ON THE ICC, BOYCOTT AND SANCTIONS: A SWAZI EXPERT TALKS TO US


Given the recent fever pitch political tensions in the country, coupled with the inexplicable massacre of unarmed protesters by the state security apparatus, a necessary debate about petitioning the International Criminal Court to investigate and possibly prosecute the Head of State and Commander in Chief of Armed Forces for sponsoring the heinous terror, ensued. Equally necessary is the discussion about sanctions as a possible (international) instrument to pressurise the powers that be to comply with international laws. In the quest to better understand avenues and international bodies with the necessary jurisdiction to hold our political leaders accountable for the recent massacre, we hooked up with someone whose experience with the investigations and prosecution of crimes against humanity we thought would be insightful. The Bridge caught up with Nosimilo Vilakati, a Swazi based in Britain who doubles as a Human Rights Researcher at the University of Nottingham's Human Rights Law Centre. She has worked with the ICC prosecution team from time to time. She gives us interesting insights. Read and enjoy!


The Bridge (TB): Many thanks for agreeing and availing yourself to talk to us. Now who is Nosi?

Nosimilo Vilakati (NV): I'm a Kasi girl born and bred in eMangwaneni, Mbabane. Our family originates from Sphocosini. When I left eSwatini I was a sergeant at the correctional services headquarters. I hold a bachelor’s degree in Criminal Justice from the University of the Northwest, South Africa and an LLB from the same institution. I went on to acquire a Master’s degree in International Human Rights Law from the University of Nottingham, England, and another master’s in International Relations and Security from the University of Derby. I also have a Post graduate diploma in Community Organizing and Enterprises from the University of Brighton in England. I have worked for Amnesty international, The University of Nottingham’s Human Rights Law Centre before enrolling at The Hague Academy, after which I returned to the Human Rights Law Centre as a Human Rights Researcher.

TB: Thank you for that introduction. Quite rich indeed. I will go straight to the point from here on. So there have been growing calls for sanctions against eSwatini in the recent times. What would be your take on this?

NV: My take is that when you go the sanctions route, never employ the blanket approach, instead go for targeted sanctions for the efficacy of the exercise, like hitting the target where it hurts the most. But also to minimize chances of possible contradictions as much as you can. This is chiefly an acknowledgement that there’ll always be some casualties. The trick with targeted sanctions is that you need a lot of verified data: the identities of the companies associated with the targeted individuals, the nature of shareholding, the identities of their allies and beneficiaries. Putting your foot wrong once may lead your efforts being discredited.

TB: In the case of eSwatini, who would be those targeted for the targeted sanctions to yield the intended impact?

NV: In the case of eSwatini, the targeted individuals would be the king, his immediate family—royal family being the king’s brothers and sisters and their immediate families and very close friends and other shenanigans. If you look carefully and close enough, you’ll notice that the king’s children acquire overseas education and it is those countries to whose conscience we must appeal and indicate that they are recipients of ill-gotten taxpayers’ money. Also they are funded with money from toils of the ordinary Swazi. Then you have big multinational corporations like MTN who become accomplices in the furtherance of humanitarian crisis in the country either by imposing internet blackout or illegally tapping citizens’ gadgets. These entities need to know that by their deeds they are accomplice to human rights abuse. Indeed there’ll always be the valid counter arguments we must anticipate. For example, when companies downsize or are forced to stop operating it is the general populace that suffers. While that imposes on us the responsibilities to be very careful and cautious, we must also remember those of us who don’t really care about what we may lose – because they have already lost everything including their dignity. We must care a lot about what we stand to gain. The drive is to see what the future holds because we already know what the past and current hold. And we cannot bequeath to our children the current.

The Swazi Embassies have also been turned into an employment agency for the royalty, extended royal family including siblings and other relatives of any one married into the royal family.

TB: Given the unwavering support the eSwatini Regime seem to enjoy from Taiwan, wouldn’t any thought of targeted sanctions be inconsequential?

NV: I understand where you’re coming from, but no, it does not mean the idea of sanctions should be dismissed on the basis that Taiwan will always furnish the regime with unwavering refuge irrespective of what the rest of the world say. Taipei itself is crying injustice from the Mainland China and would have to understand at some point. We must not second guess Taipei. Actually, we must point out to them that some of the equipment they donated was used to massacre innocent and unarmed citizens.


TB: What do you make of the lukewarm response from SADC?

NS: It must not deter  or discourage us. We must not relent in our pursuit of recordable engagements with the regional body, not only to satisfy the ICC imperative of exhausting all local avenues, but also to manage the sensitive and paranoid regional leaders who see forces of change as undermining their sovereignty. This is why many end up protecting and shielding their dictator friends. Sometimes its a battle of egos, most unfortunately.

