The ICC Is Flawed. Is It Still Africa’s Best Hope for Justice?

by Andrew Green · January 31, 2017.

This report first appeared in World Politics Review , 31 January 2017, and has been republished with their permission. 

More than 11 years after the International Criminal Court issued a warrant for Dominic Ongwen’s arrest, and nearly two years after he was captured and transferred to The Hague, his prosecution finally began in December.

Ongwen, a former senior commander in the Lord’s Resistance Army (LRA), faces 70 counts, including charges of murder, enslavement, rape and torture. He allegedly committed or oversaw these atrocities as part of the Ugandan rebel militia’s bloody campaign against the people of northern Uganda’s Acholiland that originally began in 1987.

Though the LRA remains active in pockets of central Africa, it was driven from Uganda in the mid-2000s, but only after murdering thousands of civilians. Nearly 2 million more were displaced from their homes into camps, where they were plagued by shortages of food and medicine. And tens of thousands of children went missing, captured by fighters and conscripted into the LRA or slaughtered.

That’s how Ongwen came to enter the ranks of the rebel group: He was kidnapped near his home when he was 14 years old.According to testimony the northern Uganda-based Justice and Reconciliation Project collected from other abductees, the young Ongwen was “keen in character and eager to please the high command, repeatedly demonstrating his natural ability as a fighter from a young age.” He rose quickly through the ranks of the militia, eventually joining the “control altar”—the group of LRA founder Joseph Kony’s closest advisers.

Ongwen’s status as both a victim and a perpetrator is likely to dominate his upcoming trial. Before entering a plea at the beginning of the trial, he even asked the chamber, “Do you agree that my life was not ruined?” The three-judge panel will ultimately decide the veracity of the charges and to what extent the former child soldier is culpable for his actions as an adult.
Ongwen’s will not be the only trial unfolding over the coming months. The years since the unsealing of the warrant against him have been rocky for the ICC, which has been accused of reinforcing global power dynamics and targeting geopolitically weak states, particularly in Africa. These were among the reasons three African countries—Burundi, South Africa and Gambia—cited in late 2016 when they announced they would begin the process of withdrawing from the statute that created the court. More are threatening to follow. 

During this particularly fraught moment in the ICC’s history, Ongwen’s trial promises to keep many of these issues at the fore. And it could be used either to reinforce the court’s necessity or further undermine its legitimacy, especially on the African continent.

“This is arguably the most interesting case that’s ever been brought at the ICC,” says Barrie Sander, a researcher in international criminal law at The Graduate Institute, Geneva. “It raises everything.” That includes several critical questions about the court’s selectivity.

Bringing Ongwen to the Court

Often cast as a messianic madman, Kony launched the LRA as a political revolt against the Ugandan government’s marginalization of Acholiland. During the indoctrination process for membership, LRA commanders drilled the conscripted youth on the region’s historical grievances. The ensuing war only added to that list.

Though Kony and his followers carried out the most heinous of the atrocities, the government in Kampala was not without responsibility—including the indefensible decision to force civilians into poorly guarded camps, making them easy targets for the LRA. In choosing to refer the situation in northern Uganda to the ICC, which it did in early 2004, the Ugandan government hoped to “ensure that the ICC would prosecute only the LRA,” while ignoring the government’s involvement, the University of Cambridge-based political scientist Adam Branch wrote in a 2007 paper. That is exactly what happened.

That’s how Ongwen came to enter the ranks of the rebel group: He was kidnapped near his home when he was 14 years old.

Ongwen and Kony were among the five LRA leaders indicted by the ICC in 2005, along with three other commanders who were subsequently killed. The warrants were the first to be issued by the ICC, which had only started operations two years before. This decision to only prosecute LRA leaders and avoid investigating the government’s actions during the war introduced the growing perception that those in power can maneuver the court against the politically weak.

At the time, though, the case was ideal for the brand-new ICC, with no fear that it would upset the larger geopolitical order. Specifically, it posed no threat to a U.S. government that was and still is extremely wary of the court—a concern that the ICC has remained attuned to throughout the years.

“The Ugandan case fit the twofold requirement perfectly: it was a voluntary referral by a government that pledged its assistance, and it would . . . support an American ally,” Branch wrote.

