ICC throws out Namibians case
Innocent Selatlhwa | Monday October 31, 2022 06:00
Relentless in their mission to have Botswana account, the Namibians have now submitted the brothers ‘execution’ to the United Nations High Commissioner for Human Rights (UNHCHR) last week.
Following the November 2020 incident in which the BDF anti-poaching unit shot and killed three Nchindo brothers and a Zambian cousin on suspicion that they were poachers, CCG will not let the matter rest.
The Namibian pressure group reported amongst others Masisi and Segokgo for possible prosecution with hopes of justice for the killings. This is despite a joint Commission of Inquiry’s findings that the soldiers acted within the law.
ICC Head of Information and Evidence Unit in the Office of the Prosecutor, Mark Dillon wrote to the Namibians stating that the allegations made fall outside the ICC’s jurisdiction. Dillon stated that the ICC is governed by the Rome Statute which entrusts the Court with very specific and carefully defined jurisdiction and mandate.
Dillon further stated that the fundamental feature of the Rome Statute is that the Court may only exercise jurisdiction over persons for the most serious crimes of concern to the international community as a whole, namely genocide, crimes against humanity and war crimes. “These crimes are carefully defined in the Rome Statute and further elaborated in the Elements of Crimes, adopted by the Assembly of State Parties.
Based on the information currently available, the conduct described in your communication does not appear to fall within the stringent definitions. Accordingly, as the allegations appear to fall outside the jurisdiction of the Court, the Prosecutor has confirmed that there is no basis at this time to proceed with further analysis. The information you have submitted will be maintained in our archives, and the decision not to proceed may be reconsidered if new facts or evidence provide a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed.
I hope you will appreciate that with the defined jurisdiction of the court, many serious allegations will be beyond the reach of this institution to address,” reads Dillon’s response to CCG.
The court further encouraged the group to consider raising their matter with appropriate national or international authorities. “We would like to inform the nation that the ICC decided not to investigate or pursue the case of extrajudicial killing of the Nchindo brothers and their cousin against President Masisi of Botswana and his army general.
The three Nchindo brothers and their Zambian cousin were killed by trigger happy Botswana Defence Force on the night of 20 November 2020 pursuant to the force’s shoot to kill policy against suspected poachers.
They were just fishermen, unarmed, and the force could have apprehended them and take them to court. Regrettably, Kasane Magistrate Court absolved the killers based on incomplete investigation and or a partial inquiry,” reads a statement from Samati.
Samati also said they were not in agreement with the ICC. “Although the foregoing decision is negative, and we strongly disagree with it, we appreciate the fact that the court indicated that it remains open and available to reconsider its current decision should we provide new facts or evidence on the matter. In other words, the court suggests that we submit more facts and evidence on admissibility to fit it amongst crimes which the court is mandated to prosecute. We will pursue the matter with ICC until justice prevails,” Samati wrote.
He further said while they are still consulting lawyers on ICC case, they submitted the Nchindo brothers’ execution to the UNHCHR hoping that the UN Special Rapporteur on extrajudicial killings and arbitrary executions will examine the matter and share it with relevant stakeholders, and accordingly engage Botswana government.