{UAH} Ocen, WBK//AU's mixed signals on ICC - hypocrisy everywhere

African Union sending mixed signals on engagement with ICC By Makau Mutua Updated Sunday, December 6th 2015 at 00:00 GMT +3

 It's not a secret that I support the International Criminal Court. I promoted the idea of an international criminal tribunal before the ICC was established in 2002. I supported the ICC before the Kenyan cases. The point is I've been consistent and principled on this matter. But I am afraid one can't say the same thing about the African Union, the successor body to the much-maligned OAU. We know this — the AU was one of the early and enthusiastic supporters of the ICC. 

In fact, Africa's 34 states constitute the largest regional single block of countries in the ICC. However, it's impossible to nail down the norms and principles on which AU relies on in its relationship with the ICC. AU's support for the ICC ebbs and flows based on the indictees. It's what one might call fair weather support. It's true that all the cases before the ICC have been against Africans. African states themselves referred most of those cases to the ICC. 

A couple were started by the Prosecutor proprio motu, or on the Prosecutor's own volition. Several were referred to the Court by the UN Security Council. Now the ICC has opened preliminary investigations into "situations" in Palestine, Ukraine, Colombia, Iraq, Afghanistan, Syria, among others. Whether these investigations into states outside Africa will quiet the AU charges that the ICC is "race-hunting" remains to be seen. But I doubt it. The first cases at the ICC involved people like the LRA's Joseph Kony or the Democratic Republic of Congo's Thomas Lubanga, convicted for use of child soldiers. 

Both were not in power and didn't control any state. Neither belonged to the mighty club of African "big Men" known as the AU. In other words, they were dispensable. African heads of state could feed the "beast" of the ICC these "small fries" because it cost them nothing but earned them global admiration for fighting impunity and heinous crimes. The problem with the ICC started when it came close to the inner sanctum of power. Indicting Omar al Bashir of Sudan was a "mistake." Pursuing Kenya's Uhuru Kenyatta was a no-no. But the AU has spoken on both sides of its mouth on the ICC. While it seriously threatened to quit the ICC en masse over Mr Kenyatta's case, the AU had no trouble with the dispatch of former Ivorian strongman Laurent Gbagbo and his wife Simone Gbagbo to The Hague. 

The AU was only too happy to hand over them to the ICC. Similarly, the AU is not bothered by the ICC's intervention in Mali, Central African Republic, Libya, and DRC. But Kenya and Sudan are no-go areas. That's because of Kenya's sway in the region and Sudan's bridging role between Black Africa and North Africa/Middle East. Importantly, it's because both Mr Bashir and Mr Kenyatta are sitting heads of state. This brings me to Dominic Ongwen, the "senior commander" within the LRA who recently fell into the custody of American and CAR forces. Mr Ongwen is Ugandan and so he was shipped to Kampala for "processing." Shortly thereafter, he was handed over to the ICC supposedly through Bangui. 

But there was one paradox. Why did President Yoweri Museveni, the most strident critic of the ICC, hand Ongwen over to what he calls a "colonial white man's court."? Mr Museveni's virulent attacks on the ICC because of Mr Kenyatta are legend. Don't Ugandan courts have the wherewithal to try Mr Ongwen? Mr Museveni's hypocrisy can be described as stunning. It's unprincipled and makes a mockery of his pan-Africanist rhetoric. The AU hasn't shown concern for the fate of ordinary Africans at the ICC. The case of journalist Joshua arap Sang, the co-accused with DP William Ruto, speaks volumes. Mr Sang is the forgotten man. I don't believe his name has ever once crossed the lips of an AU head of state. Nor have any African heads of state — including Mr Museveni — ever threatened Armageddon if the ICC didn't terminate Mr Sang's case. Mr Ruto's case has drawn the ire of the AU, but no nearly in the same proportion as Mr Kenyatta's. My point is that Mr Ongwen is a "nobody." 

To the extent that he's somebody, the AU and Mr Museveni don't want the headache of trying him at home. See also: Can the ICC dispense justice to PEV victims? Mr Museveni's excuse for shipping Mr Ongwen to The Hague may be that the Ugandan amnesty would dissuade LRAs rebels for surrendering if he's tried at home. But that's hooey. "Commanders" like Mr Ongwen aren't ordinary rebels. They must stand trial because they bear the greatest responsibility. I expected Mr Museveni and the AU to oppose Mr Ongwen's transfer to The Hague because of the moral quandary of his case. He was only ten when he was abducted by the LRA. Is that a basis for amnesty?
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