Criminal jurisdiction of the visiting SADC Armed Forces over their members during peace time : a case study of the Republic of South Africa and the Republic of Botswana

Abstract

The study aims to investigate criminal jurisdiction of the visiting SADC armed forces during peace time focusing only on the Republic of Botswana and the Republic of South Africa. Since the adoption of the Declaration and Treaty of SADC, the armed forces of both Botswana and South Africa at times find themselves on each other’s territory. Once in each other’s territory the question of criminal jurisdiction becomes imperative. The two countries seem not to agree on the content of status of force agreements while cooperating in terms of the SADC Treaty. The contentious point is that the death sentence is still a competent sentence for certain offences under certain circumstances in terms of Botswana laws, whereas in South Africa the death sentence was declared unconstitutional. In the absence of any agreement, South African armed forces may face a death sentence while in Botswana and Botswana authorities might not be able to carry out a death sentence over their members for offences committed while in South Africa. In trying to answer the question of criminal jurisdiction while on each other’s territory during peace time, a study of the evolution of jurisdiction is undertaken. The laws of both countries are considered, especially the application and protection afforded by their respective constitutions. The approach followed by the UN in sending a peace-keeping force to conflict areas is analysed. A micro-comparison of agreements concluded by selected countries, more especially the NATO agreement, is undertaken. Treaties as a source of international law are analysed to show that rights can be extended and be limited by agreement. The study concludes by recommending that concurrent criminal jurisdiction with certain qualification seems to be the accepted norm and compromise amongst the international community, and that the two countries may consider this approach as the basis for such agreement.