The idea of holding Heads of State and warlords to account for grave crimes was unthinkable before 2002.
Will power to do so existed, especially after events and lessons learnt from World War II, but the impetus of the international adjudication system as is known was lukewarm. In fact, the idea of an international criminal court had been proposed during the 1949 Geneva Conventions that absolved the Great War.
Dissenting opinions on the ICC
Nonetheless, the International Criminal Court (ICC) based at The Hague, Netherlands was born by the Rome Statute 12 years ago. But as the court’s influence grew older, some world powers started viewing it with suspicion as a threat to national sovereignty.
Big powers such as China and India are not party to the Court. Others like Russia and United States are signatories but remained adamant to ratify the statute. The Court has 122 (34 African) party states of the of the 190 UN member countries.
In Africa, there are growing voices from various regimes that accuse the court of focusing excessively on African leaders and are calling for a mass exodus from the statute.
On Friday last week, President Museveni, a celebrated critic of the court, targeted another salvo at the court accusing it of being a “tool to target” the continent, specifically by Western nations.
“I will bring a motion to the next sitting of the African Union to have all African states withdraw from the Court and then, they can be left alone with their own court,” said the President as he addressed a cheering crowd at the Nyayo Stadium in Nairobi at Kenya’s 51st Jamhuri Day celebrations.
But this was not the first. He has lashed out at the court countless times, to the delight of other African strongmen.
Remarkably, as Museveni blasted the ICC, Uganda’s deputy Attorney General Fred Ruhindi was attending the 13th Session of the Assembly of State Parties to the Rome Statute in New York—something which smirks bits of irony.
In good company
Museveni is in good company as Sudanese President Omar al-Bashir, was a day later celebrating victory over the court after Chief Prosecutor Fatou Bensouda announced her decision to shelve the Darfur investigation for lack of support from the Security Council, the UN body able to take coercive measures that could compel Bashir and co-defendants to face the court.
“The Sudanese people have defeated the ICC and have refused to hand over any Sudanese to the colonialist courts,” Bashir said.
Bensouda threw in the towel on Darfur less than a week after announcing the decision to drop all charges by the ICC against Kenya’s President Uhuru Kenyatta citing difficulties in gathering evidence against the accused.
Why the animosity?
Blow by blow, the court’s credibility continues to stumble and its success is measured by the impact it makes within its jurisdiction. ICC focuses on four major international crimes war crimes, genocide, aggression and crimes against humanity.
But asides the everyday argument of sovereignty, questions still linger on why would some African strongmen loathe the court they co-establish?
The Ugandan Parliament ratified the ICC treaty in June 2002 and in 2003 [Uganda] made the first referral of rebel leader Joseph Kony and his five deputies under the Lord’s Resistance Movement [LRA], whose arrest warrants were issued in 2005.
The associate director, International Justice Program at the New York-based Human Rights Watch, Elise Keppler, described Museveni’s claims as “factually inaccurate” and an affront to African victims.
She added that: “Majority of ICC cases came about because African governments requested the ICC to get involved.”
African leaders under the auspices of the African Union will convene next month (January 30-31) at the bloc’s headquarters in Addis Ababa, the Ethiopian capital although it’s not yet clear whether Museveni’s proposition to quit ICC will be on agenda.
Other countries Rwanda, Sudan (not signatory), Ethiopia, Kenya and Zimbabwe also want out, but as a continent, not individually.
Uganda at the ICC
Uganda’s case, of Kony, is still pending. He is wanted on 33 counts on the basis of his individual criminal responsibility. Investigations into LRA activities commenced in 2004 although no arrest has ever been made.
Prosecutor Bensounda, while addressing world leaders at the United Nations General Assembly 69th session recently, hinted further than investigations into the two decades-war in northern Uganda are still ongoing.
Former Prosecutor Luis Moreno Ocampo during his visit early this year said, the court had also received numerous “complaints of crimes” committed by the Uganda People’ Defence Forces (UPDF) against civilians they were supposed to protect most notably, “was concentration of people in camps” where several people were attacked and killed, and investigations were on.
Ocampo, who left the ICC in June 2012 after his 10-year term expired and is now an international aocate, said “action would be taken at an appropriate time.”
Museveni and the ICC
In 2010, UPC party President Olara Otunu told ICC to investigate and indict President Museveni.
Otunnu, told reporters shortly after meeting Moreno-Ocampo that the ICC should investigate and indict President Museveni.
“I have provided Moreno-Ocampo with information. He has requested information. We are going to furnish him with more information regarding genocide, crimes against humanity,” he said, adding that he had “tonnes and tonnes” of evidence against the Ugandan military.
This is not the first time Otunnu has accused Museveni. The last time these accusations came up, the president said he was ready to appear before the ICC to answer any charges brought against him.
Contacted then, head of the government communications clearing house, Ofwono Opondo, said Uganda referred to ICC only the case of Kony and his deputies “but others can always be prosecuted at home.”
