What Happened to the ICC in Mali?

A Malian soldier in Gao (Photo: Joel Saget / AFP / Getty Images)

A Malian soldier in Gao (Photo: Joel Saget / AFP / Getty Images)

Given how seldom it is mentioned these days, it may actually be surprising to recall 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? What happened to ICC 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.

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 interest in Mali appears to have waned. 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.

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.

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. It may be that 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. At the same time, it should not be discounted that the lack of public or political scrutiny on the Court’s work in Mali may actually be conducive to an ongoing and rather quiet investigation by the ICC. If this is the case, however, we should expect to see the fruits of such an investigation in the near future.

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.

This article was originally posted as part of the CourtSide Justice series at Justice Hub.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in International Criminal Court (ICC), Mali, Peace Negotiations, Peace Processes. Bookmark the permalink.

6 Responses to What Happened to the ICC in Mali?

  1. el roam says:

    Thanks for the post . With all due respect , this is not a ” guessing game ” ( generally speaking). The prosecutor , has some guidelines and rules to follow ,concerning publication of his strategy and discretion ( regulation 15 , regulation 28 , regulations of the office of the prosecutor ).

    See for exe decision No : icc-01/13 ( 29 january 2015 , situation on registered vessels of the union of the comoros ,the hellenic republic of greece and the kingdom of Cambodia) from which you could conclude of course , that , no sufficient gravity to the alleged crimes , for having the ICC’s attention , was the publicly published reason for rejecting the case . The rule should be the publication of decisions , and the exception is the confidentiality in specific cases , under the rules mentioned .
    Thanks

  2. Emanuela Bertingi says:

    Thanks for the post – it is refreshing to see that the Mali situation gets some share of attention, eventually. Indeed, it has been largely overlooked in public debates since its opening in 2013 – and I strongly doubt that such an ‘oversight’ might be imputable to its ‘lack of gravity’ as someone (not the OPT anyway) suggested. This is just to give small contribution, for what it’s worth, as to the ‘possible reasons’ for Mali having fallen into oblivion. While it is completely plausible that the reasons enumerated in the post – ICC capacity issues, the ongoing peace negotiations, as well as some possible external influences – all played a role in the apparent ‘hibernation’ of the Mali situation, I think there is one more contributing factor that was seemingly not mentioned: complementarity. The judicial system in Mali is currently dealing with those very crimes cited by Mrs Bensouda in the quote above, and others still; investigations have been launched, arrest warrants issues, and a number of suspects detained – and currently awaiting trial. Now, as much as one may express reservations about the independence and effectiveness of the domestic judiciary in Mali, this is nonetheless something to be taken into account when it comes to ICC decision to get, and stay, involved; and might also help to explain the lack of proactivity on the part of the Court on this specific situation, along with the other factors evoked in the post. It might just be, in fact, that the Court is keeping a discreet eye on how things are handled locally, while reserving the right to ‘step in’ should circumstances demand so – with due respect for the principle of complementarity. Though, in the absence of a Court’s clear positioning on the matter, this remains indeed open to speculation.

    • Mark Kersten says:

      @Emanuela – Thanks very much for the important and interesting comment. I think you are right that complementarity could be a consideration. However, there is no evidence that that is, in fact, the case. Still, if in combination with the other issues, the Court would prefer to be patient (like in Colombia) rather than push forward (like in the Ivory Coast), potential domestic prosecutions could certainly be part of the OTP’s calculus in Mali. I think we will actually find out fairly soon.

    • el roam says:

      Emanuela Bertingi , if you were referring to my comment ( and I guess so ) then , you should know :

      It is upon the decision of the prosecutor, that the pre -trial chamber was ruling over, in that decision brought by me.

      anyway , it is the decision of the prosecutor , whether to investigate or not , and on what basis . However , the pre trial chamber , according to article 53 to the statute , Can and should review the decision , and even to request to reconsider it .
      Thanks

      • Mark Kersten says:

        Thanks for the important comment, el roam. I think we’ll find out about the ICC’s position on Libya very soon.

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