nothing new.”

June 2015
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