This article was written for a symposium, organized by the Italian Institute for International Political Studies, entitled “Africa vs the ICC: Searching for an Exit Strategy”. I encourage all readers to check out the other submissions, including those by ICC Judge Cuno Tarfusser, Maddalena Procopio, Juliet Amenge Okoth, as well as Gerhard Werle and Moritz Vormbaum. Special thanks to Chantal Meloni for organizing! 

People in northern Uganda watch proceedings in the Ongwen trial at the ICC (Photo: Isaac Kasamani/ AFP / Getty Images)

Yoweri Museveni likes to present himself as the frontman for an allegedly pan-African movement against the International Criminal Court (ICC). According to the Ugandan President, the ICC is responsible for “blackmailing” African states and is composed of “a bunch of useless people”. Yet, in early 2016, the Ugandan government ensured that Dominic Ongwen, a senior commander in the notorious Lord’s Resistance Army (LRA), was surrendered to the Court. Ongwen’s arrival in The Hague marked a major victory for the fledgling ICC. Of the five individuals the Court has targeted in northern Uganda, Ongwen is the only one to face trial in The Hague. So how do we square the seemingly contradictory reality in which the most vociferous critic of the ICC’s role in Africa also gives the Court a boost in surrendering a prized perpetrator to The Hague?

This article seeks to provide an answer to this conundrum by weaving together three issues: 1) the politics around the ICC’s intervention in northern Uganda; 2) the trial of Dominic Ongwen at the ICC; and 3) the Africa-ICC relationship and the place of Uganda — and the Ongwen trial — within it. The somewhat counter-intuitive argument put forward is that the answer to the above-stated quandary has both nothing and everything to do with governments referring themselves to the ICC.

Africa and the ICC — Nothing to do with Self-Referrals

It is no secret that the relationship between some African states and the International Criminal Court is bruised and battered. There are numerous criticisms of the ICC’s role and impact on the continent. Some are self-interested and some are legitimate. Many of these have tapped into the perceived bias of the Court, a perception fed by the fact that, before 2016, the ICC had never opened an investigation outside of Africa and that the Court has never issued an arrest warrant for a non-African.

In recent years, the rhetoric emanating from African capitals to express their criticisms has picked up on this alleged bias and has become increasingly dramatic. The Court has been described by African leaders a “race-hunting” institution, an “International Caucasian Court”, and “a painfully farcical pantomime” that has become “the toy of declining imperial powers.” Substantively, however, the crux of the criticisms levied against the ICC has never been about the Court’s focus on African states. Rather, the fuel that feeds the fire of anti-ICC sentiment has been the ICC’s relationship with the United Nations Security Council (UNSC)and its permanent members. On two occasions, Darfur in 2005 and Libya in 2011, the UNSC referred situations to the Court. African states have voiced concerns following the ICC’s interventions in both cases and have generally opposed the ICC being invoked by the Council’s permanent member states — China, Russia, and the United States — which simultaneously refuse to submit to the Court’s jurisdiction themselves.

The orthodox response of the ICC and its defenders to criticisms against the ICC has been to focus on two counter-arguments: 1) that it is just the “bad guys” and dictators who claim that the ICC is biased because they are afraid of the Court, and 2) that African states, by-and-large, have invited the ICC to intervene in the first place through the issuance of self-referrals.

The first argument seems to suffer from a mild form of hypocrisy or, at the very least, a myopic and partial accounting of the Court’s history. There is no doubt that some awful leaders implicated in mass atrocities are vociferous critics of the ICC. It may even be that they fear being targeted by the Court. However, there seems to be zero concern with the fact that dictators and human rights abusers previously decided to join the ICC in the first place. This should be accounted for too. Additionally, it is important to recognize that there are many observers, including strong proponents of international criminal justice, who share the same concerns regarding the Court’s record and role in Africa and its relationship with the UNSC. It is deeply offensive, and counter-productive, to have their arguments lumped in with those of despots.

The second argument in defence of the ICC suggests that African critics of the Court are somehow hypocritical because the majority of situations under investigation in Africa were the result of self-referrals. This is a rather curious defence because no African governments have ever complained about self-referrals. The reason is obvious; as explored in more detail below, self-referrals are useful tools to get the ICC to target a state’s adversaries. Again, what African critics of the Court, and indeed many champions of the ICC, are primarily concerned about is the institution’s relationship with the Security Council. This mismatch of critique and defence has produced a rather stilted debate wherein concerns about what happens when the ICC accepts a UNSC referral are met with a defence of pertaining to self-referrals.