While Ongwen’s indictment hinted at some of the issues that have come to dog the court, his trial is a review of additional concerns that have emerged over the past decade, including the fact that, once again, it is an African who is in the docks. Of all 14 cases the ICC lists as ongoing, under appeal, completed or closed, each defendant—now including Ongwen—is African.

Former Gambian Information Minister Sheriff Bojang referenced this record when he announced his country’s intention to withdraw from the ICC in October, dismissing it as the “International Caucasian Court.”

Justice for Acholiland—and Beyond

Nicholas Opiyo is a human rights lawyer who grew up in northern Uganda at the height of the war. He is worried that what might be lost in the critiques of the ICC’s selectivity and the resulting push for countries to withdraw is the deep significance Ongwen’s prosecution has for the people of Acholiland.

The trial is the first time, aside from the case against a mid-level commander that is currently grinding through Uganda’s court system, that the victims of the LRA’s atrocities have been offered formal justice. An amnesty law, introduced at the height of the violence in 2000, prompted the return of thousands of combatants, while also introducing reintegration programs rooted in forgiveness and reconciliation. For many victims, Ongwen’s trial is the long-awaited opportunity to reckon with the full complexity of what happened during the war.

Dominic Ongwen, center, sits in the court room of the International Court, The Hague, Netherlands, Dec. 6, 2016 (AP photo by Peter Dejong).
“The ICC is the best option for victims to tell their story, to seek reparations,” Opiyo says. “But more importantly it is their opportunity to begin to write the story of the conflict in northern Uganda in a consistent and more authentic manner.”

Delivering justice for victims who might not otherwise receive it is one of the core reasons the ICC was created. A United Nations conference in Rome approved a statute to establish the ICC in 1998, with a preamble that promises to “guarantee lasting respect for and the enforcement of international justice.” By 2002, the Rome Statute had been ratified by more than 60 countries and officially came into force. The ICC became operational the next year.

Yet it was not much longer before it started running into the complications the Ongwen trial has magnified.

There are now 124 state parties to the statute, though some key names are still missing, including the United States, China and Russia, which, though it had never taken steps to ratify, recently announced it was withdrawing as a signatory. While specific justifications vary, the refusal of these three heavyweights to subordinate themselves to an international justice mechanism undercuts the entire initiative.

Their refusals have not entirely circumscribed their involvement in the court’s affairs, though. The United Nations Security Council, of which all three countries are permanent members, has the right to refer cases to the ICC. It has done so twice, requesting investigations into the situation in Sudan’s Darfur region, which ultimately led to the indictment of Sudanese President Omar al-Bashir, and in Libya.

Of all 14 cases the ICC lists as ongoing, under appeal, completed or closed, each defendant—now including Ongwen—is African.

The United States has shown a particular willingness to support the court when its actions align with Washington’s interests. In 2015, for example, U.S. forces stationed in the Central African Republic—where Ongwen was captured—were involved in handing him over to the ICC, even though the United States doesn’t recognize the court’s jurisdiction.

"The establishment of the ICC was expected to represent a cosmopolitan moment for international law," Sander said. "It was created with the hope of realizing a universal form of justice. But in practice it has been consistently hindered by the geopolitical system within which it is forced to operate, a system marked by significant power inequalities between the states."

And the cases it has chosen—pursuing nonstate actors like the LRA, or governments that have lost legitimacy in the global community—seem to perpetuate these inequities. That’s most true of the seemingly imbalanced pursuit of cases in Africa, where nine of the court’s 10 investigations have so far taken place.

“Africa was chosen because it was the only place politically marginal enough that the U.S. would allow the Court to intervene there, and politically weak enough that those subject to intervention would be unlikely to challenge the ICC or hold it accountable,” Branch wrote in his 2007 paper. That narrative is shifting, though, as African countries show an increasing willingness to challenge the court.

Despite growing resentment over the past several years, the continent has historically been a bastion of support for the ICC. There are 34 African signatories to the Rome Statute, making it the body’s most-represented region. In the wake of Bashir’s indictment, however, that backing began to wane, as it made some leaders realize that being head of state did not tacitly confer immunity.

