Indicting Uganda and the ICC

How the international court gamed Museveni into a deal of partial justice

COMMENT | GAAKI KIGAMBO | Since its inception in 2002 to date, the International Criminal Court (ICC) has studiously defended itself against accusations it is an imperial project; especially in Africa, by pointing to the number of cases member states have freely referred to it. But an 11-year study into the ICC’s operations on the continent, where majority of its referrals have originated, reveals quite the reverse.

The study was published in a book launched on May 14, 2019 at the International Crimes Division (ICD) of Uganda’s High Court in Kampala.  It reveals that in order to land its cases; at least the first ones from Uganda and DR Congo, the ICC initiated negotiations and actively lobbied the governments of both countries in exchange for silence over atrocities allegedly committed by state actors. This is in spite of the ICC making it publicly clear its investigations would concern all crimes under the Rome Statute, which established the Court in 1998, committed regardless of the identity or ranking of the alleged perpetrators.

“Rather than these states referring their situations voluntarily to the ICC, as Court officials consistently claim, the OTP (Office of the Prosecutor) initiated negotiations with the Ugandan and Congolese governments before the referrals took place,” notes the book titled `Distant Justice: The Impact of the International Criminal Court on African Politics’.

“Having chased these state referrals, the ICC was forced to negotiate the terms of its investigations with those governments. This is the key reason that to date the ICC has not charged any Ugandan or Congolese government officials, despite well documented complicity of state actors in atrocities,” adds the 379-page book by Dr Phil Clark, Reader in Comparative and International Politics, with reference to Africa, at the School of Oriental and African Studies (SOA) in London.

Published by Cambridge University Press in 2018, the book presents by far a thorough and incisive inquiry into the ICC’s interventions in Africa from which The Hague based Court emerges far off from its reason for existing: to provide justice for genocide, war crimes and crimes against humanity in case any nation fails to do so.

Uganda has always been known to have entered some deal with the ICC to transfer cases concerning the top leadership of the rebel Lord’s Resistance Army (LRA) to The Hague. But details of the deal have hitherto only focused on the involvement of senior officials within the Ministry of Foreign Affairs who were a go-between the ICC’s first prosecutor Louis Moreno Ocampo and longtime Uganda President Yoweri Museveni.

The negotiations, described as substantial in the book, lasted about eight months exploring the nature and likely consequences of Kampala referring to The Hague cases against Joseph Kony, the LRA’s overall leader, and four of his top commanders: Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen. All but Kony and Ongwen have reportedly died. Ongwen’s trial is on-going and Kony has still eluded capture.

The book details how, in May 2003, one of the highest-ranking officials at Uganda’s Permanent Mission to the UN introduced his friend Ocampo, newly appointed to his plum position, to Museveni in London where Ocampo reportedly first asked Museveni to refer Kony and his colleagues to the ICC.

Museveni was in the UK to negotiate a truce with Rwanda over their fallout and consequent clashes in the eastern DR Congo city of Kisangani in 2000. The fighting, which happened three times, wrought untold violence and suffering in the region. Because of it, Kampala lost to the DRC a case of aggression at the International Court of Justice (ICJ).

While there have been endless calls to the ICC to hold the two countries responsible for the violence and other atrocities in Kisangani and eastern DR Congo generally that they have been accused of underwriting mostly through their many past and present proxies, the Court remains mute about such demands.

As the book argues, this is because of its heavy reliance on these states for the bulk of its work from obtaining access to the country, protection, being aided with investigations, making arrests and processing witnesses. Such cooperation has not been borne of these states’ unreserved compliance to its international obligations. Rather, it has been highly conditional to the Court’s protection of these states’ interests. Thus, for all its pomp and bluster the ICC has wilfully been turned into one more weapon in the states’ armoury against its enemies.

Although Museveni was reportedly reluctant at the start about dealing with the ICC, he turned with time as Ocampo’s request, pitched as being mutually beneficial to Uganda and the ICC, moved between Museveni’s Office, the Ministry of Justice and the Ministry of Defence.

Justice officials reinforced Museveni’s reluctance by tempering caution because the Court was still new and its ways and means still unknown. But Defence, which surprisingly took the lead on the negotiations, welcomed Ocampo’s pitch as a new and unexpected approach against Kony where all else – peace talks, military operations, amnesties – had failed and urged Museveni on it. “Ultimately, the President agreed with us,” the book quotes an unnamed Defence official.

In December 2003, Museveni referred Kony and his commanders to the ICC, making it the first case the Court would handle. A month later, on January 29, 2004, Museveni appeared with Ocampo in London again “to establish the basis for future cooperation” between Uganda and the ICC and to flag off investigations into Kony and his colleagues for the mayhem they had wrought on northern Uganda; the theatre of conflict out of which they had been indicted.

Interestingly, whereas the allegations against Kony and his men were deemed graver than those against the government, in particular the army, to justify why the ICC had to start with the rebels, the Court “did not have a clear working definition of gravity beyond a quantitative assessment of the number of atrocity victims.”

Yet even against that yardstick, many analysts have argued the government’s actions, such as mass displacement of nearly two million people into squalid camps, would easily pass the prosecution grade. What is more, even when a clear framework about how gravity should be determined was eventually developed in 2007, the Court has remained adamant to apply it to the actions of the Ugandan army, which would not stand up to scrutiny.  After all, the material by rights groups the ICC heavily relied on to build its case against Kony and his men also contains plenty of serious allegations against the army. That the Court has limited its prosecution to only one of two central players in the conflict in northern Uganda has opened it to sustained criticism it is one-sided and heavily politicised.

“The extent of the negotiations between the ICC and the Ugandan government before Uganda’s referral raises questions about the promises the Court may have made to Museveni to ensure his cooperation, particularly guarantees against investigations into UPDF crimes. Even if there were no such explicit deal, the extent of the ICC’s reliance on state cooperation has severely undermined the Court’s ability to investigate and prosecute government crimes.”

Museveni’s relationship with the ICC took a nosedive in 2014 when he first lashed out at it for its 2011 indictment of Kenyan President Uhuru Kenyatta and his deputy William Ruto with whom he had forged close alliances. He has sustained harsh criticism against it, describing it as “a bunch of useless people” in 2016 during his inauguration speech following his declaration as winner of the disputed general elections. Among his guests was the now deposed Sudanese leader Omar al-Bashir whom the ICC indicted in 2009 and 2010 and Museveni offered asylum in April 2019 when nationwide protests against him eventually forced him out of power. Strangely, none of this antagonism is likely to change how the Court deals with Museveni’s Uganda.

****