The International Criminal Court in Africa and the Politics of International Justice
Summary and Keywords
The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.
Debates over the International Criminal Court’s (ICC) operations in Africa center on accusations of neocolonialism, the ICC’s perceived bias in targeting exclusively African conflict situations and suspects (until the 2016 opening of investigations into crimes committed during the Russia-Georgia conflict), and its often fractious relationship with the African Union (AU; e.g., Labuda, 2014; Mamdani 2008). Criticisms of the ICC’s interventions in Africa escalated after the Court’s arrest warrants or summonses for Sudanese President Omar al-Bashir, Kenyan President Uhuru Kenyatta, Kenyan Deputy President William Ruto,1 and former Ivoirian President Laurent Gbagbo (e.g., Mutua, 2016; Vilmer, 2016). In the Bashir case, the ICC’s warrant in July 2008 followed the referral of the Darfur situation by the United Nations (UN) Security Council. Critics of the ICC, including the AU, viewed this as a violation of the principles of national sovereignty and sovereign immunity. They argued that, as an attempt at regime change via international law, the charging of Bashir was even more egregious because Sudan had not ratified the Rome Statute and therefore had not formally recognized the legitimacy of the Court. More broadly, various commentators have argued that the ICC has become a weapon for powerful states to wield against weaker ones, having twice acted on referrals by the UN Security Council, three of whose permanent members (the United States, China, and Russia) are not signatories to the Rome Statute, which governs the Court (e.g., Mamdani, 2008). All of these factors contributed to two AU states, South Africa and The Gambia, threatening in 2017 to withdraw membership of the ICC and one, Burundi, to actually withdraw.
This article argues that the critiques of the ICC on the grounds of neocolonialism, which characterize African states as weak in the face of the overwhelming power of the Court, exaggerate the power of the ICC while underestimating that of African states and their ability to manipulate the Court to their own ends. African governments have used the ICC in highly destructive ways, embodying Bayart’s (2009) concept of “extraversion” or states’ ability to “mobiliz[e] resources derived from their (possibly unequal) relationship with the external environment” (pp. 21–22), actively participating in the processes that continue to render them subordinate and dependent in the global system. As a result, Bayart argues, “occasionally the puppets pull the strings” (p. 26).
This article contends that the ICC has failed to mitigate states’ ability to pull the strings of international justice, especially in protecting themselves from prosecution for serious crimes and portraying themselves globally as law-abiding while continuing to commit violations against their own citizens (Peskin, 2008). The analysis here focuses on the Office of the Prosecutor (OTP) as the branch of the ICC that determines which situations and suspects to pursue, with a subsidiary focus on the relevant actions of the other branches of the Court, including the Chambers and the Registry. With a particular focus on the ICC’s interventions in its earliest and most developed situations, Uganda and the Democratic Republic of the Congo (DRC), drawing on the my field research since 2006—but highlighting structural issues that affect all of the Court’s African situations, as I argue elsewhere (Clark, 2018)—this article shows that the ICC has further empowered African governments in these respects by actively pursuing state referrals and thus affording states substantial influence over the Court’s investigations and prosecutions (Clark, 2018). This underlines the Court’s political naiveté, complacency, and lack of expertise on Africa—products of its attempts to achieve neutrality by distancing itself from the domestic political terrain—and its desire to achieve rapid judicial results, which have led to it being willfully used by states in exchange for their (often fluctuating) cooperation.
These arguments are developed through four sections. The first outlines the process of state referrals in Uganda and the DRC and the extent to which the OTP “chased” the cases in these countries. The second section also focuses on process, namely the nature of cooperation between the OTP and the Ugandan and Congolese governments during investigations. The third section examines the impact of these processes on the Court, in terms of its politicization and instrumentalization by the Ugandan and Congolese states. Finally, the fourth section analyses the effects on those governments’ behavior toward their citizens and military and political opponents during armed conflict and national elections.
The Politics of State Referrals in Uganda and the DRC
When confronted with the critique regarding neocolonialism, senior ICC officials typically respond in one of three ways. First, they point to the “global consensus” achieved through the ratification of the Rome Statute and the number of African states that have joined the Court. As Sanji Mmasenono Monageng, an ICC judge from Botswana, wrote in 2014,
[H]istory demonstrates the active and strong participation of African States in the drafting and adoption of the Rome Statute . . . African States were also among the earliest to ratify the Statute, allowing it to enter into force on 1 July 2002. Currently, of the 122 States Parties, 34 are African countries. That makes Africa the biggest regional group in the Assembly of States Parties.
(Monageng, 2014, pp. 14–15)
Second, senior ICC officials contrast African elites’ criticisms of neocolonial interference with the ICC’s work on behalf of African victims, including victims of those same elites. As the second ICC prosecutor (and former deputy prosecutor) Fatou Bensouda, told The New York Times in 2013, “What offends me the most when I hear criticisms about this so-called Africa bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes” (quoted in Gladstone, 2013).
Third, ICC officials cite the situation referrals by four out of the eight African states where cases have been opened—Uganda, the DRC, Central African Republic (CAR) and Mali—as evidence of African support for the Court and the fact that the ICC has typically intervened only after these states’ invitation (e.g., Smith, 2009).2 Until the independent request to open investigations in Kenya in 2009 (ICC Pre-Trial Chamber [PTC] II, 2009), the inaugural ICC prosecutor, Luis Moreno-Ocampo, was reluctant to initiate proceedings in this way for fear of igniting similar debates about the dangers of an untrammeled prosecutor and threats to national sovereignty that dominated the early negotiations over the Rome Statute in 1998.3
This section challenges these responses by exploring the nature of state cooperation with the ICC and the process and politics of state referrals in Uganda and the DRC. It argues that, rather than these states referring their situations voluntarily to the ICC, as Court officials consistently claim, the OTP initiated negotiations with the Ugandan and Congolese governments before the referrals took place. Having chased these state referrals, the ICC was forced to negotiate the terms of its investigations with those governments. This is a key reason that to date the ICC has not charged any Ugandan or Congolese government officials, despite the well-documented complicity of state actors in atrocities against civilians (e.g., Amnesty International, 2002, Human Rights Watch [HRW], 2009a, 2009b).
