• Last Updated
  • February 11, 2022
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Mali

Mali has seen cyclical political and intercommunal conflict extending back to the colonial period. Among the notable episodes are two-armed rebellions by northern Tuareg groups seeking independence, from 1963 to 1964 and again from 1990 to 1996. These conflicts were characterised by attacks from both sides that targeted civilians. In both cases, the Malian forces responded with harsh repression of fighters and civilians, cementing resentment among the Tuareg population towards national leaders based in the country’s south.1

A tenuous peace agreement was reached in 1996, which included provisions for decentralised governance but did not resolve endemic underdevelopment in the region. A decade and a half of low-intensity fighting followed, during which time smuggling and banditry networks took hold in the region, with a concomitant proliferation of terrorist groups.2

In January 2012, the Mouvement national de libération de l’Azawad (MNLA), an armed group of Tuareg fighters, formed an alliance with Ansar Dine and other designated terrorist groups to launch a third independence movement. The coalition quickly defeated Malian armed forces in the north and took control of large parts of the region, including population centres in Timbuktu, Gao, Kidal and Ménaka. The occupiers established rule in the region, based on extremist interpretations of Sharia law. 

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By July 2012, these terrorist groups had broken with and expelled the MNLA. The year of occupation that followed was characterised by grave human rights violations, including extrajudicial executions, mutilations, and the destruction of heritage sites.3 Sexual violence against women and children was systematic and widespread, and included acts of sexual slavery, forced marriages, gang rape, and the use of rape as a punishment.4

Operating under a UN mandate and in coalition with other international forces, the French army launched Operation Serval in 2013 to assist the Malian government retake the north. Peace agreements were reached in 2013 and 2015. Implementation has, however, been stalled by protracted conflict with armed groups who remain active in the region. This violence parallels and compounds longstanding local conflicts between communities over access to and management of land and natural resources. As from 2015, the conflict began shifting into the central region, in the shape of intercommunal fighting among self-defence groups with unclear affiliations to terrorist groups operating in the area. This new phase of the conflict is characterised by civilian massacres, with continuing attacks that are increasing in both intensity and frequency.

In 2012, the government of Mali referred the situation to the International Criminal Court (ICC) which opened an investigation the following year. Two Malians have since been targeted with arrest warrants: Ahmad Al Faqi Al Mahdi and Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud.

More recently, diplomatic tensions with international and regional counterparts have continued to deepen following a series of coups and the announcement that the holding of democratic elections will be further delayed in Mali.5 The latest coup in June 2021, saw the 9-month-old government of interim president Bah Ndaw ousted by Col. Assimi Goita. The coup, the third in a decade, follows previous coups in August 2020 and March 2012. In response to the turmoil, the African Union and ECOWAS have suspended Mali’s membership in their regional organisations, pending the return to a constitutional order in the country.6  The arrival of the private military company – the Wagner group, in support of the military junta, has raised further cause for concern and been condemned by Mali’s international partners.7

Citations & References

1:  Baz Lecocq (2010) “Disputed Desert”, Brill.

2:  Robin-Edward Poulton and Ibrahim ag Youssouf (1998) A Peace of Timbuktu: Democratic Governance, Development and African Peacemaking, Geneva: UNIDIR. 

3:  Human Rights Watch (2018) “Mali Conflict and Aftermath: Compendium of Human Rights Watch Reporting, 2012-2017”.

4:  United Nations Security Council, “Conflict Related Sexual Violence – Report of the Secretary-General” S/2019/280,

5: Abc News (4 February 2012) “Explainer: France in Sticky Situation amid crisis in Mali”

6: France 24 (02 June 2021) “African Union announces ‘immediate suspension’ of Mali after second coup”

7: Center for Strategic and International Studies (2022) “Tracking the Arrival of Russia’s Wagner Group in Mali” 

Commentary & Reports

Alioune Tine “Situation of human rights in Mali: Report of the Independent Expert on the situation of human rights in Mali” (OHCHR: 15 January 2020)  (EN/FR)

The  Independent Expert expresses concern at the worsening conflict in the central region, noting attacks targeting civilians and humanitarians, and underscoring the negative impact of widespread impunity on the security situation. The report covers the period from April to November 2019. Bi-annual reports have been published by the OHCHR from 2013 onwards. Independent Expert reports are based on information provided by government authorities, civil society actors and UN bodies as well as statements by victims of human rights violations.

Human Rights Watch “Mali Conflict and Aftermath: Compendium of Human Rights Watch Reporting, 2012-2017” (HRW: 2018)

Human Rights Watch has conducted extensive investigative and documentation work in Mali since 2012. This report compiles the organisation’s most important press releases and commentary spanning the conflict period.

Servaas Feiertag “Legal Research in Mali (Update)” (Hauser Global Law School Program: 2020) 

The website provides a detailed overview of the Malian justice sector with a focus on the constitutional framework and the status of rule-of-law institutions. The website is intended to support legal research on the Malian justice system.

Challenges and priorities for domestic accountability in Mali

Mali has opened a large number of investigations relating to international crimes and other grave human rights violations committed in the context of the 2012 crisis, yet few of these investigations have progressed to trial and there is yet to be a conviction for international crimes in a domestic court. The challenge posed by a lack of material and human resources in the judicial sector is compounded by the significant security risk posed by armed groups still active throughout the northern and central regions. Efforts to end impunity may be further undermined by a 2019 amnesty law.