TB: There are talks in the streets that given the country’s small economy and absence of oil, gas, minerals and other strategic commodities is a factor in the lackadaisical response from the international society?

NV: I know of the ‘there’s-no-free-lunch’ sentiments which intimate that the big countries of the world won’t heed to the cries of suffering emaSwati because the country has nothing to offer in return. The prevalence of these sentiments doesn’t necessarily make them true and scientific. The other more positive way of looking into this is the possibility that a very small eSwatini may just be what these countries need to prove their moral uprightness to the whole world. We must not sit back because we are convinced by pedestrian analysis that the failure is guaranteed. In any case, shouldn’t we be saying we’ve got nothing to lose in trying?

TB: Let’s talk about crimes against humanity: has a strong case been made, or are the ICC initiatives rather preposterous at this stage?

NV: Maybe let me start by emphatically dispelling insinuation that the ICC initiatives could be preposterous. There is no reason whatsoever for that thinking. We must not make the mistake of assuming that everybody knows what’s happening in every corner of the world. There’s just too much going in the world and resultant competition for attention of the powerful nations and organisations. The fact that Rwanda recorded about 800 000 deaths (scholarly estimates) in just about 100 days in 1994 is proof that some parts of the world can be oblivious of the scale of atrocities in other parts of the world.

The number of deaths recorded in the recent uprising is just disproportionately high looking at our population. It could easily translate to thousands of deaths in one day in some highly populous country. And this was not a civil war by any definition—the protesters were not armed. The spontaneity of the protests is another fact that immediately negated the regime’s propaganda that there were armed mercenaries on the side of the protesters. The attitude of the regime, especially the king, says given another chance, they can unleash an even more brutal force. What kind of regime exhibits indifference to so many deaths or at worst mocks them?

The other thing to remember is that the recent brutality was not just an isolated incident of serious misrule, in which case there would be a temptation to suggest that there could be a fruitful dialogue at some point. There has been a recordable trend of human right abuses in eSwatini for the longest of times. The fact that in 2006 the Peoples United Democratic Movement (PUDEMO) resolved on smart sanction is one of many indications of the length of time the subjugation has been going on.

To a very good extent, it is a mystery why the human rights abuses in eSwatini have gone 'unnoticed' by the international society for so long in spite of the fact that the regime is very brazen.

TB: What in layman’s terms do we mean by saying the ICC is the court of last resort, does it mean there could be other avenues to explore before petitioning the ICC? Isn’t that self-defeating to some extent?

NV: It’s not self defeating at all. It simply means the ICC is not there to replace other avenues like national courts with the jurisdiction and capacity to prosecute such grave crimes. Interestingly and quite ironically, the king is literally above the law and immune from any form of prosecution.

I’m sure you might be aware that there has been two submissions done already to the ICC; one was sent directly to the ICC—which was, in my view, a gamble—but a very good and necessary one. And the latest one sent through the United Nations Security Council would be our best bet because eSwatini is not a signatory of the Rome Statutes. There is much hope after the response by the ICC acknowledging receipts of the submissions. But these responses are not a right for us to rest on our laurels. If anything, it’s a clarion call to continue intensifying the struggle and exhausting the very limited avenues inside the country. It also means more international solidarity work. The more the stalemate sustains in spite of all the mentioned efforts, the greater the chances of convincing the ICC to institute investigations. Normally, the institution of investigation has some correlation with the possibilities of a ‘prima facie’ case. 

TB: Couldn’t the often times flaunted ‘respect of sovereignty’ be a refuge to the regime?

NV: Sovereignty doesn’t refer to an individual. If you want to cite sovereignty, you have to be sure that whatever it is you are pushing that is on behalf of and for the good the nation. We must not confuse the perceived inaction of the international society as an acknowledgement of sovereignty in this case. Of course as emaSwati, we would prefer them coming in strongly. I’m sure for their part they also want to make sure everything practically possible has been done. They also have the tendency of saying they are also gauging the support and call of their intervention.

TB: As we end, you’ve said you were involved in the Restorative Justice process in Uganda and have participated in many discussions and implementations within the African Union, EU, UN etc, how would you rate the prospects of our case being taken seriously?

NV: I have never been so confident. The progressive forces within and outside the borders are really inspiring. The never say die spirit, the resilience, the endurance and all, speak of new determination. I know the brutality of eSwatini forces first hand. It is just one reason I quit the Correctional Services.

TB: Your parting shot…

NV: There are few fulfilling moments than to witness the restoration of justice in its entirety, but I guess until I witness the name SWAZILAND engraved on the gates of FREEDOM, that fulfilment would only be imaginary to me.

TB: Great many thanks Nosi, and all best in your good endeavours.

NV: The pleasure is all mine. Thank YOU.