Internationally-led Justice Efforts in Mali Must Consider National Context, Adapt to Local Needs

10/6/2014

Two years after a rebellion cast Mali in a year of war, the country has yet to see justice for the widespread harm and suffering its citizens endured. While there is increasing attention for proposed transitional justice efforts, projects to address the past been planned sporadically, and have been considerably dislocated from the needs and wishes of those they are meant to serve.

ICTJ's new assessment report, "Possibilities and Challenges for Transitional Justice in Mali," looks at the potential for effective transitional justice approaches that are reflective of the primary concerns and demands of citizens.

The assessment is based on interviews with a rage of actors in Bamako, Mali's capital city, and includes the views of representatives of the state, judiciary, religious organizations, civil society, and international organizations.

"Overall, while some positive steps have been taken to advance accountability in Mali, nationals are critical of the lack of a clear strategy or synergy between different initiatives and of the government’s top-down approach to transitional justice in a context where the local and communal are of primary importance," says Virginie Ladisch, author of the report and head of ICTJ's Children and Youth program.

According to Ladisch, international organizations and donors should monitor how the political and security situation evolves before rushing to support specific transitional justice approaches, such as a truth commission.

“Genuine efforts to shed light on past violations and work towards accountability depend on whether victims groups and other social actors push for them,” said Ladisch.

Background: The Coup in Mali

In January 2012, a group representing the Taureg—a traditionally nomadic people indigenous to the Saharan region of North Africa—the Mouvement National pour la Liberation de l’Azawad (MNLA) staged a rebellion against the government in northern Mali with support from Islamist groups in an attempt to create the independent state of Azawad. In March of that year, military units ousted President Amadou Toumani Touré, just one month prior to a scheduled presidential election. The military junta formed in the wake of the coup dissolved the government and the constitution, and the resulting collapse of the state allowed for the MNLA to declare independence for Azawad on April 6, 2012.

Following the coup, the Heads of State and Government of the Economic Community of West African States (ECOWAS) appointed a mediator to oversee the development of a transitional government in collaboration with the military junta. Interim Prime Minister Cheick Modibo Diarra was announced a government of national unity on August 20, 2012.

In January of 2013, the Malian government sought the assistance of the French military after extremist groups captured Konna and a state of emergency was declared. The combined efforts of the French and African militaries allowed for an improved security situation in northern Mali, with most towns returned to state control.

However, horrific violence against civilians— including enforced disappearances, torture and extrajudicial executions—continued well after the French intervention.

To date, parties to the conflict have been implicated in war crimes and other human rights violations, and well over 400,000 people have been displaced . According to an investigation by Amnesty International in 2013, Malian soldiers have committed a number of enforced disappearances and extrajudicial executions—some in broad daylight—and have been implicated in torture and ill-treatment of prisoners including children . The AI investigation also uncovered evidence of civilians abducted and killed by armed groups, often for publicly supporting the French intervention and Malian army. Child soldiers between the ages of 12 and 17 were also used in the conflict. Local NGOs and medical professionals have documented 83 cases of rape and sexual violence against women between the ages of 15 and 60 in Gao and Sévaré .

Transitional Justice Efforts

Parliament adopted a roadmap for transition on January 29, 2012, naming the restoration of territorial integrity and free elections as its two main objectives in the transitional process. The roadmap, "La Feuille de Route pour la Transition and the Commission Nationale de Dialogue et de Réconciliation", also called for the establishment of a Dialogue and Reconciliation Commission (CNDR), which was formed in March 2013. Presidential elections were held the following August, with legislative elections in November and December 2013. Armed attacks and subsequent instability would continue into 2014.

In May of 2014, the three main Taureg separatist groups signed a ceasefire agreement with the government as a commitment to further peace negotiations. Amongst the terms agreed to were a cessation of hostilities, aiding the UN humanitarian effort, and the creation of an international commission of inquiry to study Mali's recent conflict.

Mali's initiatives towards developing a transitional justice framework have been criticized due to a lack of coordination of efforts across government sectors as well as a lack of engagement with victims' groups and civil society. For example, there is no specific plan for victims' compensation, even though the Malian government passed a law for this purpose in 2012. While the Ministry of Justice is involved in collecting victims' testimony in the north of the country, it is unclear just what the testimonies will be used for; whether or not they will be used to support a criminal justice process remains to be seen.

Following national and international criticism that it did not adequately consult with victims groups and civil society and was not making progress, the CNDR was dissolved just one year after its creation. A new truth commission, the Truth, Justice and Reconciliation Commission (CVJR), was created in its place in March of 2014 and given a three-year mandate. However, the CVJR has been stalled since July 2014, with little explanation about its delay.

