President Museveni (right) hosts his Sudanese counterpart Omar al-Bashir (left) and his delegation at State House Entebbe in 2017. PHOTOS/FILE
Eight years ago, a diplomatic row ensued between the Kampala regime and its allies Washington and European Union (EU) when diplomats stormed out of President Museveni’s swearing-in ceremony for a fifth term at Kololo Independence Grounds.
President Museveni, in power since 1986, had polled 60.7 percent in the February 18, 2016, polls. His closest challenger and Forum for Democratic Change party flag bearer, Dr Kizza Besigye, had rejected the results as “sham”.
The US said Ugandans “deserved better” hours after Mr Museveni was announced winner, citing irregularities— particularly the climate of fear created by machine-gun-toting soldiers stationed near polling stations in Kampala and Wakiso, two largest Opposition enclaves— a concern raised by EU and Commonwealth observers.
Since ascending to power in 1986, Mr Museveni—who while fighting the 1981-1986 Bush War against Milton Obote II’s government professed Marxist ideals but later made a U-turn—has largely been a darling of the West.
In the early 1990s, his then progressive government was quick to adopt the Bretton Woods Structural Adjustment Programmes reforms which undid many economic policies of his predecessors and opened taps for foreign aid, but handed over the economy to foreign hands.
On May 12, 2016, then US ambassador to Uganda Deborah Malac, visiting US principal deputy assistant for bureau of African affairs Bruce Wharton, and EU diplomats walked out of Kololo after the President disparaged the International Criminal Court (ICC) as “a bunch of useless people”.
“The ICC is none of our business… That’s a useless body. Initially we thought they were serious but they are a bunch of useless people,” Mr Museveni said at Kololo.
The remarks triggered a smile and clap of approval from then Sudanese president Omar al-Bashir who was indicted in 2009 and 2010 by The Hague-based court on two counts of crimes against humanity and genocide of more than 300,000 people in Sudan’s Darfur region.
Since the indictment, Mr Bashir, who was booted out of power in April 2019 and thrown in jail in Khartoum for inciting and participating in killing of protesters, had been circling the globe—to both ICC party and non-party states—each journey hitting a blow to the court which has no enforcement mechanisms.
His invitation to the May 12 swearing-in ceremony after Kampala-Khartoum rapprochement immediately triggered a war of words, with the West calling for al-Bashir’s arrest in fulfilment of the Rome Statute that Uganda is signatory to. His appearance and his host’s comments repulsed the Western diplomats.
“President Museveni’s comments were mocking the victims of genocide and those seeking accountability—we view that that was appropriate for us to speak out,” then director of press at State Department, Ms Elizabeth Trudeau, told journalists in Washington DC later that evening.
Later on May 17, the ICC presiding judge Cuno Tarfusser wrote to Kampala, as a state party to the Rome Statute that established the ICC 24 years ago, to explain the failure to arrest Mr Bashir.
A day before the swearing-in ceremony, the court submitted a note verbale (diplomatic protest memo) to the Ministry of Foreign Affairs to disinvite him.
Mr Bashir came to Uganda again in November 2017 for a two-day state visit amid tight security.
In tricky bind
The ICC handles four major international crimes – aggression, war crimes, genocide and crimes against humanity.
British Prime Minister Rishi Sunak (right) and US president Joe Biden in California, USA, in March 2023. PHOTO/REUTERS
Fast forward to May 20, 2024, the US and UK were placed in a spot of bother after the ICC chief prosecutor submitted applications for arrest warrants for the arrest of their ally, Israel’s Prime Minister Benjamin Netanyahu, and his defence minister Yoav Gallant alongside two senior Hamas officials.
Mr Netanyahu, according to Reuters, slammed “with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas”.
Israeli Prime Minister Benjamin Netanyahu.
In an interview with US’ MSNBC’s The 11th Hour last Tuesday evening, Mr Netanyahu said: “That’s like saying, ‘Well, I’m going to issue arrest warrants for’ — after 9/11 — ‘I’m issuing arrest warrants for George [W] Bush, but also for Osama bin Laden. And in World War II, ‘I’m issuing arrest warrants for FDR [Franklin Delano Roosevelt] but also for Hitler.’ Thanks a lot. That’s a false symmetry and it’s totally absurd. It’s a travesty of justice.”