The trial of General Amadou Sanogo and 17 co-defendants opened in May 2015, marking the first domestic trial in Mali for serious crimes linked to the 2012-2013 crisis. As leader of the 2012 coup against President Touré, General Sanogo and his soldiers are accused of abducting and killing 21 Red Berets who attempted a failed countercoup operation. They are charged with kidnapping, murder and complicity in the murder of the 21 paratroopers. The trial was temporarily suspended in 2016, and in 2020, Sanogo and his co-defendants were released pending the trial’s resumption.

The Specialised Judicial Unit for Terrorism is currently the main judicial body in Mali with the jurisdiction and capacity to pursue cases related to war crimes and other grave human rights violations. Most of the Specialised Unit’s open proceedings do not primarily concern crimes committed against civilians, with investigations instead focusing on crimes such as criminal conspiracy, attacks on the security of the State, treason and terrorism. At the end of 2019, the Unit was actively investigating over 200 terrorism-related cases, though only 10 trials had reached completion.8 From 2019, in response to a dramatic increase in intercommunal violence in the central region, the Unit opened investigations into six massacres committed in the context of intercommunity fighting. Convictions were obtained in the case pertaining to attacks in the Bankass Cercle, but of the forty-four persons sentenced, only two were convicted of murder.

From 2018, the military initiated investigations into alleged extrajudicial killings by the Malian security forces. At least three incidents are under investigation, namely, the extrajudicial killings of 12 suspects near Diourra in April 2018, 12 men in Boulikessi in May 2018, and 25 suspects near Nantaka in June 2018.9

The Specialised Judicial Unit for the Fight Against Terrorism

The Specialised Judicial Unit for the Fight Against Terrorism assumed its duties in January 2015. The Unit’s jurisdiction includes offences related to terrorism, financing of terrorism, money laundering, drug trafficking, weapons and ammunition, and human trafficking and related practices when these crimes are transnational in nature (see Article 609-1 of the Law of 2013). It is composed of a prosecutor’s office, specialised investigative offices, a specialised bureau of investigation and expert advisors. 

The Specialised Unit has considerably more resources than ordinary judicial units, and its administrators have received special training. Its geographical jurisdiction covers all of Mali, empowering it to travel and investigate throughout the country, including northern regions which investigative judges from “ordinary” courts in Bamako cannot access.

The Prosecutor of the Specialised Unit has the power to prosecute ‘offences related to the crimes within its defined jurisdiction’. For its first four years of operations, this means that cases within its jurisdiction, relating to terrorism or transnational crimes, could have other serious human rights violations added as a ‘secondary’ charge to these principal offences. This provision rendered prosecution of grave crimes against civilians conditional on the accused having also committed terrorist acts or other transnational crimes (FIDH 2017). 

A new governmental judicial strategy has since expanded the jurisdiction of the anti-terrorist unit to include torture, war crimes and crimes against humanity. 

Citations & References

8: Human Rights Watch (2019), “World Report: Mali Events 2018”.

9: Ibid. 

Domestic Accountability in Mali

Priorities and challenges for strengthening domestic criminal accountability processes in Mali

SUIVRE LA CHRONOLOGIE HORIZONTALE EN CLIQUANT SUR LES FLÈCHES
1960 - 2012
Conflict cycles

Mali has experienced cycles of civil conflict and periods of repressive rule, going back to the period before independence from France in 1960. These periods of conflict included two rebellions by Tuareg groups in the north, in 1963 and 1990, both of which met with a heavy-handed response from Malian forces. Although a peace agreement in 1996 formally ended the Second Tuareg Rebellion, stability never returned to the northern region. Tuareg armed groups remained active, eventually forming an alliance with designated terrorist groups from the wider region.

January – April 2012
Conflict in the north

Fighting breaks out between Malian government forces and armed groups, allied with Islamic terrorist groups. By April of 2012, the Mouvement national de libération de l'Azawad (MNLA), a group fighting for an independent Tuareg state, captures much of northern Mali.

March 2012 - April 2012
2012 Malian coup d'état

On 22 Match 2012 Malian soldiers, led by Amadou Sanogo stage a coup, removing President Amadou Toumani Touré from power after setbacks in the conflict against separatist groups. The Economic Community of West African States (ECOWAS) mediates between the groups, leading to a resignation of Touré on 8 April 2012. Dioncounda Traoré assumes the presidency with a mandate to hold new elections. 

 
30 April – 1 May 2012
Fighting breaks out in Bamako

Pro-junta forces in Mali have take control of the main anti-junta military base after two days of fighting in the capital, Bamako. Members of the "Red Berets" (presidential guard unit) are abducted by forces loyal to Sanogo.

14 May 2012
ECOWAS threatens to reimpose sanctions
May – December 2012
President beaten up by protesters

Interim President Dioncounda Traore was taken to hospital with a head wound after being attacked by pro-military demonstrators on 14 May 2012. Prime Minister Cheick Modibo Diarra resigns after his army arrest by soldiers on 10 December 2012.

April 2012 – January 2013
Occupation of Timbuktu and other cities in the north

In the months that follow, MNLA loses control of most of the territory to its former allies, the Islamic groups Al-Qaïda au Maghreb islamique (AQIM), Ansar Eddine and Mouvement pour l'unicité et le jihad en Afrique de l'Ouest (MUJAO). AQIM and Ansar Eddine occupy Timbuktu and MUJAO occupies Gao. Under their rule, widespread human rights violations are committed including extrajudicial executions, torture and systematic rape and forced marriages, particularly targeting children.

 
January – May 2013
French forces recapture the north

French forces and their allies expel AQIM and Ansar Eddine  from Timbuktu in January and recapture the north by May during Operation Serval.

