Malian suspect at ICC: New opportunity for accountability for sexual crimes

After Jean-Pierre Bemba’s conviction was overturned, the new Malian case at the ICC offers an opportunity to successfully convict a suspect for sexual crimes. Focusing on a gender analysis of crimes will be essential, as gender was at the center of armed groups’ strategy.

Few women in northern Mali believed that this day would come.  One of the chiefs of the Islamic police of Timbuktu during the jihadist groups take over of the north of the country in 2012-2013 appeared before the ICC last April. The prosecution alleges that Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is responsible for rape and sexual slavery, torture, persecution, outrages upon personal dignity, passing of unlawful sentences, and attacking religious and historical buildings.

If the charges of rape and sexual slavery are upheld after the confirmation of charges hearing planned in the fall, it will be a not-to-be-missed opportunity to secure a conviction for sexual crimes as well as to focus on the gender dimension of some international crimes. Gender was indeed at the center of the Islamist militants’ strategy to secure their grip on Timbuktu and to subjugate its inhabitants. Meanwhile, it is the first time that a suspect is appearing before the Court on the charges of persecution on gender grounds.

In the sixteen years it has been operating, the ICC has deplorably failed to convict a single accused for sexual violence. In a recent setback earlier this month, the Court acquitted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba, of war crimes and crimes against humanity – including rape.  In two other previous instances, accused were also acquitted.

Yet, in 2014, the Office of the Prosecutor committed to better integrate a gender perspective in all its work and to improve prosecution of sexual violence.  The Al Hassane case and the context in which crimes were committed in Timbuktu offer an opportunity to demonstrate this commitment.

Al Hassan was a member of Ansar Eddine, an Islamist group seeking to impose Islamic law across the country. Alongside Tuareg rebels and other jihadist groups including Al Qaida in the Islamic Maghreb, they launched an offensive on northern Mali and took control of Timbutku between April 2012 and January 2013.

During this period, Islamist armed groups imposed a strict application of Sharia law. Men and women were not allowed to talk to each other outside of their families, music was forbidden, and shopkeepers were arrested and tortured for possessing tobacco. Jihadists imposed cruel punishments including public flogging and amputation. While these practices and destruction of mausoleums have caught the world’s attention, sexual crimes have been kept secret because of the stigma and the cultural taboo attached to them.

Women of Timbuktu were sexually harassed, forcibly married and raped. Women who were not fully covered were commonly harassed and beaten on the street by members of the Islamic Police or the so-called morality police, the Hisbah. They chased and arrested people considered not in compliance with Sharia law. During their detention at the police station, women were routinely tortured, sexually abused and in some cases raped.  Armed men controlling the city also kidnapped women after allegedly “marrying” them, detained them in their homes or abandoned houses to rape them repeatedly, and sometimes gang raped them.

Al Hassane was one of the chiefs of the Islamic police during the take-over of Timbuktu. He was thus one of the top four commanders in charge of enforcing rules in the city and maintaining order – including by ruling on potential abuses committed by members of armed groups. According to the Prosecution, Al Hassane was also “involved in the work of the Islamic court in Timbuktu and participated in executing its decisions”. He also “participated in the policy of forced marriages”.

Al Hassane is the second Malian jihadist to appear before of the ICC. Ahmad al-Faqi al-Mahdi, another head of the Islamic police, was convicted in September 2016 for attacking historical and religious buildings. But the Prosecutor didn’t broaden the charges to include sexual violence. Therefore, expectations regarding the Al Hassane case are high.

Not only were sexual crimes part of an attack against the civilian population of Timbuktu, but they were also used in a strategic way to subjugate the people. Because of the status of women in the patriarchal Malian culture, a woman who is raped is perceived as losing her honor and to a certain extent her value within the community. She is likely to be rejected by her husband or to be unable to find one. Babies were born of these rapes, putting women at higher risk of being stigmatized and excluded from society. Thus, rapes undermined women’s status and future within their community. In addition, according to gender roles in the Malian culture, men should protect women. Therefore, by attacking women, Islamists harmed men as well. In not defending their wives, sisters or daughters, men appeared weak and challenged in their male identity.

Similarly, in order to “marry” a woman, Islamists usually burst into houses, asked to marry one of the girls and threatened fathers or brothers until they stopped resisting their demands. This practice negated the head of the family’s authority, undermining a pillar of the society. While abusing women or declaring a marriage, Islamists repeated that they were now the “masters”, according to several victims. Such a statement directly linked to forced marriage or rape shows how they asserted control over the population by dominating women. Sexual violence was intended to weaken and disrupt the social structure in Timbuktu.

In subjugating Timbuktu’s population through sexual violence, the perpetrators instrumentalized deeply ingrained ideas about social class. While Islamists usually came from Tamasheq and Arab ethnical groups, most victims belong to Songhaï and Bella black communities. Historically, slaves were made up of Songhaï and Bella people. During slavery, the black population was represented as hostile and needing to be subjugated. That is exactly what jihadists did when they captured Timbuktu. As they sought to assert control over Songhaï and Bella people, they put in place a system to dominate the female members of those communities. Women were thus instruments used to reproduce the system of social domination in place during the time of slavery.

As violence against women was central in armed groups’ strategy, focusing on the victims’ gendered experiences is essential in prosecuting crimes committed in Timbuktu. Doing so also allows to better understand the intention and purpose of these crimes.

In this context, involving women in Al Hassane’s trial will be key in order to enable them to participate in the justice process and to contribute to their recovery, as outlined in the Women Peace and Security agenda. Victims must be able to express their views and have a sense of ownership of the proceedings.

Last, the current perspective of accountability at the ICC for crimes committed in northern Mali should not obscure the failure of the Malian national justice system. Dozens of victims filed complaints with the High Court of Bamakoin 2014 and 2015 for crimes committed in the north, including for sexual crimes. But the Malian investigation hasn’t made much progress. While the former police chief of Gao was convicted last year, most suspects remain at large. For instance, the former judge of the Islamic court of Timbuktu, who sanctioned forced marriages, was freed by the Malian authorities in 2014 and currently lives in the Timbuktu area.

Al Hassane’s trial should be a stepping stone so that the gender perspective naturally becomes an integral part of any proceeding. Specifically, gender analysis of attacks and crimes should be systematic. It will be relevant regarding crimes committed in Syria, Iraq or Myanmar, to name a few. And a successful conviction for sexual violence will pave the way for accountability for these crimes to become the norm rather than an exception.

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