Prosecutor’s African Roadshow Keeps on Muddling Through
If the implications were not so seriously fatal one would not begrudge the Argentinean bruiser and striker of the ICC team Luis Moreno-Ocampo aka “˜Ocambo’ to his adoring fans to feel the elation as if he had won the World Cup after the ICC’s Pre Trial Chamber I quashed on 12 July its original ruling of March 2009 not to issue a warrant for genocide in Darfur against President al Bashir but to issue after all a warrant for three counts of alleged genocide.
Ocampo won the ultimate price, the indictment of a head of state and government in office for genocide, the modern equivalent of being outlawed and wanted “˜dead or alive’, after only on 9 July “˜Ocambo’ had been booked by the referee and his team had concede a goal after judges at the ICC suspended the trial of the DRC warlord Thomas Lubanga because “the prosecutor has elected to act unilaterally in the present circumstances and he declines to be “˜checked’ by the (trial) chamber,” according to the judges.
They added that in these overall circumstances the court had to stay the proceedings of Ocampo’s first and so far only trial he brought to court since he took office in 2002 as “an abuse of the process of the court’ because a fair trial of the accused was “no longer possible and justice cannot be done”.
Ocampo’s only response was the usual one of going to appeal and why not because so far he has succeeded by his usual bullying every time when he appealed whenever he did not want to accept any guidance or instruction he had been given ever since after the UN Security Council referred the allegations war crimes and crimes against humanity in Darfur against named, though not published, individuals based on report of specialists appointed by the investigate these allegations to the ICC prosecutor though they had dismissed the allegation of genocide, but Ocampo proceeded to add genocide charges and when he the ICC’s Pre Trial Chamber rejected it, he appealed ultimately with success.
So ended with the ultimate price for “˜Ocambo’ a series of matches that began with a series of home games in Kampala in early June to mark the 8th anniversary of the Rome Statute under which terms the International (“˜international’ as in African) Criminal Court was established and that turned the review of the Rome Statute and the ACC, sorry ICC, in a two week long love fest for “˜Ocambo’.
The location was very appropriate as it was exactly in Uganda that the process began that turned the ICC, meant to be building on and developing further the single case experiences of the ad hoc tribunals for he former Yugoslavia, Cambodia, Rwanda, Liberia and Sierra Leone etc., into an international court judging alleged crimes against humanity in UN member states, into a sort of international war crimes court for Africa, when President Museveni, then still basking in the adoration of the mythical “˜International Community’ for having ousted Milton Obote by violent means, decided to use the ICC as another tool in his stalling counter insurgency against Joseph Kony and the LRA in northern Uganda.
The fatal consequences were two fold, not only it departed from the established practice of setting up war crimes tribunals until after the conflict in question had ended rather than when it was still ongoing following the example of the Nuremberg and Tokyo tribunals, which example all the later tribunals try to emulate, but also more seriously it meant that the ICC still in its infancy had lost already its judicial neutrality and impartiality becoming instead an active partisan party in live domestic conflicts.
In a way Kony was and is an easy target as it would be impossible to turn him into the cuddly freedom fighter, so beloved by western intellectuals from the left or the right, depending which sides they take and which slant they want to apply, but it has also become clear ever since that even a “˜madman in the jungle’ represents a constituency of some sort, how incomprehensible the situation may appear to the outsider and how monstrous Kony and his henchmen do appear.
The ICC’s intervention in Uganda accepting Museveni’s invitation meant first of all that Musevni’s own counterinsurgency could not be longer independently investigated, while secondly with the ICC indictments hanging over Kony and his henchmen scuppered effectively the peace negotiations as the latter had no longer any incentive to end their insurgency; not unlike in reverse the Darfur rebel factions have felt emboldened enough following Ocampo’s actions not to engage meaningful in peace negotiations, while Khartoum wonders what the “˜International Community’s’ reward will be for engaging meaningful in the peace process.
