The difficult achievement of the fight against impunity in Mali

As part of the 16th ASP of the ICC, the side-event entitled Cinq ans après la crise de 2012: quelles avancées dans la lutte contre l’impunité au Mali? (Five years after the 2012 crisis: what are the developments in regard to the fight against impunity in Mali?) took place on 11 December 2017. This side-event was organised by Canada, Association malienne des droits de l’Homme (AMDH), Coalition malienne pour la Cour pénale internationale (CMCPI), Fédération internationale des droits de l’Homme (FIDH) and Lawyers Without Borders Canada (LWBC).

Two major events led to the 2012 crisis in Mali. Firstly, a rebellion took place in North Mali and, consequently, armed groups seized power. Secondly, former President Touré was ousted as a result of a coup d’État organized by a military junta on 22 March 2012. Following those events, the situation in Mali deteriorated, resulting in serious crimes and violations of human rights (FIDH, Crimes de guerre au Nord-Mali). Peace and security in the country were profoundly affected. Civilians – especially women and children – bore the brunt of the unrest.

Mali, as a State Party of the International Criminal Court, referred the situation to the Prosecutor, in accordance with article 13(a) of the Rome Statute of the International Criminal Court. The referral focused on “alleged war crimes committed since January 2012 mainly in three northern regions of Gao, Kidal and Timbuktu, with incidents also occurring in the south in Bamako and Sévaré” (Situation in the Republic of Mali, ICC-01/12). Among others, incidents of rape, torture and enforced disappearances, as war crimes, were reported.

At the moment, the Al Mahdi case is the sole ICC trial that has been held relating to this situation. On 27 September 2016, Al Mahdi was found guilty of war crimes for intentionally directing attacks in 2012 against historic monuments and buildings dedicated to religion (The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15).

Despite the fact that the conviction of Al Mahdi represents a success, many activists, organisations and scholars underlined the absence of representation and consideration of the harms suffered by the civilian population, in particular harms directed against women and girls who experienced sexual and gender based violence (SGBV). They are calling on the ICC to increase its investigative scope in Mali to give access to justice for victims of these crimes. Indeed, pursuant to the Policy Paper on Sexual and Gender-Based Crimes, the Office of the Prosecutor should integrate SGBV crimes in both preliminary investigations and prosecutions. Moreover, according to the complementarity principle, Malian institutions should address these issues as well.

In 2013, the United Nations Security Council (UNSC) created the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), pursuant to UNSC Resolution 2100. On 29 June 2017, its mandate was extended under UNSC Resolution 2364. The principal function of MINUSMA is to support the political process in Mali and the implementation of the Peace and National Reconciliation Agreement. According to this agreement, Parties reiterated their attachment, in particular, to national unity, rejection of violence as a political tool, respect of human rights, human dignity and fundamental freedoms and fight against impunity.

The UNSC intervention in Mali must be accompanied by humanitarian and development measures. Organisations such as AMDH, CMCPI, FIDH and LWBC, are currently working in Mali. They aim to reinforce capacities of civil society in regard to the fight against impunity and the quest for peace and justice for the victims. Prevention of the upsurge of violence, reconciliation of communities and reinforcement of the dialogue between communities and political leaders are also issues which preoccupy those organisations. They also give priority to implementing access to justice for victims, which is inherent to the success of the fight against impunity. In this regard, justice is essential to the achievement of the peace process.

As previously mentioned, women had been particularly victims of SGBV during the Malian conflict. In Gao, Tombouctou and other remote areas, rapes, collective rapes and acts of sexual violence were committed in particular by combatants of armed groups, including the Movement for the Liberation of Azawad (MNLA). Among others, Human Rights Watch (HRW) reported the testimony of a fourteen-year-old girl who was raped repeatedly by six rebels over four days (HRW, Mali: War Crimes by Northern Rebels). The fight against impunity in regard to the perpetrators of SGBV in Mali is crucial in the search for justice by these women and girls, as well as their family and community.

Access to justice for victims of SGBV is an important, but challenging, issue. SGBV crimes have occurred in remote areas, making the collection of evidence and witness statements difficult. Moreover, crimes of SGBV are more generally underreported and testimonies of these crimes are sometimes difficult to collect. In this regard fear, shame, public exposure and the social and cultural context are among the challenges faced by victims of SGBV.

Mali is still an insecure country facing security problems and crisis, and thus transitional justice – through the ICC – is taking place in an unstable context. It is therefore relevant to support the implementation of a sustainable reconciliation in regard to the situation in Mali and the pursuit of the fight against impunity, which includes criminal prosecutions against the perpetrators of the most serious crimes, as SGBV crimes. Victims and survivors deserve and need access to justice and reparations, including through the work of AMDH, CMCPI, FIDH and LWBC. It is also relevant in regard to post-conflict reconstruction, reconciliation and the peace process. However, the absence of political will of the Malian institutions constitutes a major barrier in regard to implementation and achievement of the fight against impunity in Mali.

This blog post and Geneviève’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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