So there you have it: the first investigation opened by Fatou Bensouda, the ICC’s new Chief Prosecutor, will be in Africa. The ICC’s Office of the Prosecution (OTP) accepted a request by Malian government authorities for the Court to intervene and will now conduct a preliminary investigation of the situation, likely focusing on the north of the country. This shouldn’t come as a huge surprise to anyone following the ICC in recent weeks. Bensouda has made it very clear, from the get-go, that she would not hesitate to open a case in an African state.
It is important to remember, as William Schabas reminds us, that this is still only a preliminary investigation. Nevertheless, statements by Besouda hint at the fact that the investigation is much further along than many realize. Bensouda has already declared that she considers the destruction of cultural sites in Timbuktu to constitute a war crime and, in a statement yesterday, she indicated that the OTP has been monitoring the situation closely since violence broke out earlier this year. It would not surprise me if the OTP discretely requested Mali to give the Court jurisdiction through a self-referral.
So what does this mean for the ICC?
Another African Case: Adding Fuel to the Fire?
Both Kevin Jon Heller and Schabas have expressed their reservations about the ICC opening a new investigation in an African state. On the surface, these concerns are understandable. After all, the chorus of critics claiming that the Court is biased against Africa hasn’t waned much, if at all, with Bensouda’s appointment as Chief Prosecutor. Adding yet another investigation into an African state may be seen as adding fuel to the fire. I’m not so sure.
Opening an investigation into Mali may actually have positive consequences on the relationship between the ICC and African states. As I have argued elsewhere, the animosity between the African Union (and more specifically some of its member states) and the ICC has not been an extension of the number of cases the ICC has in Africa – although it is often framed as such for rhetorical purposes. The hostility stems from the increasingly close relationship between the ICC and the “great powers”, most notably those on the UN Security Council. In this context, it is important to remember that African states have most vociferously condemned the Court when it intervened as a result of Security Council referrals in Sudan and Libya (and to some extent in the Kenyan case where the ICC intervened on its own volition). Critically, the African Union has never significantly criticized the ICC following a self-referral by an African state, as was the case with Uganda, the Democratic Republic of Congo and the Central African Republic. This is, of course, a logical consequence of the fact that it would be very awkward for the African Union to criticize the Court for an investigation it conducts at the explicit behest of an African state.
Mali’s self-referral could ultimately have a positive effect on the perception of the ICC as biased against Africa. Self-referrals are inherently cooperative, requiring both the state and the ICC to work together. For this reason, former ICC Prosecutor, Luis Moreno-Ocampo invented a strategy to pursue and encourage self-referrals in the first years of the Court’s existence. He believed that receiving such invitations to investigate would bolster the legitimacy of the ICC. Self-referrals, as experience shows, certainly make it more difficult for African leaders opposed to the ICC to decry the Court’s role on the continent. Mali’s self-referral may also make it easier for Bensouda and proponents of the ICC to undermine the argument that the Court has unfairly honed in on weak African states. Defenders of the Court can argue that it was Mali’s own decision to request the Court’s intervention and that the decision refutes any African consensus against the Court.
Of course, the collaboration between the Court and the self-referring state is not unproblematic. But the primary concern here should not be whether the ICC is biased against African states, but whether the Court will be biased against particular warring actors.
Internal Bias: Investigating Rebels
Mali’s self-referral appears to be aimed specifically at the rebel groups against which the government has been fighting. This is inherently problematic. As Heller persuasively argues,
“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.”
This is reminiscent of the referral by the Ugandan government in 2003, which referred the Lord’s Resistance Army to the ICC. The Government believed that the Court’s involvement in the conflict would help create ripe conditions for international intervention which would lead to the defeat – or at least the expulsion – of the LRA in northern Uganda. The Court happily accepted the referral but was widely seen as having failed to sufficiently investigate atrocities committed by the Ugandan government forces (UPDF). It is worth noting that the Court has still never managed to escape the perception that it was biased in favour of the Government of Uganda.
Of course, the Malian case is not entirely comparable. Unlike with the Ugandan Government forces, as Heller points out, there is little to no evidence of crimes committed by the Malian government to date. But, that may not always be the case, especially if Malian forces go on the offensive against rebels in the north of the country.
There should be little doubt that the Malian government has calculated using the ICC as a weapon to achieve its political aims, namely to defeat the rebels and regain control of the country. Of relevance here is, as Heller also points out, the fact that Mali should be able to handle prosecutions itself. While the government has little to no control over the areas held by rebels, Mali’s problem isn’t its ability or willingness to prosecute rebels but its inability to arrest them. It appears that the Malian government has come to the conclusion (much like the Ugandan government previously) that getting the ICC involved may instigate international pressure and perhaps even a military intervention to restore the government’s authority. In this context, it was particularly notable that just last week, France declared that it would not rule out a military intervention in Mali.
