Whither ICC Justice in Mali?

By Mark Kersten*

Given how seldom it is mentioned these days, it may actually be surprising to hear that the International Criminal Court (ICC) still has an ongoing investigation into war crimes and crimes against humanity allegedly committed in Mali since 2012.

The ICC in Mali is something no one really seems to talk about anymore. Search ‘ICC’ and ‘Mali’ on Twitter, and the results are remarkably sparse. One news site’s timeline of the crisis in Mali doesn’t even bother to mention the ICC’s intervention. So what gives? Whither justice in Mali?

In the wake of brutal violence and the destruction of UNESCO protected sites in the north of Mali, ICC Chief Prosecutor Fatou Bensouda opened an investigation into Mali in July 2013. At the time, the Prosecutor appeared convinced that a host of international crimes had been committed in Mali, declaring that:

there is a reasonable basis to believe the following crimes were committed: (i) murder; (ii) mutilation, cruel treatment and torture; (iii) intentionally directing attacks against protected objects; (iv) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court; (v) pillaging, and (vi) rape.

Mali on the back burner

According to Human Rights Watch – which, like other major human rights NGOs, has also been remarkably quiet on issues pertaining to the ICC and Mali, investigators from the Court “conducted several missions to the country”. Nearing the third anniversary of Mali’s self-referral, however, the prosecutor appears to have lost interest in Mali. In private, some insiders even suggest that the Office of the Prosecutor (OTP) has essentially ‘hibernated’ its investigations. The ICC’s own situation page for Mali is, to put it bluntly, essentially empty. But what explains this lack of action and interest in international criminal justice in Mali?

One possible reason that Mali has been put on the prosecutor’s back burner is that the OTP simply has too much on its plate. Given its limited resources, the ICC is at or close to the maximum number of active investigations and cases it can feasibly handle. Recent developments – especially the surrender of the former senior commander of the Lord’s Resistance Army, Dominic Ongwen, as well as the opening of a preliminary investigation into alleged crimes committed in Palestine – have stretched the Court even thinner. As a result, Mali may simply have received the short end of the ICC’s prosecutorial stick and has likely been bumped down the OTP’s list of priorities.

Peace agreement
Another reason for the lack of ICC action may be the ongoing efforts to negotiate a comprehensive peace agreement between the warring factions in Mali. Earlier this year, a number of rebel groups and the government signed an agreement to end hostilities. However, key parties, notably the Coalition of Azawad Movements, decided against signing the agreement, and violence has resumed in parts of central and northern Mali. According to the International Crisis Group, the peace agreement is deeply flawed and offers little-to-no change for the people of Mali:

Although no agreement is perfect, the proposed document has clear shortcomings… It prioritises the restoration of order and stability rather than aiming to meet a desire for genuine change that runs deep among northern populations. The agreement makes scant mention of issues like the access to basic social services, jobs or justice – concerns at the heart of popular demands.

With peace talks in flux and a return to civil war a distinct possibility, the ICC prosecutor may be flexing her powers of prosecutorial discretion, choosing to be sensitive to Mali’s peace process and opting for a wait-and-see approach to the negotiations.

French role
It seems possible, if not entirely likely, that France has been communicating with the Court’s prosecutors on the ongoing peace process. France, an ICC member state, has led the international intervention to bring violence in Mali to an end and, despite the establishment of a UN peacekeeping force (MINUSMA), remains the key international actor in the country. As a result, Paris remains intimately invested in the outcome of peace negotiations and likely prefers that any ICC action (read: indictments) only be taken against those who refuse to take part in the peace process and risk spoiling negotiations. It is also worth noting that the French authorities are the most likely actor to be in possession of the kind of evidence that the OTP would need to proceed with arrest warrants.

In the end, we can only speculate as to why the issue of the ICC has fallen off the radar in Mali. And, in all likelihood, the Court’s lack of interest or action in Mali is a combination of all of the above: the OTP’s limited resources and an over-stretched mandate, as well as a certain sensitivity towards the ongoing peace process.

Neglect
But the story, or better, non-story of the ICC in Mali exposes at least two limitations of what we understand about the Court’s functioning. First, we still don’t know very much about why certain prosecutorial decisions are taken or not taken. The strategies that make up prosecutorial discretion remain a Pandora’s box and a guessing game.

Second, the case of Mali leaves us with an important, if uncomfortable, question: why have we, as observers of the ICC, stopped writing and asking about Mali? Sure, the dramatic collapse of the case against Kenyan President Uhuru Kenyatta, the potential for an ICC intervention in Palestine, and the surrender of Ongwen to The Hague take up the lion’s share of our time and energy. But the almost complete neglect of the ICC’s investigations in Mali suggests that we too have limited interest or, worse, a bias for certain ICC cases.

Of course, it is easier to focus on cases where things actually happen then where they don’t. With Mali and the ICC, very little has transpired. But surely, when there is nothing for this long, it should pique our interest – and we should start asking why.

Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.

Lead image: A Taoureg Malian soldier on patrol in Kidal, Mali (Tanya Bindra/EPA)

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