 
March 2013
Public Prosecutor opens the case against Iyad Ag Ghali and 29 others

Mali’s Public Prosecutor opens a case concerning the crimes committed during the occupation of the north in 2012-2013, including a procedure against Iyad Ag Ghali, the leader of the terrorist movement Ansar Dine, and 29 others. The case includes the former president of the Islamic court in Timbuktu, Alfousseyni Ag aka “Houka Houka”.

25 April 2013
MINUSMA established by UN

In April, the United Nations United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) stabilisation mission is established to support the transition to peace.

  • Document: UN Security Council decision establishing MINUSMA
21 May 2013
Mali establishes Specialised Judicial Unit for the Fight Against Terrorism

Malian authorities pass a law amending the Code of Criminal Procedures and creating a Specialised Judicial Unit for the Fight Against Terrorism and Transnational Crimes within the Tribunal de Grande Instance of Commune IV of the District of Bamako. The Specialised Judicial Unit’s jurisdiction, defined in Article 609-1 of the Law of 2013, covers all of Mali. It can investigate offences related to terrorism, financing of terrorism, money laundering, drug trafficking, weapons and ammunition, and human trafficking and related practices when these crimes are transnational in nature.

  • Document: 2013 Law establishing Specialised Judicial Unit
  • Document: law no. 08-025 of July 23, 2008 on the suppression of terrorism allows for the prosecution and conviction of terrorist acts
August 2013
Ibrahim Boubacar Keïta elected president

The first post-coup presidential elections are held on 28 July 2013, with a second round run-off held on 11 August.

 
 
 
August 2014
Release of Ag Alfousseyni “Houka Houka”, Ben Gouzzoi and others

High ranking members of armed groups are released from detention in effort to advance the peace process and to secure the release of French hostages.

 
12 November 2014
FIDH & AMDH File Sexual Violence Case

The International Federation for Human Rights (FIDH) and the Association Malienne des Droits de l'Homme (AMDH) file a complaint for crimes against humanity and war crimes on behalf of 80 women and girl victims of rape and other forms of sexual violence committed during the occupation of northern Mali in 2012 and 2013. Despite the goodwill of the investigative judge, the investigation is stalled because of the lack of cooperation from the authorities and insecurity in the region where investigations would be conducted.

January 2015
Specialised Judicial Unit assumes its duties
February – June 2015
Government and separatist groups sign “Agreement for Peace and Reconciliation in Mali Resulting from the Algiers Process”

Arrest warrants against senior officers in the case of Public Prosecutor v. Iyad Ag Ghali and 29 others are lifted in May and June 2015. At least 50 alleged perpetrators of crimes against humanity or war crimes who had been arrested are released. Despite these actions, the peace process also establishes a framework for peace and justice, including trials for international crimes and a truth commission.

 
6 March 2015
Timbuktu occupation victims file complaint

FIDH files a complaint on behalf of 33 victims of international crimes committed during the occupation of Timbuktu and its region by armed groups in 2012 and 2013. This complaint concerns 15 alleged perpetrators of crimes against humanity and war crimes. The proceedings are suspended due to the lack of political and judicial will.

 
April – May 2015
General Amadou Sanogo & 17 co-defendants tried for abduction and killing of 21 Red Berets

The first domestic trial for international crimes opens. The Indictments Chamber of the Bamako Court of Appeals indicts General Amadou Haya Sanogo and 17 others for the murder of 21 Red Berets during an attempted counter-coup. The Chamber refers them to the Assize Court to be tried for kidnapping and murder, where the Court orders a new medical examination of bodies found in the Diago mass grave, because the first one had not been conducted in accordance with the procedures provided for under Malian law. This delays the trial.

 
2016
CVJR Truth Commission

Mali’s truth commission begins its ambitious mandate to investigate and report on crimes committed from the period of 1960 through 2015 (later extended to include the period until 2019).

  • Document: Mandate of CVJR
 
August 2017
Police chief convicted on terrorism charges

Aliou Mahamar Touré, the chief of the Islamic police during the occupation of Goa, is convicted on terrorism charges for crimes against the State. He was not charged with war crimes or torture, despite being accused of multiple acts of mutilation.

2017 to August 2019
The Special Unit on Terrorism opens 162 cases

Around 120 counter-terrorism judicial proceedings begin in 2017, but these result in almost no trials. This comes after around a dozen sentences were handed down by the Mopti Criminal Court in April 2016 in the absence of the accused. The most important cases are still under investigation.

2018
Military investigations

From 2018, the military also begun opening investigations into alleged extrajudicial killing by the Malian Security forces. At least three incidents are under investigation: the extrajudicial killing of 12 suspects near Diourra in April, 12 men in Boulikessi in May, and 25 suspects near Nantaka in June.[1]

[1] Human Rights Watch (2019), “World Report: Mali Events 2018”

24 July 2019
A law is passed extending the jurisdiction of the Specialized Unit to include war crimes, genocide and crimes against humanity
2019
Trials related to inter-communal Attacks on Koro, Bankass and Baniagara

Suspects accused of leading 2019 attacks on Koro, Bankass and Bandiagara go to trial at the Mopti Court d’assises. Of the 60 accused, 44 are convicted however only two are convicted of murder.

 
May 2019
Specialised Judicial Unit investigates Ogossagou intercommunal massacre

Investigation into the March 23 massacre of 160 Fulani herders in Ogossagou, more than half of the children, leads to ten arrests.

