Museveni’s Bashir arrest dilemma and the ICC

By ASUMAN BISIIKA  (email the author)
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Posted Monday, July 27 2009 at 00:00
Sudanese President Omar al-Bashir decision not to come to Kampala to attend the Smart Partnership Conference on July 26 gave Uganda’s President Yoweri Museveni a way out of a situation that can only be described as the Devil’s Alternative.
He would have been damned if he arrested Bashir, and damned if he didn’t.
Despite the African Union’s position on his indictment by the International Criminal Court, sensing that not all of its leaders will stand by him all the way, Bashir has limited his travels to countries not party to the Rome State under which the ICC was created.
In all honesty, one has to have the eccentricity of Libya’s Muamar Gaddafi or the “international acceptance” of Egypt’s Hosni Mubarak to dine with Bashir now.
When Luis Moreno-Ocampo, the ICC’s chief prosecutor, came to Kampala and insisted at a news conference at the Uganda Media Centre that Uganda had a legal obligation to arrest President Bashir if he came to Kampala, he might as well have added that it had a moral and historical obligation as well.
Uganda has a special relationship with the ICC because it was the first country to refer a case to the court.
The indictment against Lord’s Resistance Army leader Joseph Kony and the four top leaders of the rebel LRA was the ICC’s first case, although Congo rebel leader Thomas Lubanga was the first to be arraigned before the court.
Uganda is the current chair of the UN Security Council and diplomatic etiquette enjoins it to act in a manner consonant with international public opinion — where “international” means the Western powers. And the West wants Bashir put away.
On the other hand, Libya for example has a sizeable investment portfolio in Uganda and recently Museveni asked Iran to develop an oil refinery in the country.
These are the countries with which Uganda shares membership in the Organisation of Islamic Conference.
Arresting Bashir would have earned Museveni the wrath of the African Union and Muslim World.
Yet even if Museveni only considered his country’s interests alone, he would have been reluctant to arrest Bashir.
Sudan is in the midst of implementing the Comprehensive Peace Agreement signed between Khartoum and the Government of Southern Sudan.
There are fears that a new leader could be reluctant to implement the CPA, leading to the resumption of war in Sudan.
Museveni knows only too well what it would mean for Uganda: Trouble.
This is not the first time the ICC has caused “problems” for Uganda.
The indictment of Joseph Kony — and the court’s refusal to withdraw it —is still blamed for the failure of the Juba peace talks with the LRA rebels.
It was therefore not surprising that on July 13, Museveni told Ocampo that Kony was no longer a problem for Uganda.
Indeed, his ratification of the Rome Statute is something President Museveni may now well be regretting.
Even the legislation to integrate the statute in the legal regime has stalled. Truth to tell, the ICC constrains the government’s political leverage in regional affairs.
Indeed, the government was warned about the challenges that would come with taking the Kony case to the ICC.
A source in the Ministry of Justice claiming to have been involved in the invitation of the court told this writer that Lucien Tibaruha, the former solicitor-general, actually advised against it. Tibaruha feared that an international trial for the LRA’s top leadership would expose the Uganda
People’s Defence Force soldiers involved in human rights abuses to similar indictments.
The scenario that Tibaruha feared is currently playing out in the United Nations Criminal Tribunal for Sierra Leone.
Members of the pro-government militias who committed crimes have also been brought before the tribunal.
Even non-Sierra Leonean players in the conflict like former Liberian president Charles Taylor have been indicted.
Uganda’s romance with the ICC started in London, during one of those numerous mediation meetings hosted by Clare Short (former British Secretary of State for International Development) between President Paul Kagame of Rwanda and Museveni in the aftermath of the infamous Kisangani clashes.
Adonia Ayebare, then Uganda’s ambassador to Rwanda, is said to have bumped into an old acquaintance named Luis Moreno-Ocampo at the meeting.
After exchanging pleasantries, Ocampo told Ayebare about his new posting as the chief prosecutor of the International Criminal Court at The Hague.
Ayebare wondered whether Ocampo could do something about a thorn in Uganda’s side — a certain Joseph Kony.
Ocampo, perhaps seeing the trial of Kony as a way to kick off his new posting with a bang, fell for the idea.
That same evening, Ocampo met President Museveni. Without much ado, Museveni announced, while still in London, that he would ask the ICC to try the top leadership of the LRA rebels.
In July 2005, the ICC issued international arrest warrants for Kony, and four of his top deputies.
According to a senior Foreign Ministry official, “After the issuing of the warrants, almost all mainstream political supporters or sympathisers of the rebellion slowed down or became dormant. Even Sudan, which had hitherto been accused of openly supporting the LRA, felt the heat of the international arrest warrants and backed off. In fact, the warrants did more than the military had done in 20 years.”
With the reluctance of some world players to recognise it, the ICC has to work hard to justify its existence by successfully trying cases like that of Kony and his followers.
Roping in a sitting president (an African president, for that) would be a great bonus.