Mali’s Truth, Justice and Reconciliation Commission: Opening the Way Towards Sustainable Peace?

4/7/2016

Over the past two decades one peace agreement after another has succumbed to violence in Mali, each hint of stability undercut by overhasty reconciliation and recurrent human rights violations. The failure to fully reckon with its past has made Mali fertile ground for political and armed conflict: violence erupted in the wake of peace deals in both 1996 and 2012. The most recent peace, a fragile agreement reached in 2015, still stands, but its long-term viability rests in the commitment by Malian actors to implement the conditions of the agreement.

Mali has yet to genuinely address a legacy of authoritarian rule, extrajudicial killings, sexual violence, torture, enforced disappearances and the displacement of over 400,000 people.

The lack of accountability and redress during previous efforts to bring peace has generated frustration among both victims and civil society at large, who have felt excluded from these processes. The Dialogue and Reconciliation Commission (CNDR) highlighted these failures. Created to address the violence following 2012’s military coup, the government dissolved the commission just one year later amidst questions regarding its limited engagement with civil society and victims’ groups.

In 2014, new hopes arose with the creation of the Truth Justice and Reconciliation Commission, which received a broad mandate to examine not only the 2012 coup, but violence in the north stretching back to 1960. Its aim is not simply reconciliation –a word that some Malians see as a disguise for impunity – but an understanding of the root causes of violence and its perpetrators.

The TJRC has been working for the last six months, and it will soon open its regional offices. However, its mission is complicated by the fact that violence in Mali continues today. The internal conflict that erupted in 2012 remains unresolved, and the country now faces the simultaneous rise of international terrorism within its borders. These complications, combined with the recent failure of the CNDR, raise the question: Can the TJRC serve as a foundation of a peaceful future in Mali?

With these issues looming, we discussed the unique position of the Malian TJRC and the implications of its work with the transitional justice expert Kora Andrieu, currently working with the TJRC as an independent consultant.

What truths is the TJRC setting out to bring to light and what role does this institution play within Mali’s transition to peace?

The Truth Justice and Reconciliation Commission is tasked with investigating all gross human rights violations committed in Mali between 1960 and 2013. The truths that will be brought to light are multiple: they concern not only the crimes committed in the course of the most recent conflict, in 2012, but also their root causes. The latter include underdevelopment in the North, bad governance, deep regional inequalities, and entrenched grievances in all communities, partly due to the long-unaddressed legacies of past trauma.

Specific attention is paid to the crisis in the North, where Touareg-led secessionist movements have risen up against the central power in Bamako, most recently in 2012. The occupation of the North was marked by gross violations of human rights law and humanitarian law, but the legacy of abuses goes way beyond 2012. The Touareg and other communities in the North have long endured systematic violence and marginalization from the national authorities, while the rest of the country has also been affected by the previous authoritarian regimes of Modibo Keita and Moussa Traoré, the latter being ousted during a violently repressed uprising in 1991. Given this backdrop, the TJRC will have much to investigate, and its mandate rightly lists violations such as forced disappearances, murder, torture, sexual violence, rape, looting, enrollment of child soldiers, kidnapping, forced displacement and arbitrary detention.

Malian contemporary history, however, is characterized by a tendency to move on without looking back into the past, either in the name of “reconciliation” or because of what some call an inherent “culture of dialogue and forgiveness.” While this attitude has certainly helped the country move forward to some extent, it has also deepened divisions and fed into these repeating cycles of violence, uprisings, rebellions and coups: in 1963, 1991, or 2006, to name just a few instances. For these reasons, the TJRC’s three-year mandate seems far too short for it to play a true role in the transition to peace and stability.

What work has the TJRC completed so far and what will its main tasks be in the coming months? How will civil society engage with the TJRC’s activities?

To some extent, the TJRC has done everything upside-down and in an order that would surprise most transitional justice experts – and yet it seems to somehow be working. It was created by a decree in January 2014, but it wasn’t until August 2015 that Ousmane Oumarou Sidibé, a prominent figure of the political opposition, was nominated president.

