The Africa-ICC Relationship – More and Less than Meets the Eye (Part 2)

(Illustration: Dave Simonds / The Economist)

(Illustration: Dave Simonds / The Economist)

The International Criminal Court (ICC) has an ‘Africa problem’. The Court is widely perceived as a Western, neo-colonial institution that unfairly targets African states. The ICC and its champions insist this isn’t the case. The Court is simply misunderstood and is, in fact, a court for not against Africa.

In the first part of this three-part series, I detailed how the Africa-ICC relationship is mired in an unhelpful and harshly dichotomous impasse. All of the relevant actors – African states, the ICC, and observers of international criminal justice, are complicit in reifying this stalemate, one which does more to obfuscate than illuminate the intricate and complex relationship between African states and the ICC.

In this second post, I will explore three recent cases – the surrender of Dominic Ongwen to the ICC, the visit of Omar al-Bashir to South Africa, and the prosecution of African heads of state – in order to demonstrate that the relationship between African states and the ICC is far more dynamic and complicated than typically portrayed. The view that the ICC is either a neo-imperial tool of the West or a misunderstood force for good does injustice to our ability to understand and assess how African states engage and interact with the Court.

Dominic Ongwen walks with members of an African Union Regional Task Force prior to his surrender to the ICC (Photo: AP)

Dominic Ongwen walks with members of an African Union Regional Task Force prior to his surrender to the ICC (Photo: AP)

The Surrender of an LRA Commander

Earlier this year, Dominic Ongwen was captured in the Central African Republic and surrendered to the ICC. For nearly two decades, Ongwen had been a senior commander in the Lord’s Resistance Army (LRA), a notorious rebel group that has been engaged in a brutal war with the Government of Uganda since 1986. He was also one of five individuals indicted by the ICC in 2005 – and one of only three that is still alive.

As many readers will know, the initial investigation into the war in northern Uganda was the ICC’s first intervention and one that proved particularly controversial. Set against widespread acknowledgement that both the LRA and government forces have committed mass atrocities, there is a broad consensus amongst northern Ugandans as well as external observers that the Court wrongly targeted only LRA rebels and thus demonstrated a bias in favour of the Ugandan government.

This selective targeting of LRA commanders has legitimated the government of Uganda by helping to foster a narrative that presents the government as a ‘good’ and ‘legitimate’ force fighting against an illegitimate band of crazy criminals. However, despite benefiting tremendously from the ICC’s intervention, Museveni has emerged as the ICC’s harshest critic amongst African heads of state.

Thus, when it emerged that Ongwen had been captured, many wondered what the government would do. Which Museveni would stand up? Would Museveni cooperate with the ICC or not? The story itself is worth outlining as it demonstrates just how many moving political pieces were at play in what has otherwise been treated as a simple surrender to The Hague and victory for the Court.

To begin, we need to take a step back. A few years ago, the United States put what amounts to a bounty on Ongwen’s head through an expansion of the US State Department’s Rewards for Justice Programme. As a result, anyone who provided information that would lead to Ongwen’s capture could receive up to $5 million. This became problematic when it emerged that Séléka rebel forces, which have allegedly committed mass atrocities and stoked genocidal violence themselves, had captured Ongwen and transferred him to the custody of US forces in the Central African Republic (CAR).

Of course, the US will not pay the bounty. Washington can’t be seen to be providing funds to a rebel group whose brutality is akin to that of the LRA itself. Rather cunningly, the US government insists that Ongwen was not captured but defected from the LRA. The government is thus presumably off the hook in terms of any bounty payment.

Once Ongwen was in the custody of US troops, there were seemingly two possible scenarios: either the US forces could surrender him directly to the ICC or they could transfer him to the custody of the Ugandans. Neither transpired.

First, the US could not surrender Ongwen to the Court. Old anti-ICC legislation from the Bush era, the American Servicemembers’ Protection Act (2002), prevents the US from providing any material aid to the Court. So that nixed the first option.
Second, the government of Uganda decided that it did not want Ongwen to be transferred to Uganda, nixing the second option. Instead, a crafty new plan was hatched: the US would transfer custody of Ongwen to the CAR military, which would then surrender him to the ICC.

But why would the Ugandan government not want custody of a prized LRA leader? And why would Museveni allow Ongwen to be transferred to the ICC, an institution he insisted “blackmailed” African states?