US President Joe Biden on May 20 slammed as “outrageous” Mr Khan’s push for arrest warrants against Mr Netanyahu and his defence minister.
“And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security,” Mr Biden said in a statement issued by the White House.
UK Prime Minister Rishi Sunak was quoted as calling ICC’s move “a deeply unhelpful development”.
“There is no moral equivalence between a democratic state exercising its lawful right to self-defence and the terrorist group Hamas,” Mr Sunak was quoted as telling journalists in Vienna, Austria.
Earlier on May 6, a group of 12 US Republican senators fired off a letter to the ICC, warning of consequences if the arrest warrants were issued, which they said is “not only a threat to Israel’s sovereignty, but to the sovereignty of the US”.
In a rejoinder, the ICC said there was “significant public interest” surrounding the situation in Palestine and warned that retaliatory measures could undermine the court which has publicly indicted 54 people – majority in Africa including five commanders of the Lord’s Resistance Army (LRA) that menaced northern Uganda during the two-decades insurgency – most prominently, in March 2023, of Russian President Vladimir Putin.
President Putin was indicted by the court on March 17 for, among other, crimes “forcible taking of Ukrainian children by Russian forces” in relation to the ongoing war in Ukraine. Moscow maintains the war is a “special operation to weed out Nazi elements”. Putin’s indictment, was however, widely celebrated in Western capitals that continue to support Kiev to push back.
Washington has previously threatened to arrest the ICC judges if the court pursued investigations and issued indictment for any American that served in Afghanistan.
Russian presidency spokesperson Dmitry Peskov, in an attempt at wit, was quoted by Turkish media agency, Anadolu, as saying: “You know that we are not parties to the (Rome) Statute. Accordingly, we do not recognise the jurisdiction of this court. But in general, indeed, the situation is more than curious in terms of the US attitude and readiness to use sanctions methods even in relation to the ICC.”
Divided opinions
The application for the arrest warrants is not final and the discretion lies with the Pre-Trial Chamber I mandated under article 39(1) of the Rome Statute to carry out the judicial functions of the court.
Israel, with backing of the US and its European allies, launched a vicious retaliatory campaign on the besieged Palestinian territory of Gaza to “demolish” the Palestinian Islamic Resistance Movement (Hamas) following its surprise attack on October 7, 2023, on a music festival, south of the country, killing 1,139 people, injuring scores, and taking more than 200 hostage.
The death toll, according to the Gaza Health ministry, stands at around 35,000 and at least 80,000 people injured. There is contention by the UN, Israel and Gaza officials on the exact number of casualties.
Conversely, some Western powers including France, Slovenia and Belgium that previously sided with the US on key UN votes on the situation in Palestine broke ranks on the seeking of arrest warrants.
“Accountability is crucial to prevent atrocities and to guarantee peace,” Slovenia’s Ministry of Foreign and European Affairs said in a statement posted on the microblogging site, X.
Belgium’s minister of Foreign Affairs Hadja Lahbib said in a statement that: “Crimes committed in Gaza must be prosecuted at the highest level, regardless of the perpetrators.”
In a statement on its website, the French Ministry for Europe and Foreign Affairs said: “France supports the International Criminal Court, its independence, and the fight against impunity in all situations.”
Norway, Spain and Ireland announced midweek their decision to recognise the state of Palestine, in keeping with the spirit of the two-state solution that has largely remained as a blueprint, as a stepping stone to realising lasting peace. Israel reacted angrily and recalled its ambassadors from the three countries.
Uganda’s vocal position on the Palestine issue through the Non-Alignment Movement (NAM), highly placed sources told this newspaper, has raised eyebrows. Yet, for long Kampala has been consistent in its support for the two-state solution.
Highly placed diplomatic sources intimated that it is a widely held view by Kampala that the ICC poses a threat to Uganda’s leadership that often prioritises national interests. The court has been petitioned twice in relation to the 2016 Kasese killings and the deadly November 2021 protests.
In early March, the US vetoed the United Nations Security Council (UNSC) resolution to admit Palestine as the 194th member of the United Nations. The beleaguered state and the Holy See (both state as Vatican City and sovereign entity) are the only two UN non-member observer states.
