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Time to defund the International Criminal Court

The Assembly of States Parties is meeting this month in The Hague to review the work of the International Criminal Court and to discuss the ICC’s budget. The ASP is the International Criminal Court’s management oversight and legislative body. The Assembly also elects the judges and prosecutors and decides the Court's budget. The court’s proposed budget for 2016 amounts to €153.32 million, representing an increase of €22.66 million, or 17.3 per cent, over the 2015 approved budget. At face value, far from increasing the budget for the ICC, the Assembly of State Parties should be demanding a refund.
 
Established in 2002, the ICC is an impotent billion euro white elephant. 2015 has been a particularly bad year for the court. It has botched the Kenyan cases it has undertaken and its continuing alienation from Africa was centre stage internationally when South Africa, previously a keen member, publicly ignored ICC arrest warrants and appears on the verge of withdrawal from the organisation – something seen by observers as a death knell for the court.
 
The International Criminal Court has self-evidently failed across the board. In 2010 the ICC-friendly Economist had already found it necessary to publish an article about the ICC entitled "International justice: Courting disaster?" Things have worsened considerably since then. The ICC has consumed more than a billion euros in its 13-year existence and has only secured two deeply questionable convictions. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the court’s reputation has been irretrievably damaged by its racism, blatant double standards, hypocrisy, corruption and serious judicial irregularities. The Assembly of State Parties should also accept that it has grotesquely neglected its responsibility to manage the court. The ASP has turned a blind eye to systemic failure on the part of the ICC.
 

While the ICC pretends to be the world’s court this is simply not the case. Its members, however, represent under one-third of the world’s population: China, Russia, the United States, Pakistan and Indonesia are just some of the many countries that have remained outside the court’s jurisdiction. India, the world’s largest democracy, has chosen not to join the ICC because the court is subordinate to the United Nations Security Council and because it does not criminalise terrorism and the use of nuclear weapons. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence, and has said that no American citizen will ever come before it. That said, Washington is perfectly happy when it suits American foreign policy objectives to demand that black Africans appear before a deeply flawed court peddling sub-prime justice.
 

The ICC pretends to be independent. Far from being an independent and impartial court, the ICC grants special “prosecutorial” rights of referral and deferral to the UN Security Council – by default its five permanent members (three of which are not even ICC members). The court is also inextricably tied to the European Union which provides over 60 percent of its funding. The ICC has come to be seen within Africa very much as a European-funded and directed instrument of European foreign policy. The Office of the Prosecutor, for example, has to date received approximately 9,000 complaints about alleged crimes in 139 countries. From these almost nine thousand alleged instances of serious abuses of human rights, the ICC has acted in eight African “situations”, and indicted 39 Africans, to the exclusion of any complaints implicating white Europeans and North Americans or their protégés.

The ICC has turned a blind eye to self-evident human rights abuses well within its jurisdiction in Iraq and Afghanistan. Afghanistan is an ICC member state. As a result the court can investigate alleged war crimes committed by citizens of any country, ICC Member State or not, within its borders. Tens of thousands of civilians have died and well over one hundred thousand have been injured in the conflict in Afghanistan, many of them at the hands of NATO and US forces. The ICC has however ignored any allegations of war crimes by NATO, US or EU citizens in Afghanistan.

The ICC promised “swift justice” but took several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over and done within a year. The ICC pretends to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence toward victim communities. The court promised to usher in a new era of gender justice. Women’s rights specialists such as Professor Louise Chappell have noted that the ICC’s record in this respect “has been partial and inconsistent”, and that “The ICC’s legitimacy is fragile.”

Despite having consumed more than one billion euros the ICC has also shown itself to be stunningly dysfunctional. The court’s proceedings thus far have often been questionable where not simply farcical. At the heart of any judicial process is testimony provided by witnesses. The court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. In its first trial, that of Thomas Lubanga, a process that lasted seven years, the judges found all but one of the alleged former child soldiers presented as witnesses by the Prosecution to be unreliable. Dozens of other “witnesses” have either been similarly discredited or disavowed their “evidence”. This hallmark of incompetence continues to this day. Most recently the ICC prosecutor had to admit that one of its own star witnesses in its case against Kenyan Vice-President Ruto was “thoroughly unreliable and incredible”. In reality it is the Office of the Prosecutor that has been revealed to be thoroughly unreliable and unprofessional.

There have been scandalous examples of prosecutorial misconduct, not least of which the ICC Chief Prosecutor hiding hundreds of items of exculpatory evidence, which should have ended any trial because they would have compromised the integrity of any legal process. The ASP has simply stood by doing nothing.

That the International Criminal Court is corrupt is also self-evident. The Shorter Oxford English Dictionary defines "corrupt" as "destroyed in purity, debased; vitiated by errors or alterations." The

Assembly of State Parties is responsible for the appointment of judges to the ICC. It is in the selection of judges that the ASP and ICC have been at their most corrupt. ICC judges – some of whom have never been lawyers, let alone judges – are the result of grubbily corrupt vote-trading within the Assembly of State Parties amongst member states and delegates. The relationship between appointments to the ICC and vote trading between states is an open secret. Selecting International Judges: Principle, Process, and Politics, a ground-breaking study of international judicial appointments, written by Professor Philippe Sands QC, and others as part of Oxford University Press’ International Courts and Tribunals Series, concluded that “the evidence leads unequivocally to the conclusion that merit is not the main driving factor in the election processes.” The study also revealed that “[m]any individuals who participate in the ICC process believe it to be even more politicized than other international judicial elections.” The sheer corruption of the process aside, the reality is that vote-trading results in mediocre judges which in turn leads to a dysfunctional, politicised court.

It is clear that the both the Assembly of States Parties and the International Criminal Court are simply unfit for purpose. Far from granting the ICC yet more money, both the ASP and the ICC should be defunded and disbanded.

Dr David Hoile is the Director of the Africa Research Centre and author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the ICC. The book is available to read or download at  HYPERLINK "http://www.africaresearchcentre.org" www.africaresearchcentre.org. The author can be contacted by email at  HYPERLINK "mailto:africaresearchcentre@gmail.com" africaresearchcentre@gmail.com.

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Opinions

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.  This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022
piracy

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.

As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.

“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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