Firstly, putting Ongwen on trial in Uganda would have been a massive political headache for the government. Ongwen was 10 or 14 (it isn’t clear) when he was abducted by the LRA. He then spent twenty-some years fighting in the bush. The fact that Ongwen was a child soldier and thus an LRA victim has re-ignited a passionate debate in northern Uganda where many, if not most, citizens still support amnestying and re-integrating former rebels who were abducted as children.

Had President Museveni insisted on keeping Ongwen, he would have had to prosecute Ongwen – thus attracting the ire of many northern Ugandans. Doing so would also run directly counter to Museveni’s political interests. His party, the National Resistance Movement, would have risked reversing many of the political gains it has made in northern Uganda in recent years. Instead, Museveni can now stand aside as northern Ugandans criticize the ICC for prosecuting a former child soldier. Not only that, but Museveni can claim that he did not, in fact, have anything to do with Ongwen’s surrender. After all, it was the CAR authorities who sent the diminutive former rebel off to The Hague.

Secondly, by allowing the ICC to get its hands on Ongwen, Museveni ensured that the Court would be dependent on him for cooperation in building the case against Ongwen, protecting witnesses and, potentially, holding some trial proceedings in Uganda. For the government, this is crucial. As long as the ICC is reliant on Uganda for cooperation, Museveni can rest assured that the Court will not target him or any army officers. After all, targeting them would immediately eviscerate any cooperation.

In short, despite being a vociferous critic of the Court, Museveni managed to play hot potato with Ongwen’s fate and outsource responsibility over him to the ICC for reasons of political expediency. Doing so ensured that the Museveni’s domestic political gains in the north were preserved and that the government would continue to enjoy impunity. This story, however, simply does not fit within the dominant narrative of the ICC as a neo-colonial institution targeting African states.

An empty seat, reserved from President Bashir, at the AU Summit in South Africa (Photo: Getty Images)

An empty seat, reserved from President Bashir, at the AU Summit in South Africa (Photo: Getty Images)

An Indicted President Visits South Africa

In a development that captured global attention earlier this summer, Omar al-Bashir, the President of South Sudan and the only individual wanted for every core crime at the ICC – war crimes, crimes against humanity and genocide – made a very controversial visit to an AU summit in South Africa. The popular reaction was to invoke the crisis mentality that I outlined in my previous post. Did Bashir’s visit demonstrate that the ICC is irrelevant? Could the institution survive this crisis?

No one can argue that Bashir’s visit wasn’t a low point for the Court. While this wasn’t the first time that Bashir had travelled to an ICC member-state (the Sudanese leader had previously visited the Democratic Republic of Congo, Kenya and Nigeria), Bashir’s visit to South Africa was somehow worse because the country has traditionally been a strong supporter of the ICC and is a significant regional leader (not to mention a growing international power).

But we need to take a deeper look at what actually happened when Bashir visited. First, it was apparent that Bashir had to skulk around the Summit conference. Unlike his fellow leaders, he received no red carpet treatment and no photo-ops with South African officials. In fact, Bashir really only showed his face the day after his arrival – during a five-hour-delayed group photo.

Second, the South African court system did precisely what proponents of justice would want of it. In response to Bashir’s arrival, a human rights law firm filed a motion to order Bashir’s arrest at a high court in Pretoria. In response, the Court ruled that Bashir could not leave the country until it decided whether or not South Africa had an obligation to arrest him. In the meantime, Bashir’s plane was moved from a civilian airport to a military base, apparently because it provided a legal loophole for South Africa to allow him to depart in defiance of the court order. On the final day of the summit, the high court ruled that South Africa did have an obligation to arrest Bashir. By that point, Bashir had already left, leaving government lawyers with no option but to roll out pitiful excuses about how Bashir was able to leave – something they continue to do.

Still, it is worth highlighting that Bashir was the only African leader who had to flee South African rather than return back home following the Summit. Moreover, the ruling now makes it a virtual impossibility that Bashir will be able to return to ever return to South Africa. The high court’s decision set a precedent and clarified the international and domestic legal obligations of South Africa – something the government simply can’t ignore or wish away.

Third, it is important to note that the government did not say that it had no obligations or that the ICC was irrelevant. Rather, government lawyers attempted to make the argument that South Africa had conflicting legal obligations to the African Union and to the Court. Lawyers can debate whether this is true, but in interpreting its obligations to the ICC, South Africa reaffirmed the fact that those obligations exist and, in doing so, likely strengthened rather than weakened international criminal law.

