Moves to refer Eswatini to International
‘‘ Some people must account for these deaths and injuries. We are taking the ICC process very seriously.”
MBABANE – Behind the scenes, the ‘ road’ to the International Criminal Court ( ICC) in Hague, Netherlands, is being ‘built ’, the Times SUNDAY can reveal.
It has been established that data for the people who were killed during the country’s unprecedented civil unrest which swept the country two weeks ago is currently being collected.
This is reportedly meant to solidify a potential criminal case against government officials and whosoever issued an order, if ever there was any, instructing security personnel to shoot to kill or whatever the case may be.
At least 69 civil organisations around the world are lobbying their governments to put pressure on Eswatini to account for the deaths of people and further open up the political space.
Local organisations fix the figure of those who died at 70 while others speculated that 100 people were killed. The exact figure is yet to be confirmed and agreed on by all parties, including government.
Government has confirmed 27 deaths.
This newspaper has learnt that IDEAL, with assistance from its counterparts in Canada, want to first lodge a case with the United Nations ( UN) General Assembly because Eswatini has not ratified the Rome Statute, which establishes the ICC.
In such a situation, the UN’s Security Council can refer the case to the ICC for investigation and possible prosecution of persons to be found to have played a part in the death of the people.
Asked if he was aware that the kingdom is not a member of the ICC, Barnes Dlamini, the Chairman of the Institute for Democracy and Leadership ( IDEAL), said “they were pretty aware.”
He said they had studied how the court operated.
“We know that the Security Council can refer the case to the court in Hague,” he said.
Dlamini confirmed that the process had begun with assistance from foreign partners, with the Swazi- Canada Diaspora Network being instrumental in the pursuit for justice.
INVESTIGATION INSTITUTED
According to the IDEAL chairman, there was no way they could let people die like flies without any investigation being instituted to establish circumstances surrounding their deaths.
He said they wanted the international community to investigate among other issues – who issued the orders to kill the people? He said they wanted to make sure this becomes “the first and last group to allegedly die in the hands of the security forces.”
Further asked if they were breaking new ground in their pursuit for what they described as justice, he said they were receiving tremendous global support as there were many people who were injured.
In their own independent investigations, he said more than 70 people died and scores of others were injured.
“Some people must account for these deaths and injuries. We are taking the ICC process very seriously,” he said.
Eswatini News reported yesterday that the office of the Prime Minister of Canada has reviewed concerns raised by emaSwati who are calling for change in the country.
They wrote a letter to Prime Minister Justin Trudeau seeking international intervention and solidarity in the call for reforms in the country.
Thuli Dladla, the Minister of Foreign Affairs and International Cooperation, said she had not heard of any move to refer the country to ICC.
She referred enquiries to her colleague at the Ministry of Justice and Constitutional Affairs, Pholile Shakantu, who could not be reached for comment as her phone rang unanswered when reached.
Sabelo Dlamini, the Government Press Secretary, could only say they were not aware of any heinous crime committed by the State for ICC prosecution.
Eswatini is not a state party to the ICC Rome Statute, which has been signed and ratified by 123 countries. But, that does not mean the country is possibly off the hook.
Article 12 of the Rome Statute of the International Criminal Court ( Statute) confers territorial jurisdiction on the International Criminal Court ( ICC) in cases where ‘ conduct in question’ was committed on the territory of a State party to the Statute or by a national of a State party.
However, in cases where the alleged crime took place on the territory of a State not party to the Statute, it has been learnt that the ICC may only exercise jurisdiction if such a State willingly submits to the jurisdiction of the ICC or if the case is referred to the prosecutor by the United Nations Security Council under Article 13 ( b) of the Statute.
HOW THE ICC WORKS
Experts say yet even in the absence of State consent; the Pre- trial Chamber ( PTC) of the ICC chose to initiate prosecutorial proceedings against States not party to the Statute, as seen most recently in the cases of Myanmar and Israel.
In February this year, the PTC announced that the ICC may exercise jurisdiction over territory occupied by Israel since 1967, namely, West Bank, Gaza and East Jerusalem, to investigate potential war crimes. Israel, in this scenario, is not a State party to the Statute.
While not a United Nations organisation, the ICC has a cooperation agreement with the UN. Other nonparty States that were reported to ICC are Darfur ( Sudan) and Libya.
The Rome Statute grants the ICC jurisdiction over three main crimes.
First, the crime of genocide is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members.