In the past six months the TJRC has accomplished a lot: it drafted internal rules; established internal structure; adopted a general strategy and action plan; drafted statement-taking forms and followed a series of training courses. Five sub-commissions have already been set up: truth-seeking; victims’ support and reparations; gender; reconciliation and outreach; reporting and documentation.

The TRJC is now in the process of opening its regional offices, which is particularly important in a country where decentralization is such a sensitive political issue. The key task is appointing the external support staff critical to the TJRC’s mandate. It is crucial that this recruitment cycle be conducted in an open and transparent fashion, by including civil society and victims’ groups in particular, in order to ensure that the TJRC truly enjoys their trust and confidence. So far, the TJRC has indeed been adversely affected by a lack of consultations in the nomination process for commissioners.

Some Malians expressed concerns that the transitional justice process in Mali has largely operated in a “top-down” fashion, thereby marginalizing the voices of victims on a local level. What is the TJRC doing to address that concern?

It is true that the transitional justice has so far been mostly driven from the top, starting with the decree that established the TJRC and which was issued without the consultation of civil society organizations. This is far removed from the “best practices” of transitional justice, which recommend, to the contrary, that a truth commission’s mandate be established on the basis of transparent and inclusive consultations – as was recently done, with some success, in Tunisia.

The TJRC has made some efforts to connect with civil society, visiting all regions of the country. It is currently working in collaboration with civil society organizations and human rights defenders to draft their preliminary mapping report, building upon the extensive documentation on past violations that they have already produced. The lack of transparency and consultation does not seem to have seriously affected the legitimacy of the Commission so far, and no one in the country has openly refused to collaborate with it. There seems to be a consensus that the TJRC represents a last chance to uncover the truth and promote the rights of victims.

All in all, the Malian TJRC seems to contradict all of our well-established intuitions about what transitional justice should look like. And yet, somehow, it could work.

What are the major differences between the TJRC and the Dialogue and Reconciliation Commission that was established in 2012 and later dissolved? Is the TJRC better equipped than the previous commission? How?

The Dialogue and Reconciliation Commission (CDR) was mostly a political commission, aimed at promoting political dialogue between the warring parties before the peace agreement was signed and amidst bitter negotiations. The CDR was not specifically oriented towards victims, and while its mandate did include the investigation of human rights violations, truth seeking was not at the center of its activities. By contrast, the TJRC has an actual truth-seeking mandate, not only regarding the most recent crisis in the North, but also concerning the root causes of that crisis and on the other regions of the country that suffered.

In contrast with the CDR, the TJRC has one sub-commission specifically dedicated to truth-seeking and another to deal specifically with victim support and reparations. The subcommittee on victim support has even budgeted reparations costs for victims in urgent need. Emphasis was also placed on the need to pay special attention to gender-based violence, through the creation of a gender committee and the nomination of gender experts in each regional office.

Another difference with the CDR is that although the TJRC does not have judicial powers as such, it is planning on collaborating with judicial authorities by referring to them cases that cannot be the subject of reconciliation measures, or in which the victims openly ask for retribution.

"For the TJRC to succeed, the most important thing is not to abandon either reparations or accountability in the name of 'reconciliation.'”
    For the TJRC to succeed, the most important thing is not to abandon either reparations or accountability in the name of “reconciliation.” So far, the TJRC president has been careful not to have the institution confused with a court, repeatedly saying that the Commission will not judge anyone and will instead put forward a “restorative” understanding of justice. This assertion went down badly with victims groups who feared that the TJRC would be another way to disguise widespread and continuing impunity.

However, the TJRC has the tools to respond to these concerns in a way that is coherent with victims' need for accountability, respectful of local customs, and coherent with the peace process.

There has been some disagreement surrounding the historical time period the commission should investigate. While the TJRC is investigating crimes that occurred between 1960 and 2013, some have suggested that the investigations should go back as far as 1916. What are the costs and benefits of broadening the period of investigation? Is this something the TJRC is considering or would consider in the future?