 
October 2019
Specialised Judicial Unit investigates Sobane Da intercommunal massacre

The prosecutor for the Specialised Judicial Unit opens an investigation into the massacre of at least 95 Dogon in Sobane Da on June 2019. As of October 2019, nine suspects are placed in pretrial detention.

 
15 April 2019
Investigation into inter-communal Attacks Koulogon

The High Court of Mopti opens of an investigation into the January 1 massacre of 37 people in Koulogon. Twelve are suspected in connection with the killings, and eight of them later released.

 
December 2019
Four Dogon men convicted of inter-communal attacks on Bankass Cerle
28 January 2020
General Sanogo is granted provisional release pending trial
2020
New legislation drafted on witness protection

In an effort to address gaps in witness and victim protection, two draft bills on the protection witnesses were prepared by Malian civil society organizations and proposed to the authorities. One of these bills particularly concerns gender-based violence, including protections for victims of sexual violence. A third bill concerning protection of "human rights defenders" was initiated by the Ministry of Justice and was before the National Assembly in late 2020.

18 August 2020
President Keita resigns after coup d’Etat

Following escalating violence following parliamentary elections in March and April 2020 and months of protests, soldiers detained several government officials including the President Ibrahim Boubacar Keïta who resigned and dissolved the government. 

25 September 2020
Bah Ndaw becomes President of Mali

Seventy-year-old Colonel Bah Ndaw, a former Minister of Defence under Ibrahim Keita, assumes the presidency until interim elections scheduled in 18 months’ time. Colonel Assimi Goïta, the leader of National Committee for the Salvation of the People - Le Comité national pour le salut du peuple (CNSP) which staged the August coup, is appointed vice president.  

24 May 2021
Assimi Goïta leads coup against Bah Ndaw

The Malian Army, led by Vice President Assimi Goïta, arrests President Bah Ndaw who resigns from custody. Goïta becomes interim President on 7 June 2021. It is the country's third coup d'état in ten years.

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Capacity concerns

Atrocities committed during recent years of conflict are concentrated in the country’s northern and central regions. The administrative capacity of these regions has all but collapsed after decades of cyclical violence and insecurity. During the 2012 crisis, much of the already limited state justice infrastructure in northern Mali was destroyed. Courts, police stations, detention centres and prisons are yet to be repaired or replaced. Regional courts have a shortage of judges, prosecutors and other key staff, while the local investigators who remain in the region often lack sufficient resources and training to gather, analyse and store evidence securely. Hundreds of detainees are held in pre-trial detention due to the inability of courts to process their cases.10

As a related challenge, a large segment of the population does not look to the state for justice. Malians reportedly view the judicial system as one of the country’s most corrupt institutions.11 Low levels of literacy and high poverty rates mean that many people cannot access legal assistance or information about their rights. A lack of access to and mistrust of the formal justice system means that most Malians rely on ‘customary justice’ in both civil and criminal cases, particularly in the north.12

Play Video

Is a compromise between peace and justice necessary in Mali?

Drissa Traoré, National Coordinator of the joint programme of the Malian Association for Human Rights (AMDH) and the International Federation for Human Rights (FIDH), discusses the national prosecution of international crimes in Mali and the challenges faced by Malian institutions in this process. Traoré also analyses the role of the International Criminal Court’s investigations and their consequences on Malian society and the country’s judicial institutions.

Citations & References

10:  Ibid. 

11:  Afrobarometer (2013) “Le citoyen, l’Etat et la Corruption, Résultats du round 5 des enquêtes”, Afrobaromètre au Mali: Sikasso.

12:  IDLO/Clingendael (2015) “A Crisis of Confidence, Competence and Capacity: Programming Advice for Strengthening Mali’s Penal Chain”.

Commentary & Reports

FIDH “Mali: La Justice en marche : Analyse des procédures judiciaire portant sur des graves violations des droits humain commises depuis 2012” (2014) 

In this report, the FIDH discusses the consequences of the judicial system in the north of Mali all but collapsing in the wake of the 2012-2013 occupation. 

Regional courts lacked judges and key staff, while local investigators lacked capacity and resources. 

Abraham Bengaly “La Protection juridictionnelle des droits de l’homme au Mali” (Harmattan Mali: 2015) 

The author examines the central responsibility of judges in rebuilding a culture of rule of law and human rights in Mali. He emphasises that traditional values favourable to human rights are important to building a credible and trusted modern rule of law system which remains well-suited to the expectations and needs of Malians.

IDLO/Clingendael “A Crisis of Confidence, Competence and Capacity: Programming Advice for Strengthening Mali’s Penal Chain” (2015) 

This report analyses the organisation and performance of the penal process in Mali, outlining various interrelated challenges, including a lack of judicial independence, corruption, a shortage of staff, and a lack of resources. The report makes the point that insufficient integration between customary justice and the state-run judicial sector has rendered justice inaccessible to most Malians.

Security challenges 

The tense security situation in the north has delayed progress in rebuilding and reforming the judicial sector. Due to instability in the region, only one third of civilian administrators in northern and central Mali were redeployed by 2017.13 Investigators and magistrates fear for their safety while performing their duties. Security risks inhibit them from carrying out essential components of their work, such as accessing witnesses and areas important to evidence-gathering.