“Anyone who has evidence against UPDF on committing crimes against humanity should step forward,” Opondo remarked, adding that Uganda, showed willingness to work with the ICC and now “has the resources to” investigate and prosecute” its own.
Gen David Sejusa, who returned on Sunday morning from self-imposed exile, has been linked to a dossier sent to the ICC wanting Museveni and police chief, Kale Kayihura indicted.
In mid-April last year, the ICC received a dossier on alleged human rights violations by the Uganda government. The dossier was said to be from “credible sources” within Uganda because of its amount of detail.
The dossier was sent to the ICC by a team of lawyers based in London, calling themselves the “ICC mercenaries” or “international legal guns for hire”.
Among the things the President is accused of is that he and Gen Kayihura gave instructions to open fire and kill protesters in the September 2009 Buganda riots. Officially, 27 people were killed in the riots that erupted after police blocked the Buganda king, Ronald Muwenda Mutebi from travelling to Kayunga District.
Pan Africanism or self preservation?
Political analyst, Dr Kisekka Ntale avers that by the President attacking ICC he is speaking for himself.
“African leaders are not used to a situation where they rule without restraining themselves,” he noted. “I think the President is talking on behalf of himself and other African presidents.”
Dr Ntale notes that The Hague-based court has emerged as the single–most tool of deterrence to African leaders’ absolute rule. The court’s mission is to prosecute perpetrators of atrocities when a country is unwilling or unable to prosecute them itself.
But the President, speaking early this year at the celebration of NRM’s 28 years in power acknowledged that some of his military officers were indeed involved in crimes against civilians and would be investigated.
Museveni and other ICC detractors want an African court managed by the AU, to denote Pan Africanism, an ideology of Africans for African problems. But some conflicts like in Darfur, Somalia, Kenya (after the 2007 elections), Central African Republic, Mali, South Sudan, name it except in instances where some African countries have interests, have exploded and left by the continent to worsen until the international community intervened.
So can Africa save its own from anarchy and brutal leaders?
President Bashir was for example indicted in 2009 for war crimes and genocide in Darfur, started in 2003 when mostly non-Arab tribes took up arms against the Arab-led government in Khartoum, death estimates are put at 300,000 people by the UN, and over two million displaced.
President Kenyatta and his deputy William Ruto were indicted in 2011 (before becoming head of state) after the power-sharing deal in early 2008 – brokered by former UN Secretary General Kofi Annan – agreed that a local tribunal would be set up to prosecute those behind the violence in which close to 1,300 people died and displaced over 600,000 from their homes. Annan later handed over the suspect’s names to ICC after attempts to institute the tribunal hit a snag.
Others to be tried by ICC have also been Africans which makes basis for argument that the court only targets Africans.
In July 2012, Thomas Lubanga, a militia leader in DRC’s Ituri, was sentenced to 14 years in jail by the ICC for recruiting and using child soldiers. In March this year, the ICC found another DRC militia leader Germain Katanga guilty of war crimes. He got 12 years.
President Museveni says ICC is undermining African states.
It was his view that in reference to the Kenyan 2008 post-election violence situation the Court would wait till the Mr Kenyatta completes his term as president.
“We told them to wait to try Kenyatta and Ruto after they finish serving their terms, they refused.”
The court’s fears were that this would give the duo time to extinguish all evidence against them. In fact later during the trials it merged that some witnesses were either bribed or disappeared, which formed basis for charges against Kenyatta to be dropped.
Mass ICC walk out
Can quitting shield African leaders from the ICC? Dr Christopher Twesigye, also a political analyst, says it won’t.
“Sudan is not a member of the ICC but the ICC indicted President Bashir.
“As long as there will be crimes against humanity and there will be complainant against you, your case will be referred to the ICC,” Dr Twesigye added.
More still, African leaders who might otherwise have suppressed their citizens are also constantly reminded that ICC is watching. To Dr Ntale: “This has created fear and restraint among African rulers. I think the President is saying ‘we want to rule as we please leave us alone’.
Yet the African Union has itself voiced the leaders concerns that ICC excessively focuses on African countries, withdrawal from the Rome Statute remains a decision of individual countries that are signatories.
Penny Mbabazi Atuhaire, a research analyst at the Foundation for Human Rights Initiative (FHRI), says African countries quitting ICC would be “unfortunate”.
“for the President to say he is done with the court, it not only implies that Uganda is running from its duty to provide accountability to its citizens but it also shows Uganda is done with the search for justice,” she notes.
But yet withdrawal of African countries from the court would hit a mega blow to the court to the millions of victims of Africa’s’ endless wars, dictatorships and corruption. It is also still the only way of frightening rogue leaders from striking more mayhem on humankind
Because even establishment of a similar court by the AU on Human and Peoples’ Rights would definitely take years like it took almost 50 years to operationalise ICC.
SOURCE: Daily Monitor