The ICC Debacle: Unanswered questions on the possible indictment of President Yoweri Museveni at The Hague

The Forum For Democratic Change and its leadership led by Dr. Kiiza Warren Besigye has embarked on the tricky but relatively justified mission to have President Museveni indicted at the International Criminal Court (ICC) for various crimes allegedly committed during his 33 year reign.

By the time I authored this article, there was a claim that the petitioners had actually collected over 160, 000 signatures from various parts of the country, endorsing the son of Kaguta’s indictment. One of the notable Ugandans who was seen signing the petition was former lands minister Mr. Daniel Omara Atubo who is known to have served the NRM government as a Cabinet Minister in the past.

A small sample shows that Ugandans especially those deemed to be older than 35 years are more keen to have President Museveni indicted to the ICC because they are more conversant with the political happenings in the blood soaked East African Country.  They are therefore the most active Ugandans in collecting the signatures around country Uganda.

Background

This petition is not the first attempt to bring Museveni to book for crimes committed against humanity in Uganda. In the aftermath of the 1985-86 bush war, there were attempts by the fallen Ugandan President, Dr. Milton Obote (and subsequently Mr. Olalla Otunu ) to have Museveni tried for crimes committed in Luweero, northern Uganda and other parts of the country.

But their attempts fell on deaf ears mostly because it was common knowledge that the UPC government together with the UNLA army were the most notorious killers of the time the world had ever known. Then after the invasion of Rwanda and Zaire, there were muted suggestions that Museveni should be held responsible for the horrendous loss of life that followed those wars, but it all dried up.

Nonetheless in this case of Rwanda and Zaire, the Ugandan leader was let off the hook because the international criminal court doesn’t act retrospectively but acts only on crimes committed after its formation in 2002. The ICC, therefore, has jurisdiction over crimes that were committed after its formulation through the Rome statute in 2002.

But even if that is the case there are various wars up to 2003 where Ugandan troops were heavily involved, especially in the Congo. And indeed Human rights violations were reported by the UN that account for deaths of over 7 million Africans. Why was the commander in chief of the Ugandan armed forces not indicted?

Worse still although some protagonists of that Congo war like Thomas Lubanga, Jean Pierre Bemba and others were indicted by the ICC , it’s still baffling how not a single Ugandan Commander which had troops in that war was not in tow. Interestingly some of the Congolese warlords like Pierre Bemba, whose troops were trained by the Ugandan army was convicted.

In this case scenario, you would draw parallels with the case of the former Liberian President Charles Taylor who was indicted and convicted for war crimes committed by the Sierra Leone rebel group known as the RUF.  No single Liberian complained about Charles Taylor human rights record, but that did not stop the international Court from linking him to the blood diamonds of Sierra Leone.

You should be reminded that The UN report implicated Uganda in the plunder of the Congo. Why was this UN report NOT brought forward into an actionable tool of indictment and trial of the Ugandan leader?

Hypothetical Theories

Well, a lot of theories have been advanced explaining the cons and pros of that inadvertent miscarriage of justice, but the period between 1994 and 2003 remains the only justifiable opportunity to indict President Yoweri Kaguta Museveni. Whether he would or not be found guilty for those war crimes is another matter altogether, but an attempt would have been reasonably justified.

Now, after getting away with all the aforementioned possibilities of being indicted, some Ugandans are convinced that they can take President Museveni to the ICC. One of the laughable things about this petition is the collecting of signatures. When has it (collecting signatures) ever been a requirement to take someone to the ICC?

Now to the petitioners; do you simply need signatures to take someone to the ICC? Did the Liberians or Sierra Leone people collect signatures to petition the ICC to prosecute Charles Taylor? Did you hear of any Sudanese collecting signatures to indict former President Omar Bashir? What you need is concrete evidence to advance a case not signatures. I don’t know what the FDC group has compiled as a list of crimes against humanity that they have laid against Museveni but do they have incriminating evidence to secure a conviction anyway?

Key Requirements for Indictment

According to the Rome statute, the core mandate of the ICC is to act as a Court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when, national jurisdictions, for any reason are unable or unwilling to do so.

The ICC considers eleven crimes against humanity which consist of various acts like murder, extermination, enslavement, torture, forcible transfers of populations, imprisonment, rape, persecution, enforced disappearance, and apartheid, among others when, according to the ICC , those such acts are committed as part of a widespread or systematic directed attack.

Completed fifty years later in 1996, the Draft Code defined crimes against humanity as various inhumane acts, i.e. “murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population.

Crime of Aggression

Finally, the fourth crime falling within the ICC’s jurisdiction is the crime of aggression. It is the use of armed force by a State against the sovereignty, integrity or independence of another State. Interestingly the definition of this crime was adopted through amending the Rome Statute at the first Review Conference of the Statute in Kampala, Uganda, in 2010.

Has Uganda not committed the crime of aggression in Rwanda, Congo and southern Sudan? Yes it did, but that was before the institution of the Rome statute. So where does Dr. Kiiza Besiigye’s collection of signatures to indict President Museveni fit in this equation? Obviously, this simply shows that although there were strong and justified grounds to the indictment of Museveni, the reality is that most of those happened years before the institution of the ICC.

And as mentioned earlier, the ICC does not operate retrospectively on cases that took place before the institution of the court. That saves the Ugandan President of any probability of indictment. The only aspect of human rights violation and war crime that would implicate the Ugandan President is the 2016 Kaseese massacre in which hundreds of royal guards were killed in cold blood by the Ugandan armed forces.

But why has the ICC kept silent about the matter?

In 2018, an official of the ICC Santa Anna Dahiro said that The Hague was still conducting preliminary investigations in the Kaseese massacre in which over 100 Ugandans were killed.  More interestingly, she also clarified that the investigations are not time bound. That means that the Ugandan President’s time at The Hague remains an open ended.  But there is a saying that justice delayed can also tantamount to justice denied. I rest my case.

The author Fred Daka Kamwada is a political analyst blogger. He can also be reached via [email protected]