 |
BOTSWANA POSITION IS TIPPLED BY DOUBLE STANDARDS WHEN IT SIGNED THE US BILATERAL IMMUNITY AGREEMENT IN EXCHANGE FOR AID. The recent decision of South Africa, an African powerhouse, to quit the International Criminal Court reignited debates on the fairness of the institution.
There is no a quarrel about the inherent dignity of the individual whose human rights must be protected. Around the world communities lie in helpless ruins with human tragedies as a result of the mad dash in pursuit of power or resources. Libya also stands as a sore testament among the litany of woes and the world is not safer in the aftermath. Global accountability from all nations, their political and military leaders, should be a welcome manifestation of universal justice.
The point, therefore, is not against the need for a permanent international court to prosecute crimes. Rather, it seeks to shed light on the question: a court by who for who when some are above the court - regardless of the crime and under any circumstance?
On 17 July 1998, 120 States signed a statute in Rome, known as the Rome Statute of the International Criminal Court (ICC) ("the Rome Statute"), which established the court. After more than 60 countries ratified the Rome Statute, the treaty went into effect on July 1, 2002.
Parties to the Rome Statute are bound by its jurisdiction and autonomy to prosecute perpetrators of the most serious crimes committed in their territories or by their nationals. Parties are obligated to arrest those indicted.
For all practical purposes, this is where the unanimous understanding ends - the nature of the ICC itself. From there on, much differ. A participant's observation of the court being "shaped as much by crude politics as by philosopher kings" captures the polarity from its inception.
34 African states are members of the ICC. United States, China, Iraq, Israel, Libya, Qatar, the United States, and Yemen objected to the Rome Statute. Other non-members, some with nuclear capabilities, political hotbeds and regional powers, include India, Iran, Japan, North Korea, Pakistan, Russia, Saudi Arabia, Sudan, Syria, and Turkey.
Under the administration of President Bill Clinton, the US was a signatory to the Rome Statute but did not ratify the treaty. With President George W. Bush, in May 2002, the US declared that it no longer intended to pursue ratification and withdrew America's signature. The US threatened to withdraw American peacekeepers from Bosnia and rammed through Resolution No. 1422 in the UN Security Council in July 2002, exempting all UN peacekeepers from the ICCs jurisdiction for one year. It was renewed in June 2003.
When the US threatened to use its Security Council veto to block renewal of the mandates of several UN peacekeeping operations, unless the Security Council agreed to permanently exempt US nationals from the Court's jurisdiction, the then Secretary-General of the United Nations, Kofi Annan, noted that the US idea "flies in the face of treaty law," which will undermine the Rome Statute, and discredit the Security Council.
The US Congress passed the American Service Member's Protection Act (ASPA), which was signed into law on August 2, 2002.
Under the threat of cutting off aid, US representatives around the world sought Bilateral Immunity Agreements (BIAs), or bilateral non-surrender agreements, to negate the jurisdiction of the ICC. The agreements include shielding current or former US government officials, political and military leaders, and other personnel, whether or not they are nationals of the state concerned, from ICC indictments, investigations and trials. These protect foreign sub-contractors working for the US as well as US nationals. ASPA authorizes the President to use all means necessary, including military force, to free US personnel detained by the ICC.
In effect, ASPA codified US opposition to the ICC. It set July 1, 2003 as the deadline to cut off military assistance to ICC State parties that have ratified the Rome Statute but had not signed the BIAs. This is enshrined in APSA's Section 2007(a), which states that "no United States military assistance may be provided to the government of a country that is a party to the International Criminal Court."
NATO allies or specially designated non-NATO allies are exempt from BIAs. The President is empowered to waive sanction if it serves its America's national interest.
By the 2003 deadline, Botswana signed an Executive Agreement to implement the BIAs. Executive Agreement means the consent of Botswana's legislative body was not obtained or not required.
After initially denying the motives, Botswana's Ministry of Foreign Affairs finally admitted that the US was "threatening termination of economic aid, withdrawal of military assistance and other painful measures for those unwilling to play ball."
