Janine Lespérance is a Legal Advisor for Lawyers without Borders Canada (LWBC – http://www.asfcanada.ca). LWBC supports Malian civil society and works to strengthen the ability of civil society actors and victims of the conflict, especially women and children, to participate in the transitional justice process. LWBC also directly supports the Malian Truth, Justice, and Reconciliation Commission.
The effects that the Rome Statute has on the domestic prosecution of international crimes is often overlooked and overshadowed by analysis and critique of the International Criminal Court’s own results in terms of prosecutions and convictions. It is worth considering not only the effects of the ICC’s preliminary examinations on domestic prosecutions, but also the impacts of the ICC’s involvement in countries where it has active investigations or cases. One such situation is Mali, where the Court’s intervention may be having the unintended consequence of reducing the possibility of national justice for international crimes.
No national justice for international crimes in Mali
One of the ICC’s few convictions to date was in Al Mahdi, in which the accused pled guilty and was convicted of war crimes for the destruction of culturally significant buildings in Timbuktu. More recently, charges before the ICC were confirmed against another Malian: Abdoulaziz Al Hassan, accused of crimes against humanity and war crimes for several acts, including sexual violence. These two cases result from the ICC’s investigation into Mali following the country’s self-referral to the ICC in July 2012. In its request to the ICC, Mali indicated its inability to investigate the grave crimes committed on its territory since January 2012.
The Al Mahdi conviction is significant for victims of the conflict in Mali, especially given the absence of justice at the national level: there has yet to be a conviction for international crimes in Mali’s courts. One former Islamic Police Commissioner was convicted for crimes (assault and battery, illegal detention, amputation, etc.) committed during the occupation of Gao, but not for war crimes or crimes against humanity. He has since been freed from prison.
There is no doubt that the challenges for the Malian state are significant and its capacity is limited. The security situation in the North remains precarious and there has been a disturbing rise of violence in the central region of the country, including several massacres of civilians. State institutions, including of the justice system, are largely weak and absent in the North.
Thousands of victims of violence in Mali thus await justice and reparation for the human rights violations they have experienced. Yet, recent developments raise questions as to the will of the State to prosecute perpetrators of serious crimes.
A contested and flawed amnesty law
Over the summer of 2018, Mali’s Council of Ministers approved a draft bill for the “Loi d’entente nationale” (or “National Accord Law”), an amnesty law that civil society organizations decried as a threat to victims’ rights. They succeeded in having it removed from the legislative agenda in December 2018. Consultations with civil society organizations were subsequently held and some changes were made to the Bill, integrating some of their recommendations. However, these changes were minor.
The Law, as adopted by the National Assembly in June 2019 and promulgated by the President in July, is deeply problematic (see Lawyers without Borders Canada (LWBC)’s full analysis of the law in French, or the executive summary in English). In short, it is vague and essentially incomprehensible as to the crimes that it applies to. It also sets out an overly simplistic process for perpetrators to be amnestied.
Would-be beneficiaries are required to provide a statement of the facts involving them to one of various authorities identified in the Law, and to lay down their arms. The authorities named are not independent or impartial: the list includes mayors, police commissioners, and army commanders. Although applications for amnesty are to be reviewed by prosecutors for ultimate approval, they only have 30 days to approve each request. This timeframe is insufficient for preliminary fact-checking and legal analysis, given the situation on the ground and complexity of the crimes. Moreover, victims and the wider public arenot invited to participate in the amnesty process or given access to statements, and perpetrators are not required to contribute in any way to reparations for victims. Perpetrators would have criminal consequences for their acts completely erased, rather than facing reduced or alternative sentences.
An irregular procedure for the Law’s adoption
The Amnesty Law is seriously flawed. Its poor drafting suggests it was a hasty initiative, perhaps carried out at the behest of armed groups or, as some suspect, for certain high profile accused individuals.
One can ask whether the Malian government adopted the Law to appease the security situationor to simply signal its effortsto contribute to peace and reconciliation, without serious reflection as to how it would be applied – or at what cost. It is curious that the head of the UN Mission to Mali (MINUSMA) has called the Law’s adoption an “advance” while the UN independent expert on the human rights situation in Mali published a press release signaling his concern about its potential negative impact on the country’s transitional justice process.
The Law’s provisions seem indicative of a lack of technical expertise, with respect both to legal drafting and to legitimate options for sophisticated and coherent transitional justice mechanisms.
Potential negative impacts
As discussed in LWBC’s analysis, the Law’s application would have negative consequences for victims’ rights to truth, justice, and reparations. It would even be unfair from the perspective of perpetrators of crimes, as the Law’s muddled provisions would likely be interpreted in vastly different ways across the country.
However, it is difficult to predict how ─and even whether─the Law will be applied. The Malian Association of Prosecutors has published a scathing critique of the Law, calling on all Prosecutors to refuse to apply it. Also, the Law sets out a six-month time period for its application, but the Application Decree for the Law hasn’t even been adopted yet. Recently, the government initiated public information and consultation sessions to inform Malians about the Law, create public support, and garner input that would contribute to developing the Decree.
Overall, the process for the Law’s adoption seems inconsistent with a regular, democratic approach and the rule of law.
A scattershot approach
It is difficult to discern a coherent strategy in terms of justice for international crimes in Mali. Mali’s self-referral to the ICC would seem to suggest a desire for justice to be done. However, the ICC’s involvement may give the State something of an excuse to under-resource domestic efforts to investigate and prosecute international crimes, even if the ICC does not itself have the resources to deliver more than a small fraction of justice for victims in Mali. Could the ICC’s involvement disincentivize investments in justice and institution building at the national level?
It’s also interesting to consider that not long before the Malian government adopted the National Accord Law, it extended the jurisdiction of its Specialized Judicial Pole (“PJS”), so that it can investigate and prosecute not just terrorist and transnational crimes, but also war crimes and crimes against humanity. There doesn’t seem to be any planned coordination or integration between the amnesty process set out in the National Accord Law and the PJS’s investigations. Likewise, the amnesty process is not integrated with the ongoing work of Mali’s Truth, Justice, and Reparation Commission, which is currently planning its public hearings, set to begin in December 2019.
The coordination of transitional justice initiatives to ensure their compatibility seems to be a major challenge in Mali. While the ICC’s intervention is the most realistic avenue to justice for Malian victims of serious human rights violations at this time, there is much to be done to ensure that victims’ rights to truth, justice, and reparation are equitably realized at the national level. In this context, the National Accord Law has no place.
Important post. It is hard to see, how investigation by ICC can undermine such process of accountability and transitional justice in Mali ( and the post, doesn’t really explain how). It can only elevate standards. How otherwise ? Unless the ICC itself, shall treat,or, treats it, with gross negligence.
However, there is clear and concrete parameter for distinguishing between grave crimes must be prosecuted ( jus cogens ) and less severe that can be pardoned:
If the crimes perpetrated, had primary strategic goals ( politically, and in military terms ) while side effects or ” only “causing collateral damage such as war crimes typically do. Can be basically pardoned. But:
If the crimes, couldn’t even serve, any strategic political and military goal ( like : raping women, slavery, tortures of not involved citizens and so forth…) then,can’t be pardoned.
One may observe article 33 to the Rome statute. There it is prescribed clearly:
Orders of superiors to commit crimes against humanity, or genocide, can’t on the face of it, prima facie, manifestly so, be considered as legal orders. On the face of it, couldn’t be executed, for, it can’t, or couldn’t even serve any political and strategic goal, other than barbaric instincts.
Also, very recommended, titled:
“El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow? ”