Again, I don’t want to say that everything is now hunky dory. It isn’t. Moreover, there are important questions that remain unanswered. Most importantly, why did South Africa think hosting Bashir was worth it? Why did the government believe that receiving a landslide of criticism and condemnation from states, the media, and human rights groups in and outside the country, was a price worth paying for Bashir’s visit? Is South African playing off its potential permanent seat in the UN Security Council against its leadership role in the African Union? If we are to accurately answer these question, we must avoid overly simplistic accounts of South Africa’s relationship with the ICC and instead interrogate the political calculus that the government made.

Hissène Habré during his trial earlier this week (Photo: AFP / Seyllou)

Hissène Habré during his trial earlier this week (Photo: AFP / Seyllou)

Prosecuting African Heads of State

One of the most contentious issues that has arisen between African states and the ICC is the question of head of state immunity. Indeed, African states and the African Union have been almost exclusively critical of the ICC when heads of states have been the Court’s primary targets – in Libya, Sudan and Kenya.

However, this doesn’t tell the whole story. African states do not have any problem with prosecuting heads of state in principle. They have a problem with prosecuting certain sitting heads of state. This is evidenced by at least four cases:

Firstly, the former autocratic president of Chad, Hissène Habré is currently – and finally – being prosecuted for war crimes, crimes against humanity, and torture allegedly perpetrated during his ten-year reign. Habré is being prosecuted not by an international institution or even Chad but by special chambers in Senegal set up by the government with the help of the African Union. No African states, to my knowledge, have complained about the fact that a former head of state is being put on trial. On the contrary, the African Union requested Senegal to prosecute Habré “on behalf of Africa” and when Nigeria’s President Muhammadu Buhari was asked out the trial he declared:

Justice is justice, whether it is done in Africa or elsewhere in the world. The important thing is let justice be done. Whatever evidence the prosecution has in Senegal, I think they should proceed to make it available to the world and prosecute him according to international law and human rights.

Secondly, while it did take some time for him to be surrendered and not all states were keen, we should also recall that former Liberian President Charles Taylor was prosecuted and convicted for war crimes at the Special Court for Sierra Leone. Once he was put in the dock, no African state, to the best of my knowledge, complained about it.

Thirdly, and turning to the ICC, in the wake of the 2011 post-election violence in Côte d’Ivoire, the freshly ousted President, Laurent Gbagbo was shipped off to The Hague where his trial for war crimes and crimes against humanity is soon to commence. Not to berate the point, but again, no African states have complained about the fact that a former head of state is set to be prosecuted at the ICC.

Lastly, all three of the African states on the UN Security Council in 2011 (South Africa, Gabon and Nigeria) voted in favour of Resolution 1970, referring the deteriorating situation in Libya to the ICC. Later, some African states criticized the ICC’s intervention and even called on the Security Council to defer the Court’s investigation for at least a year. But it would be disingenuous of those states and, quite frankly, disrespectful of observers, to maintain that these states did not know that Gaddafi would be the primary target when that referral was passed. That was simply too obvious – the resolution itself listed all of the Court’s eventual targets!

Ultimately, African support and criticism of international criminal justice is selective. And why would we expect it not to be? Indeed, what states are not selective in their support of international justice? The answer is simple: none. Here, there is some danger in holding African states to a higher standard when it comes to selectivity, insisting that African states should somehow be less selective or less political in their engagement with the Court. Doing so would truly be biased and unfair.

When Cases Don’t Fit

None of the cases described in this post can be explained by relying on the dominant understanding of the Africa-ICC relationship – that the ICC is either a neo-colonial tool unfairly picking on African states or that it is a misunderstood “Court for Africa”. When actual cases don’t fit with dominant thinking, there’s an obvious need to reframe the debate and ask a new set of questions. But that, of course, is the subject for next week.

This essay was originally posted for my Courtside Justice column at Justice Hub.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
Video | This entry was posted in Africa, African Union (AU), Central African Republic (CAR), Chad, Child Soldiers, Darfur, Democratic Republic of Congo, Dominic Ongwen ICC, Hissène Habré, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Lord's Resistance Army (LRA), Omar al-Bashir, Senegal, Special African Chamber (CAE), Sudan, Uganda, UN Security Council. Bookmark the permalink.

11 Responses to The Africa-ICC Relationship – More and Less than Meets the Eye (Part 2)

  1. elenaruiz2 says:

    Reblogged this on cautivadulce.