The then Permanent Secretary, Ernest Mpofu, confirmed the pressure-oriented agreement. He was quoted in the media as saying that while the government had misgivings about the agreement with the US, a number of issues - 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.
The US Nethercutt Amendment, which went into effect on November 26, 2004, prohibits assistance from the Economic Support Fund (EFS) for countries that refuse to sign a BIA. It exempts Millennium Fund countries. At that time, with a budget of over $2.5 billion, ESF promotes US foreign policy interests by supporting allies.
In a current description, USAID stated that: "Botswana is one of the United States strongest, most outspoken allies in Africa." It is common, expected, and incidental for aid to induce certain behaviors from the dependent target.
In Africa, Mali, Namibia, South Africa, Tanzania, and Kenya publicly rejected signing BIAs and subsequently saw their development aid funding cut by more than 89 million dollars. 52 countries, including powerhouse Brazil, rejected US efforts to sign BIAs despite relentless pressure from the US and the threat and actual loss of military assistance.
ICC's Article 98(2) "Cooperation with respect to waiver of immunity and consent to surrender" provides more leeway. It states that:
"The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender."
It begs the question why African States are required to arrest anyone indicated by ICC and non-compliance is referred to the UN Security Council when doing so will be contrary to its diplomatic obligations. It is a matter of principle; not one of contempt.
The African Union (AU) position considers ICC adrift in its predominant focus on Africa and African leaders while heinous tragedies perpetrated by non-African countries and also on African soil go unchecked. The uneven application of the process smacks of legal perversity that gives roots to suspicions.
In light of the flagrant subjectivity, the utterances of Botswana and its opposition to AU position is not versed in principle; . Botswana cannot eat its cake and have it back with selective notions of right and wrong. Its willing to arrest other Africans while constrained to exercise the same sense of awareness and duty, in order to protect its source of funding, is self-serving and, ultimately, hypocritical.
In October 2004, the autonomous ICC and the UN Security Council (UNSC) signed an agreement on the relationship of their institutions. The Rome Statute cedes to the UNSCS the power of referral of cases and the suspension of investigations and prosecutions that the ICC could be undertaking.
Based on Chapter VII of the UN Charter, the UNSC can only refer cases to the Court when it "determined existence of a threat against the peace, breach of the peace and acts of aggression." This means even non-party to the Treaty can be referred to the ICC.
When those making referrals are equally opposed to the court and with veto powers to protect themselves and allies, the randomness compromises the fairness associated with the rule of law and politicizes the outcomes.
The ICC's principle of complementarity is based on respect for both the primary jurisdiction of States to prosecute cases and on considerations of the efficiency and effectiveness to do so. In theory, ICC prosecutes only crimes that the States are unable or unwilling to prosecute. In practice, it gives the Court the mandate to judge the competency of court systems in sovereign nations and regions around the world.
The lack of clarity on what standards are used gives grounds to claims of neo-colonialism or imperialism since the ICC has not plucked the audacity to summon non-African nations or leaders to come to The Hague because they lack political will or legal competence.
Among the 10 cases being investigated by the court, nine involve African countries, including all three trials. So far, ICC arrest warrants have only ever been issued for Africans.
South Africa gave the statutory one year notice to quit. It cited the inconsistency between ICC's requirement to arrest leaders and the country's diplomatic responsibility.
A letter dated October 19, 2016 and signed by Ms. Maite Nkoana-Mashabane, South Africa's minister of international relations and cooperation, stated "The Republic of South Africa has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court."
South Africa's rationale is no different from the reasoning of major powers that opted out. There is nothing nefarious in Africa assessing its prerogatives while addressing human rights. ICC may have to reform itself as an arbiter of fair justice. On the other hand Africa has the responsibility to set up a fair system in the Continent to prosecute serious crimes. In related news:
South Africa to quit the ICC. Decision to go to the Parliament: Read
Former African Heads of State write to ICC on behalf of Ivory Coast former President of Ivory Coast Laurent Gbagbo: Read. Gambia and Burundi also signaled their intent to leave the ICC. |
| | | | |
No comments:
Post a Comment