Why the ICC won't prosecute Museveni
By Mark Kersten
Anyone who has visited and spoken to the citizens of northern Uganda will be well aware of the harrowing stories of abuse and devastation wreaked by the vicious twenty-five-year war between the Lord’s Resistance Army (LRA) rebels and the government of Uganda. They will also discover that atrocities were perpetrated by both sides in the conflict. The LRA is notorious for its brutal tactics of maiming people as well as kidnapping and enslaving children. But at the height of the war, more people were dying from the conditions imposed on them in government-enforced displacement camps than from rebel attacks.
Yet the dominant narrative of the war in northern Uganda attributes responsibility for the atrocities - and the war - solely to the LRA, a framing of the conflict that has been compounded by the involvement of the International Criminal Court (ICC). While it would be absurd to defend the cruelty of LRA or deny the need to achieve accountability for their crimes, human rights groups, civil society organizations, and close observers of the war have lambasted the neglect of state-perpetrated atrocities.
From the outset, the ICC showcased a bias towards the government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno Ocampo’s staff had made him aware of the appearance of partiality that this would create. The referral was later amended to cover the “situation in northern Uganda”, but severe damage to the independence of the Court had already been done. To many in northern Uganda as well as the Court’s supporters, the prosecutor had shown his true colours: he would only prosecute the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including the movement’s leader, Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni government. Recent events won’t foster much hope that it ever will.
The decision to target only the LRA was strategic on the part of the prosecutor. The ICC does not have its own police force nor the capability or capacity to conduct investigations without state cooperation. As a result, it is predisposed to investigating enemies of the referring state. Indeed, in every instance of a state referring itself to the Court, only rebel groups and government adversaries have been targeted for prosecution.
Some justice or no justice?
The logic here is rather simple: if the ICC were to attempt to prosecute state actors - such as the government of Uganda and its military, the Ugandan People’s Defence Force (UPDF) - it would almost certainly and immediately lose state cooperation to conduct any investigations and thus achieve any justice. While the ideal is to prosecute all sides responsible for international crimes, it may not be the most pragmatic course of action to take. Put another way, perfect justice cannot be the enemy of any justice.
This position seems to guide the ICC’s Office of the Prosecutor. Indeed, Deputy Prosecutor James Stewart has described his office’s approach as such:
“The Prosecutor… has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticised. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.”
It is also noteworthy that, in Kenya, where the Court managed to target both sides of the 2007/08 post-election violence, its cases have floundered, most spectacularly with the collapse of the case against President Uhuru Kenyatta.
Court must be pragmatic
Implicit in the ICC’s pursuit of a rather careful strategy is a story of progress: the Court must be pragmatic and imperfect now in order to achieve its ideal and perfect justice later. This should suggest that the government of Uganda and the UPDF will eventually be prosecuted. But when will the ICC be mature enough to stand up to state actors? After all, it has been ten years since the ICC issued its initial arrest warrants against LRA commanders. Moreover, current Chief Prosecutor Fatou Bensouda recently reiterated that her office would investigate, “in complete independence and impartiality… all sides” involved in the war. Reality, however, is unlikely to meet this lofty rhetoric.
There are real costs to the Court’s overly cautious approach the government of Uganda. While basking in the legitimacy of being a front-line fighter against the “terrorist” and “criminal” LRA, President Museveni has flip-flopped in his support for the ICC more often than a suffocating fish out of water. Today, the Ugandan leader has emerged as the single, most obsessive and virulent critic of the ICC. Surely, he knows that whatever absurdities he brandishes or attacks he wages against the Court, he is secure from its reach. To retain that privileged position, Museveni understands that he can always hold out the promise of greater cooperation. He has done just that.
In the wake of the recent and surprising surrender of senior LRA commander Dominic Ongwen to The Hague, Bensouda paid a visit to Uganda, where she met with Museveni in an attempt to shore up cooperation from the Ugandan government. Given Museveni’s vitriolic opposition to the ICC, many originally expected that Ongwen - who was officially surrendered by the authorities in the Central African Republic (CAR) - would be sent to Uganda to be prosecuted at the International Crimes Division. Instead, Museveni insisted that because Ongwen had been arrested in the CAR and not Uganda, he had to be shipped off to The Hague. No one should be fooled: had Museveni wanted Ongwen to be tried in Uganda, he would have been tried in Uganda.
In sending Ongwen to the ICC, however, Museveni deftly outsourced a potential political problem while, at the same time, ensuring that the ICC would continue to be dependent on his cooperation and that, in all likelihood, the government would not be targeted for prosecution. As others have noted, Ongwen’s case poses a serious dilemma: he was abducted as a young child into the LRA and is now being charged for committing crimes he almost certainly would not have had he not been kidnapped and forced into the rebel group. His trial could be politically, not to mention financially, costly. Museveni likely did not want to get mired in a controversial trial and thus played judicial hot-potato with Ongwen’s fate.
Continued government impunity
Ongwen’s transfer likely means that the ICC’s prosecutor will continue to need Museveni’s cooperation. The arrest warrant against Ongwen was issued in 2005, and the burden of evidence required to convince judges to issue the original indictment is not nearly as high as that required to get a conviction. Moreover, Court prosecutors may want to add charges relating to more recent LRA atrocities that Ongwen may have been involved in, including the 2009 Makombo massacre, in which over 300 civilians were killed. Any ‘top-up’ of evidence as well as any outreach to victims and survivors on-the-ground will require Museveni’s consent and cooperation. This may come at the price of continued government impunity.
There is one last reason why it is unlikely that the Ugandan government or military officials will be targeted for prosecution: that stubborn conflict narrative which pits the LRA as the root of all evils in northern Uganda and the government as the legitimate and good justice-enablers. Prosecuting the government and military officials would be a welcome move. But it would also represent an admission that the ICC should have - but didn’t - do so initially. That would take an immense amount of institutional courage. Hopefully, the ICC finds it.
*Mark Kersten is the creator of Justice in Conflict.
Lead image: Ugandan President Yoweri Museveni (Stefan Rousseau/AFP)