In spite of that, the UN General Assembly (UNGA), the world’s parliament where all the 193-UN member states have equal voice, on May 11 voted by majority on a resolution granting Palestine new rights and reviving its UN membership bid.
The fallout from the Israel-Palestine conflict, including the ICC debacle, the former Ministry of Foreign Affairs Permanent Secretary James Mugume told Sunday Monitor, is a testament “we are entering a new international order where there is geopolitical power shift taking place from the sole superpower (US) to a more multilateral system with Cold War 2.0 between US and China”.
“Will the US sanction ICC and International Court of Justice (ICJ)? Will US exceptionalism in foreign policy hold? Let us see what happens!” Mr Mugume said.
On another front, Mr Netanyahu’s government is battling a genocide case at the UN’s top court in The Hague, ICJ.
The court adjudicates legal disputes between states and provides advisory opinions on legal conundrums submitted by other UN organs or agencies.
‘Built for Africa and thugs like Putin’
Last December, South Africa dragged Israel to the ICJ, accusing it of committing genocide against Palestinian people, in violation of the Convention on the Prevention and Punishment of the Crime of Genocide. Still, the US and UK reprobated South Africa.
Two months into the Israel bombardment of Gaza last year, Bolivia co-sponsored by Djibouti, Bangladesh, South Africa and Comoros, filed a motion requesting the ICC to look into the situation.
Chief prosecutor Khan’s move is the first of a kind. His predecessor, Ms Fatou Bensouda, was petitioned in 2021 to investigate the Israel army’s crimes in Gaza but the matter did not go forward.
Following his visit to Israel and Palestine’s state of Ramallah early last December, Mr Khan indicated that the 2021 file would be revisited.
For long spells, African countries under the 55-member continental body, African Union (AU), have labelled the ICC as a “tool” by the West to target African leaders.
Mr Uhuru Kenyatta and Mr William Ruto, who went on to stand for president and deputy president respectively and took office in 2013, were indicted in 2011 and charges dismissed in 2015.
Former Libyan strongman Muammar Gaddafi was indicted in June 2011 but was killed later in October. Sudan’s Bashir was indicted in 2009 and 2010. Côte d’Ivoire’s Laurent Gbagbo was indicted in 2011 and acquitted in 2021.
Speaking at Kenya’s 51st Independence Day celebrations in 2014, the President accused the court of being a tool for western powers to witch hunt African leaders.
“People of the West should leave their foolishness. I am done with the ICC,” the President told a cheering crowd at Nyayo Stadium in Nairobi.
Indeed, the court finds itself in a tricky bind too. When in July 2012 it handed down a 14-year sentence to former Congolese warlord Thomas Dyilo Lubanga, there were chants of jubilation and plaudits from the continent towards the international adjudication system.
When it went after sitting African leaders, like in Netanyahu’s case, it was met with virulent criticism.
This long held position was reinforced last Monday by Mr Khan during an interview with CNN’s Christiane Amanpour where he revealed that since relaunching the probe in Gaza several actors from the West had reached out to him to dissuade him.
“Of course, I have heard some elected leaders speak to me and be very blunt: this court is built for Africa and thugs like Putin. It is what one senior leader told me. We don’t view it like that. This court is the legacy of Nuremberg, this court is a sad indictment of humanity, this court should be the triumph of law over power and brute force,” he said.
During the 27th African Union Summit in Kigali, Rwanda, African leaders mooted walking out of the court, which plot did not materialise.
Procedurally, if a state party wishes to withdraw from the Rome Statute, it must notify the UN secretary general in writing. The withdrawal takes effect, at earliest, one year after the date of notification.
However, withdrawal by a state does not “remove any of its obligations that arose from the Statute while it was a party to it up to the date on which the withdrawal became effective”.
The state is still under an obligation to cooperate with the prosecutor and the court in connection with any criminal investigations and proceedings that commenced prior to the date on which the withdrawal became effective.
Six countries, including Libya, Russia, China, US and Qatar, are not party to the Rome Statute, but Gaddafi, his son Saif al-Islam, and brother-in-law Abdullah Senussi, head of state security, were indicted on charges of crimes against humanity.
The US specifically maintains it does not recognise ICC jurisdiction over the Palestinian territories, which the court asserts it has.