  2. el roam says:

    Thanks for interesting post . Very broad and complicated issues , yet :

    1) Could you specify, what were the argumentation concerning the issue of liability of that Dominic, while recruited as a child. I can only presume, that, can’t be legal ones, since, Article 26 to the Rome statute, reads as follows:

    ” Article 26
    Exclusion of jurisdiction over persons under eighteen
    The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.”

    So , unless insane in legal terms , or other recognized justification , once , he was over 18 years , and post : 2002 , no legal justification can be found . But I guess that moral ones , could you specify ??

    2) If you have read the verdict of south African supreme court , you know , that the court considered very gravely that screw up of the branch executive , that much ,that : he was clearly asserting , in the verdict , the need for a launch of criminal proceedings , here I quote from the verdict :

    ” We stated earlier that the departure of President Bashir form this country before the finalisation of this application and in the full awareness of the explicit order of Sunday 14 June 2015, objectively viewed,demonstrates non-compliance with that order . For this reason we also find it prudent to invite the NDPP to consider whether criminal proceedings are appropriate.”

    So , I am not so sure , that you haven’t underestimated the liability of the branch executive there , all by stating , that they hadn’t turned actually , against the pre trial chamber order or arrest warrant , of Omar Al Bashir . Reading the verdict , carefully , reveals , an unbelievable chain of defaults .

    3) Finally, the curious thing , is your mistake or misperception rather , concerning the international commitment, or the adherence to international norms, by African states. Because, south Africa, curiously, is engaged, far greater more, than any other country in the world , to international norms (to my best knowledge) here, prescribed clearly in the constitution, here:

    ” 233. application of international law
    when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law .”

    And greater than that :

    ” 5. the security services must act, and must teach and require their members to act, in accordance with the constitution and the law, including customary international law and international agreements binding on the republic.”

    What would emphasize much more , that screw up here .

    Thanks

    • Mark Kersten says:

      Many thanks for this comprehensive comment. I will reply to each issue in turn.

      1) My understanding is that the OTP will argue that, while Ongwen was a child soldier and no crimes committed by him prior to the age of 18 will be prosecuted, since he became an adult he has committed crimes that cannot be excused by the fact that he was previously a victim of the LRA. I think they will attempt to show that Ongwen’s crimes were guided not by fear of survival or reprisal from other LRA commanders but because he wanted to increase his power and stature within the rebel group.

      2) Of course, there are lots of things and issues that I could not cover in my essay. The liability of the executive branch is one and, here, it is also interesting to note that a number of civil society organizations in South Africa are demanding criminal prosecutions for those who violated the court’s ruling on arresting Bashir.

      3) This is very interesting and I appreciate you pointing out the specifics of the South African Constitution here. It would seem to make the claims of those who believe 1) the government was wrong to host Bashir in defiance of the ICC arrest warrant, and 2) that there should be criminal proceedings against government officials who planned his visit, all the more stronger.

  3. el roam says:

    Can I ask please Mark , why comments are delayed until approved ?? Is it an automatic process ?? Please, be kind enough to let me know…. Thanks

    • Mark Kersten says:

      Hi el roam,

      Thanks for your comments (I’ll reply momentarily). We have had some issues with overly personal, aggressive and, at times, inappropriate comments in the past and so decided to change our policy whereby we need to approve all comments before they appear on the site. We haven’t had any problems for a while now and if that continues, I’ll change the settings again to allow immediate comments.

      Thanks for your understanding and for taking the time to comment.

      Mark

  4. OtishOtish says:

    This is *not* a promising start to the series:

    “The Court is widely perceived as a Western, neo-colonial institution that unfairly targets African states.”

    Widely perceived by whom? You, like a few in the West, seem to have bought a line that has been peddled by African “leaders”, most of whom should be in the dock in the ICC. Have you actually considered what most Africans think? Have you considered the possibility that most of the African “leaders” peddling that “neo-colonial” line might not actually believe it themselves?

    The “African ICC problem” was mostly about African “leaders” working to protect themselves. Note the “was”. Take a look at all the demands and claims etc that the AU types made, in “extraordinary summits” etc. Take a look at noise that ended up at the 2013 ASP, with demands for reforms and whatever. All that has been forgotten since Uhuru Kenyatta got off the hook. There is a bit whenever Omar Bashir gets spotted some place, but that is routine.