Uganda State Referral
For nearly a year before Ugandan President Yoweri Museveni referred the situation in northern Uganda to the ICC, there were substantial negotiations between The Hague and Kampala over the nature and ramifications of a state referral. My research was the first to uncover the extent to which the ICC “chased” the Uganda referral (Clark, 2008); a point now widely acknowledged in the literature (Bosco, 2014; Clarke, Knottnerus, & de Volder, 2016; Kastner, 2012) and privately by some Court officials.4 Interviews with Ugandan government actors between 2006 and 2011 indicate that Ocampo approached Museveni in 2003 and, despite the president’s initial reluctance, persuaded him to refer the northern Uganda situation to the ICC. The referral suited both parties, providing the ICC with its first-ever state referral and the Ugandan government with another political and legal tool to wield against the Lord’s Resistance Army (LRA) rebels.5 Lucian Tibaruha, the solicitor general of Uganda, said in March 2006,
The ICC made the first move. Here the government was still discussing all the implications of the ICC becoming a legal force in the world. Then the [ICC] Prosecutor contacted the President’s Office. The issue was then passed jointly to us [Ministry of Justice] and the MoD [Ministry of Defense] but it was MoD that took it forward. They started talking to the Court and they kept us informed. MoD is in charge of day-to-day ICC affairs . . . In our referral we told the ICC the LRA is out of reach by the Ugandan government. We asked the Court to go get them. It’s clear we’re unable to prosecute the LRA because they’re currently outside the jurisdiction of Uganda.6
The Ugandan government referred the situation in northern Uganda to the ICC in December 2003 (ICC OTP, 2004a). In its communication, the government mentioned only crimes committed by the LRA but Ocampo notified Museveni that the ICC would interpret the referral as concerning all crimes under the Rome Statute committed in northern Uganda, leaving open the possibility of investigating state crimes. These interactions challenge the ICC’s depiction of an entirely voluntary referral by the Ugandan government, which it believes addresses the charge of neocolonial meddling in African affairs. As is discussed in more detail later, the close relationship between the ICC and the Ugandan government from the Court’s pursuit of the referral onward has shaped all aspects of the ICC’s intervention in Uganda.
DRC State Referral
Whereas the Uganda referral stemmed from an incidental meeting in London, the OTP was actively on the lookout for the Ituri situation in northeastern DRC. On July 16, 2003, one month after being sworn in as prosecutor, Ocampo announced that he had “selected the situation in Ituri . . . as the most urgent situation to be followed” after his office received information showing that around 5,000 civilians had been killed in Ituri since the Rome Statute came into force in 2002 (ICC, 2003). When a state referral from the DRC or other states, or the UN Security Council, was not forthcoming, Ocampo said that the OTP “will use all the powers at its disposal to contribute to the prevention of future crimes and the investigation and punishment of the alleged crimes committed in Ituri” (ICC OTP, 2003b, p. 3). Shortly after, Ocampo issued a direct invitation to the Congolese authorities in a speech to the ICC Assembly of States Parties (ASP), which increased international pressure on the Congolese government. Listing practical difficulties with initiating ICC investigations independently, Ocampo said, “Our role could be facilitated by a referral or active support from the DRC” (ICC OTP, 2003b). That Ocampo did not initiate independent proceedings in the DRC, proprio motu, underscored his reluctance to use this power so early in the ICC’s existence for fear of being accused of contravening national sovereignty (Roach, 2009, p. 227).
In February 2004, Ocampo gave a diplomatic briefing, in which he detailed the extensive discussions that had already taken place between the OTP and the Congolese government:
I recently met in Capetown [sic] with the Minister for Human Rights of the DRC, as well as local and international NGOs. I expect to meet soon with national authorities to discuss the practical modalities of cooperation. So, good progress is being made in developing a sound and cooperative approach.
(ICC OTP, 2004b)
Emmanuel Luzolo, the Congolese Minister for Justice and Human Rights, confirmed the importance of the ICC’s initiation of discussions with the Congolese government:
We hadn’t considered engaging the ICC until the [ICC] Prosecutor raised the issue. Soon after the [September 2003] speech, some of his staff contacted my colleagues . . . The key now . . . is the politicians don’t want the ICC. It doesn’t matter what the jurists think. The politicians don’t want it. They think the Congolese people want to see the rebel leaders flown home [to Ituri], condemned, tried and jailed.7
Despite the protestations of some actors in the DRC’s transitional government, two months after Ocampo’s diplomatic briefing on April 19, 2004, Congolese President Joseph Kabila referred the DRC situation to the ICC.
The extent to which the OTP actively pursued the Ugandan and Congolese state referrals undermines the Court’s claim that, especially in the early years of its operation, it intervened only because of the voluntary invitation by African governments. Rather than spontaneous acts, the Uganda and DRC referrals were responses to sustained lobbying by the OTP. While Ocampo’s reluctance to use his independent powers to pursue the DRC situation highlights a strong institutional preference for state referrals in the ICC’s early years—not wanting to appear overly interventionist and seeing such referrals as an indication of states’ willingness to cooperate with the Court (ICC OTP, 2003b)—the Uganda and DRC situations show extensive ICC interventions behind the scenes. In 2006, one OTP staff member underlined the importance of such referrals for helping the ICC launch cases soon after its inauguration: “What use is a court with no cases? We wanted to hit the ground running and show the world that we’re a force to be reckoned with.”8 While nothing in the Rome Statute prohibits ICC officials from actively lobbying states to refer situations to the Court, there are enormous legal and political risks in doing so.
Hand in Glove? The Challenges of Cooperation
This section shifts to the ICC’s investigative stage and its cooperation principally, although not exclusively, with states. This theme underlines a central tension for the Court, namely its desire to act autonomously of domestic actors while inevitably relying on them. As acknowledged in a 2012 speech by the late Judge Hans-Peter Kaul—a senior member of the German delegation to the Rome negotiations in 1998 and the first judge appointed to the ICC—the Court is in key respects a weak international institution. A central preoccupation of many of the Rome negotiators was to avoid creating a court that would threaten national sovereignty. Kaul argued, therefore,
[a]ll States present in Rome agreed that the ICC should have no executive power on the territory of States, in particular not the power to undertake arrest actions on States’ territory . . . The result is that the ICC . . . is absolutely . . . dependent on effective cooperation with States Parties in criminal cases, in particular when it comes to the key issue of arrest and surrender of a suspect.
(Kaul, 2012, p. 5)
These structural weaknesses of the ICC, coupled with limited personnel and financial resources, mean that it depends heavily on cooperation with states where crimes are under investigation as well as international actors such as peacekeeping missions, donor agencies, and nongovernmental organizations (NGOs) to assist with security for ICC investigators, evidence gathering, the transport and protection of witnesses, and the arrest and transfer of suspects. This situation, which echoes many of the constraints faced by the ad hoc UN tribunals for the former Yugoslavia and for Rwanda (Peskin, 2008), is likely to persist, given that the ICC’s role is heavily prescribed within the Rome Statute and states parties seem unlikely to increase substantially their financial support for the Court (Akhavan, 2013). Furthermore, as argued later, the OTP in particular has magnified the challenges stemming from cooperation by conducting investigations and the transfer of suspects so closely with the Ugandan and Congolese governments, which has left the Court open to being willfully used by states.
General Investigative Approaches
Three features of the OTP’s overall investigative strategy are important for the analysis of the ICC’s cooperation with states. First, the OTP deploys small teams of investigators who rotate between different situation countries. During the trial of Congolese rebel leader Thomas Lubanga Dyilo, Bernard Lavigne, who oversaw the early ICC prosecution investigations in the DRC, said that his teams never comprised more than 12 people, which he considered “insufficient” for the task at hand (ICC Trial Chamber [TC] I, 2010a, p. 16).
Second, the OTP has so far used only investigators who are not nationals of the situation countries in question. Despite 10 of the ICC’s 11 situations being in Africa, only a handful of OTP investigators are even African, with most coming from western Europe, North America, and Australia.9 A 2003 OTP policy paper states that
[i]nvestigation teams will include staff members who are nationals of the countries targeted by the investigations . . . [which would] help the OTP have a better understanding of the society on which its work has the most direct impact, and will allow the team to interpret social behaviour and cultural norms as the investigation unfolds.
