OPINION: By Richard Todwong
During the presidential swearing-in ceremony, it was reported that some diplomats walked out of the Kololo Ceremonial Grounds in protest against the presence of Sudan’s President Omar al-Bashir, and President Yoweri Museveni’s remarks about the International criminal Court (ICC).
The diplomats were at liberty to walk out in protest. However, I know that diplomacy requires some civility and diplomats don’t protest in a way that can jeopardise relationships among countries on other fronts.
My import in this article is on the subject of the ICC and why African heads of state are right in their accusation against the ICC.
The ICC, located in The Hague in Netherlands, is the court of last resort that has jurisdiction over certain international crimes, including genocide, crimes against humanity, and war crimes that are committed by nationals of States Parties or within the territory of States Parties. States Parties are legally obligated to cooperate with the court when it requires, such as in arresting and transferring indicted persons or providing access to evidence and witnesses.
Its founding treaty, the Rome Statute, entered into force on July 1, 2002. Over the last decade, the court has made significant headway in putting selective international justice on the map. As of March 4, 2016, 124 states had acceded to the Rome Statute and the court had opened investigations in eight countries, including Uganda.
The idea of having an agency with an international mandate for addressing war crimes and crimes against humanity dates back to World War II. Military tribunals were then put in place by the Allied Powers in Nuremberg and Tokyo, and international criminal tribunals were later established in Yugoslavia and after the genocide in Rwanda.
The progressive extension of a symbolic global mandate to prosecute war crimes, crimes against humanity, and now the crime of “aggression” corresponds with the emergence of a theoretical conception of “human rights” as enshrined in the United Nation’s Universal Declaration of Human Rights.
Despite the failure of the international community to genocides in Rwanda and Yugoslavia, criminal tribunals once again took a prominent role in trying leaders responsible for the gravest atrocities and in social and societal reconciliation. However, some argue that they only accentuate preexisting resentments and grievances, promoting future or further violence and bloodshed. Nonetheless, the precedent set is at the very least a small step towards creating a truly just and peaceful world.
Uganda signed the Rome statute on March 17, 1999 and later ratified and acceded to it on June 14, 2002 making it an ICC states party. Charges that the ICC has politically lost its moral standing because it selectively targets poor African states, has further eroded its legitimacy. Why has the ICC not gone after Iraq, Afghanistan, Israel-Palestine, Mexico, Colombia, Syria and other troubled states outside Africa? This isn’t to forget the many years of plunder and torture that Africa went through without international concern.
So far, 39 individuals have been indicted by the ICC, including Ugandan rebel leaders Joseph Kony, Dominic Ongwen, the late Vincent Otti, Sudanese President Omar al- Bashir, Kenyan President Uhuru Kenyatta and his deputy William Ruto, former Libyan leader Muammar Gaddafi, former Ivorian president Laurent Gbagbo, Bahr Abu Garda – Sudan, Mohammed Ali – Kenya. Others include: Abdallahbanda – Darfur, Jean- Pierre Bemba – CAR, Charles Ble’ Goude – Ivory coast, Saif al Islam Gaddafi – Libya, Simone Gbagbo – Ivory coast, Ahmed Haroun – Darfur, Abdel Rahim Hussein – Darfur, saleh jerboa – Darfur, Germain Katanga – DRC, Henry Kosgey – Kenya, Ali kushayb – Darfur, Thomas LubangaDyilo – DRC, RaskaLukwiya – LRA in Uganda, Almad al-mahdi – Mali , CallixteMbarushimana – DRC, SylvestreMudacumura – DRC, Francis muthaura – Kenya, Mathieu Chui – DRC, Bosco Ntaganda – DRC, OkotOdhiambo – LRA in Uganda, Joshua Sang – Kenya, Abdullah Senussi – Libya, among others.
This shows that African countries cooperated and indeed respected the spirit of the Statute. However, other member states with all glaring crimes against humanity within or outside their territories paid a deaf ear to the provisions of the Statute.
Are some Africans correct to read a discriminative and racist slant in the ICC’s work?
Yes, they are correct, look at the statistics.
There appears to be discrimination and racism involved in this, since most of the cases that the ICC prosecutes are African. So far the court has opened investigations into 10 situations including Uganda and Kenya of the 39, of which all are African state parties with the exception of Georgia. Of the 39 indictments, about 97 percent of them are from African state parties.
With a record like the one of America, and with a record like Israel’s, why don’t any of the Americans and Israelis appear before the Court for what they did in Gaza, for what they did in Lebanon, for what they did to the Red Indians?
When the ICC entered into force in 2002, it wanted to bring justice in the world, not only in Africa, but there have been over 13 different cases of suspected war crimes outside Africa in Crimea, Palestine, Syria, Iraq among many others which have gone without investigation since the ICC’s inception, and now many more are arising. Then why should we have an international criminal court when you have failed to bring about what you said you would bring about when Uganda acceded to the Rome statute?
The United States-along with China, Iraq, Israel, Libya, Qatar and Yemen, voted against the Statute before signing and ultimately ‘unsigning.’ In Senate hearings held at the time, Senator Rod Grams called the ICC “a monster that must be slain,” and Senator John Ashcroft similarly denounced the ICC as “a clear and continuing threat to the national interest of the United States.” Specifically, the ICC was seen as a threat to U.S. sovereignty.
Clinton initially expressed the concern that “when the court comes into existence, it will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not.” Indeed, as under the Bush administration, U.S. policy took a turn towards hostility, due in part to deep concern that the ICC might be used to prosecute Americans deployed in Iraq and Afghanistan. In 2002, the U.S.
‘unsigned’ the Rome Statute, formally conveying to the United Nations that America intended not to ratify it and thereafter, has no longer considered itself to be bound by the ICC’s mandate. The establishment of bilateral immunity agreements (BIAs) aimed at preventing Americans from being transferred to the ICC’s custody has been aimed at further protecting the U.S from this “monster”.
In view of all the above, the diplomats who walked out of Kololo swearing in ceremony are totally misguided, ill-informed and should revise some basic codes of diplomatic etiquette. The unfortunate behaviour of these diplomats might force Uganda to request some governments to withdraw or replace their representatives who don’t behave in a diplomatic manner. No country can do such to the President of the United States, why should they do it to others?
Mr Todwong is deputy secretary general NRM.