So we might conclude that the ICC-Africa relationship has nothing to do with self-referrals — and substantively, African critiques of the Court don’t. But now enters Museveni. There is no leader who has benefitted more from an ICC intervention that the Ugandan President. Following his 2003 self-referral of northern Uganda to the ICC, the Court only targeted individuals from the government’s adversaries in the LRA, helping to legitimise the government’s militarism and its often violent and autocratic form of governance. The benefits accrued by the ICC’s intervention to Museveni and the Ugandan government thus reveal the profound irony of his view of the ICC as a group of “useless people”. Such rhetoric is also confusing given Uganda’s continued cooperation with the ICC and its surrender of Ongwen to The Hague. Understanding why Ongwen is at the ICC, and not on trial in Uganda, however, requires switching tact and arguing that it has everything to do with self-referrals.

Africa, the ICC, and Ongwen — Everything to do with Self-Referrals

By helping to demonise their adversaries and boosting their legitimacy, self-referrals are remarkably beneficial to referring governments. The Court’s record regarding self-referrals is indicative. Every investigation that has been opened following a self-referral has resulted in only government adversaries being targeted by the ICC. Why might this be the case?

When the ICC intervenes following a self-referral, it enters into a dependency relationship with the referring government. Prosecutors and investigators become reliant on the referring state, and its security apparatuses, for cooperation to build cases, to access crime scenes, to enforce any arrest warrants that are issued, to conduct outreach programmes, etcetera. If prosecutors target the government, any cooperation and goodwill from the state would evaporate.

The Office of the Prosecutor of the ICC has intimated its awareness of this dependency dynamic with senior staff arguing that, in many cases, targeting both governments and their adversaries would lead to prosecutorial paralysis. Only targeting non-state actors following self-referrals, in their view, may not be ideal but it is “pragmatic”: we shouldn’t make perfect justice the enemy of any justice.

But governments also understand how this dynamic works and, by leveraging the ICC’s dependency on them, they can manipulate the Court. So, in a case like Uganda, where there are long-standing allegations of atrocities committed by government forces, Museveni understands that, in order to ensure that the ICC continues to ignore the atrocities that Ugandan forces and officials allegedly committed, the government must keep the Court’s investigators and prosecutors in that dependant relationship. Extending cooperation to the ICC thus shields the Government of Uganda and its military from examination of their conduct by the Court’s investigators.

These dynamics help to make sense of how Museveni can be the most vociferous critic of the Court’s role in Africa whilst simultaneously offering cooperation to the ICC and surrendering Ongwen to The Hague. By allowing Ongwen to be prosecuted at the Court, rather than prosecuting him in Uganda’s tailor-made International Crimes Division, Museveni has ensured that the ICC remains dependant on the Ugandan state for cooperation. That dependency is likely to keep any ICC scrutiny of the government’s own alleged responsibility in atrocities at bay. It also allows Museveni to speak as aggressively as he wants against the Court, knowing that he’ll score political points with anti-ICC constituencies and leaders around the continent. Museveni’s outsourcing of the Ongwen trial to The Hague as well as his position against the ICC thus has everything to do with Uganda’s original self-referral.

Concluding reflections — A better and more honest dialogue 

As the above suggests, the Africa-ICC relationship has suffered from various misperceptions regarding the Court’s role in Africa as well as the crux of legitimate critiques of the institution. Some, like Museveni, revel in those misperceptions. What is needed, however, is a more fair and honest dialogue about the ICC’s record in Africa and how it intersects with the way in which states, like Uganda, manipulate the Court to serve their own interests.

The theme of the last Assembly of States Parties conference of the ICC in 2016 was “dialogue” between African states and the Court. This was an important, if belated, step in acknowledging the need to have a frank and fair discussion about the legitimate concerns that states — and not just African states — have with the ICC. More recently, the African Union has published documents outlining their concerns regarding the ICC’s role. Those concerns hone in, once again, on the ICC’s relationship with the UNSC. Both sides — the ICC’s champions as well as the Court’s critics — now have a responsibility to address outstanding political and legal issues that drive misperceptions about both the Court and African criticisms of the ICC. Above all, that will require separating rhetoric from reality and a confrontation with the politics of international criminal justice.