(ICC OTP, 2003a, p. 9)
To date, however, the OTP has not implemented this policy in any of its cases.
The most notable aspect of the Prosecution’s approach to evidence gathering has been its failure to locate any investigators in country on a permanent (or semi-permanent) basis. In this respect the ICC departs from the practice of predecessor tribunals like the International Criminal Tribunal for Rwanda, which had several investigators based in-country. (p. 1016)
As we will see, the distanced form of OTP investigations described here—small teams of foreign (mostly non-African) staff, based in The Hague and spending limited time in the field—has produced severe problems, both for the Court itself and for local communities, throughout the ICC’s operations in Uganda and the DRC.
State Cooperation During Investigations in Uganda
Partly because of this remote approach, the OTP has relied heavily on cooperation with states during the investigative phase. The degree of cooperation between the ICC and the Ugandan government was evident soon after the Ugandan state referral. On January 29, 2004, Ocampo and Museveni held a joint press conference at the Hotel Intercontinental in Hyde Park, London, to announce that there was a sufficient basis to begin investigations in northern Uganda.
At the unsealing of the arrest warrants for five LRA leaders (Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhimabo, and Dominic Ongwen) in October 2005, Ocampo said that small groups of two or three ICC investigators had conducted more than 50 missions over the preceding nine months (ICC OTP, 2005). Matthew Brubacher, the OTP’s international cooperation advisor on Uganda, later said that, on the basis of these early missions, the OTP selected six criminal incidents out of 850 documented LRA attacks as the basis of the charges against the LRA commanders (Brubacher, 2010, p. 270). Two features of these investigations are important for the analysis of the ICC’s cooperation with external actors. First, a key influence over the choice of atrocity sites and the specific crimes to be investigated were reports by international human organizations, principally Amnesty International and HRW. As a member of the OTP Investigations Division explained,
NGO reports were a key source for us when we were starting investigations in both Uganda and Congo. Reputable international organisations had been documenting crimes for decades, so this was a critical starting point for us. We used these reports to decide which crimes and which suspects to focus on. Obviously we then had to conduct our own investigations—we couldn’t just rely on those reports—but they helped frame our work.11
Second, nearly all investigations were accompanied in some form by the Ugandan People’s Defence Force (UPDF). The same member of the investigations team explained:
We were very careful to keep the [Ugandan] army at arm’s length. It would have made our work impossible if local people had linked us too closely with the army. But we often had to travel with army personnel to crime sites because of security concerns. They kept their distance but we did rely on them . . . The UPDF also provided useful information and intelligence. We ran our own analysis of that but much of it was extremely useful.12
From the outset, a major challenge for the ICC was the arrest and transfer of the LRA suspects who, by the time the ICC arrest warrants were issued, were based in the thick jungle of northeastern DRC and highly mobile across the region. A year into the northern Ugandan investigations, Ocampo admitted that arresting Kony and the other LRA leaders represented “the biggest challenge for the Rome Statute” (quoted in Anderson, 2006). The inability to arrest any of the charged LRA leaders forced the OTP to divert all of its resources away from northern Uganda to the Court’s other situations in Africa. In effect, between Bensouda’s inauguration as ICC Prosecutor in June 2012 and early 2015, the OTP completely ignored the northern Ugandan cases. Given the controversies over the ICC’s operations in Uganda during the Juba peace talks between the Ugandan government and the LRA from 2006 to 2008 and the enormous impact these had on the entire fields of transitional justice and international criminal law—not to mention the extent to which witnesses took considerable security risks to speak to ICC investigators and subsequently expressed concerns over whether witness protection would continue during the ICC’s period of hibernation (Clark, 2018)—this represented an extraordinary shift. The OTP was forced to change direction abruptly, however, when LRA commander Dominic Ongwen surrendered to U.S. forces in CAR on January 6, 2015 (BBC, 2015a) and two weeks later was transferred to The Hague. Bensouda told the Sudanese station Radio Dabanga (2015) of the impact of this surprising development: “We were not expecting this at all. We did not have any team ready to take [Ongwen]. I had to take resources away, including those from Darfur, and put it there to build a team, able to do the case of Ongwen.”
Some details of Ongwen’s capture and transfer to the ICC are still unclear but those that are known underscore the extent of the Court’s reliance on cooperation with a wide array of actors, including states. Séléka rebels in CAR claimed to have captured Ongwen on the battlefield and demanded $5 million through the U.S. government’s War Crimes Rewards Program (BBC, 2015b). In U.S. custody in Bangui, Ongwen underwent two weeks of questioning by American and Ugandan officials before the United States transferred him to The Hague on January 21, 2015. The role of the United States in this instance is highly salient, given that it is not a signatory to the ICC, as is the involvement of Séléka, which 100 U.S. special forces, supporting AU troops, had been fighting since 2011 and which in 2014 became the subject of a second wave of ICC investigations into rebel atrocities in CAR (ICC CAR II, 2014). This shows the extent to which the ICC relies on cooperation with actors whose objectives diverge entirely from the Court’s and may themselves be responsible for committing international crimes.
State Cooperation During Investigations in the DRC
Many of these same challenges regarding ICC cooperation in Uganda recurred in the DRC. The DRC’s state referral, following the ICC’s active pursuit of the situation, laid the foundation for close cooperation between the ICC and the Congolese executive. In the case of the leader of the rebel Mouvement de Libération du Congo (MLC) and former DRC Vice President Jean-Pierre Bemba Gombo, which concerns crimes committed in CAR, Congolese state cooperation was vital in the 2013 arrest and transfer of four individuals accused of witness intimidation and other attempts to undermine the Bemba trial, including Bemba’s lawyer, Aimé Kilolo Musamba, and the MLC deputy secretary general, Fidèle Babala Wandu (ICC, 2015). Congolese government cooperation with the ICC has been even more apparent in the cases of four Ituri rebel leaders, Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo Chui, and Bosco Ntaganda. At a press conference on March 15, 2012, following the ICC’s first-ever conviction in the Lubanga case, Ocampo announced that he would soon visit Kinshasa to meet Kabila and “thank him for his support” during the Lubanga investigations (quoted in Gouby, 2012). The ICC’s investigations in Ituri were greatly boosted by the government’s arrest and imprisonment, with the UN peacekeeping mission MONUC’s assistance, of Lubanga and Katanga between February and April 2005.
Alongside the incarceration of these militia leaders, a key reason for the ICC’s investigative focus on Ituri, echoing the northern Uganda situation, was the influence of international human rights groups, which had documented widespread atrocities in Ituri.13 In the one ICC case in the DRC that concerns North and South Kivu, that of Callixte Mbarushimana, alleged Rwandan rebel leader of the Forces Démocratiques de Libération du Rwanda (FDLR), however, the judges in his case heavily criticized the OTP for its overreliance on uncorroborated evidence, including the wholesale adoption of reports by HRW and various UN agencies (ICC PTC I, 2011). Rather than gathering its own evidence and scrutinizing the evidentiary basis of claims by international observers, the OTP tended to rely on single statements by alleged victims in those reports. As a result, the PTC declined to confirm any of the 13 charges against Mbarushimana, including eight for gender-based crimes, on the grounds that the OTP had failed to present sufficient evidence to show either that the alleged crimes had been committed or that Mbarushimana bore responsibility for them (ICC PTC I, 2011).
