Last week, Fatou Bensouda, the chief Prosecutor of the International Criminal Court warned Mali’s government that she could investigate alleged atrocities committed by the government’s military forces. And it’s a good thing she did. While the ICC may have little-to-no deterrent effect on the Malian rebels, it might just be able to shape the behaviour of the Malian government.
Amidst rumours that Mali government forces have perpetrated atrocities in central Mali, Bensouda released a curt but strong statement which declared:
My Office is aware of reports that Malian forces may have committed abuses in recent days, in central Mali. I urge the Malian authorities to put an immediate stop to the alleged abuses and on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.
Bensouda’s statement was a stern reminder to the Mali government: just because Mali referred the situation to the Court does not mean that its forces will escape investigation (and possibly prosecution). A war crime is a war crime is a war crime, irrespective of who perpetrates it. The question is: will Mali take heed of the Prosecutor’s warning?
The notion that the ICC can deter crimes is simple enough. The international justice and human rights community argue that international criminal tribunals have the power to change the behaviour of both current perpetrators of atrocities and would-be perpetrators. The fear of being indicted, it is argued, prevents individuals from continuing – or beginning – to commit international crimes.
The problem with deterrence is just as simple: there is very little evidence for it. This isn’t merely an empirical question. After all, the decision not to do something is difficult, if not impossible, to measure. In general, there is good reason to be skeptical of the claims that the ICC can deter the commission of atrocities. The results are mixed at best (see, for example, here and here).
Still, the landscape of deterrence is perhaps less bleak than the most fervent of critics would suggest. This is particularly true if we look in the direction of actors who aren’t targeted by the ICC rather than those who are.
Take the Ugandan case, for example. It would be virtually impossible to argue that the ICC’s intervention into the war between Joseph Kony’s Lords Resistance Army (LRA) and the Government of Uganda has deterred the LRA from committing atrocities. At best, it helped ‘export’ the conflict to neighbouring Democratic Republic of Congo, Central African Republic and South Sudan. However, it is plausible to argue that the ICC has had positive effects on the behaviour of the Ugandan government and, in particular, the Uganda People’s Defence Force (UPDF). Where they might have been more brutal in dealing with domestic unrest and protests, the government has not committed serious breaches of international criminal law. It seems likely that they have been spurred by periodic statements by the ICC that the Office of the Prosecutor could, at any time, open an investigation into allegations of new crimes.
That an ICC intervention would affect governments like Uganda or Mali in such a way is unsurprising. In both cases, the governments referred their internal strife to the Court. As I have previously argued, that comes with numerous pitfalls. The ICC risks being instrumentalized by the referring government which may ‘use’ the Court to delegitimize their adversaries whilst drumming up international support for their own role in the conflict. But a side-product of this dynamic is that, while states seek to wield the ICC against their rebellious adversaries, they clearly do not want to become the Court’s next target. To come under the suspicion of the ICC would tarnish their perceived legitimacy and international standing. Aware that they are now under the watchful eyes of the ICC’s Prosecutor – not to mention the international community – brutal tactics which may amount to war crimes or crimes against humanity, are likely be discouraged.
There are signs that, buoyed by France’s military intervention, the worst of the violence in Mali soon be over. However, fears of vengeance remain widespread. According to the BBC, the Tuareg peoples of Northern Mali, for example, are “lying low”, fearful of reprisals against them. This is an important reminder that the conclusion of conflict rarely marks the end of mass human rights abuses and crimes. As a result, it is as important now as ever that the ICC make clear that it can and will investigate any crimes committed in Mali, irrespective of who commits them. With her statement, the Prosecutor has done just that. The Mali government would be wise to take heed.