Efforts to pursue accountability through traditional criminal justice mechanisms also appear to be elusive. Though some arrests have been made at the national level, the justice system has been criticized for its inability to prosecute crimes in the northern part of the country. Without the judicial capacity to investigate and try cases in the north, jurisdiction of the occupied zones of Mali have had to be transferred to the Tribunal of Commune III in Bamako.

In 2012, Justice Minister Malick Coulibaly issued a request to the ICC to open an investigation into crimes committed in Mali since January 2012. ICC Prosecutor Fatou Bensouda opened an investigation in January 2013; to date, no cases have been brought against individuals.

'Victims of an absent state'

Many of those interviewed for the ICTJ assessment, "Possibilities and Challenges for Transitional Justice in Mali”, believe that the international community puts too much emphasis on the political crisis without consideration for the deep, structural causes that created the conditions for the crisis to unfold as it did.

The national perception is that the lack of good governance across a number of sectors—including health, education and justice—is at the center of Mali's problems. “There was a general sense that those in power are hesitating, not moving forward, and in the meantime, people are left with unmet expectations,” said Ladisch.

One commonly held view among those interviewed was that the state's top-down approach to transitional justice was not appropriate for the Malian context.

“The state has not taken the right path,” said a member of the Northern Citizen's Collective, a group involved in peace talks in northern Mali. “You should not go from the summit to the base. You have to listen. It is not in Bamako that you can resolve this crisis.”

Another respondent stressed the importance of incorporating local customs, particularly with regard to implementing projects about peace and reconciliation. Depending on the community in which a project will take place, there are certain traditional leaders, families and imams who must be consulted first. Seeking the support of community leaders is a necessary first step, and projects should only take place once they have been approved at a local level.

There are also concerns about the legitimacy and independence of the newest truth-seeking body, the CVJR, which is located within the Ministry of Reconciliation. For many, a commission must not be attached to any ministry in order to be seen as independent.

For others, it is not clear whether there is overwhelming national support for a truth commission at all. Many believe that the international community has largely driven organizing efforts, which may help to explain why the CVJR is currently stalled. “The TC needs to be demanded by Malians. We shouldn’t force it; it should come from the population,” said an international representative in Mali.

As for criminal accountability, there is an ongoing debate in Malian civil society as to whether or not the national justice system is able to handle recent crimes. While there is agreement that the judicial system lacks the support and resources necessary to handle all of the cases of human rights violations, some say there is also a lack of confidence as well as little incentive to investigate and prosecute cases involving agents of the state. In addition, it remains difficult to establish a clear pattern of violations with parts of the country still under MNLA control.

“On average, the Malian citizen does not trust the justice system. There were strong calls for an end to impunity among those interviewed; however, almost everyone shared a certain level of distrust of the judiciary,” Ladisch explained. “Such distrust stems from a historically corrupt judiciary, an absent judiciary in the north, and cultural practices.”

In many parts of the country, communities have developed their own resolution mechanisms to deal with crime and other problems in their communities. Many people interviewed from different positions in society and across age groups reiterated the idea that the formal justice system is most often the last recourse in Malian tradition.

Moving Forward: Putting "Justice" Back in the Transition

ICTJ’s assessment recommends a number of ways in Mali can improve its approach to transitional justice. Of these, the report stresses the need for considering root causes of the conflict.

“If international actors are able to assist Mali in determining effective ways forward, they need to develop a deeper historical and cultural understanding of the context,” said Ladisch.

For this, engagement at the local level is key: while international actors tend to act at the “official level,” most of those consulted in the assessment stressed the need for a focus on community-based strategies, so as to best respond to cultural norms and practices and to ensure the participation of civil society.

Linked to this is the need to support an overall strategy for ending impunity, rather than simply providing technical assistance on specific provisions. “If they do not, there is a risk that their technical support will be used to legitimize a mechanism that does not meet the needs of the victims and citizens of Mali or respond to their demands,” said Ladisch.

In Mali there is now an opportunity to look beyond what has been done in other countries, to propose approaches that will respond to the concerns of the population in a way that resonates and has the potential to trigger a meaningful process of change towards the establishment of a durable peace. Consultations with a broad range of stakeholders to identify goals and assess what approaches might work best within that context are an essential first step.


Photo: Supporters of the MNLA are seated behind representatives of the Malian state at a Commission of Dialogue and Reconciliation meeting held in Kidal, Mali on 28 August 2013. (Tanya Bindra/NurPhoto/NurPhoto/Corbis / APImages)