An important difference between the Uganda and DRC situations is that, while in the former the ICC relied mainly on government troops for its security during investigations, in the latter it depended foremost on MONUC (and later MONUSCO, as the UN peacekeeping mission in the DRC is now known). ICC investigators generally preferred to work with the UN rather than domestic governments, viewing the former as more impartial.14 The absence of a UN peacekeeping mission in northern Uganda, however, rendered this approach impossible. The ICC also cooperated less with the Congolese army, the Forces Armées de la République Démocratique du Congo (FARDC), than the UPDF because the former was less in control of the relevant territory in Ituri than the latter in northern Uganda, highlighting critical differences in the nature of state authority in the two countries. The ICC did, though, often travel with the FARDC to crime sites and secured much of its evidence and information from the Congolese military.15
Despite seeing the UN as a more impartial partner than the Congolese army, the ICC’s relationship with the UN in eastern Congo has often been fraught. The ICC’s early investigations in Ituri were hampered by MONUC’s initial reluctance to hand over evidence gathered by its own forces in cooperation with the Congolese army and police. Some MONUC officials argued that the ICC’s requests distracted from their primary responsibilities and could jeopardize the security of their forces in the field and undermine attempts by the national Congolese judiciary—with which MONUC human rights and rule of law personnel worked closely—to prosecute cases of war crimes and crimes against humanity.16 Several senior MONUC officials described the unilateralism of the ICC, often assuming the role of “top dog” in this partnership.17
Difficult relations between the ICC and the UN were a key reason the Lubanga trial—the ICC’s first-ever trial—almost collapsed before it started. In 2008, MONUC refused to allow the OTP to make public UN-gathered evidence concerning Lubanga. The defense argued that this compromised Lubanga’s fair trial rights because potentially exculpatory evidence was not being disclosed on the basis that the UN wished to maintain the anonymity of local sources (ICC TC I, 2008). The TC stayed the proceedings in Lubanga for almost one year until Ocampo could convince the UN to permit the public release of the relevant evidence (ICC TC I, 2008).
In 2010, the TC imposed a second stay in the Lubanga trial after the prosecution refused to disclose the identity of an intermediary whom the defense accused of bribing prosecution witnesses in the field. This led the TC to question the OTP’s overall reliance on local intermediaries in evidence gathering and “the system employed by the prosecution for identifying potential witnesses” (ICC TC I, 2010b). In the DRC situation, the prosecution’s intermediaries have typically been international and local human rights organizations with strong community links. Common complaints among intermediaries echoed MONUC’s concerns about the Court’s behavior, particularly the tendency to demand cooperation then to leave on-the-ground actors adrift once their assistance had been extracted.
According to one such intermediary, Joel Bisubu, deputy director of the Bunia-based human rights organization Justice Plus, the ICC’s overreliance on intermediaries led to the outsourcing of core investigative responsibilities such as evidence-gathering and identifying, interviewing, and protecting witnesses. Not only did these shortcuts cause problems for the prosecution in the courtroom, as highlighted in the near collapse of the Lubanga and Katanga trials and the acquittal of Ngudjolo (another trial where intermediaries played a critical role; ICC TC II, 2012), but it also jeopardized DRC-based organizations whose work will continue long after the ICC has left the DRC. In the most high-profile incident, on the second day of the Lubanga trial—the first in the ICC’s history—the prosecution’s star witness, a former child soldier testifying under the pseudonym “Mr. Witness”, stated that he had lied on the stand about his knowledge of Lubanga and had been coached on what to say by an intermediary NGO in Ituri (e.g., Australian Red Cross, 2011).
Finally, echoing the Ugandan case of Ongwen, the peculiar circumstances surrounding the surrender and transfer of Congolese suspect, Bosco Ntaganda, highlight the ICC’s constant challenges around cooperation. Most importantly, the DRC refused to hand over Ntaganda after the ICC unsealed the arrest warrant against him in April 2008. In early 2009, the DRC government integrated Ntaganda’s Congrès National pour la Défense du Peuple (CNDP) into the national army and made him a general. Kabila refused to deliver Ntaganda to the ICC, arguing that his integration into the FARDC made him an agent of peace and that, as a member of the armed forces, if there were legitimate charges against him, he should be prosecuted through the Congolese military courts (Gettleman, 2009). Ntaganda’s arrival in The Hague did not result from cooperation with the DRC government but rather from his individual decision to surrender to the ICC via the U.S. embassy in Rwanda (Clark, 2018). Whereas the Ongwen transfer involved a nonsignatory to the Rome Statute, the United States, and a rebel group, Séléka, the Ntaganda transfer involved two nonsignatories, the United States again and Rwanda.
Two key issues emerge from the ICC’s cooperation with states and other actors in the situations just described. First, the Uganda and DRC examples highlight the Court’s heavy reliance on cooperation with states and a wide array of organizations and thus its deep embeddedness in the domestic political terrain. The OTP forged close working relations with the Ugandan and Congolese governments, building on dynamics surrounding the state referrals. This included traveling with the Ugandan and Congolese armed forces to investigation sites and sharing evidence. By contrast, the ICC’s—especially the OTP’s—other key collaborators, including the UN and international and local NGOs, viewed the Court as adopting a superior stance and advancing its objectives over theirs, even if this risked jeopardizing the longer-term work of these organizations. Meanwhile, the ICC has also developed incidental—and highly ambivalent—relations with bodies such as Séléka and the Rwandan government and, as discussed further later, a complex and ever-evolving relationship with the U.S. government.
Second, the Ugandan and Congolese examples underscore the highly conditional nature of state cooperation. The ICC enjoyed substantial cooperation when its endeavors cohered with these governments’ objectives—particularly when targeting their political and military opponents—but much less when it threatened state interests. The Congolese government, for example, assisted the Court comprehensively in the cases of Lubanga, Katanga, Ngudjolo, and especially Bemba, who posed the greatest threat to Kabila’s government (explored further later) but refused to arrest and transfer Ntaganda—even promoting him to general—as he was vital to the national military integration program. Similarly, in Uganda, the government has cooperated consistently with the ICC, seeing it as a vital tool against the LRA. Museveni openly criticized the Court, however, when it prosecuted Kenyan President Uhuru Kenyatta and Deputy President William Ruto, with whom the Ugandan government has forged close alliances, not least over attempts to thwart al-Shabaab terrorism in the two countries (Daily Nation, 2014). While the ICC relies heavily on states, their cooperation is often fickle, and in key instances the Ugandan and Congolese governments have used their substantial leverage to block the Court’s operations.
Politicization and Instrumentalization of the ICC
Having examined two key processes of the ICC in Uganda and the DRC—situation referrals and cooperation with states during investigations—the remainder of this article focuses on the impact of these initiatives. This section explores their effects on the ICC in terms of its politicization and instrumentalization by states, while the following section analyzes their impact on those states’ policies and behavior. Together, these sections argue that the overly close relationship between the ICC and states from the point of referral onward has had negative consequences both for the Court and the societies where it operates. This section argues that the politicization of the ICC can be seen in the selection of solely nonstate suspects in Uganda and the DRC, where government crimes have been widespread and widely documented. Instrumentalization manifests in the extent to which states have insulated themselves from ICC investigation and prosecution, while using the Court as a weapon against their military and political opponents and a means to legitimize themselves internationally.
