Transitional justice for Mali: The impasse?
Author: Odette Pires
Translated into Spanish by Florencia Prieto
For eight years now, Mali has been a scene of a series of armed conflicts involving multiple local, regional, and international actors that are getting more and more entangled in a dead end. Important stakeholders such as France, the United-States, the European Union and the United Nations have all stepped into the situation where the increasing insurgencies between the northern and the southern parts of Mali could have tipped the western African region over. With the implementation of the MINUSMA, the UN Multidimensional Integrated Stabilization Mission in Mali has been working on supporting a peace agreement that was managed to be signed in 2015 as well as a “transitional roadmap” including justice measures. For the United Nations, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation (UNSG, 2010, p.2). The future opening of a trial at the International Criminal Court against an alleged perpetrator of war crimes and crimes against humanity committed in Timbuktu during the first years of the conflict seems to contribute to this transitional justice. After explaining briefly what has happened in Mali since 2012, I will explore specifically how transitional justice has already been utilized, why, and which mechanisms shall be applied.
The recent conflict in Mali started in 2012 when rebels group from the Tuareg ethnicity, claimed for their independence as well as for the northern part of the country by attacking several towns and army forces. Already from February of that year, a New York Times article explained that the Tuaregs were heavily armed after inheriting an extensive arsenal from Colonel Muammar el-Qaddafi announcing then “the most serious threat ever from the Tuaregs”. One month after, the government of President Amadou Toumani Touré was overthrown by its own army for “mishandling” the rebellion. On their side, the Rebels proclaimed in April 2012 the north as an independent state named Azawad and imposed a strict application of the Shariah law. At an international level, the United Nations approved in December of that year a resolution that would send African troops to help Mali without intervening military. In January 2013, it was France who sent its army troops to intervene on the soil of its former colony. The Guardian reported that France did so “to safeguard Mali’s existence” and because Mali’s neighboring country, Niger, is “France’s main source of uranium for its nuclear industry”. In any case, the support of the French army to the Malian forces participated in the signature of a peace deal between the Malian government and the Tuaregs on 18 June 2013. In the meantime, the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) was established by Security Council resolution “to support political processes” in that country and “carry out a number of security-related tasks”. In 2015, Mali signs UN ceasefire to end the conflict with northern rebels. Yet, ambushes continued in the north of the country and years passed with the remaining presence of French troops accompanied then with other European and African forces. In annual reports, Human Rights Watch described from 2015 to today the increasing number of international actors (the EU on training and security sector, the ECOWAS on economic support for counterterrorism, France and the US on military matters, etc.) but also, the increasing implication of armed groups in the north of Mali (Ansar Dine, Al Qaeda, AQMI, MUJAO). What HRW described in 2017 as a situation of “no war no peace”, UN Secretary-General António Guterres referred two years later, in December 2019, to “our most dangerous mission”, he said. Many losses have been suffered on the side of the UN peacekeepers, as well as on the side of the Malian society. Furthermore, during this 8-year crisis period, hundreds of thousands of people have fled in neighboring countries and, according to MSF South Africa, more than one million inside Mali have been in urgent need of assistance.
