Prosecuting Mali's Extremists
Marching into Timbuktu less than a fortnight after they launched operations in northern Mali, French troops were in jubilant mood. It did not take long for French foreign minister Laurent Fabius to tell the press that plans were afoot to start pulling the troops out by March.
Others are not so convinced that the conflict will be over so quickly, and fear that the insurgent groups that melted away from the towns as French and Malian troops advanced may just have gone into hiding. A contingent of African Union peacekeepers will replace the French, but West African leaders are aware that al-Qaeda-linked groups will not be easy to keep out of the region.
Enter the International Criminal Court, ICC, whose prosecutor Fatou Bensouda launched a formal investigation into the situation in Mali in January 16.
TAKING ON OPAQUE ISLAMIST GROUPS
Although the prosecutor will look at abuses committed by all sides in the conflict since July 2012, Mali is the first time the ICC will have to tackle armed Islamist groups. Such are the complexities of applying international law to groups of this kind that some experts believe prosecutions could embolden rather than deter the militants.
The French military intervention has already allowed extremists to portray the West as anti-Islamic, and prompted a terrorist alert in Paris.
Action by the ICC – already perceived as a western institution in some parts of the world – could be a gift to Islamic extremist propagandists.
Liaquat Ali Khan, a law professor at Washburn University in Kansas with particular expertise in Islam, has some reservations about how effective the ICC can be in Mali.
“The ICC is making an almost symbolic gesture – that it dislikes or wants to discourage extremist violence, but its actual impact on these groups is going to be minimal,” he said.
Investigating Islamic fighters so committed to their cause raises big questions about one of central premises of international justice – using the threat of prosecution to prevent atrocities.
“I would be surprised if the ICC for some reason has an impact on extremist groups in Mali, whilst it has consistently failed to have an impact on atrocity crimes in other regions where religious motivations were not even present,” said Madeline Morris, an expert on counterterrorism law and policy at Duke University School of Law in Durham, United States. “Why would a person who is willing to risk life and limb in committing widespread atrocities suddenly find himself deterred by the prospect of a prosecution in The Hague?”
Usama Hasan, who in 1990-91 fought in the mujahedin war against the Soviet-backed government in Afghanistan, is familiar with the mindset of such groups. He now works for the Quilliam Foundation, a London-based think-tank that campaigns against extremism.
“The hard core military groups won’t engage and they won’t lay down arms, so sadly the only way you can deal with them is militarily,” he said. “Indicting leaders of extremist groups would simply reinforce the belief that the western world is against them. Islamic leaders don’t care about prosecution – they see this as a way towards martyrdom.”
Assuming the ICC prosecutor can bring evidence of abuses committed by insurgents, finding someone to charge will present its own problems.
Khan says that given the diffuse and complex structure of Islamist groups, the challenge is going to be to link atrocities to senior leaders.
“One of the groundbreaking [elements] of the ICC was that leadership should not be immune. You can now get to the prime ministers, the presidents, the generals and even the lawmakers,” he said. “But it’s difficult to prosecute a leader who has not directly committed any of the [crimes].”
The concept of “command responsibility”, enshrined in the Rome Statute, the ICC’s founding treaty, holds that leaders are culpable if they fail to act to prevent their subordinates from committing crimes. But that implies a clear hierarchical structure that might not be present – or at least provable – in northern Mali.
“It may be that you need to have a looser category to punish the leader who does not enter into the nitty-gritty planning of more definable crimes,” Khan said.
ALL PARTIES TO THE CONFLICT
When the ICC first began looking at the situation in Mali last year, the environment seen from outside was one of general chaos – a military coup in March created a vacuum of power, especially in the ungoverned north where Tuareg rebels took the opportunity to gain ground, and were joined by hard-line Islamists. (See ICC Turns Attention to Mali.)
This situation changed since then, especially with France’s intervention on the government side, yet the ICC still needs to be seen to be even-handed.
“The ICC has been looking at Mali for some time, but the problem is that as soon as the case was opened, it coincided with a broader political movement on the part of countries such as France, the US and the UK,” Leslie Vinjamuri, a senior lecturer in international relations at the School of Oriental and African Studies in London, explainded. “Now the big question is going to be whether the ICC will look at both sides.”
Prosecutor Bensouda appears acutely aware of the need for a balanced approach. A week after the ICC formally announced the launch of an investigation into Mali, she released a statement indicating that she was aware of reports that armed forces working for the Malian government might also have committed abuses.
Vinjamuri says this approach will be severely tested if the available evidence indicates that anti-government forces are the worst offenders.
“I think it’s very smart on her [Bensouda’s] part to stress the mandate that she has to look at everything in the country, without coming out and pronouncing on any particular part of the case, but the big question now is over the follow-through,” she said. “We’ll have to wait and see what happens. If the evidence comes through and comes down on only one side, then this could reinforce the idea that the ICC is serving the political interests of the West.”
The court’s mandate is to look at the situation as a whole, rather than focus on one side or the other. But in Mali the dynamics of an investigation are likely to be quite different.
Peter Chilson is a professor of English at Washington State University who knows Mali well. He has visited the country on numerous occasions over the past three decades, and recently visited refugee camps to talk to people about what they had witnessed.
“In the north of the country, the jihadists have never really tried to hide the atrocities that they have committed, and have certainly never denied them. In fact, they have done everything short of videotaping their atrocities to publicise what they are doing,” he said. “By contrast, the military junta is very keen for unverified reports of reprisal attacks not to be linked to them.”
That could make it easier to uncover evidence of abuses by Islamic and Tuareg groups than by the Malian army and its paramilitary allies.
Moreover, the ICC is in Mali at the request of the government. If it starts looking too closely at the actions of the military, it could find that cooperation quickly dries up.
At the same time, Chilson believes that the threat of prosecution would serve to deter abuses by government forces, unlike their opponents.
“I think the publicity of an actual prosecution against a Malian army officer would be more valuable in terms of shaming the Malian army, in terms of stopping these atrocities, whereas such a prosecution could not shame the jihadists into stopping because of their religious convictions,” Chilson said.
Florent Geel, head of the Africa desk at the International Federation for Human Rights, FIDH, thinks there already signs that Malian commanders are taking note of the ICC, but on the ground, the average ordinary soldier may not have heard of the court.
“We believe that many of the soldiers allegedly committing crimes are doing so out of vengeance for harm suffered, rather than following orders, so I’m not sure that the ICC investigation will change a lot,” Geel said. “However, I think it is slowly changing the upper hierarchy, with military commanders instructing soldiers to be more respectful and to stop killing civilians.”
In other countries where the ICC has operated, it has been difficult to prove that the deterrent factor actually works.
For many, it is important that the ICC is seen to take a stand against the Islamic jihads committing atrocities in northern Mali, but there remains a strong question mark over how effective it can be in the fight against terrorism.
DISENTANGLING THE ISSUES
The situation in Mali is exceptionally complicated, with a number of incoming Islamist groups aligning themselves with others like the Tuareg who have longstanding grievances. And these disparate groups have shown a tendency to converge, with Tuareg being drawn into the “outside” groups.
On the government side, too, there are paramilitary groups whose activities the ICC will have to look at.
Hasan, from the Quilliam Foundation, says the only way of winning this war is by addressing the root causes of insurgency.
Hard-core militants may not be defeated, but they can be greatly weakened by stripping away their support on the ground.
“The key to weakening al-Qaeda is to address the underlying and national grievances of the Tuareg and other local groups,” said Hasan. “There has to be a political solution to this, in order to reduce the support base for the Islamists.”
Blake Evans-Pritchard is an IWPR contributor in The Hague.