By Dr Obote Odora

9^th April 2012:

ICC's Ocampo: An accused prosecutor

The East African published Onyango-Obbo’s interesting articles titled: “Kony: the real story” and “From an altar boy to the ultimate diabolical genius: the Kony nightmare”. The Obbo narratives provide useful and insightful information to new comers in the weird world of Joseph Kony and the politics of the northern Uganda war.

In this rejoinder, I question why the International Criminal Court (ICC) has not stated, at least publicly, that the Uganda army and its leadership are currently under investigation for crimes committed in Uganda and Congo.  Other scholars have also called for both sides to the conflict be investigated, if only to give an appearance of impartiality.

As Obbo correctly stated, the armed conflict in northern Uganda took a tribal dimension and fed on Uganda’s north-south divide. Systemic violence based on tribalism leads to genocide, as witnessed in Rwanda. The NRM/NRA government failed to provide leadership to defuse the divide.  Instead, Museveni continued to peddle allegations that the Acholi and Langi were the enemies of Uganda.

The purpose of Museveni’s propaganda is to mobilise Ugandans from central and western parts of Uganda against people from the north, and he justifies tribal chauvinism in his book, Sowing the Mustard Seed, as follows:

“Under previous regimes, the soldiers, most of whom came from the north, had been free to loot civilian property. Whenever they looted such things, for example corrugated iron roofing sheets, they would take them to their homes, and their parents would not ask where they obtained them, in spite of the fact that one could easily tell the difference between a new iron sheet and one that had been previously nailed on someone else’ roof.

In this way, the whole community in Acholi and Lango had become involved in the plundering of Uganda for themselves. In other words, the reason why those rebels in the north, organised on a tribal basis, were fighting for control of the national government, was that the NRM as a government had stopped them from looting.”

As a mobilisation tactic, it was very effective.  Museveni has continued propagating his tribal views by asserting that people from northern Uganda bear collective criminal responsibility for ‘crimes committed by their sons and daughters’ against the people of central and western Uganda.  This false premise underpins the NRM policy on the dehumanization of Acholi and Langi.

Experts in international criminal law have suggested a number of reasons for the ICC’s failure to investigate the UPDF. First, the ICC has relied on Museveni’s referral of the LRA case – thus effectively helping the ICC Prosecutor to circumvent the unpredictable political process of going through the UN Security Council.  The Prosecutor therefore owes a debt of gratitude to Museveni for making his work easy.

Secondly, Museveni’s regime provided and continues to provide support and security for the ICC investigators – including providing assistance to the investigators to identifying prosecution witnesses who corroborate the government’s narrative that vindicates the UPDF.  Therefore, if the ICC decides to indict members of the UPDF, then they will have problems getting continued cooperation from Museveni.

The UPDF also escorts ICC investigators to ‘protected camps’ and are present when witnesses are being interviewed.  Sometimes UPDF officers double as translators for the ICC investigators. It would therefore be extremely risky for witnesses to implicate the UPDF in any crime under investigation.

The ICC bias in favour of the UPDF manifested itself in January 2004 when the Prosecutor appeared side-by-side with Museveni – a potential suspect – in a London conference to announce the opening of the investigations in the Uganda situation. In a judicial setting, appearance is as important as substantive justice.  The ICC must therefore balance its independence by putting distance between its members and state officials.

Additionally, in the eyes of the US, Museveni demonstrated his loyalty by supporting the ‘war on terror’ and sending troops to Somali – for which he won US support and dollars.  The international community’s unquestioning cooperation with Uganda has therefore allowed Museveni’s government to appear as an agent of peace, notwithstanding its role in the armed conflicts in the DRC.

The ICC is also silent on Museveni’s recruitment and use of child soldiers and his cooperation with convicted war criminal Thomas Lubanga.  Museveni also supported Jean Pierre Bemba who is currently on trial before the ICC.  The UPDF trained, financed and fought alongside Bemba’s soldiers and yet the ICC is showing not interest in investigating Museveni.

The ICC was quick to act on electoral disputes and violence in Kenya and Ivory Coast and yet when it comes to Uganda, the UPDF is left to detain, torture, and even kill opposition supporters and their leaders at will.  Besides the crimes committed before and during elections, there are serious allegations of crimes committed by the UPDF in northern Uganda. In 1992 for example, Amnesty International concluded that “…there has been a consistent pattern of extrajudicial execution by soldiers since the NRM came to power.”  I concur with Onyango-Obbo when he says the war against the LRA would have ended much earlier but the Museveni regime needed to milk it for other internal political reasons.

Museveni’s northern Uganda policy was to destroy food stores and crops ready for harvest purportedly to deny LRA sustenance.  But it was also meant to dehumanise the local population and reduce them to beggars – a worthless group without respect or dignity.

The government knew, or had reason to know about the mass deaths of civilians in the ‘protected’ camps.  It not only did nothing about it, it also denied the civilian death figures.  The camps therefore served the strategic interests of the UPDF, the LRA, and the many NGOs.

It is in this context that Kony’s indictment must be assessed – because the allegations against Kony are closely related to acts or omissions of the UPDF.  That is why the UPDF prefer to have Kony dead – because if he ever appears before the ICC, he could disclose his close cooperation and collaboration with the UPDF in the conduct of war in northern Uganda.

It is also important to note that the LRA has never claimed to have effective control over any part of Uganda.  The government of Uganda has also, always insisted that the LRA has no control over any part of the territory of Uganda.  This means that the crimes allegedly committed by the LRA were actually in areas controlled by the Uganda government.

And yet, at the same time, the government has also peddled the impression that the LRA is a powerful military force which enters and leaves IDP camps as it pleases. This scenario is hard to believe – because the government’s reason for herding civilians in northern Uganda into camps was that it wanted to protect them from LRA attacks.

One may therefore infer from the conduct of the UPDF that it actually aided and abetted the LRA in the commission of the alleged crimes.  The ICC Prosecutor is therefore duty bound to investigate the UPDF.  END.  Please login to www.ugandacorrespondent.com every Monday to read our top stories and anytime mid-week for our news updates.

alex.odora@gmail.com

Dr Obote Odora is a Consultant in International Criminal Law