ICC in the dock 

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As a former child soldier is convicted of war crimes for his role in Uganda’s brutal conflict, Zachary Ochieng asks whether The Hague is a roadblock to peace in Africa. 

The conviction of former Lord’s Resistance Army (LRA) commander Dominic Ongwen by the International Criminal Court (ICC) on February 4 has rekindled the debate on the efficacy and fairness of the court. 

Convicted of 61 counts of committing war crimes and ‘crimes against humanity’ in northern Uganda between July 2002 and December 2005, Ongwen and his defence team are confident that the charges against him will ultimately be dropped on appeal.

This unique case presented a dilemma to the court as Ongwen appeared to be both a victim and an alleged perpetrator, having been abducted by the LRA and forced to be a child soldier, before rising through the rebel ranks to become the deputy to LRA commander Joseph Kony.

‘Straight away we can say without mincing words that we are definitely going to appeal on all the charges,’ Ongwen's lawyer Krispus Ayena Odongo said, describing the verdict ‘a bombshell’.

His sentiments were echoed by Dr David Matsanga, a former LRA official and now chairman of the Pan African Forum Limited, who argued that the trial was not fair to Ongwen as he was only obeying orders from senior commanders. 

Sheila Kawamara Mishambi, former Ugandan Member of Parliament at the East African Legislative Assembly (EALA) and Executive Director, Eastern African Sub-Regional Support Initiative for the Advancement of Women (EASSI), is not convinced.

She argues that while Ongwen may have been forced into the rebel outfit, and was not entirely responsible for his actions, victims of the atrocities deserve justice. 

‘Ongwen, like other perpetrators now reintegrated into the community, should have been subjected to the Acholi alternative justice mechanism known as Mato Oput,’ said Mishambi.

Mato Oput is a type of restorative justice, where the community, criminal and victims work together to achieve restoration, reparations and forgiveness.

She also accused Uganda’s President Yoweri Museveni and the court of applying double standards, as the Uganda Defence Forces (UPDF), also committed atrocities. 

Kristof Titeca, a senior lecturer at the University of Antwerp and an expert witness during Ongwen’s trial, added that the case had raised a ‘huge grey area that is difficult to determine in international law, which thinks in terms of victims and perpetrators’.

But human rights watchdogs celebrated the conviction of the LRA chief as a milestone in the search for justice for victims. 

‘The conviction of Dominic Ongwen is a crucial step towards accountability for the crimes committed by the LRA in Uganda,’ said Sheila Muwanga, Vice President, International Federation for Human Rights (FIDH).

‘It serves as a strong message to other LRA commanders who are still active and responsible for atrocious crimes committed in the region that they can be held accountable for their actions.’

Ongwen’s conviction has stirred debate as to whether the ICC is a promoter of or a threat to peace, given that the child soldier-turned-rebel commander surrendered in 2015 as part of an anticipated amnesty, following several years on the run.

Negotiators fear that Ongwen’s arrest and conviction, will make it less likely his colleagues still in the bush will now ever surrender for fear of arrest. 

The ICC’s decision to open cases against Ongwen and other LRA leaders in 2005 coincided with a resumption of peace talks in Juba, South Sudan, between the rebel group and the Ugandan government.

Crucially, the final peace agreement was never concluded as Joseph Kony, leader of the LRA, did not show up to sign it, fearing his arrest. 

As a result, Uganda and its allies were forced to resume military campaigns against the LRA, eventually pushing the group across the border into South Sudan, the DRC and the Central African Republic.

Matsanga, who was LRA’s chief negotiator in the Juba peace talks, blames the ICC refusal to withdraw arrest warrants against the LRA leaders for the ongoing instability across the region.

He said: ‘The ICC frustrated all peace efforts, even after Ugandans rejected its style and opted for peace talks and reconciliation in the northern Uganda conflict.’

It’s a view shared by President Museveni, who has accused the ICC of undermining efforts to achieve a peace deal with the LRA, and described the Netherlands-based court as ‘neo-colonial and an obstacle to peace in Uganda.’

Museveni faces a potential investigation by the court after the country’s opposition leader, Bobi Wine, referred the president to the ICC following bloody elections in Uganda in January.

The court has also faced criticism over its apparent preoccupation with Africa and its failure to investigate equally severe conflicts elsewhere. 

Rwanda’s president, Paul Kagame, famously accused it of being a ‘political court’ that is ‘only for poor countries’. 

And his Kenyan counterpart, Uhuru Kenyatta, who once faced indictment by the ICC over post-election violence, castigated the court as a ‘tool of global power politics and not the justice it was built to dispense.’

Richard Goldstone, a former prosecutor of the ICC’s Rwanda and Yugoslavia tribunals agrees that the court appears ‘too focused on prosecuting crimes committed on the continent of Africa, while paying scant regard to similar situations elsewhere in the world’.

He observed that although the prosecutor’s office said it had looked at other cases in Afghanistan, Georgia, Palestine and Colombia, no warrants were issued for suspects outside Africa.

The ICC’s Office of the Prosecutor has tried to explain away this anomaly by claiming that of the 122 countries that have signed the Rome Statute signing jurisdiction to the court, close to one-third are African states, and thus the ICC is more likely to hold Africa to account.

In other words, the court now mostly tries Africans as other people who ought to be tried cannot as their countries are not members.

Maxine Rubin, a lecturer at the University of Cape Town’s Department of Political Studies, argues that the ICC’s concentration on African cases is, in part, due to Africa’s weak national judicial systems, which make it difficult for them to prosecute powerful people.

This contrasts with countries like Argentina and Chile, which have successfully prosecuted leaders accused of similar crimes. 

This reliance makes the ICC appear to be overly active in Africa, according to Rubin.

Whatever the truth, the perception that the ICC is targeting Africans, has led to the threat of mass withdrawals by African nations.

In October 2016, Burundi and South Africa formally wrote to the United Nations Secretary-General to communicate their decision to withdraw from the ICC. Around the same time, The Gambia also indicated that it would withdraw, only to reverse course almost immediately after a newly elected government assumed power. The African Union has reportedly agreed on a strategy calling for a collective withdrawal from the court.

Despite this, the feared exodus of African countries has not materialized.

But with rebels refusing to ever put down their arms for fear of retribution, the issue is unlikely to be resolved any time soon.

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