The negative regional consequences of Ocampo’s actions are already there to be seen with the LRA remaining undefeated as it spread out and entrenched itself in neighbouring southern Sudan, DRC and CAR.
Other examples of such Ocampo interventions in the region are the arrest and indictment of former DRC vice president Jean-Pierre Bemba after he lost the presidential election while the conflict in eastern DRC continues to rage unabated, while the outcome of Ocampo’s intervention in Kenya remains unclear and neither is his attempt to get in involved in West Africa after dipping his toe in Guinea (Conakry).
Consequently “˜Ocambo’s’ involvement in Africa’s problems has meant that he and as a result the ICC have become part of the problem and not part of the solution, but there has not been any real sign of criticism from their supporters among the “˜International Community’ and the activist and “˜advocacy’ world, tough very carefully the Institute for War & Peace Reporting (IWPR) seem question the ICC’s infallibility and impartiality by expressing the demands of people of northern Uganda that the activities of the Uganda People’s Defence Force (UPDF) should be investigated (“˜Uganda victims question ICC’s Balance’, 14 June 2010).
However, that has not deterred Human Right Watch (HRW) to continue to lead from the front of the hardcore groupies of “˜Ocambo’ and his ICC team. It, however, criticised severely in a statement on 11 June the prospect that following the Kampala review the ICC may get by 2017 the power and jurisdiction regarding international crimes of aggression, though the model tribunals of Nuremberg and Tokyo were specifically set up to judge whether the aggressive wars started by the German Third Reich and Imperial Japan were crimes of aggression.
It may be worthwhile to remember in this context and in the lead up to the 65th anniversary of the end of WWII in Asia-Pacific on 15 August 1945 that the Tokyo Tribunal did not indict war time emperor Hirohito, closing a major part of investigations into Japan’s actions between 1931 and 1941, on the instruction of the US occupation power of Japan which even did not accept for the same political reasons Hirohito’s offer of abdication.
It is therefore interesting to note HRW’s international justice programme director Richard Dicker’s words in the HRW 11 June statement that giving the ICC the power to investigate wars of aggression not only may undermine the ICC’s “effectiveness” by creating certain expectations but also undermine the ICC’s judicial independence by involvement of external bodies such as the UN Security Council; in others words HRW prefers the ICC and its chief prosecutor to remain as unaccountable as they are now.
But Dicker continues: “HRW had also expressed concerns that an agreement making the crime of aggression operational could link the ICC to highly politicized disputes between states, posing a danger to perceptions of the court’s role as an impartial judicial arbiter of international criminal law.” Come again, could you run that past me again?
While an attorney making the case against the ICC and “˜Ocambo’ could say “˜I rest my case Milord’, this is not debating gimmick in a courtroom, but it exposes the fact that the way the chief prosecutor and his office has been set up under the Rome Statue there is apparently no real mechanism to direct, control, sanction, let alone impeach and remove the chief prosecutor.
Ocampo’s reply has always been to define his role and of his office as if they enjoy the same position as the independent judiciary, but this is a fallacy because in every democracy the chief prosecutor and his or her office, whether he or she is called the minister for justice, attorney general or director of public prosecutions etc, is a political officer and his or her office is part of the executive, and not part of the independent judiciary, and their actions are not only tested in the courts, but they are also held accountable in parliament that can criticise and even dismissing them.
Should this not have been the real issue that the folks assembled in Kampala should have been discussing? But the “˜advocacy’ obviously prefers to continue with the easy sloganeering that depicted Darfur 2004 as a repeat of Rwanda 1994 and has demonised the “˜Arab’ in Darfur as much as the “˜Hutu’ with the fatal consequences lasting to this day in respectively the Sudan and in the Rift and Great Lakes region.
“˜Ocambo’s’ tenure as the ICC’s chief prosecutor is as fatally flawed as the “˜International Community’s’ policy in the wider region resulting amongst other in al Shabab’s bloody bomb attacks in Kampala on 11 July. Are these combined not the real crimes against humanity in Africa?