Armed or designated terrorist groups remain a powerful presence in the region. Witnesses, victims, and judicial actors face threats. Some have been attacked after opening sensitive cases investigating individuals affiliated with armed groups.14

In northern Mali, cohabitation between alleged perpetrators of serious crimes and the victims of those crimes is common. This reality, in combination with a context of general insecurity, means that most residents doubt the ability of state institutions to protect victims and witnesses. Three draft laws on the protection of victims have been brought to the National Assembly, including a law specific to gender-based violence. At present, however, the legal framework and institutional capacity to provide victim and witness protection remain inadequate.15

Citations & References

13: Report of the UN Secretary General on the Situation in Mali (2017) S/2017/811. (FR)

14:  FIDH (2017) “Choosing Justice in Face of Crisis”. (FR)

15: Ibid. 

Commentary & Reports

Helene Cissé & Allan Ngari “Garantir un procès équitable aux présumés terroristes au Maliprocès équitable aux présumé terroristes au Mali” (ISS: 2020)

This report examines the failure of Malian judicial authorities to maintain international standards of human rights for accused terrorists, particularly in relation to fair trial rights. 

Anca-Elena Ursu “Between ideals and needs: is Malian customary justice incompatible with international human rights standards?” CRU Policy Brief (Clingendael: 2018)

This report investigates the role of customary justice in the Malian judicial system, noting that it is often the only available option for Malians in the areas most affected by conflict. It examines its intersections with the formal justice system and its role in mediating civil conflicts.

Fair trials 

Malian courts struggle to conduct judicial processes which adhere to international standards and guarantee the right to a fair trial and the human rights of accused persons. Of particular concern, the justice sector suffers from a major lack of defence lawyers, with the result that many defendants are left without representation in court. In 2014, there were 355 lawyers in Mali, with only 10 in the entire Mopti region.16 This area has a population of 2 million and has been the site of a series of inter-community massacres over the last two years. In poverty-affected regions such as Mopti, the prospects of addressing the shortage of lawyers are few. With most Malians unable to afford legal fees, it is difficult for lawyers to set up practice outside the capital. 

Concern that Malian courts are unable to uphold fair-trial standards is particularly relevant in the ongoing fight against terrorism. In the context of its anti-terrorist operations, the Malian military has adopted tactics that negatively impact on the right to a fair trial for those facing terrorism charges.17 Frequent mass arrests of suspects, imprisonment of accused terrorists in unregulated detention facilities, and a lack of documentation about alleged crimes have all gone to undermine fair procedures. Human rights groups report that hearings and interrogations are being conducted by security forces with little or no regard to official judicial procedures, and suspects have been detained for an unregulated period of time before being handed over to judicial authorities. Likewise, there are reports of torture, summary executions and inhuman treatment of suspected terrorists by security forces.18 

A separate concern is the fact that the state is not the main source of justice in rural areas and yet judicial reform efforts nonetheless remain focused on rebuilding the formal justice system. In the short-to-medium term, customary justice is the only available accountability option for many Malians, particularly in low-income and conflict-affected regions. Customary justice thus needs strengthening, not only to ensure that local leaders have the will and capacity to deliver fair and credible decisions, but also to address exclusionary and discriminatory practices within the customary justice sector.

Play Video

International crimes: the role of victims and civil society in the fight against impunity in Mali

Saran Keïta Diakité, Lawyer, President of the West African Women’s Peace and Security Network and Member of the National Transition Council, discusses justice and accountability for international crimes in Mali. Keïta stresses the importance of the role of women, civil society and victims’ groups in the fight against impunity in Mali.

Citations & References

16:  Clingendael (2015) “A Crisis of Confidence, Competence and Capacity: Programming Advice for Strengthening Mali’s Penal Chain”.  

17:  Helene Cissé & Allan Ngari (2020) “Garantir un procès équitable aux présumé terroristes au Mali”, ISS.

18: Ibid. 

Commentary & Reports

Helene Cissé & Allan Ngari “Garantir un procès équitable aux présumés terroristes au Maliprocès équitable aux présumé terroristes au Mali” (ISS: 2020)

This report examines the failure of Malian judicial authorities to maintain international standards of human rights for accused terrorists, particularly in relation to fair trial rights. 

Anca-Elena Ursu “Between ideals and needs: is Malian customary justice incompatible with international human rights standards?” CRU Policy Brief (Clingendael: 2018)

This report investigates the role of customary justice in the Malian judicial system, noting that it is often the only available option for Malians in the areas most affected by conflict. It examines its intersections with the formal justice system and its role in mediating civil conflicts.

Amnesty

In June 2019, the Malian parliament passed the ‘loi d’ agence nationale ‘ allowing members of armed groups involved in 2012-2013 hostilities to apply for amnesty. Loosely translated as the National Accord or National Understanding Act, the Bill was removed from the legislative agenda in 2018 under pressure from civil society, only to be passed the following year. The law explicitly excludes perpetrators of war crimes, crimes against humanity, rape, and other crimes “deemed imprescriptible” from eligibility for amnesty. However, human rights groups warn that the text of the law is vague and worded in a way that could allow perpetrators of torture, enforced disappearances, killings and other atrocities to escape justice.19 Victim and human rights groups further contend that the procedure to apply for amnesty as defined in the law is too simplistic and the approval timeframe too short to allow for a genuine assessment of the validity of applicant statements.20

To human rights groups, the amnesty law follows the Malian government’s pattern of putting reconciliation before justice.21 In March 2013, the public prosecutor brought a case against the leader of the Ansar Dine terrorist group, Iyad Ag Ghali, and 29 others involved in atrocities committed during their occupation of the north. In 2014, high-ranking members of armed groups were released, and in May 2015 the government lifted arrest warrants against accused senior officers, including Ilyad Ag Ghali. This is one of many examples in the years since the 2012 crisis of investigations being cut short or arrest warrants being rescinded in order to move the peace process forward or secure the release of hostages.

