The ICC: One Strongman’s tool is another Strongman’s annoyance

Uganda President Yoweri Museveni has turned hypocrisy into an art form. One moment he is railing against the International Criminal Court (ICC) for having the temerity to investigate, charge, and try individuals from the African continent alleged to have committed crimes falling under the ICC’s jurisdiction, and the next he is asking the ICC Prosecutor to charge anyone he deems out of favor, such as the recently sacked Uganda Inspector General of Police, General Kale Kayihura.

Uganda President Yoweri Museveni decorating General Kale Kayihura

Ok, maybe I am being simplistic. Museveni is not against the ICC exercising its jurisdiction in Africa (including Uganda) over some alleged criminals. He just does not think the ICC (or any court for that matter) should have jurisdiction over the likes of him – a sitting head of state. Why should he? The rule of law only applies to those not in power.

The argument goes something like this: since being out of power exposes one to the rule of law and, under certain circumstances, the ICC’s jurisdiction, the best way to stay above it all is to remain in power – at any cost. Rigging elections, imprisoning political opponents, using the national coffers and the country’s natural resources to enrich political and financial cronies, breeding a self-sustaining patronage system, and so on are the ways in which strongmen in illiberal democracies stay in power and act with impunity – or to put it euphemistically, enjoy immunity.

How silly of the ICC to think it should have jurisdiction over heads of states who think it is their right to act above the law and commit crimes – even mass atrocities – with abandon. Imagine!

I have no idea whether there is any merit in referring Gen. Kayihura to the ICC and I certainly do not want to speculate without the facts, but it seems fishy and expedient of Museveni. Since when is Museveni an ardent supporter of the ICC?

The irony of it all is that only a month ago, Museveni, along with other heads of African States (many of whom are simpatico to Museveni) through the African Union decided to seek an advisory opinion from the International Court of Justice (ICJ) on whether the ICC can prosecute heads of states. For some African States that see the utility of having a permanent international criminal court to hold everyone accountable (including sitting heads of state), going to the ICJ may have been an act of appeasement, or better yet, like applying iodine to a healed sore (see Mark Kersten’s similar observation). Seriously, anyone who has an inkling of the ICC’s jurisdiction (its raison d’être) and an ounce of common sense should know how the ICJ will come down on this issue.

Politically, this may prove to be a savvy move. Even if advisory and non-binding, an ICJ decision will deprive the expediently specious argument that sitting heads of states should not be prosecuted for alleged crimes while serving their term in office. An ICJ decision may be just what is needed to move the needle in the debate among some disgruntled African States as to whether it is prudent to leave the ICC.

Be this discussion as it may, you have to hand it to Museveni for his gull, his unabashed use of the ICC as a (political) tool in going after his (Uganda’s) former Inspector General of Police. When it suits Museveni, he expects the ICC to come through and exercise its jurisdiction. But when it does not suit him, he is not reticent in joining the siren calls of his fellow mates who claim the ICC to be an International Caucasian Court, a neo-colonialist instrument, a biased, flawed, and dispensable judicial institution to be ignored. This is the case when his fellow heads of states come under ICC scrutiny – Museveni’s failure to arrest and surrender Omar Al Bashir during his visit to Uganda in November last year comes to mind. See my earlier posts on African States’ exodus from the ICC here, here, here, and here.

Now to the other strongman, President of the Philippines Rodrigo Duterte.

Phillipines President Rodrigo Duterte

How dare the ICC investigate his war on drugs? How can this be? Can the ICC not see that he is trying to get rid of the scourge of narcotics trafficking that is plaguing the Philippines? Can the ICC not see that he is all about law and order? Can the ICC not see that many in the Philippines approve of his efforts (even if they may find his methods distasteful)? How paradoxical.

Poor Duterte. He is so misunderstood. Why can the ICC not see, let alone comprehend that his methods are reasonable and necessary? What is so unlawful about organizing and carrying out executions / extra-judicial killings, even at an industrial-size level, when the objective is praiseworthy? Why all the fuss about the rule of law? And more importantly, why should he, the elected acting head of state, be subject to prosecutorial scrutiny by the ICC, when domestically, he is not being held to account (never mind that he controls the levers of powers)?

Duterte’s huffing and puffing has ICC Prosecutor Fatou Bensouda profoundly unmoved. For a first-rate bully with a second-rate acumen, Bensouda’s (the ICC’s) lack of understanding and appreciation is unreal and intolerable. How dare she!

Left with no choice, Duterte, true to his colors and character, went on the offensive. First, he threatened to withdraw the Philippines from the ICC. He then bragged how he would go to The Hague and put the ICC Prosecutor in the dock to account (rather imaginative for the former prosecutor of Davao City. He then followed up by unleashing a stream of insults.

Yet nothing. Nothing seems to have worked in dissuading the ICC Prosecutor to leave Duterte to his own devices – and not to look into the two communications (here and here) requesting the launching of a preliminary examination against Duterte and eleven other Philippine officials for the extra-judicial killings of thousands of people over three decades (see my recent post about Bensouda’s decision to open a preliminary investigation here).

And since nothing seems to have worked, Duterte has had to reach deep into his play book. Or, is it that he is cleverly thinking outside the box? He now professes that “not even in a million years” will he appear before the ICC. Spoken like a true strongman. How melodramatic. He is delusional if he thinks that he can carry on with his extra-judicial killings and not be held to account. Maybe he is just alarmed and thinks that by making grand pronouncements, he can elude his destiny in the ICC dock. Anyone’s guess. Others have made similar claims as the ones Duterte is now making, only to find themselves residents of the United Nations Detention Unit in The Hague – one way or another, sooner or later.

In any event, Duterte’s rants seem to be adding fuel to the investigative fire. Bensouda is not only unimpressed by Duterte’s ire, but she has put down her marker on going after anyone (including Duterte) who engages in inciting or instigating crimes that fall under the ICC’s jurisdiction:

Let me be clear: any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.

It will be interesting to see whether Bensouda follows through on her warning.

For now, Museveni is embracing (or at least engaging) the ICC as he goes after his former Inspector General of Police, Gen. Kayihura. His lovefest with the ICC could change quickly were he to come under ICC scrutiny for any alleged crimes. Duterte, on the other hand, full of bluster and bravado, is unapologetically obscene in expressing his disdain for the ICC.

Museveni and Duterte are two peas in a pod: strongmen who brazenly flaunt the rule of law while claiming to be championing it. How Bensouda plays her cards against the masterful hypocrite, Museveni, and the crude thug, Duterte, will, in no small measure, test the relevance of the ICC. Will the ICC be a manipulative tool for some and an ineffectual toothless tiger for others? Or will the ICC come of age (and hopefully soon) to live up to its promised potential?

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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