If it does not tread carefully, there is the ever-present risk that Mali manages to instrumentalize the ICC for political purposes rather than achieving justice – not unlike the Museveni government has done in Uganda. Still, at least Bensouda didn’t announce the acceptance of the self-referral in a hotel room press conference beside Mali’s President!
A Risky but Unique Case
It is evident that the ICC is keen to open an official investigation into Mali. Recent precedence suggests arrest warrants may not be far off. As demonstrated in the case of Libya, the ICC moved with unprecedented speed in order to have an impact on the ongoing conflict. The wisdom of moving ahead so quickly is debatable but it is entirely possible that a similar course of action will be employed in Mali. Then again, with the ICC, nothing is ever really clear-cut.
UPDATE: Dov Jacobs has written an extensive set of thoughts on the Mali referral, its implications as well as the debate about the “politicization” of the ICC. It is well worth a read. Check it out here.
I am really happy that I am not a mosque in Mali.
I appreciate the troubles in Mali and the considerations that must have pushed Mali to make a self-referral to the ICC. I am however with Kevin Jon Heller on this one. I consider it a dangerous precedent for the Court to (easily) take up self-referrals. This is more so when you consider the infancy of the Court. It may end up being used as a political tool. Also, what will happen when it’s docket is full and resources stretched – will it then defer these self-referrals to other states? Moreover, if the country in question cannot arrest, and thus prosecute the people/rebels (as in Uganda) then how is the ICC expected to do the same, Taking the Uganda example, I find that the ICC would be setting itself up for a non-starter of a case by taking up the Mali situation. If anything, and politics aside, this may explain why the rebels in Libya are not necessarily in the Court’s radar – they are not a Situation, which I think is what the Court stated in reference to the LRA.
Thanks for the comments.
@Andrew – I think you’re right that there is an ever-present risk that the Court becomes a tool of the self-referring state. I mentioned that in the post and it certainly has occurred, in my opinion, in Uganda. With regards to resources, this is a question I didn’t have enough time to get into, but you’re right, it is a ongoing issue, especially with the significant growth of cases in front of the ICC in recent years, even with the Libya case potentially coming to a close. I am curious to what extent all of these issues were considered by the OTP in the run-up to Mali’s self-referral.
Great post as always. I’m not entirely convinced by this politicisation argument. If you want to avoid politics, one should only have proprio motu investigations. Save that, any referrals (self or otherwise, or from the USNC) will always have a political element to it. As I said on my blog, the question, from the OTP’s perspective, should be whether crimes are being committed or not. Nothing else. I know I’m being unrealistically unpolitical by saying that, but someone has to be 🙂
As a matter of Rome Statute procedure, can the OtP *reject* a self-referral? In other words, is there any way Bensouda can actually *not* open a preliminary examination once a situation is referred to the Court by a State Party? If so, on what grounds?
I actually think this has the potential to become a real hot potato for the ICC. The Malian conflict is far from over, neither the government nor the rebels are satisfied with the current status quo, and more bloodshed is likely. I wonder how the overstretched OtP is going to carry out its duties impartially if and when hostilities resume… clearly, they’re not going to get any logistical support from the so-called rebels.
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I’m not a lawyer, but I don’t see why the OTP cannot, in theory, reject a self-referral. It would have to issue a legal ruling as to why it rejected accepting the self-referral (as it must with all communications), but if there are legal grounds, then I don’t see why not. If the state in question was already investigating the crimes, for example, then the OTP could rule that it cannot accept jurisdiction. While not entirely the same as a self-referral, in the case of Palestine, the OTP rejected accepting jurisdiction on the grounds that the UN needed to ascertain whether or not Palestine was a nation or not. To what extent the Court would have to do a preliminary examination to reach this conclusion, I’m not entirely sure, given that the grounds for not opening an official investigation would likely have to be ascertained through some type of preliminary investigation.
Actually, Maya makes a valid point, which I was trying to make in my post, probably not clearly enough. A self-referral is not a communication. Technically, the OTP, under article 15, does what he wants with a communication and does not have to give reasons. The same is not true for referrals. The OTP cannot “reject” a referral. The language of Article 53(1) implies that an investigation should be opened, “unless”. In relation to that, the only legally relevant grounds that the OTP can invoke are 1) the absence of crimes 2) admissibility (even though I think this should not be evaluated at such an early stage) and 3) interests of justice. as for 1), there clearly seems to be evidence in that direction, as for 2), in the absence of any national proceedings, the case would be admissible, as for 3) the narrow definition of this expression is such as to be unlikely to justify not opening an investigation. There therefore seems to be no ground for not investigating. More particularly, the doubts that you, Kevin and Schabas raise cannot be taken into account. As I was saying in my own comments, it’s irrelevant to complain of “another African case”, or “political manipulation”, because there is nothing the OTP can technically do against this. What the OTP can do practically, is take as much time as it needs to decide if it’s not happy with the conditions of the self-referral, i.e. stall. But it cannot formally “reject” the referral, and its analysis is limited to Article 53 conditions.
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