Immediately after the establishment of the International Criminal Court (ICC), the United States, which is not a State Party to the Rome Statute, mounted a vicious campaign worldwide to undermine and marginalise the ICC to prevent it from becoming an effective instrument of justice by entering into agreements with State Parties like Botswana through some “blackmailing” – either you are with or against them. The underpinning feature of this agreement is that should an American citizen indicted by the ICC for international crimes (war crimes, crimes against humanity and genocide) be in the territory of Botswana, they should be transferred back to the US forthwith instead of to the ICC contrary to the letter and spirit of the Rome Statute. Worse still, the agreement is non-reciprocal suggesting that if a Motswana is in US custody for these crimes, the US may very well send such a person to the ICC without Botswana’s consent.
On the 30 June 2003, the late former Minister of Foreign Affairs Gen. Mompati Merafhe and former US Ambassador to Botswana, Joseph Huggins, signed the Bilateral Immunity Agreement (BIA). This is a ‘strings attached’ agreement in which Botswana would receive US aid in all its forms and shapes while US citizens would be guaranteed non transfer to face justice at The Hague. By virtue of this agreement, Botswana has virtually colluded with a non-State Party to perpetuate crimes against humanity yet she continues to put on a brave face as a ‘lone wolf’ in championing human right agenda. It should be remembered that some countries rejected with the contempt it deserves to be arm twisted into signing these BIAs for obvious reasons. While government will argue that given her precarious situation in so far as resources are concerned, she had no choice but enter into the agreement in the national interest. The former Permanent Secretary in the Ministry of Foreign Affairs, Ernest Mpofu, confirmed that “while Botswana had some misgivings about the agreement, a number of issues – including military assistance from the US, were considered before signing the agreement”.
As recently as a week or so ago, Botswana issued a statement regretting while at the same time criticising South Africa for intending to withdraw from the ICC. In response, His Excellency Mr Lembede, the South African High Commissioner to Botswana, justifiably noted that when Botswana signed the BIA, his country respected Botswana’s position and never commented and by extension suggesting that Botswana should have done the same or alternatively use acceptable diplomatic channels if she had any misgivings about South Africa’s intentions to withdraw. On a slightly different but relevant point, I have always wondered why government at this point has not yet domesticated the Rome Statute into our local legislation such that when as a Motswana I face crimes against humanity, local courts should be the starting point as courts of first instance – that is I should be taken to such courts to stand trial for such crime under the relevant Act. As things stand and because of lack of legislation specifically in line with the Rome Statute, it means I will be put on the next flight to the ICC without undergoing a local legal process. In this respect, Botswana Constitution, which should ensure that much as I may be having a case to answer for crimes against humanity, should at the same time ensure that as a citizen, my rights are not “sold to the highest bidder” in this instance the ICC.
In the final analysis, Botswana and by virtue of signing the BIA, has all but reneged on her obligations as a State Party to the Rome Statute to meaningfully fight international crime by usurping the very institution and colluding with the US to keep American citizens who may themselves be guilty of such crimes. On the other hand, her own citizens will be sacrificed for the Americans. In the circumstances therefore, our moral high ground as a champion of fighting impunity, is all but tarnished by our double standards and hypocrisy. I believe that there is still no alternative to the ICC and the argument floated around that African problems require African solutions is flawed given the intransigent behaviour by African leaders who have declared that they are above the law as long as they are in office. Such solutions and much as desirable, are highly unachievable. Judge for yourself!