Citations & References

19: Amnesty International (2018)  “Mali: New law will reinforce the culture of impunity for human rights violations” ; Ephrem Rugiririza (2018) “Mali: Should there be an amnesty or not?” ,

20: Open Society Justice Initiative (2017) “Annex 1: Mechanisms in Africa” in   17:  Janine Lespérance (2019) “Impunity, Amnesty, and Incoherence: What justice for International Crimes committed in Mali”, justiceinconflict.org; UN OHCHR (2019)  “New Mali law risks giving rise to impunity for many past human rights violations, says UN expert” . (FR) 

21:  FIDH and AMDH (2017)  “Mali: Terrorism and Impunity Jeopardize the Fragile Peace Agreement”. (FR)

Commentary & Reports

Janine Lespérance (2019) “Impunity, Amnesty, and Incoherence: What justice for International Crimes committed in Mali” , justiceinconflict.org

This article offers a critical analysis of Mali’s amnesty law, the so-called ‘National Accord Act. The piece warns that the law risks encouraging impunity, and appears to be influenced by high-profile perpetrators and armed groups . 

Avocats sans frontiers (2019) “La loi d’entente nationale : une menace pour la paix, la réconciliation et les droits des victimes au Mali” 

This report offers a detailed analysis of the June 2019 “Loi d’agence nationale” granting amnesty to perpetrators of crimes committed in the context of the 2012-2013 crisis. The author argues that the law is vague regarding which crimes are eligible for amnesty, and describes an impracticable amnesty application procedure. 

Consequences of impunity


The political instability in the country continues to further undermine efforts to achieve justice and accountability for crimes committed in Mali. The International Commission of Inquiry for Mali, which was established on 19 January 2018, conducted its investigations into the situation in the country and submitted its report to the UN security council in June 2020.22 The report details the prevalence of serious violations of human rights and international humanitarian law committed by various actors, and the lack of sanctions against perpetrators which continues to engender a culture of impunity. The report emphasises that “…besides the obstacles and challenges within the Malian justice system, impunity in Mali is above all due to a lack of political will to make the issue a priority.” 23

Progress towards implementing the 2015 Algiers peace process has stalled since 2016 due to intensifying conflict in Mali’s central region. In this context, impunity for grave atrocities against civilians has emboldened armed groups, which have adopted a strategy of maintaining dominance in conflict-affected areas by perpetuating insecurity.24 In this way, such groups ensure that the state is no longer able to protect civilians or provide them with basic public services, making affiliation with the armed groups a sole means of survival in some communities.25   

The violence perpetrated by armed groups is compounded by and entwined with protracted local conflicts over access to and management of land and natural resources.26  In the absence of state protection from intercommunal violence, local ‘self-defense’ groups take security into their own hands, deepening cycles of violence even further.27 Some investigations were opened in the aftermath of recent massacres in the country’s central region but without a functioning judiciary and in the face of constant security threats, no prosecutions have followed .28 

These dynamics have created a climate of impunity which, say human rights groups, further perpetuates atrocities against civilians. They contend that to end cycles of violence, the fight against impunity must be intensified.29 This includes pursuing existing cases against members of armed groups, as well as addressing the impunity gap for crimes committed by government forces, who are themselves involved in numerous serious human rights violations in the context of counter-terrorism operations.30  

Citations & References

22: United Nations Security Council (19 June 2020) “Report of the International Commission of Inquiry for Mali” FR 

23: Ibid p. 306

24:  Human Rights Watch (2018) “We Used to be Brothers”. (FR)

25:  FIDH and AMDH (2017) “Mali: Terrorism and Impunity Jeopardize the Fragile Peace Agreement”. (FR)

26:  Van Veen, E., Goff D. and Van Damme T. (2015) “Beyond dichotomy: recognizing and reconciling legal pluralism in Mali”, Conflict Research Unit, Clingendael Institute.

27:  Human Rights Watch (2018) “We Used to be Brothers”. (FR)

28:  Ibid.

International justice 

Priorities and challenges for international criminal accountability efforts in Mali

The ICC Prosecutor alleges that war crimes were committed in Mali, including acts of mutilation, torture, extrajudicial executions, pillaging, rape and intentional attacks against protected sites or individuals, such as schools and hospitals. In its 2012 self-referral to the ICC, Mali informed the Office of the Prosecutor (OTP) that its judicial system had withdrawn from the north, leaving its national courts unable to prosecute crimes committed in the region. Seen in the context of complementarity, the ICC’s investigation is admissible: firstly, because Mali declared itself unable to prosecute those most responsible and has no such prosecutions under way; and secondly, those international crimes which are being prosecuted in domestic courts do not pertain to the ‘same person and same behavior’ as that investigated by the ICC Prosecutor. 

On 18 September 2015, the Pre-Trial Chamber issued its first arrest warrant in the Malian investigation against Ahmad Al-Faqi Al Mahdi, former head of the “Hisba” Morality Brigade of Timbuktu. He was charged with the war crime of intentionally destroying historic monuments and religious buildings, including nine mausoleums and one mosque in Timbuktu. In July 2020, the ICC opened a second case, charging Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud with numerous acts of crimes against humanity, focusing particularly on his involvement in systemic sexual violence against women and children in Timbuktu while heading the occupying jihadist police forces.31

Citations & References

31:  ICC (2013) “Confirmation of Charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud” 13 November 2019

 

International Criminal Accountability

Priorities & challenges for strengthening international criminal accountability processes in Mali

FOLLOW THE TIMELINE BY CLICKING ON THE ARROWS
16 August 2000
Mali ratifies the Rome Statute of the International Criminal Court
13 July 2012
Mali self-refers to the ICC

The Government of Mali self-refers the situation in its territory to the ICC, declaring that the judiciary has withdrawn from the north and is thus unable to address war crimes committed during the 2012-2013 conflict and occupation.

