0 Running head: ICC INVESTIGATION IN MALI

Critics be damned: The ICC should pursue an investigation into the situation in Mali

1 Northern Mali is in crisis; thousands of Malian residents flee the region1 while reports of torture, arbitrary killings, mass rape, and destruction abound2. Mali lacks the capacity to prosecute the groups responsible for such atrocities and is relying instead on its referral of the situation to the International Criminal Court (ICC). That seems like a safe bet because the ICC has authority to prosecute and investigate the most serious crimes of international concern, including war crimes and crimes against humanity. So what stands in the way of ICC involvement? According to prominent academics3, four reasons should give Prosecutor Bensouda pause before getting involved in Mali:4 (1) ICC investigations are already too concentrated on Africa; (2) the crimes are being perpetrated by rebels instead of state actors; (3) the conflict is still ongoing and (4) Mali can handle its own investigations. Assuming these are the main reasons against ICC involvement, Bensouda must flout the academics because their reasons fail to stand up against a legal and purposive argument in favor of ICC intervention. Argument 1: The ICCs Afro-Centric Focus Reflects a Socio-political Reality Dr. Heller of Opinio Juris argues that the ICCs Afro-centric focus delegitimizes the ICC as an international court, warning the ICC to think twice before launching yet another investigation in an African country5. The criticism has intuitive appeal after all, the ICC only has eight official investigations and they are all in Africa, however the ICC also has preliminary examinations in Latin America, Eastern Europe, the Middle East and Northeast Asia. A better explanation for this seemingly Afro-centric focus isnt so much ICC action as State-specific processing delays. Half of the current ICC situation countries are State Parties to the Rome Statute (RS) of the ICC that self-referred their situation, helping expedite the ICC process. This show of initiative may account for why these African countries are already ICC situations while other States remain stuck at the preliminary stage, either because they did not self-refer their

2 situation (e.g. Afghanistan) or because they arent even parties to the Rome State (e.g. North Korea). Furthermore, the purpose of the ICC is to fight impunity for the most serious crimes facing the international community. If the ICC were to develop a quota for investigations based on region, it would fail in its mandate to be fair, effective and independent. Like it or not, the ICCs focus on Africa reflects a socio-political reality. According to the Failed States index, the African continent does not have a single stable state and most states are classified as either critical or in danger of becoming a failed state; Mali is included in this list. Researchers widely agree that state failure creates breeding grounds for factional warfare and grave human rights violations6. So while it may be controversial, there is a very good reason for the ICCs Afro-centric focus and its addition of Mali to its growing list of African investigations. Argument 2: The ICC has Jurisdiction to Prosecute Rebels, not just State Officials Academics believe that crimes perpetrated by rebels are too complicated for ICC intervention. Why? The ICC has jurisdiction over crimes committed in State party territory during armed conflict; regardless of whether government officials commit these crimes or organized armed groups (like rebels)7. Plus, the ICC commonly indicts rebels. The ICCs first conviction involved the leader of a rebel group in the Democratic Republic of the Congo. Similarly, the ICC indicted Lord Resistance Army (LRA) rebel leaders for war crimes and crimes against humanity in Uganda. In fact, the situation concerning Ansar Dine rebels in Mali is almost identical to what Uganda faced with the LRA: both country situations involve organized militia groups labeled as terrorist networks engaging in armed conflict with the government over disputed territory. Both the LRA and Ansar Dine are responsible for RS violations and justify their actions through religious ideology. If the ICC intervened in Uganda, why should Mali be any different? It shouldnt be. By investigating the LRA, the ICC set a precedent that State

3 parties can refer a situation involving rebel groups. If the ICC then rejects Malis pleas for intervention, the Court would undermine several principles of fundamental justice including the principles that the law ought not be arbitrary or vague and that courts must abide by set precedent. Argument 3: The ICC should intervene to prevent future harm Heller argues that ICC intervention during an ongoing conflict is essentially useless unless the ICC is fairly confident that a threat of prosecution is likely to deter rebels. Again, Hellers critiques point more toward a concern for how the ICC will be perceived rather than the ICCs duty to the international community. According to the Preamble of the Rome Statute, the ICC is determined to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community as a whole] and thus to contribute to the prevention of such crimes; based on this preamble alone, it seems that the purpose of ICC action is to prevent atrocities, not just react to them after they occur. But would ICC intervention help ease the situation in Mali? The case of the ICC investigation in Uganda involving the LRA suggests that yes, it could. When the ICC announced its investigation into Uganda, it met similar criticisms. But in spite of these criticisms, regional monitors in Uganda noticed that ICC intervention is in fact correlated with a promising peace initiative and a dramatically improved security and humanitarian situation in the region8. Sure, theres no guarantee that Mali will benefit from ICC involvement in the same way as Uganda, but the publicity associated with ICC intervention helps draw awareness to the issues facing Mali and rallies the international community to assist in victim protection and enforcement of arrest warrants against the perpetrators of these crimes. Argument 4: Mali does not have the capacity to arrest and indict these rebels

