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Botswana adopts universal jurisdiction

Publishing Date : 17 September, 2017


Botswana has domesticated the Rome Statute following an overwhelming support to a Bill presented by the Minister Defence Justice and Security, Shaw Kgathi. Through this law, Botswana, a staunch supporter of the International Criminal Court (ICC), would see the Rome Statute have a direct effect on its national laws.


One of the principal obligations is for Botswana to domesticate the Statute by legislating, so that the Statute could have direct effect in its national laws. The Rome Statute of the International Criminal Court (ICC) was ratified by Botswana on the 8th of September 2000. By ratifying the Rome Statute Botswana became one of the first 60 countries that contributed to the entry into force of the Statute. The Rome Statute provides for the prosecution of the core international crimes which are genocide, crimes against humanity and war crimes.


The Rome Statute also provides for the cooperation of states of the International Criminal Court whose seat is in the Hague in the Netherlands. Botswana as a State Party to the Rome Statute will by enacting this law to conform to and implement her obligations as set out under the Rome Statute. Botswana is one of the active supporters of the court and has at all times cooperated with the court in executing its mandate as set out in the Rome Statute.


Minister Kgathi has told Parliament that the Rome Statute does something “very, very new. One, is that it introduces the concepts of command responsibility. You cannot sit in your office as a President or a General and say, “I was not there” if that army was under your control. Therefore, it actually kills probably for the first time, the shield that, “it was not me, it was the soldiers,” command responsibility. That is a very important introduction in our jurisdiction.”


The Minister also explained that domestication of the Rome Statute actually lifts Diplomatic immunity. “If you run to a country after killing your people, in whatever country, you cannot say I am Diplomat, you cannot say, “I am the President,” it lifts for the first time. Actually the Diplomatic immunity says, it does not matter who you are. If you killed people, if you committed these grave offences, and we are talking about genocides, crimes against humanity, war crimes, they will prosecute you. They do not care what position you actually hold where you come from.”


Kgathi said the most important introduction is what is called universal jurisdiction. “In almost every country in the world your jurisdiction is limited to the four corners of your own country. The Rome Statute and this Bill before us for the first time introduces under criminal law, universal jurisdiction. If you commit an offence here or you commit it anywhere else, we will prosecute you. You cannot say, “no I did not do it in Botswana and therefore I killed them in whatever country I would not name, it was not here.”

If nobody else is going to prosecute you, Botswana is saying, I am going to prosecute you and many other countries are saying you cannot use the political borders as a shield, that, “I am not your citizen and you cannot prosecute me.” Therefore I think we stand at the crossroads of history. We can decide, there are many people who after signing the Convention, the Treaty in Rome, now, “say we do not like it anymore,” explained Kgathi.


The Minister said most of these countries have attacked the court for having inducted sitting African Heads of State including the Sudanese President Al-Bashir. In the midst of all these un-warranted attacks and criticism against the court, Botswana has remained steadfast in its commitment to the Rome Statute and support for the court. Given the active commitment and support it gives to the court, it is important that Botswana domesticates the Rome Statute of the International Criminal Court.


Kgathi said crimes covered under the Act include genocide, crimes against humanity and war crimes. It also sets out the responsibility of commanders and other superiors for offences committed by forces under their effective command and control. It further provides that the Prescriptions Act or any other statutory limitation shall not be applicable to offences committed under this Act.



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