 
16 January 2013
ICC Prosecutor opens investigation in Mali
10 October 2014
Ahmed Al Faqi Al Mahdi arrested

Al Mahdi, head of Hesba, a command structure of the AQIM aligned group Ansar Dine, is arrested in Niger.

 
18 September 2015
ICC issues arrest warrant against Al Mahdi
26 September 2015
Niger surrenders Al Mahdi to the ICC
30 September 2015
Al Mahdi appears before the ICC

Al Mahdi makes his first appearance before an ICC judge, where he confirms his identity and is informed of the charges against him. Pre-Trial Chamber confirms a single war crime charge against Al Mahdi, charging him with intentionally directing attacks against religious and historic monuments in Timbuktu, June 20-July 10, 2012.

1 March 2016
Al Mahdi tells court he plans to plead guilty to the charges, setting a precedent in handling of guilty pleas before the ICC
22-24 August 2016
Al Mahdi trial

Al Mahdi pleads guilty to the war crime of destroying historical and religious monuments. The prosecution presents its evidence and three witnesses are called.

 
27 September 2016
Al Mahdi found guilty and sentenced to nine years of imprisonment
17 August 2017
ICC Trial Chamber issues a reparations order against Al Mahdi

He is determined to be liable for €2.7 million in expenses for individual and collective reparations for the community of Timbuktu.

 
27 March 2018
Arrest warrant issued for Al Hassan Ag Abdoul Aziz

Al Hassan was a member of Ansar Eddine and chief of the Islamic police during the occupation of Timbuktu by armed groups, between 1 April 2012 and 28 January 2013.

 
31 March 2018
Mali government surrenders Al Hassan to the ICC
8-17 July 2019
Charges against Al Hassan are confirmed

In a confidential decision, the Pre-Trail Chamber I confirms charges of war crimes and crimes against humanity against Al Hassan. He is accused of crimes including torture, rape, sexual slavery including forced marriages, and other war crimes.

 
14-15 July 2020
Al Hassan trial opens in The Hague

ICC prosecutor lays out charges, describing the Islamic Police, their crimes against the people of Timbuktu and the threat they still pose civilians and security. The statement focuses in on gender-based crimes of this Islamic police.

Download This Timeline in PDF Format

Complementarity 

The Malian case has implications for the role of self-referrals in future ICC investigations and trials. A “self-referral” means that a State Party to the Rome Statute recommends a situation within its own borders for investigation by the ICC Prosecutor. The original architects of the Rome Statute expected that this would be a seldom-applied provision. Nonetheless, most situations investigated by the ICC to date have been self-referred, including the ongoing investigation into crimes committed in Mali during and since the 2012 occupation of the north by armed groups.

It is widely believed that self-referrals can help encourage state cooperation with ICC investigations, significantly increasing the chance of conviction should an accused go to trial. Self-referrals bring the risk, however, that the government cooperation implicitly affirmed through a request for ICC involvement may come with strings attached. That cooperation could, for example, prove less forthcoming or even become obstructive, should investigators turn their focus away from crimes committed by armed groups or the political opposition, directing it instead at the actions of state security forces or officials. There is, in other words, a risk that self-referral contributes to ICC trials appearing one-sided, as happened, for instance, in Côte d’Ivoire. Indeed, the ICC has never issued an arrest warrant for government officials in any state that has self-referred a situation to the Court.

In the Malian case, the Prosecutor states that the country’s self-referral grants ‘jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onward’, including crimes allegedly committed by the Malian security forces.32 Whether this statement translates into practice will have implications both for the Malian situation and for the credibility of the OTP when investigating future self-referred cases. Without balanced investigations, the Prosecutor’s apparent inclination towards self-referred cases may prove detrimental to the perceived independence and impartiality of her office.33

Citations & References

32:  ICC (2013) “Statement by the Prosecutor concerning Mali” 28 January 2013

33:  Ignaz Stegmiller (2013) “The International Criminal Court and Mali: Towards more Transparency in International Criminal Investigations?”, Criminal Law Forum.

Commentary & Reports

Ignaz Stegmiller “The International Criminal Court and Mali: Towards more Transparency in International Criminal Investigations?” (Criminal Law Forum: 2013) 

This article discusses transparency shown by the OTP in its decision-making regarding the Malian case. The author analyses written ICC documents outlining the basis for opening formal investigations in Mali, addressing questions of jurisdiction, admissibility, and the interest of justice. Stegmiller presents the benefits as well as the risks of a self-referral in the Malian case.

Statement of ICC Prosecutor, Fatou Bensouda, on the occasion of the opening of the trial against Amadou Haya Sanogo and other suspects before the Malian judicial system: “Complementarity is central to the Rome Statute system” (International Criminal Court: 2018) (EN/FR)

Fatou Bensouda made this statement as a public response to the opening of the Sanogo trial, the first domestic Malian trial for international crimes committed in the 2012-2013 conflict period. Particularly notable is her emphasis on the ICC’s readiness to help strengthen domestic accountability. This reflects a ‘positive complementarity’ approach; a cooperative approach in which the ICC and national governments work in partnership towards the common goal of ending impunity.