    When the Ruto case ends with the inevitable acquittal, that will mark the end of two long and expensive cases that were, in many ways, handled quite badly. What some people don’t realize is that the Omar-in-South-Africa matter is related to that: after all that’s been said and done, the ICC has suffered tremendous damage with the collapse of those cases, and many have been emboldened. And why should they not be when it appears that the OTP built an apparently large and complex case on the strength of the made-up words of a few petty criminals?

    • Mark Kersten says:

      Many thanks for your comment, OtishOtish.

      In the first part of this series, I wrote that I don’t believe the anti-ICC sentiment is simply being whipped up by certain African despots. When I travel, I hear the criticism of the ICC’s bias all of the time – not only in Africa or amongst Africans, but in classrooms in Europe and in North America. I hear it from people in the media and fellow academics. Again, in the first part of the series, I discuss how the neo-colonial / neo-imperial critique is false and instrumentalized by some African states (see here: https://justiceinconflict.org/2015/07/17/the-africa-icc-relationship-more-and-less-than-meets-the-eye-part-1/). However, the view that there is some bias (be it political or structural) has, rightly or wrongly, become persuasive – and increasingly persuasive, amongst various constituencies. It’s not something that can simply be swept under the rug and needs to be tackled directly.

  5. Alexa says:

    Since quite a bit of time, I do no more agree (not usually at least) with what “otishotish” writes – be it here, be it on Jukwaa, be it under his other name on Facebook. But here I have to concur with him. Fully. Okay, fullier.

    The pretence with which Mark’s mini-essay series starts (and which is repeated with remarkale redundancy in every sequel anew, and several times), is indeed mostly that: a pretence.
    But in reality, it is not the ICC that has has a problem with African states – rather, it’s African states who have a problem with the institution of the ICC. And many Africans – those Africans to whom Mark purposeful refuses to listen – know this exactly. But they are wananchi. Or worse, they are that dreaded stinging breed: human rights activists.
    I concede so much: to criticize them and disawow them, it at times quite licit. Many have bolstered and upholstered their warm and cozy nest quite comfortably with the proceeds of the inexhaustable Grants Cornucopia (Ford Foundation, Soros). And their constant and harrowing repetition of the same truths might earn them the spite of an academic who is more looking for originality and controversy, trying to cultivate a scholarly detachment from either “side”.
    But ultimately, it is the finely condensed amicus curiae brief of AFRICOG, or the flaming arrows of Fergal Gaynor in his last generic 49 pages application to the PTC II against OTP, that unearth the truth about the conflict.

    Not the Court’s public information strategies and tacics have failed; legally ignorant and most times corrupt African media are it who have failed and are failing, serially. Otosh Otish expericences this first hand, and so do I. Mark however doesn’t; because his very essay after all is not what it purports to be: not at all “critical”. When he refers to the Kenyan High Court’s newly “established” International and Organised Crimes Division, a very laughable travesty indeed, his mere reference amply shows that he does not all _know_ to what he refers, nor the Kenyan national judiciary at all. We however know it from a grounded inside perspective.

    The ongoing article 87 (7) appeal in the second Kenyan case (the “PNU” group of suspects) only corroborates this quite aptly. As much as the somewhat undue visit of the president of the ASP in Kenya, which was reported today. The intent of Sidika Kaba is to influence the appeals chamber, on behalf of the usual suspects, and to dissuade it from deciding the aforementioned appeal on 19th August in a manner that would deliver the affair to the ASP. His rather sycophantic own press release of 12th August makes this unmistakeably clear. His message is: don’t even bother handing over your non-cooperation “finding” to the AS, because I will do my worst to ensure that we will not sanction it anyhow.

    That is funny in a way – because the appeals chamber had already before been worked on and influenced by several states parties (behind the curtains), namely by those who essentially pay for the Court and its upkeep. “Diplomacy” this is called by the author in his third sequel. So, will the judges of appeal instead defer to the rather undiplomatic signal of an African former functionary, trying now to shield African culprits brothery, all the while excusing non-cooperation and open sabotage of justice? If they really would, they could as well abandon their judicial jobs altogether.

  6. Mike says:

    The thing is no civilized nation should prosecute Ogwen. He was kidnapped at 10-14 yrs. He was raised in a forest by rebels and has no formal education. Does he really have the capacity and knowlegde to understand right from wrong. At the ICC he is not entitled to the defence of diminished capacity, lack of knowlegde or that he was following orders. No prosecutor in the Western world would prosecute him only at the icc.

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