Human Rights, Extradition and the Death Penalty: Reflections on the Stand-Off between Botswana and South Africa

Abstract

The procedure of extradition has not escaped restraints placed by human rights law on states in their dealings with the liberties of individuals. This is because human rights notions are considered to be part of the public order of the international community and as such enjoy a superior relational position to treaty obligations. One of the principal norms that have been adopted in extradition treaties concerns the death penalty. This paper discusses this norm within the context of South Africa, an abolitionist State, and Botswana, a retentionist one. Extraditions where the death penalty is involved have caused a diplomatic controversy between the two countries, with South Africa insisting that Botswana must furnish it with satisfactory assurance that the death penalty will not be imposed on the extraditee, or that if imposed, it will not be carried out. Botswana is on record declining to give such assurances. Thus, an impasse has developed between the two countries in this regard. This article offers reflections on the extradition regime between the two countries with specific reference to the death penalty in the light of the present stand-off. It argues that the position adopted by South Africa in insisting upon assurances is in line with international best standards and practice and that Botswana must acquiesce to this demand.