On its path to domesticate the Roman Statute that established the International Criminal Court (ICC), the Botswana government has gone a step ahead and prescribed the death penalty for convicts.
The ICC tries suspects of war crimes and crimes against humanity.
Part II of a Bill to be presented before Parliament during the first meeting of the second session of the 11th Parliament, states that, “A person who, in Botswana or elsewhere commits genocide, or conspires or agrees with another person to commit genocide is liable to the penalty of having committed that crime.”
The Bill further says that: “A person who is convicted of genocide, which includes murder shall be sentenced to death, except where extenuating circumstances are proved,” says the Bill to be presented by Minister of Defence, Justice and Security, Shaw Kgathi.
The Bill outlines the offences that will be classified as crimes against humanity as widespread or a systematic attack directed against any civilian population, among them murder, enslavement, deportation or forcible transfer of a population.
“Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this section or any crimes within the jurisdiction of the ICC,” says the BIl.
The Bill further describes war crimes as any offence that gravely breaches the Geneva Conventions that includes offences against persons or property protected under the convention; torture or inhuman treatment, including biological experiments, willfully causing great suffering, or serious injury to body or health.
“Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” the Bill reads.
The Bill further says that any person who contravenes the four Geneva Conventions during an armed conflict against persons who are not taking part in the conflict amounts to a war crime. It also protects persons who have surrendered their weapons either due to injuries or sickness.
The Bill states that no person charged with war crimes offence to use ignorance as a defence. “It shall not be a defence to an offence under this part for a person charged with the offence to plead that he or she committed the act constituting such offence pursuant to an order by a government or a superior, whether military or civilian unless the person was under legal obligation to obey the order of the government or the superior in question; the person did not know that the order was manifestly unlawful.”
The Bill cautions that a military commander or person effectively acting as a commander shall be liable of an offence committed by forces under his authority and control or failure to control his or her forces.
It says that in the event the commander fails to take all necessary and reasonable measures within his or her powers to prevent or repress the commission of a war crime shall be held liable for the offence. “A person liable under this section for an offence under this part shall, for purposes of this part, be regarded as having aided, abetted, counselled or procured the commission of that offence.” The Bill, published this week has over 100 pages.