4 Academics argue that Mali shouldnt rely on the ICC when it has its own well-established legal system. However, the RS also states that the ICC can admit a case if a State is unable to

carry out the investigation or prosecution9. Mali readily admits that it does not have the capacity to try the rebels; because lets face it, you can have a great legal system in theory, but if you do not have the funds or resources to run it, the academic argument falls by the wayside. Even domestic investigations and prosecutions of RS-type crimes are expensive. For example, an internationally approved budget for the trial of Hissene Habre in Senegal totaled 8.6 million10; meanwhile Mali is one of the world's poorest countries, ranking 175th out of 187 countries in the UNs 2011 Human Development Index.11 If we consider Malis relative lack of resources compared to the ICC, the high costs associated with prosecuting egregious RS-type offences, and the fact that a transitional government would very likely impair the functioning of Malis legal institutions, we are far less likely to conclude that Mali has the capacity to handle the case in their own courts.
Given that most of the arguments against ICC intervention in Mali are weak and given the potential benefits of early intervention to stem the tide of the conflict and support Mali as a State Party in need, Bensouda can rest easy knowing that her first ICC intervention as Chief Prosecutor is well-grounded in law.

5 Endnotes
1

Alternet Agence France Presse. White House authorizes $10 million for Mali refugees. Alternet. Retrieved from http://www.alternet.org/rss/breaking_news/1027092/white_house_authorizes__$10_million_for_ mali_refugees/.
2

Al Jazeera. (2012, May 16). Amnesty cites rights abuses in northern Mali. Al Jazeera Retrieved from http://www.aljazeera.com/news/africa/2012/05/2012516474946468.html. Cavendish, J. (2012, April 30). Malis fog of war: Refugees tell of terror, hunger and rape. Time World. Retrieved from http://world.time.com/2012/04/30/malis-fog-of-war-refugees-tell-of-terror-hunger-and-rape/. Human Rights Watch. (2012, April 30). Mali: War crimes by northern rebels; Armed groups commit rape, use child soldiers. Human Rights Watch. Retrieved from http://www.hrw.org/news/2012/04/30/mali-war-crimes-northern-rebels
3

Schabas, W. A. (2012, July 19). Mali referral poses challenge for International Criminal Court. PhD Studies in Human Rights. Retrieved from http://humanrightsdoctorate.blogspot.ca/2012/07/mali-referral-poses-challenge-for.html Heller, K. J. (2012, July 19). Will Mali be the first Bensouda-Era Investigation? Opinio Juris Retrieved from http://opiniojuris.org/2012/07/18/will-mali-be-the-first-bensouda-erainvestigation/
4

Heller, K. J. (2012, July 19). Will Mali be the first Bensouda-Era Investigation? Opinio Juris Retrieved from http://opiniojuris.org/2012/07/18/will-mali-be-the-first-bensouda-erainvestigation/
5

Ibid.

Howard, T. (2010). Failed states and the spread of terrorism in Sub-Saharan Africa. Studies in Conflict & Terrorism, 33, 960988. doi: 10.1080/1057610X.2010.514696
7

Article 8.2(f), Rome Statute of the International Criminal Court (Rome, 17 July 1998) UN Doc. A/CONF.183/9 of 17 July 1998, entered into force 1 July 2002.
8

OBrien, A. (2007). The impact of international justice on local peace initiatives: The case of Northern Uganda. International Center for Transitional Justice (ICTJ), Expert Paper.
9

Supra note 7 at Article 17.1(a). Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),

10

Judgment, I.C.J. Rep. 2012 (July 20) at para 33.

11

United Nations Human Development Index (2011)