Politicization and Instrumentalization in Uganda
In the Ugandan situation, the ICC’s investigations into LRA and not UPDF crimes have created a perception of the Court as one-sided and heavily politicized. A common view among community leaders and members of the political opposition in Kampala and northern Uganda is that, as one politician argued, “the ICC has become Museveni’s political tool.”18 The OTP has so far failed to dispel this perception. Local and international human rights groups have reported regular atrocities by the UPDF in northern Uganda, including the forced displacement of around 1.8 million people into internally displaced persons (IDP) camps. A 2007 qualitative study conducted by the UN Office of the High Commissioner for Human Rights (2007) highlighted the widespread view among northern Ugandan victims that both the LRA and the government are responsible for the immense harm they suffered during the conflict (p. 3).
Meanwhile, Museveni highlighted the government’s intentions by describing only LRA crimes in Uganda’s referral to the ICC. As Stephen Oola from the Refugee Law Project said, “Museveni let the cat out of the bag with that initial referral. From the government’s perspective, involving the ICC was only ever about targeting the LRA.”19 While the OTP informed the Ugandan government that it could not limit the referral to LRA atrocities in northern Uganda, the OTP has in practice investigated only those crimes. The ICC argues that the focus on LRA crimes is justified because these constitute the gravest violations perpetrated in northern Uganda. Both Ocampo and Bensouda have stated repeatedly that the ICC may yet investigate UPDF crimes.20 It appears highly unlikely, however, that the ICC will prosecute UPDF suspects, given its reliance on the government for its continued presence in Uganda and its generally good relations with senior Ugandan officials. The extent of the negotiations between the ICC and the Ugandan government before Uganda’s referral raises questions about promises the Court may have made to Museveni to ensure his cooperation, particularly guarantees against investigations into UPDF crimes. Even if there were no such explicit deal, the extent of the ICC’s reliance on state cooperation has severely limited the Court’s ability to investigate and prosecute government crimes. It has also embroiled the ICC in domestic political dimensions contrary to the Court’s claims of neutrality and impartiality.
Politicization and Instrumentalization in the DRC
In the DRC situation, the OTP’s overriding focus on Ituri highlights important degrees of politicization and instrumentalization. Of the various conflicts in the DRC, that in Ituri is the most isolated from the political arena in Kinshasa. In particular, there is less clear evidence to connect Kabila to atrocities committed in Ituri, although it is suspected that he has previously supported rebel groups in the province, including Germain Katanga’s Force de Résistance Patriotique d’Ituri (HRW, 2007; Kambale, 2012). This differs from violence in other provinces, particularly North and South Kivu and Katanga, where government forces and Mai militias backed by Kabila are directly implicated in serious crimes (International Crisis Group, 2006). Investigations and prosecutions in Ituri therefore display the least capacity to destabilize Kabila and his supporters. By contrast, when the OTP began its investigations in Ituri, there was a significant chance of uncovering evidence concerning Bemba’s MLC, which suited Kabila’s political interests within the transitional government.
The ICC also wanted to avoid implicating government officials in the lead-up to Congo’s first post-independence elections in July 2006. Foreign donor pressure on the ICC to avoid causing political instability was severe, as the international community (principally the UN and the European Union) poured US$500 million into the elections, the most expensive UN-run poll ever (United Nations News Service, 2005). David Bosco cites a Wikileaks cable after ICC deputy prosecutor Serge Brammertz’s visit to the U.S. embassy in Kinshasa in August 2004: “[Brammertz] left American officials convinced that the ICC would be targeting militia leaders who had not joined the unity government and remained outside the peace process” (Bosco, 2014, p. 101). The cable in question states, “[Brammertz] hopes that [the] ICC’s initial investigations, which will focus on abuses committed by actors outside the transition, such as the Ituri armed groups, will help bring the transitional government closer together” (quoted in Bosco, 2014, p. 101). Reflecting these concerns, the ICC did not issue an arrest warrant for Bemba until 2008 after he had lost the 2006 presidential election to Kabila. This shows some political awareness on the Court’s part—and willingness to tailor its activities according to political realities—but without a sufficiently clear strategy to avoid the instrumentalization discussed later.
The ICC’s focus on Ituri also raises crucial questions about politicization in the OTP’s regional calculations. The OTP has resisted investigating the wider dimensions of Lubanga’s crimes, notably the alleged training and financing of Lubanga’s Union des Patriotes Congolais (UPC) by the Ugandan and Rwandan governments. To date, the OTP has also avoided submitting evidence of Uganda’s and Rwanda’s support for Ntaganda, a former Rwandan army officer who between 2000 and 2012 was a leading figure in various Congolese armed groups, including the UPC (alongside Lubanga), the CNDP and the March 23 Movement, as well as a general in the Congolese army. Such investigations could implicate key figures in Kampala and Kigali, including Salim Saleh, Museveni’s half-brother and a former UPDF commander.
In the context of violence in Ituri, Lubanga is in key respects a middle-ranking perpetrator, with more senior regional actors responsible for the crimes committed through their direct involvement and use of proxy rebel forces. One symptom of the OTP’s strategy to date—pursuing cases in interlocking countries in the same region, with conflicts flowing across the borders of the DRC, CAR, Sudan and northern Uganda—is that it must maintain effective relations with political leaders who may be implicated in crimes elsewhere in the region. This requires a more coherent cross-border approach than the OTP has displayed to date.
Kabila has furthermore effectively instrumentalized the ICC to paint his government as law-abiding despite continuing state atrocities across the DRC. In a letter to the Registry regarding the admissibility of the Katanga and Ngudjolo cases in June 2009, Kabila’s office stated, “His Excellency Mr Joseph Kabila Kabange, President of the DRC, has demonstrated to the world his determination to fight resolutely against impunity by making the DRC to date an unequalled model of cooperation with the ICC” (ICC Registry, 2009). Two months earlier, Kabila told Jeffrey Gettleman (2009) of The New York Times, “There is no other country in Africa that has cooperated with the ICC like Congo. Out of the four people at the ICC, four are Congolese. That shows you how cooperative we've been.” While Kabila was making such claims, the Congolese armed forces were accused of committing atrocities against civilians in Bas-Congo and supporting the FDLR and various militias in attacks against civilians in North and South Kivu (HRW, 2009). This underscores the capacity of states to use cooperation with the ICC as a legitimation tool—portraying themselves as dedicated to the rule of law and international accountability—while simultaneously cracking down violently against dissident voices at home.
Taken together, the Uganda and DRC cases embody Bayart’s theory of extraversion and the ability of African states to use international institutions for their own political ends. Seeking state referrals and state cooperation throughout its investigations, the ICC allowed itself to be politicized and instrumentalized by the Ugandan and Congolese governments. This points to the problematic distancing of the ICC from the domestic arena: failing to engage country-specific expertise on political dynamics in Uganda and the DRC and to spend sufficient time in situ to fully understand the local context, the Court left itself open to this government manipulation. Believing itself to be above politics—and therefore paying insufficient attention to political machinations in the two countries—the ICC has become vulnerable to the vicissitudes of state behavior.