It is easy to see a cynical impulse toward self-protection in those concerns, especially coming from undemocratic heads of state who might have their own reason to fear a future indictment. But the charges also raised significant sovereignty questions, including for officials of signatory nations, who are expected to hand Bashir over to the ICC if he touches down in their country. The situation threatens to pit the principle of diplomatic immunity against a leader’s obligations to uphold standards of international justice. That is exactly what happened to South Africa in 2015.

The international community thrashed the South African government for allowing Bashir to attend and safely depart from an African Union Summit held there in June of that year. That criticism fueled Pretoria’s October 2016 decision to withdraw from the Rome Statute. South African Justice Minister Michael Masutha specifically cited the tension between his government’s interest in serving as a regional mediator and its responsibilities as a signatory as spurring the withdrawal.

“We wish to give effect to the rule of customary international law, which recognizes the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent,” he said at a press conference following the decision to withdraw.

The announcement, Branch says in an interview, could also be heard as a rejection of the current geopolitical order—and of everything the ICC has done to reinforce it. “South Africa is saying, no longer can we be pushed around just because we’re an African state. They have a different vision of what their country’s role is.”

Another major continental turning point came when then-ICC Prosecutor Luis Moreno Ocampo decided to open an investigation—the first independently launched by his office—into the deadly violence that followed Kenya’s December 2007 presidential vote. In the closing hours of that year, Kenya’s Electoral Commission declared incumbent President Mwai Kibaki the winner over the heavily favored opposition. Across the country, violence erupted between the two camps and lasted for weeks. More than 1,100 people were killed, according to Amnesty International.

Ocampo’s investigation sought to bring charges against six high-profile Kenyans, including current President Uhuru Kenyatta, the son of the country’s first post-independence president who at the time was a senior government official in his own right. The six men, who represented a cross-section of the political spectrum, were accused of organizing, encouraging and funding the people who actually committed the atrocities.

Despite being under indictment, Kenyatta decided to run for president in 2013, choosing William Ruto, his former political opponent who was also named in the ICC indictment, as his deputy. Anti-ICC rhetoric became a staple of their campaign, and after they won a closely contested election, the ICC’s investigation began to run into increasing difficulties. The ICC prosecutor reported that 16 of its original 42 witnesses in Ruto’s case withdrew their cooperation, citing “threats, intimidation and/or fear of reprisals.”

The cases against all six men either failed to move forward or eventually fell apart, and with them so did any efforts to deliver justice to the victims of Kenya’s postelection violence. Instead, the primary outcome seems to have been a strengthened regional movement against the ICC itself.

In a declaration following its May 2013 summit, the African Union pointedly reminded the court that the “search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace”—a critique that South African officials clearly leaned on in announcing their country’s withdrawal in 2016. Former ICC champions, including Ugandan President Yoweri Museveni, whose government actually referred the situation in northern Uganda to the court, have similarly issued high-profile denunciations of the court. 

When Gambia, Burundi and South Africa announced in late 2016 that they would back out of the Rome Statute, they did not offer identical reasons. Gambia’s information minister explained his country’s withdrawal as a reaction to the court’s “persecution of Africans and especially their leaders,” according to reports. And Burundi’s move can be read as part of its government’s campaign to silence international criticism of the violence that followed President Pierre Nkurunziza’s controversial decision to stand for a third term in 2015, which sparked massive protests that lead to thousands of deaths. The ICC announced in April it was opening a preliminary examination of “acts of killing, imprisonment, torture, rape and other forms of sexual violence” that have allegedly taken place in Burundi since April 2015.

Sander challenges the impulse to interpret the three announcements as part of a unified movement. “There are different motivations for each withdrawal. It’s important to distinguish them,” he says. Still, he cautions, “even when the motivations are cynical, it doesn’t mean the critiques raised by them are necessarily unfair.”

Can the ICC Survive?

The critical question is whether the ICC can regain some of the legitimacy it has lost in Africa and elsewhere—enough to forestall additional withdrawals and maybe even reverse the three that are already underway.

