Will Mali Be the First Bensouda-Era Investigation?

by Kevin Jon Heller

It looks increasingly likely.  Mali has formally self-referred the situation in the country to the ICC and the OTP has already opened a formal preliminary investigation.  Here is yesterday’s statement from Fatou Bensouda:

Today I received a delegation from the Government of Mali led by the Minister of Justice, H.E. Malick Coulibaly. The delegation transmitted a letter by which the Government of Mali, as a State Party to the ICC, refers “the situation in Mali since January 2012” to my Office and requests an investigation to determine whether one or more persons should be charged for crimes committed. The Government of Mali submits that the Malian courts are unable to prosecute or try the perpetrators. The Malian delegation also provided documentation in support of the referral.

[snip]

My Office has been following the situation in Mali very closely since violence erupted there around 17 January 2012. On 24 April, as instances of killings, abductions, rapes and conscription of children were reported by several sources, I reminded all actors of ICC jurisdiction over Rome Statute crimes committed on the territory of Mali or by Malian nationals. On 1 July, I stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute.

I have instructed my Office to immediately proceed with a preliminary examination of the situation in order to assess whether the Rome Statute criteria stipulated under Article 53.1 for opening an investigation are fulfilled. I will make a public decision in due course.

It is not difficult to understand the OTP’s temptation to open an investigation — as this BBC article summarizes, Northern Mali is essentially under the control of rebels that have links to al-Qaeda, murder and rape are endemic, beloved historical sites in Timbuktu are being intentionally destroyed, and hundreds of thousands of civilians have been displaced by the conflict.  That said, I think there are at least four reasons to question the wisdom of the ICC getting involved.

Mali is in Africa.  This one is obvious.  Rightly or wrongly, the ICC’s exclusive focus on Africa has damaged its legitimacy.  A decision to investigate Mali, especially as the first act of the new Prosecutor, will simply reinforce the perception that the ICC is the African Criminal Court, not the International Criminal Court.

The investigation is about rebels.  The ICC investigates situations, not rebels, so it could certainly pursue charges against any government officials or soldiers responsible for international crimes.  But let’s not kid ourselves — the point of an investigation in Mali would be to bring charges against the rebels in control of the north.  The title of a recent Reuters article says it all: “Mali Asks Court to Investigate Rebel Crimes.”  From what I’ve read — and I’m anything but a Mali expert — nearly all of the crimes in Mali have, in fact, been committed by the rebels, not by the government.  Nevertheless, an investigation that focused exclusively on the rebels would reinforce the legitimacy-killing belief that states use the ICC to solve their political problems.

The conflict is ongoing.  Is this really the time for the ICC to get formally involved?  If you believe the threat of prosecution will have a deterrent effect on the rebels, perhaps.  Yet Islamist rebels — in contrast to government officials and military officers — seem unlikely to be deterred by the threat of ICC involvement.  But if there is no deterrent effect, there is no reason for the ICC to get involved in the conflict, at least at this point.  Doing so will just add to the list of situations in which the ICC is effectively powerless to operate.  That’s the last thing the Court needs.

Mali can handle prosecutions itself.  According to Bensouda’s statement, “Malian courts are unable to prosecute or try the perpetrators.”  But why?  According to the State Department’s 2011 human rights report, Mali generally has an independent and impartial judiciary that is more than capable of providing defendants with a fair trial:

The constitution provides for the right to a fair trial, and the judiciary generally enforced this right. Defendants are presumed innocent and have the right to confront witnesses, to present witnesses and evidence on their behalf, and to appeal decisions to the Supreme Court. Except in the case of minors, trials generally were public and juries were used. Defendants have the right to be present and have an attorney of their choice. Court-appointed attorneys are provided for the indigent without charge. Defendants have the right to consult with their attorney, but administrative backlogs and an insufficient number of lawyers, particularly in rural areas, often prevented prompt access. Defendants and attorneys have access to government evidence relevant to their cases.

I have no doubt that the political instability in Mali — especially the March coup – has put pressure on the judicial system.  But the government’s real problem seems to be defeating the rebels, not prosecuting them.  So why should the ICC spend its limited resources on investigating crimes that Mali can prosecute itself if/when it prevails in the conflict?  Allowing states to needlessly outsource their criminal-justice obligations has been a consistent problem for the Court, as the situation in Uganda illustrates.  (Uganda’s problem is catching the LRA; there is no reason it can’t prosecute Kony et al. itself once if/when it does.)  The ICC doesn’t need to do Mali’s dirty work for it — yet that is exactly what will happen if the OTP opens a formal investigation, because then the mere inactivity of the Malian criminal-justice system, even if deliberate, will render admissible any case that results from the investigation.

