Will the ICC appeal to Africa’s next generation of leaders?

I was recently in conversation with two friends.

Online of course.

Both are lawyers under 33 with promising careers in public service. One in fact plans to run for president one day. Despite the fact that their education and early careers have been within the donor funded civil society in Uganda both support the position of African leaders to review the continent’s relationship with theInternational Criminal Court or ICC.

It is a question worth asking.

Will the International Criminal Court and its promise to end impunity for war crimes and crimes against humanity appeal to the next generation of African leaders? Young Africans, like my two friends, see no contradiction in demanding accountability for war crimes and crimes against humanity from their leaders and reform of the Court’s attitude to offenders all around the world.

That said they stand to inherit the Court’s presently difficult relationship with prominent members of the “liberation” generation like the nonagenarian Zimbabwean president Robert Mugabe and  Yoweri Museveni of Uganda. The more radical of this generation have encouraged African countries to boycott the ICC or better withdraw from The Rome Statute entirely.

Like the post-independence generation before them these leaders operated in a world defined by the hypocrisy, paranoia and duplicity of an unequal global system where Africa and Africans were second-class citizens. Western powers have a double ledger for their African allies defined by their [Western] interests first and common sense morality second. Uganda’s Idi Amin, for example and Zaire’s Mobutu were supported initially by the West and then dumped as murderous and corrupt caricatures that epitomised the ‘dark” continent respectively. The fact that they were “fantastically” corrupt and murderous is not deniable to their victims who were mostly domestic. However it has been, and is even now, considered best practice to somehow excuse the role of powerful western countries in a discussion about accountability for crimes, especially where their interest is implied. When it came to global affairs therefore African leaders were “protected” from the system of selective condemnation to the extent of their service to those interests.

That is a fact and political reality.

Uganda signed the so-called article 98 agreements that forbid it to hand American servicemen to the Court. America is not a party to the ICC and has threatened to use its veto in the United Nations Security Council to prevent its operations from being brought before the court. This however has not stopped American officials from threatening African leaders with potential indictments before the ICC like when the head of “Global Crimes” Mr. Stephen Rapp did for Rwanda’s leader Paul Kagame.

Rwanda is not even a member of the ICC. African governments and their leaders quite obviously are less equal in this way. They can be used to in some cases commit crimes on behalf of their more powerful patrons but be held to a different standard. Uganda is a major contributor of troops to American interests for instance. It has been providing military personnel to Somalia for nearly a decade in an effort seen as one of the largest, mostly unacknowledged, counter terrorism operations of the United States around the world. It has partnered with the US Africa Command in operations in DRC, Central African Republic and South Sudan and receives considerable military aid in return.

However in this unequal global community – its leaders are held to an “African” standard for their actions.This is the school of the hard knocks from which Museveni and Mugabe were raised and formed their thinking on how to manage their affairs with their western partners. They needed reciprocal leverage to remain in play. In particular for Museveni one suspects that supporting the ICC was done as part of paying his dues to that system. He supplied the first case of the court to the acclaim of western governments and civil society. After all Joseph Kony, the LRA leader is a very bad man. He in comparison was the sharp spear against the war on terror.

This legacy of one’s human rights record simply being something to trade-off in international relations is likely an aspect of political accountability that will outlive Mr. Museveni and his class of liberation leaders. Their approach to the court has been one that is informed mostly by a defence of national sovereignty – a particularly utilitarian variant that insulates their own position in high office by ensuring that prosecutable crimes at The Hague do not pierce the shield of presidential immunity.

It coheres with the highly personalised form of rule at home where every issue, big and small, is concentrated in the office of the president. It is not unreasonable to expect that if this form of vertical government is replaced with a more horizontal system where responsibility and accountability are distributed across the other arms of government that there would be less pressure on the legal and political necessity of presidential immunity. But this also depends on how political transitions eventually evolve in the post-liberation era.

But it appears younger Ugandans may require more than just a rethink of sovereignty, national interest and immunity for the head of state.

This week the ICC dilemma erupted in drama during the inauguration of Museveni for President yet another term. “ They [ICC] are a bunch of useless people,” he said before his guests who included two presidents indicted for war crimes by The Hague based court. Some of the other African leaders invited to Mr. Museveni’s swearing in ceremony could be described as criminal offenders at large by the “African” standards of the court.

Also seated in the audience were cheering younger members of his party.

European and American diplomats who were attending his political soiree walked out in a symbolic protest. It is that old trick probably invented to deal with troublesome in-laws where the host deliberately upsets the gourmandizing with a well-aimed insult to “put them in their place”. To be clear however none of what Mr. Museveni said was new. He had earlier described the ICC, correctly, as a “biased instrument of post-colonial hegemony”. This is certainly the view of out-gone ICC prosecutor Luis Moreno Ocampo. The Argentinian has said as much privately that he saw the Court as an important weapon in the hands of western powers to discourage impunity in mostly third world killing theatres he focussed on like Kenya, Sudan and Uganda. In fact he has blamed western countries for not supporting him enough while he was in office [ obviously for fear that the ICC should not be so credible so as to turn on the powerful members in the global north]

This deference of the Court to the interests of powerful countries will not help it with the successor generation in Africa. If the Musevenis operated in the cutthroat theatre of the cold war and its immediate aftermath, emerging African leaders are operating on a new level of confidence (even if some of it is inspired by the selfish defiance of the out-going club). They are mostly inspired by a new global environment informed by greater awareness, education and connectivity that is allowing African young people to properly situate their values within their countries and in the context of their place in the wider world.

It is therefore unconscionable that the ICC behaves as if it is blind to the new moral economy and treat African offenders as below non-African ones. It cannot expect support as it buries its head when the African world is witness to the human suffering in Syria, Iraq and in the rest of the Middle East. Or when Egypt continues to receive support even as its “modern pharaohs” recreate a totalitarian system simply because it is a Western ally. What about that debate all over twitter on the use of drones in a legal and moral vacuum? Perhaps when the system of enforcement against offenders whether in the global south or north, black, white or brown or otherwise is fairer will there be a role for the ICC that can receive the support at least of African publics.

In a way the ICC by being obviously biased has made things worse. Like an ineffective anti-biotic regime it has bred a dangerous resistance in Africa. The victims of this sadly of course are still in Africa as seen by the handshake between the Sudanese pair of Omar El Bashir, the racist murderer in the north and his cold-hearted ethnic cleansing brother Salva Kirr Maryadit.

One wonders if the ICC were more credible if this would have taken place. In any event it is an occasion that will form part of the stock of reference for future African presidents and warlords

By Angelo Izama