Established on 25 April 2013, the United Nations Stabilization in Mali (MINUSMA) was asked: “to support the transitional authorities of Mali in the stabilization of the country”. On the website of MINUSMA, sixteen groups of activities are detailed involving inter alia justice measures. The importance and urgency of the restoration of justice and the rule of law in post-conflict societies, not only to come to terms with past abuses, but also to promote national reconciliation and to help, prevent a return to conflict (UNSC/UNGA Resolution, 2006, para.1). Thus, under the MINUSMA’s Justice and Corrections Section, dedicated UN Peacekeepers have developed a strategy and key activities to re-establish the rule of law. From training and providing technical assistance for judges to the support for the organization of judicial inspections, a list of ten activities has been developed. Moreover, the Section “works closely” with the Human Rights and Division and Gender Unit supporting the Malian authorities “in the field of prosecution of war crimes and crimes against humanity.” At the same time, Mali and the UN Office on Drugs and Crime work together to “strengthen criminal justice measures against terrorism”. The International Center of Transitional Justice (ICTJ) holds that in order to be effective, transitional justice needs to include several measures that complement one another (Herrmann, 2012, p.90). Then, in 2014, after an initial attempt that resulted to the dissolution of a Dialogue and Reconciliation Commission, the Malian government has created in 2014 the Truth Justice and Reconciliation Commission to examine not only the violence from 2012 but even from 1960, “to aim reconciliation and an understanding of the root causes”. As an alternative to criminal prosecution before judicial bodies, some States have chosen to deal with crimes committed during a war or civil turmoil through Truth and Reconciliation Commissions (Zgonec-Rožej et al., 2010, p.76). These Commissions are valuable to “establish a historical record and recommend remedial action” and to take “a victim-centered approach” (UNSG, 2004, para.17). Working to date, the Truth Justice and Reconciliation Commission has, according to HRW, “taken over 14 000 victim and witness statements” but, the NGO adds that “its credibility was weakened by the inclusion of armed group members and exclusion of victims’ representatives”. In a UN Secretary-General report about the situation in Mali, published in June 2018, it was indicated regarding the Truth Commission that “no progress was made in the Sanogo trial or trials of the alleged perpetrators of conflict-related sexual violence in 2012 and 2013”(UNSC, 2018, para.40). De facto, two years after, in January of this year in 2020, the General Sanogo has even been released from custody while trial date still pends; General Sanogo is allegedly accused of the death of 21 Malian soldiers. Amnesty International outlined that “although this decision is in line with defense rights, this development should not shadow the authorities’ obligation to try the suspects without further delay for their alleged crimes”. In addition, this can reinforce the perception that Malians have of the word reconciliation “as a disguise for impunity”, as described by ICTJ, and which recalled the same main criticism against the 1995 Truth and Reconciliation Commission of South Africa (TRCSA Report, Volume 1, para.3).
The use of international law has also been an option explored to participate in transitional justice in Mali. In July 2012, the Malian government decided to refer its situation to the International Criminal Court based in The Hague, the Netherlands. International tribunals are ideally situated to restore and reconcile because their cases are high profile and their stage is global, rising above national politics and local ethnic tensions (Burke-White & Bibas, 2010, pp.652-653). Often named the Court of “last resort”, the ICC was established in 2002 with the ratification of its founding text, the Rome Statute, by sixty states including Mali. The ICC is a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to this Statute, and shall be complementary to national criminal jurisdictions (Rome Statute, 1998, Article I). The ICC intervenes when the State is unwilling or unable to investigate and to prosecute. It has jurisdiction over four crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Then, starting its investigation in Mali from January 2013, the ICC Prosecutor issued an Article 53(1) Report where various elements of war crimes and crimes against humanity were listed. In September 2015, the first warrant of arrest was issued, and Mr. Ahmad Al Faqi Al Mahdi was transferred to the Hague. Accused of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion in Timbuktu, Mr. Al Mahdi pled guilty and was sentenced to nine years. It was the first-time judgment was given about the destruction of cultural heritage as an element of a war crime. More recently, in March 2018, Mr. Al Hassan Ag Abdoul Aziz Ag Mohammed Ag Mahmoud was also transferred to the Hague just after the issuance of a warrant of arrest for being suspected of war crimes and crimes against humanity allegedly committed in Timbuktu between 2012 and 2013. During the confirmation of charges hearings in July 2019, the Office of the Prosecutor identified Mr. Al Hassan as an alleged member of Ansar Dine and the commissaire de facto of the Islamic police while his Lead Defense Counsel defined him as a “small fish”. Sixty days after, charges were confirmed, and the trial is supposedly starting on 14 July 2020. Although “the ICC is a backstop to national governments only within the narrow category of atrocities” (Bibas & Burke-White, 2010, p.647), the Court of the “last resort” sends a strong signal to fight impunity in Mali. Criminal trials can play an important role in transitional contexts. They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims by giving them the chance to see their former tormentors made to answer for their crimes (UNSC, 2004, para.39). In parallel of the ICC developments, the UN Secretary-General appointed in January 2018 members of an International Commission of Inquiry for Mali to investigate “serious violations of international human rights and humanitarian law”. Commissions of inquiry have made a range of broader recommendations for non-judicial measures, including truth-seeking, reparations and institutional reform (UNSC, 2011, para.25).