The ICC’s champions, including many on the African continent, are quick to point out the unfairness of some of the accusations of anti-Africa bias. The court’s docket is filled primarily with referrals from states, like the Ongwen case, and from the U.N. Security Council. As Human Rights Watch, among others, has highlighted, “six out of the nine African situations under ICC investigation came about as a result of requests or grants of jurisdictions by African governments.” And Darfur and Libya were both Security Council referrals.

And even if the current prosecutor, Gambian lawyer Fatou Bensouda, was eager to open her own preliminary examinations, her jurisdiction is strictly limited. The prosecutor can only act when the alleged perpetrator is a citizen of a member state or the crime was committed in a country that is a state party. There are exceptions, like when a nonmember chooses to accept the ICC’s authority or the U.N. Security Council refers the situation, but these are beyond the prosecutor’s control.

Prosecutor Fatou Bensouda before a trial at the International Criminal Court, The Hague, Netherlands, Nov. 27, 2013 (AP photo by Peter Dejong).
The court also faces significant resource shortages, hobbling its capacity to deliver justice. Some consider its financial struggles a greater threat to its viability than the recent spate of withdrawals. 

Despite limitations both procedural and financial, the prosecutor’s office does appear set to launch a new investigation, this time in Afghanistan. Bensouda looks poised to consider whether war crimes and crimes against humanity have been committed in Afghanistan since 2003, which could ultimately grow to encompass some acts committed by U.S. forces. That would go a long way toward subverting the narrative that the ICC only goes after the geopolitically weak, and would at least break the pattern of overwhelmingly targeting Africans.

Yet even this move, coming immediately after the African withdrawals, may also be read as an obvious political calculation and ultimately serve to undermine the ICC.

No matter how much blowback the court receives, Branch, for his part, doesn’t anticipate that the ICC will disappear anytime soon. “It will certainly continue in one form or another,” he says. “That’s not in any doubt. Whether it’s able to re-establish its legitimacy, the really vast legitimacy it had 10 or 12 years ago, I don’t think that’s possible. I think that’s over.”

As if to underscore that point, dissatisfied African actors are looking for a replacement body and think they may have found one in the African Court on Human and Peoples’ Rights. An African Union assembly expanded the jurisdiction of the court in 2014 to include international crimes, adopting a protocol that noted the role the court could play in “strengthening the commitment of the African Union to promote sustained peace, security and stability on the continent.” Because African heads of state are immune from prosecution under its mandate, they are likely to find the court more palatable than the ICC.

Still, as Mossad Mohamed Ali, the executive director of the African Centre for Justice and Peace Studies, points out, the protocol has yet to be ratified by a single African government—meaning the expanded African Court on Human and Peoples’ Rights is still far from operational. Meanwhile, he says, it is important not to ignore the support the ICC still retains on the continent. In the wake of South Africa’s withdrawal, Botswana’s government was one of several to voice its full-throated support for the institution, registering in a government statement that “such a move betrays the rights of victims of atrocious crimes to justice and also undermines the progress made to date in the global efforts to fight impunity.”

There is even the possibility that the three countries that have threatened withdrawal may not actually follow through. Opposition parties have taken the South African government to court, arguing that the move was carried out improperly. And in December, Gambians elected a new president, Adama Barrow, who has promised to keep the country in the ICC. With his predecessor, Yayha Jammeh, forced to leave the country last week after a desperate attempt to hold onto power, Barrow is now poised to take office.

“The ICC still represents the best hope for justice for the people in Africa,” Ali says. “And the withdrawals from the ICC will frustrate the opportunities for accountability.”

That is the bottom line for Opiyo, the Ugandan human rights lawyer. He acknowledges that Ongwen’s case is limited in scope, and that the Ugandan government and its forces may ultimately go unpunished for any crimes they allegedly perpetrated. 

That the trial is happening at all, he also notes, might have just as much to do with global politics as it does with the pursuit of justice. Still, he says, it is an opportunity “to begin to write a proper chapter of exactly what happened in northern Uganda.” 

Though many might not agree with him, for Opiyo, that hope outweighs everything else. 

Andrew Green is a foreign correspondent based in East Africa. He writes often from the region on issues of health, human rights and politics, and his work has appeared in Foreign Policy, The New Republic and The Washington Post, among other outlets. You can view more of his reporting at www.theandrewgreen.com.