The ICC’s Domestic Political Impact
In a 2006 interview, Ocampo stated that the ICC was “changing the game on the ground” in Uganda and the DRC, deterring future crimes, making states more respectful of the rule of law, and contributing to general peace and stability.21 This section analyses this statement in terms of two key political domains in Uganda and the DRC since the ICC’s intervention: these states’ military responses to armed opponents and their behavior during national elections. These issues reinforce the acute difficulty of the ICC’s task, investigating and prosecuting crimes amid ongoing conflict and fraught electoral dynamics. This section argues that the involvement of the ICC has bolstered the Ugandan and Congolese states, which have committed widespread and sustained violations against their own citizens, rigged elections, used violent force against their political opponents (including civilian protesters), and generally avoided justice for their own crimes. In short, because of the politicization and instrumentalization described in the previous section the ICC has helped entrench incumbent leaders and their corrupt, undemocratic, and militarized practices.
ICC Impact on State Responses to Armed Opponents in Uganda and the DRC
The ICC has contributed to the militarization of the Ugandan and Congolese governments’ responses to armed actors in the region. By making peace talks less feasible and encouraging the militarized capture and arrest of suspects, the Court has in effect legalized violent conflict and made armed behavior by states more, rather than less, likely. Critical in this regard has been the confluence of the ICC, U.S. military operations and campaigns by foreign NGOs, all of which have cooperated with regional governments and championed military responses.
The ICC has actively courted the U.S. government, which it believes is vital to the provision of security to investigators and assistance with evidence-gathering and the transfer of suspects. “The US is an important player for us,” Ocampo said in 2006. “Their reach and their resources can certainly help us, especially in arresting suspects at large . . . We are regularly in contact with US officials.”22 The United States is unlikely to ratify the Rome Statute any time soon, more so since the election of President Donald Trump. The United States, however, will probably continue various forms of unofficial cooperation with the Court when these suit its interests. During Barack Obama’s presidency, the United States increasingly warmed to the ICC. Along with the United States’ assistance in the transfers of Ntaganda and Ongwen and the provision of rewards for information leading to the arrest of international—including ICC—suspects, the United States has also attended all ASP summits as an observer since 2008 and the ICC review conference in Kampala in 2010, as well as supporting the UN Security Council referral of the Libya situation to the ICC (as it had done regarding Darfur during the Bush administration).23
The ICC has also courted a wide range of U.S.-based NGOs and civil society groups, including Invisible Children, the Enough Project, and the Resolve LRA Crisis Initiative, all of which have close ties to the U.S. State Department and have advocated a robust U.S. military role in tackling the LRA and other armed groups in central Africa (Titeca & Costeur, 2015). Ocampo’s relationship with Invisible Children—best known for its Kony 2012 Internet advocacy campaign, which after its launch on March 2, 2012 was viewed more than 100 million times—is illustrative in this regard. In April 2012, Ocampo was the guest of honor at an Invisible Children fundraising event in Los Angeles, designed to introduce the organization to Hollywood directors, actors, and producers. At the event, he said, “I love Invisible Children. I love them. Their video is making a huge change in stopping Kony . . Invisible Children will, I think, produce the arrest of Joseph Kony this year” (Slosson, 2012).
One week after the release of the Kony 2012 video, the U.S. House of Representatives supported a resolution condemning Kony and advocating an increased military response “to assist governments in the region to bring Joseph Kony to justice and end LRA atrocities” (United States House of Representatives, 2012). This resolution led to a ramping up of U.S. military efforts against the LRA following the dispatch of 100 American military advisors in October 2011 to support regional governments, including those of Uganda and the DRC, in their fight against the LRA. This move was precipitated by the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act signed by President Obama in May 2010, legislation strongly supported by Invisible Children, as the group highlighted in the Kony 2012 video (Slosson, 2012). In 2012, the United States also funded and trained the AU Regional Task Force against the LRA, which included Ugandan and Congolese troops. An Enough Project report in October 2013 stated, “The efforts by US military advisors to train troops from the region show how a small US investment in a challenging environment can still pay dividends in promoting sustainable regional solutions and improving security.” In August 2015, the Resolve LRA Crisis Initiative published a report titled, “The Kony Crossroads: President Obama’s Chance to Define His Legacy on the LRA Crisis,” calling for “renewed diplomatic and military initiatives” to finally eradicate the LRA.
The dispatch of the military advisors in 2011 was the latest move in longstanding military relationships between the United States and the Ugandan and Congolese governments. Since the 1990s, Washington has viewed Museveni’s government as a key regional ally against the Sudanese government during Khartoum’s wars in southern Sudan and Darfur, the “terrorist” threat of the LRA, and most recently al-Shabaab in Somalia (Branch, 2011; Schomerus, 2012). In December 2008, the U.S. military supported the failed Operation Lightning Thunder by the UPDF against the LRA in Dungu, northeastern DRC, which led to LRA revenge massacres against the local population at Christmas in both 2008 and 2009 (HRW, 2010). Throughout, Washington’s political, military, and economic aid to Uganda has propped up Museveni’s regime and strengthened the role of the armed forces in everyday politics (Branch, 2011).
Since 2006, the United States has also actively supported the Congolese army through the Democratic Republic of the Congo Relief, Security, and Democracy Promotion Act, which included substantial funding for military training and equipment as part of a wider attempt at security sector reform (U.S. Congress, 2005). This legislation was first tabled by Obama, then a senator, in 2005 and signed into law by President George W. Bush in December 2006. In 2012, members of the 391st Commando Battalion of the FARDC, which two years earlier had undergone eight months’ training by U.S. special forces, committed mass rapes and other serious crimes in the South Kivu town of Minova (Whitlock, 2013). FARDC contingents sent to Garamba National Park as part of the regional fight against the LRA were also accused of looting, smuggling, and a range of other crimes against the civilian population (Conciliation Resources, 2014).
The ICC has openly supported the armed campaigns of the U.S., Ugandan, and Congolese militaries (Odonkonyero, 2010) and built strong relations with U.S.-based civil society actors that have lobbied for increased military action against rebel groups in the region, particularly the LRA. Given that the ICC relies so heavily on national armies to capture, arrest, and transfer suspects to The Hague, it has cooperated closely with these governments, even when their military activities have led to substantial civilian death tolls across the region. The ICC has also expressed immense skepticism toward peace negotiations involving Ugandan and Congolese suspects whom it has charged—especially when those talks involve the offer of amnesty (Clark, 2018)—but has strongly supported militarized responses to these suspects and their respective rebel movements. In short, the ICC has viewed ongoing armed conflict rather than peace talks as more useful for its own purposes and in the process has helped entrench state actors who continue to commit widespread crimes against civilians.
ICC Impact on National Elections in Uganda and the DRC
Since the involvement of the ICC, state violations have continued in the context of national elections in Uganda and the DRC. Both countries held presidential and parliamentary elections in 2006 and 2011 while ICC investigations and prosecutions were underway. Uganda held presidential and parliamentary elections in February 2016, while delayed national elections in the DRC eventually took place in December 2018. An overview of the Ugandan and Congolese governments’ electoral behavior highlights several important political problems concerning the ICC.