Impact and efficacy of ICC trials

Al Mahdi pleaded guilty to charges of ‘destroying priceless cultural’ sites in Timbuktu during the city’s 2012-2013 occupation by armed groups. His conviction set a precedent in adjudicating the destruction of cultural heritage as a war crime. An agreement between the Prosecutor and accused secured his guilty plea for the destruction of the cultural sites, but inhibited the possibility of appealing the decision or opening a new case with additional charges.34 Al Mahdi cooperated with the Prosecutor throughout the process.

The Prosecutor chose this case, due to its symbolic value and the efficiency assured by a quick conviction.35 Conviction was likely, given overwhelming evidence against Al Mahdi and his willingness to cooperate with the court. Within the context of the global war on terror, the destruction of sacred sites in Timbuktu held important significance.36 UNESCO commended the decision as an important response to a worsening pattern of contemporary extremists targeting culture and heritage. 

In contrast, Malian civil society groups criticised the OTP for not prosecuting those most responsible for violent crimes against civilians.37 This feeling was echoed in interviews with local community members, who expressed disappointment that the more serious crimes inflicted on their lives and dignity were sidelined in favour of cultural property.38

Citations & References

34:  Stephanie Maupas (2016) “CPI: Neuf ans de prison pour la destruction des mausolée de Tombouctou”, JusticeInfo.net.

35:  Oumar Ba (2020)“Contested Meaning: Timbuktu and the prosecution of destruction of cultural heritage as war crime”, African Studies Association.

36:  Ibid.

37:  Maupas (2016)

38:  Oumar Ba (2020)

Commentary & Reports

Oumar Ba (2020)“Contested Meaning: Timbuktu and the prosecution of destruction of cultural heritage as war crime”, African Studies Association. 

Is there a universally shared valuation of World heritage? This article examines the tension between international justice and the local impacts of ICC proceedings. Based on interviews with Malians from conflict-affected communities, the author explains that justice in the Al Mahdi case did not match the needs and expectations of those ‘in whose name justice was done’.

Stephanie Maupas “CPI: Neuf ans de prison pour la destruction des mausolée de Tombouctou” (JusticeInfo: 27 September 2016)

While UNESCO and other international agencies commended the decision to convict Al Mahdi for destruction of priceless cultural sites, human rights NGOs criticised the limited nature of the charges.

UNESCO “Ahmad Al Faqi Al Mahdi: ‘I plead guilty’” (UNESCO Courier: December 2017)  

In this interview with Al Mahdi, he chronicles his life and the choices that led to the destruction of the mausoleums in Timbuktu.  

Prosecuting sexual violence  

The ICC trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud fills an important lacuna left by the Mali investigations. The conviction of Al Mahdi held symbolic importance but did not reflect the full extent of grave offences committed against Malian civilians, particularly victims of sexual violence. During the occupation of northern Mali by armed groups, Al Hassan headed the jihadist police in Timbuktu. Under his watch, members of the occupying armed groups perpetrated widespread and systematic sexual violence, including sexual slavery, gang rape, rape as punishment, and forced marriages of women and children.39

The trial of Al Hassan opened in July 2020. In this second Malian trial, the OTP included sexual crimes as a core focus of the case, including rape, sexual slavery and forced marriages amongst the charges brought. In her opening statement, Bensouda emphasised that women and girls were those most targeted with grave violations during the occupation and those who suffered most as a consequence of the atrocities committed against civilians.

Al Hassan also faces charges of persecution on gender grounds. This is the first time an international tribunal will prosecute this crime, marking an important step in developing jurisprudence on gender-based violence. The charge goes beyond sexual violence to acknowledge that many acts of violence and persecution during the occupation used gender norms to target and harm civilians. For example, perpetrators adopted rape as a military strategy, not just because it was harmful to women and girls, but because gender norms make this crime especially devastating, with lasting impact on the social standing and life opportunities of both the victims and their families.40

Citations & References

39:  Report of the Security General 2019 “Conflict Related Sexual Violence” S/2019/280, United Nations. (FR)

40:  Geogriana Epure (2020) “Writing the Jurisprudence on Gender-based Persecution: Al Hassan on Trial at the ICC”, International Justice Monitor.

Commentary & Reports

Geogriana Epure “Writing the Jurisprudence on Gender-based Persecution: Al Hassan on Trial at the ICC” (International Justice Monitor: 16 July 2020) 

Epure analyses charges of sexual and gender-based violence in the Al Hassan trial as a significant step in developing jurisprudence around gender-based crimes. 

Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of the trial in the case against Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (International Criminal Court: 14 July 2020) 

Prosecutor Bensouda describes the charges against Al Hassan, emphasising that women were the primary targets of attacks against civilians in Timbuktu.

Mukege Foundation “ICC Convicts Malian rebel leader of destruction of buildings – but not of sexual violence crimes” (Accessed 2020) 

The piece argues that the failure to include sexual violence in charges against Al Mahdi did not merely inhibit justice for victims and the search for the truth. Given reparations are only available to victims of crimes for which the accused was convicted, where sexual violence is not part of the charges, victims of sexual violence are not eligible for reparations and support.

Thijs Bouwknegt “ICC: Last Chance to De-Quarantine Justice for Mali” (JusticeInfo: 22 Oct October 2020) 

The article lays out the tension between witness protection and visibility of justice. Malians can access little information about the Al Hassan trial. Security threats on the ground have pushed the ICC to the extreme of almost exclusively holding closed sessions and hiding the proceedings.

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