After the ceasefire signed in 2015, Mali was undergoing a transition to rebuild its society and, among other priorities to re-establish the rule of law. A range of measures was taken with essentially the MINUSMA operations, the UNODC cooperation with the Malian government, the Truth Justice and Reconciliation Commission, the ICC intervention and the UN commission of inquiry. Combined these judicial measures determine what Boraine and Valentine called “the five key pillars of a holistic approach”: accountability, truth recovery, reconciliation, reparations, and institutional reform (in Herrmann, 2012, p.92). In the 2004 report about the rule of law and transitional justice in conflict and post-conflict societies, the UN Secretary-General emphasized the importance of “coordinating efforts”. “Outside the United Nations, an even greater number of actors are engaged in this work [transitional justice]. In such circumstances, effective coordination is especially important”, he wrote. The Secretary-General warned that “uncoordinated intervention of the international community can have the effect of distorting domestic justice agendas, wastefully diverting the valuable time of domestic justice sector actors and consuming precious development resources”. In Mali’s case, we have seen that the mechanisms applied are adequate although they might be limited. Better coordination between them is a guideline to deepen, and domestic prosecution is above all an initiative that needs to be encouraged; it should be the first resort. The role of the United Nations and the international community should be solidarity, not substitution (UNSC, 2004, para.58). However, one judicial tool has not yet been explored for Mali: the creation of an ad-hoc or hybrid tribunal. It has the advantage of focusing on the situation, and therefore, being effective on leading several cases while using national and international assets. It also represents a concrete solution in a situation that has become increasingly complex over the years. Supposedly being a post-conflict society after 2015, Mali has never stopped to witness clashes, crimes, and losses. The recent resurgence of violence, the political instability, and with now the involvement of numerous international actors raise concerns for the future.
Bibas, S., Burke-White, W., International Idealism Meets Domestic-Criminal-Procedure-Realism, 2010. Duke Law Journal, Vol. 59, No.4 (January 2010), pp. 652-653, p.647.
Herrmann, J., Critical Analysis of the Transitional Justice Measures Incorporated by Rwandan Gacaca and Their Effectiveness, 2012, James Cook University Law Review 19, pp.90-92.
Rome Statute, done at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, vol.2187, No.38544, Depositary: Secretary-General of the United Nations. Part I, Article 1.
Truth and Reconciliation Mechanism South Africa: Final Report. Volume 1, paragraph 3.
UNSC/UNGA Resolution “Uniting our strengths: Enhancing United Nations support for the rule of law”. A/61/636-S/2006/980 14 December 2006. Introduction, paragraph 1, p.3.
UNSC, Situation in Mali, Report of the Secretary-General, S/2018/541. 6 June 2018. Section IV, paragraph 40, p.8.
UNSC, The rule of law and transitional justice in conflict and post-conflict societies. S/2004/616 23 August 2004. Section VII, paragraph 17, p. 7. Section XII, paragraph 39, p.13. Section XVII, paragraph 58, pp. 18-20.
UNSC, The rule of law and transitional justice in conflict and post-conflict societies. S/2011/634 12 October 2011. Section IV, paragraph 25, p. 8.
UNSG Guidance Note on the United Nations Approach to Transitional Justice, 2010, p.2.
Zgonec-Rožej et al., Manual of International Criminal Law, 2010. International Bar Association Huma Rights Institute (IBAHRI). Truth Commissions, p.76.
Odette Pires was born and raised in France where her parents emigrated from Portugal. She therefore considers herself to be a French national with strong Portuguese roots and a European citizen. After graduating in journalism in Paris, she has worked for eight years in a French public national radio station and for TV production companies before joining in 2016 the International Criminal Court (ICC) where she is part of its Public Information and Outreach Section. Specialized in audio-visual production, Odette follows all ICC trial proceedings and produces in the two working languages of the Court, English and French, daily written summaries and scripts to the benefit of radio and television stations worldwide. She also covers ICC side activities and public events in filming and editing videos of the them which are then uploaded and divulgated through social media with a view to fostering a better understanding of the Court. Odette also gives presentations in three languages to the numerous groups of visitors, mainly lawyers and university students from all over the world, coming to visit the ICC premises in The Hague, the Netherlands . Since one year she is also undertaking a master’s degree in Sustainable Peace in our Contemporary World at the University of Peace in Costa Rica.
She can be contacted at firstname.lastname@example.org