First, while these states have launched military campaigns against their armed opponents, they have adopted increasingly violent tactics against their political adversaries and opposition supporters before and during elections (Lindemann, 2011). While the ICC is not a direct cause of these violations, it has failed—contrary to the predictions of various actors within the Court and among its supporters (e.g., Dancy, Marchesi, & Montal, & Sikkink, 2015)–to deter criminal behavior by states. Because of the ICC’s close relations with these governments, they have little to reason to fear investigation and prosecution for crimes committed during elections. This underlines the deep problems stemming from the ICC’s close cooperation with states that are responsible for regular and systematic crimes against their citizens.
In Uganda, the build-up to, and results of, the presidential and parliamentary elections in February 2006—the first multiparty vote in Uganda for 26 years—highlighted the deep divisions in Ugandan national life, particularly between the north and south. These elections came nearly 18 months after the start of ICC investigations and four months after the unsealing of the arrest warrants against the LRA leaders. Human rights groups documented serious violations by the government against opposition candidates and supporters during the campaign and systematic electoral fraud, including the stuffing of ballot boxes and multiple registration of voters (HRW, 2006). The most serious example of the government’s heavy-handed tactics during the campaign involved charges brought in the civilian and military courts against Kizza Besigye, the Forum for Democratic Change (FDC) presidential candidate. Besigye went into exile in South Africa after losing the 2001 elections. Soon after his return to Uganda on October 26, 2005—11 days after the ICC issued arrest warrants for the LRA leaders—he was arrested and charged with rape and treason for allegedly attempting to establish a rebel force in the DRC.
Similarly, the lead-up to the 2011 and 2016 presidential and parliamentary elections in Uganda was marred by rampant corruption and violence, including the murder, torture and arbitrary arrest of opposition leaders and supporters and independent journalists. During an FDC rally in June 2010, a kiboko (stick) squad mobilized by the government attacked Besigye and other FDC leaders (HRW, 2011). Three months after losing the presidential election to Museveni, Besigye was arrested in May 2011 for organizing “walk to walk” protests, which brought thousands of protesters onto the streets across the country (Al Jazeera, 2011). Besigye was again arrested in October 2015 and three times during the week of the February 2016 vote, while government-backed “crime preventers” and local militias murdered and harassed opposition supporters at rallies throughout the election campaign (Taylor, 2015).
In the DRC, following the Sun City agreement in 2002, national elections were delayed five times until they were finally held in July 2006. Veteran politician Etienne Tshisekedi and his Union pour la Démocratie et le Progrès Social boycotted the elections because of delays in candidate and voter registration, which they argued were another attempt by Kabila’s Parti du Peuple pour la Reconstruction et la Démocratie (PPRD) to cling to power. While Kabila won the presidential vote after a run-off against Bemba, the PPRD failed to win an absolute majority in the National Assembly, forcing it to form an alliance with minor parties, including the Union des Démocrates Mobutistes, led by one of Mobutu’s sons, François. While the election campaign itself was relatively peaceful, due largely to MONUC’s security presence across the country, violence surrounded the lengthy waits for results between the first round of voting and the run-off. On the eve of the announcement of the run-off result, Kinshasa was paralyzed for three days by fighting between Kabila’s and Bemba’s forces, including an attack on the MLC by Kabila’s republican guard outside Bemba’s residence as he met with foreign ambassadors and the leadership of MONUC (Caryannis, 2008).
The postelection period produced further violence and instability. In March 2007, government troops and Bemba’s armed guards, who defied a government order to disband after the elections, fought each other in the streets of Kinshasa, killing around 600 civilians (Reuters, 2007). This fighting weakened the opposition forces and led to the UN negotiating for Bemba to go into exile in Portugal three weeks later. A week after Bemba’s departure, the Congolese attorney general, Tshimanga Mukeba, announced that Bemba’s senatorial immunity had been removed. Less than a year later, on May 24, 2008, Bemba was arrested on a family visit to Brussels and transferred to the ICC on July 3, 2008, on charges relating to crimes committed in CAR.
While international donors funded the 2006 elections, the DRC alone financed the 2011 vote as well as the elections originally scheduled for 2016, with less security support by MONUSCO in the latter cases. Both the 2011 and 2016 campaigns were characterized by violent crackdowns against opposition supporters which, in 2011, continued after the announcement of Kabila’s victory over Tshisekedi in the presidential vote, leading to the deaths of at least 30 opposition protesters in Kinshasa at the hands of the security forces (United Nations Joint Human Rights Office, 2012). Similar levels of state violence followed widespread protests in late 2016 against the delay to the December election and the possibility that Kabila would change the constitution to run for a third presidential term (Burke, 2016). That election-related violence occurred in Uganda and the DRC throughout the period of ICC investigations shows the inability of the Court to regulate state behavior. The Ugandan and Congolese governments had little fear of ICC prosecutions, given assurances by the ICC from the prereferral negotiations onward and their close cooperation with the Court.
Second, the ICC’s refusal to prosecute government cases has left the incumbent presidents, Museveni and Kabila, free to continue contesting elections despite their various human rights violations. In the case of the DRC, Kabila’s political position was bolstered further by the ICC’s prosecution of Bemba, who was convicted of all charges—none related to the DRC but all to the CAR situation—in March 2016 (although this decision was overturned by the ICC Appeals Chamber in June 2018). The ICC’s targeting of Bemba and not Kabila completely altered the national political landscape.24 Bemba was one of the few opposition figures capable of mobilizing substantial support across the DRC. While most of his support centered on his home province of Equateur, he was the leading candidate throughout western DRC, including Kinshasa, during the 2006 elections. Among many Bemba supporters, the ICC’s custody of Bemba was simply an extension of his exile, which they perceived as an attempt by Kabila, with the support of the UN and other international actors, to sideline his main political rival. An MLC supporter in Kisangani said in 2008,
The ICC is part of the foreigners’ game. Everyone knows the Europeans and the Americans prefer Kabila. They say they can do business with him, just as they did business with his father . . . Bemba threatened to spoil that so they had to eliminate him. The foreigners tried at the ballot box. They let Kabila get away with buying the vote. Then they tried to disarm [Bemba] and when that failed, they used the ICC.25
Third, the factors just explored have deepened national political divisions in both Uganda and the DRC. In the former, showing how isolated the north had become from the rest of the country and the depth of northern animosity toward the Ugandan government, in 2006 Museveni won less than 20% of the vote in most northern constituencies, followed by a slight increase in the northern vote in 2011 and a return to almost 2006 levels by 2016 (Electoral Commission of Uganda, 2017). In 2006, National Resistance Movement (NRM) candidates were defeated across northern Uganda, signaling a major political shift. “The north sees itself as completely alienated,” said Norbert Mao of the Democratic Party, who won 77% of the 2006 vote against the NRM’s incumbent Walter Ochora for the LC5 (Local Council) chairmanship of Gulu district, a post Ochora had held for a decade. Mao said,
One senior politician has even talked about a northern cessation. The vote in the north was a vote of no confidence in Museveni’s policies, especially in relation to the [IDP] camps. Also, Museveni is bent on a military solution to the conflict and the people reject that . . . Look at the anti-Museveni vote in conflict areas. The map of the elections is a conflict map. The country is now deeply divided. Will Museveni interpret it correctly or dismiss it as he has in the past?26
A subchief in the Pabbo IDP camp said, “Museveni’s win in the elections was devastating. It was yet another trauma for my people. For them, it means another five years in the camps.”27 By focusing only on northern Uganda (and not conflicts in other parts of the country such as West Nile and Karamoja) and only on LRA crimes (and not those by the government), the ICC has reinforced a colonial era narrative, further entrenched by the government in recent decades, that northern Uganda is uncivilized and incapable of governing itself, in contrast to the civilized south (Atkinson, 1994).
