Exploring the ICC: From Bashir to the Iraq invasion

The International Criminal Court (ICC) has been rigorously accused of selectively investigating African countries. It is true that only Africans on trial at the ICC at the moment, and the six trial-ready cases before the court involve Africans. 

But the ICC is also conducting preliminary investigations into several countries around the world, including the United Kingdom’s activities in Iraq and attacks against civilians in Colombia. 

According to data provided publicly by the court, the Office of the Prosecutor at the ICC is currently conducting probes into crimes against humanity and war crimes in at least 16 countries. This includes probes into allegations that Iraqi detainees were tortured and illegally detained by British forces operating in the country since the US-led invasion of that country, as well as investigations into conflicts in Honduras and a second probe into war crimes in the Central African Republic.

Since its establishment in 2002, according to its investigations reports, the ICC has had over 10 000 requests to prosecute, and many of these have been requests by the countries being investigated. In some cases, more than 100 requests for an investigation were submitted to the ICC on single cases.  And there are several occasions where the accused themselves have handed themselves over to the ICC. 

Here is a country-by-country map of all the ICC’s investigations to date.

Bosco Ntaganda, a former high ranking official of the Patriotic Forces for the Liberation of Congo is one such case. 

Ntaganda, nicknamed “the Terminator”, is accused of 13 counts of war crimes. These include the conscription of child soldiers, murder, attacking civilians, rape, and sexual enslavement.  “When the reign of one of Africa’s most feared warlords came to an end it was not at gunpoint but in a mild and meek surrender,” reported The Guardian in 2013.  Reportedly, the “warlord” delivered himself to the gates of the US embassy in Rwanda and requested to be handed over to the ICC.  

The same is true for one of Joseph Kony, the infamous Ugandan warlord’s lieutenants. Dominic Ongwen was recruited to Kony’s Lord’s Resistance Army (LRA) as a child soldier. He surrendered to the ICC while in the Central African Republic, in January this year. 

Uganda, like many of her African counterparts, is highly critical of the ICC for targeting African countries. But in this case, Uganda has promised its co-operation in the trial of Ongwen, promising to assist in providing witnesses, because Ongwen’s attacks were against civilians and not against the state.  

Ugandan president, Yoweri Museveni, backed an African Union resolution in 2014 that said no sitting African head of state should be prosecuted should be tried at the ICC, his spokesperson told Bloomberg this year. 

But in this case, the Ugandan government believes the LRA issue is now a regional one, not just a Ugangan one. This is rare. The ICC has complained that its investigations are stymied by non co-operation by states who are signatories to the Rome Statue. This is the case in Kenya. Charges were dropped against Kenyan president, Uhuru Kenyatta, in 2014. But his deputy, William Ruto and journalist Joshua Sang, both accused of being involved in the ethnic cleansing which rocked that nation in 2007, are still being tried at the ICC. Both men handed themselves over to the ICC, voluntarily. 

For the past year, the ICC’s prosecutor’s office has been conducting a preliminary investigation into allegations that Iraqi detainees were abused by British soldiers, following the invasion of that country by United States-led forces. The ICC declined to prosecute the matter in 2006 citing a lack of evidence. But new evidence was brought before it in January 2014, alleging the systematic abuse of detainees, crucially, giving prosecutors details of where the abuses took place. 

Also on the African continent, the ICC says it is pursuing a preliminary investigation into Boko Haram’s activities in Nigeria, as well as militia conflict in the Niger Delta. Arguably, this is also a regional issue, and it remains to be seen if the AU will endorse the possible prosecution of rebel leaders, should the investigation advance that far, or whether it will seek to further delegitimise the ICC. 

In the twelve years since its establishment, the 22 cases have been brought before it, although not all of these have resulted in prosecutions.  By the beginning of 2015, six cases before the court were at a trial-ready stage, according to the court. This includes the prosecution of former Ivory Coast leader, Laurent Gbagbo, due to go on trial for crimes against humanity later this year.

Seven things about Omar al-Bashir
1. Omar al-Bashir seized control of Sudan in a coup in 1989. The Sudanese genocide, which al-Bashir is accused of orchestrating, is said to have begun in early 2003, targeting indigenous African tribes. In September 2004, the United States Congress became the first major international voice to call the conflict in Darfur a genocide. An international commission of inquiry into the conflict recommended that the case be referred to the International Criminal Court in 2005. 

2. Al-Bashir is the only sitting president with a warrant of arrest from the ICC hanging over his head. He has been charged with seven counts of war crimes and crimes against humanity and three counts of genocide related to ethnic cleansing. 

3. Little is known about his public life. In a profile  published by the BBC, analysts said he has no children, and that he took a second wife in his fifties. He joined the army at a young age and has spent most of his life involved in one war or another.

4. In 2010, Wikileaks released a batch of diplomatic cables  implicating al-Bashir in robbing Sudan of billions of dollars. The cables revealed that the ICC believed that al-Bashir had siphoned off $9-billion of Sudanese public funds, and that the money was thought to be stashed in London banks. London is a so-called tax haven, and a known offshore destination for capital flight,often from developing countries. In the cables, ICC prosecutor Luis Moreno-Ocampo told US diplomats that he believed that these allegations would be enough to turn the Sudanese people against al-Bashir. The Sudanese government dismissed the claims as conspiratorial.

5.  On four previous occasions, the ICC has demanded answers over African countries who hosted al-Bashir after the arrest warrants had been issued. Al-Bashir visited Malawi in 2011, and Nigeria in 2013. Al-Bashir visited Kenya and Chad in 2011. All countries are signatories to the Rome Statute.

6. Al-Bashir knew Osama bin Laden personally, and the latter lived and worked in Sudan for a time. But it is said that al-Bashir asked Bin Laden to leave after pressure from the US, in the wake of the 2001 terror attacks on the World Trade Centre.  In an interview with PBS’ Frontline, al-Bashir described Bin Laden as “normal”. “He is a very normal person and he is very religious. He believes in Islam and he believes in changing the state and the political Islam. The period that he spent in Afghanistan might have affected his personality to believe that he could change … politically by military means,” the Sudanese president said.

7. Al-Bashir is said to have a  personal net worth of $1-billion.

Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 


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