I understand the OTP temptation to rush into the Malian breach.  I just hope it is aware of the potential costs of doing so.

UPDATE: An email from a friend makes me think I should explain my final point a bit better.  As Daryl Robinson’s has shown in the essay linked to above, complementarity is a two-step process, not a one-step process as many scholars assume.  The first step asks whether the state is “active” with regard to a case that the OTP wants to pursue — whether, in other words, the state is currently pursuing an investigation or prosecution of the same suspect for the same conduct.  If it isn’t active, the case is admissible regardless of whether the state is willing and able to investigate or prosecute.  If it is active — and only if it is active — we then move to the second step of the complementarity analysis and ask whether the state is nevertheless unwilling or unable to genuinely investigate or prosecute.  The first “activity” step is thus critical, because it provides states with an iron-clad method for avoiding responsibility for national prosecutions: as long as a state does not initiate an investigation or prosecution of a suspect being sought by the ICC, the Court will have to find the case against that suspect admissible.

http://opiniojuris.org/2012/07/18/will-mali-be-the-first-bensouda-era-investigation/

4 Responses

  1. Kevin

    Thanks for your post on this. While I appreciate that there may be negative consequences in ‘opening another case in Africa’, it seems to me that it would be more worrisome for the ICC Prosecutor not open a case for this reason.

    Dealing with the last three arguments together, I agree with much of what you say with a few additions and qualifications. I was pleased to see that the ICC issued a statement  on Mali very quickly, when the first stories of the destruction of the shrines at Timbuktu emerged. In my view, early statements from the ICC are a good thing as they send a clear message that certain acts are international crimes which the ICC has authority to investigate. As well as giving a warning to perpetrators, they also send a message to the State involved: “if you don’t prosecute, we will”.  

    That being said, I fully agree with you that the opening of an investigation is unlikely to have any effect on current crisis facing Mali. When the rebels started destroying the tombs in Timbuktu in early July, an Ansar Dine spokesperson expressed his disdain for the international condemnation of the group’s actions, stating: “We are subject to religion and not to international opinion”. This seems to be a clear indication that the opening of an investigation by the Prosecutor of the ICC is not, in itself, going to have a deterrent effect on Ansar Dine’s actions.

    I also agree with your scepticism as to whether Mali is really unable to open its own criminal investigation into the acts in the North. Certainly, this is currently not feasible because of the government’s inability to access the North of the country. But won’t this area be equally inaccessible for ICC investigators?

    It is also worth noting that on 2 July 2012, the Malian government announced that it was not only planning to meet with ICC officials so that the perpetrators could be tried at the International Criminal Court but also confirmed that it had started a procedure for them to be tried at national level. This suggests that the Malian government has at least some ability in this regard.

    It may be helpful to draw readers’ attention to yesterday’s International Crisis Group’s report on Mali. This warns strongly against external armed intervention by regional partners such as ECOWAS because of the significant risk of inter-tribal settling of scores that might ensue and the risk that Mali may turn into a new front on the war on terror. Instead, the report urges the Malian government to pursue a political settlement of the conflict.

    Finally, I refer to a piece that I wrote on the blog that I have recently launched on ‘armed groups and international law’ which urges Mali to sign the 1999 Second Additional Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in times of Armed Conflict. Although on 3rd July 2012, UNESCO confirmed that Mali was taking steps to accede to the Protocol – somewhat incomprehensibly – they seem to have not yet done so. For the reasons I explain in my piece, this should happen as soon as possible. 

  2. Thanks for this.  It is really helpful.  Just one question that comes from your update.

    You said that step 1 is to check if the country is being “active.”  If a country requests the ICC to take the case, couldn’t we infer they are not active or going to be active?  Or, at least, can’t we presume that until there is evidence to the contrary?

  3. H,

    I think that’s generally a safe assumption.  The issue would only come up, of course, if the state then challenged admissibility.  So a state interested in outsourcing its problems will normally self-refer and then leave it at that.

  4. Katharine,

    We obviously agree about most things.  We only disagree about the Africa question.  It’s obviously tempting to say that the OTP should simply follow the crimes, no matter where they are committed.  It would indeed be unseemly for the OTP to decline to investigate simply because of location.  But I think gravity is a very elastic concept, not simply reducible to the number of victims in a situation.  So there are always many worthwhile situations to investigate; there are no obvious choices.  So in making those choices, I think the OTP has to be aware of larger issues like geographic scope.  (And has emphasized the need for that scope in the past.)

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