Similarly, in the DRC, the ICC approach to investigations and prosecutions has deepened long-standing divisions between the east and west of the country. Many Congolese from western provinces interpret the prosecution of Bemba as an attempt to block the shift of power from Kabila’s support base in Katanga and the eastern provinces more broadly. A widespread view in western DRC is that, while the transitional government after the Sun City accords provided a relatively even distribution of power across the country, Kabila (and his perceived foreign backers) would always seek to grab control, especially once the Sun City power-sharing arrangement ended with the 2006 elections. As a Bemba supporter in Kinshasa said four months before the elections, “The international community will never let a westerner dominate here. Our politics are always about the east. That’s where the wealth is. That’s where the conflict is.”28
Another common view expressed in interviews was that Bemba represented the legacy of Mobutu, as both hailed from Equateur and one of Bemba’s earliest battles with President Laurent Kabila, following the toppling of Mobutu, was the systematic exclusion of political actors from Equateur. One of Bemba’s three sisters is married to Nzanga Mobutu, the former dictator’s son. Bemba also elevated several senior Mobutu officials to prominent positions within the MLC, including the secretary-general of the movement, François Muamba, who had been minister of economy and industry under Mobutu (Caryannis, 2008). The ICC’s targeting of Bemba therefore taps into these divisive undercurrents in Congolese politics (Ndahinda, 2013).
Through the politicization and instrumentalization discussed here, the ICC has solidified the position of both Museveni and Kabila and entrenched long-standing national divisions in Uganda and the DRC. Despite violent tactics against their political opponents—often conducted by the same armed forces supported by the United States and the ICC as the likeliest actors to capture and arrest suspects—Museveni and Kabila have avoided prosecution and continued contesting elections. In the most extreme case, the DRC, the ICC removed Bemba, Kabila’s main political rival, thus completely reshaping the national political arena.
Museveni and Kabila have proven masterful at making themselves indispensable to international actors. Generally unquestioning international cooperation with the Ugandan and Congolese governments has allowed them to appear as agents of peace, security, and justice while continuing, emboldened, to commit abuses against their citizens. Thus they have used the ICC to distance themselves from accountability for alleged mass atrocity crimes. The claim by the ICC and its supporters that the Court deters criminal behavior and therefore contributes to lasting peace rings hollow when state crimes are committed under its watchful eye.
International military and judicial interventions in central Africa to date risk not only ignoring government atrocities but reinforcing them. The extraversionary capacities of the Ugandan and Congolese governments to “pull the strings” of the ICC have also undermined the Court’s relations with conflict-affected populations and domestic institutions designed to address atrocities. While various African elites have accused the ICC of neocolonialist interference in African affairs (including Museveni who sought solidarity with other AU leaders in the wake of the Kenyatta and Ruto prosecutions in Kenya [East African, 2014]), the ICC’s shortcoming has rather been its failure to insulate itself from political manipulation by these African states. This stems from the OTP’s state-cooperation-at-all-costs approach as well as the general distancing of the ICC from the domestic political sphere in Uganda and the DRC, eschewing country-specific experts and contextual knowledge in favor of generalist staff with technical, template approaches to investigations and prosecutions. As the Court has become ever more embroiled in domestic politics, it requires a deeper understanding of national political dynamics. Rather than claim separateness from the political realm, it must become politically savvier. The ICC’s inability to grapple fully with domestic political complexities has had deeply damaging effects both for the Court and for the conduct of national politics across Africa.
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(1.) At the time of the ICC charges against them, Kenyatta and Ruto were opposition political figures and only subsequently elected president and deputy president, respectively.
(2.) While the case of Côte d’Ivoire was not strictly a self-referral, as only states parties to the ICC can self-refer and at the time Côte d’Ivoire was not a signatory to the Rome Statute, it echoed many of the self-referral dynamics examined in this article insofar as President Alassane Ouattara asked the prosecutor in December 2010 to initiate an investigation independently (Ouattara, 2010).
(3.) Author’s interview, Luis Moreno-Ocampo, ICC Prosecutor, The Hague, March 22, 2006.
(4.) Author’s interviews and informal discussions, ICC Officials, The Hague and Amsterdam, May 5–7, 2011 and January 7–8, 2016.
(5.) Author’s interviews, Ugandan Government Officials, Kampala, March 2–4, 2006.
(6.) Author’s interview, Lucian Tibaruha, Ugandan Solicitor General, Kampala, March 2, 2006.
(7.) Author’s interview, Emmanuel Luzolo, Congolese Minister for Justice and Human Rights, Kinshasa, January 24, 2006.
(8.) Author’s interview, ICC-OTP Official, The Hague, March 22, 2006.
(9.) Author’s interviews, ICC-OTP Officials, The Hague and Amsterdam, January 7, 2016.
(10.) Author’s interviews, ICC-OTP Officials, The Hague, March 22, 2006.
(11.) Author’s interview, ICC-OTP Official, The Hague, March 23, 2006.
(12.) Author’s interview, ICC-OTP Official, The Hague, March 23, 2006.
(13.) Author’s interviews, ICC-OTP Officials, The Hague, March 23, 2006.
(14.) Author’s interviews, ICC-OTP Officials, The Hague, March 22–23, 2006.
(15.) Author’s interviews, ICC-OTP Officials, The Hague, March 22–23, 2006.
(16.) Author’s interviews, MONUC Officials, Bunia, February 15–16, 2006.
(17.) Author’s interview, MONUC Official, Bunia, February 15, 2006.
(18.) Author’s interview, Ugandan Member of Parliament, Kampala, March 2, 2006.
(19.) Author’s interview, Stephen Oola, Programme Manager, Conflict, Transitional Justice and Governance, Refugee Law Project, Kampala, April 6, 2015.
(20.) Author’s interview, Ocampo, ICC Prosecutor.
(21.) Author’s interview, Ocampo, ICC Prosecutor.
(22.) Author’s interview, Ocampo, ICC Prosecutor.
(23.) While the United States abstained on the vote regarding Darfur, it voted in favor of the Libya referral.
(24.) For an excellent analysis of the extent to which African leaders who are accused by the ICC of committing serious crimes can also manipulate the Court to their considerable electoral advantage, see Gabrielle Lynch’s dissection of the Kenyatta and Ruto cases in Kenya (Lynch, 2004).
(25.) Author’s interview, MLC Supporter, Kisangani, September 14, 2008.
(26.) Author’s interview, Norbert Mao, LC5 Chairman of Gulu District, Gulu, March 9, 2006.
(27.) Author’s interview, Sub-Chief, Pabbo, March 11, 2006.
(28.) Author’s interview, MLC Supporter, Kinshasa, January 26, 2006.