To my understanding, the main debate is not to go back before 1960, but rather after 2013. The TJRC is actually planning to ask for a revision of the law, so that it can receive cases up to the moment it starts its hearings, probably in 2017. This raises important challenges, of course: the more the timeframe is extended, the more difficult it becomes to carry out such a complex mandate in only three years.

Moreover, this extension to the present tends to go against the general understanding of transitional justice as being about the past. The commissioners, however, are really insisting on this extension. They see the issue not just as a question of dates, but rather as a reflection of the complexities of the Malian transitional justice process: indeed, countless violations occurred in 2013, which must be accounted for as well, and abuses continue almost daily.

The Malian TJRC is operating in an increasingly difficult context: not only is the conflict still not fully resolved, but the country is also marked by the rise of terrorism, and the Commission will most likely receive complaints related to these crimes as well. Is it well designed to do so? Can it investigate terror-related violations without putting both the victims and its own staff in danger?

The issue of protection is key, and needs to be resolved before the TJRC starts receiving victims’ statements. To my knowledge, no truth commission has ever operated in such a context, or had to investigate crimes of international terrorism. This makes it uniquely challenging, but also perhaps a landmark case, if it receives the proper support.

Upon the establishment of the TJRC, many Malians were displeased with its lack of independence, as it was placed under the Ministry of Reconciliation. However, many people have also been discontented with transitional justice processes in Mali as they oftentimes seem like various disconnected efforts lacking a unifying strategy. Given these dual concerns, how does the TJRC work with other transitional justice bodies in Mali to ensure optimal results?

This institutional dependence risks compromising the TJRC’s legitimacy, especially in the eyes of victims. It may also make donors wary of financing the TJRC, if its funds have to go through the Ministry for approval. However, this relationship seems to have worked well so far, partly due to the individual personalities of both the TJRC President and the current Minister of National Reconciliation, but this of course is not a long-term solution. The financial independence of the TJRC is now guaranteed, however, and the Ministry has made no changes to any of the founding documents that the Commission presented to it, including its internal rules, work plan, budget and strategy.

Coordination between the TJRC and national judiciary will also be key, as the Commission can represent a last hope for a majority of victims who have been let down by the justice system – national prosecutions have made little progress so far, partly due to the judicial void in the North.While the TJRC has been reluctant to formalize this relationship, it is increasingly open to the necessity –consistently stressed by all civil society organizations in the meetings it has had so far – to ensure that victims who demand accountability and refuse to forgive are supported in their efforts to access the formal justice system.

Some Malians have expressed skepticism toward transitional justice, since peace and reconciliation seemed to have been achieved in Mali in the early 90s but did not last. How does the TJRC respond to citizens who are skeptical or weary of transitional justice processes?

Political interference must be carefully considered here, bearing in mind that the TJRC is part of an inherently political process, the Algiers Peace Agreement. The recent decision to extend the number of commissioners to 25, apparently under pressure from the armed groups themselves, is a telling example of the tendency to see transitional justice as another bargaining chip, where everyone is waiting to take a seat at the table. This misperception about the nature of a truth commission is the biggest threat to the TJRC’s success.

The choice of commissioners is indeed a key element in the TJRC’s own legitimacy, and should not be sacrificed in the name of political bargaining. Commissioners should be selected solely on the basis on their integrity and competence, and not be allowed to “represent” their respective institutions: this is an important message that still needs to be voiced in Mali. If victims, in particular, mistrust the TJRC to the extent that they refuse to take part in it and to testify before it, then the very viability of the Commission would be called into question.

The TJRC relies upon its independence to secure partners in the international community and the support of the local society. Its success – in this regard, and in terms of its overall mandate – is critical, as since it seems to be the only remaining mechanism that still takes a comprehensive view of transitional justice. It could, if properly managed, put an end to the cycle of violence and conflict that has affected the country ever since independence. And this, in a region that so desperately needs peace, justice and stability.


PHOTO: Ibrahim Mazanga, a tailor and former Malian soldier, surveys the damage done to the Maison des Artisans, the city's esteemed artisans market, in Kidal, Mali on August 23, 2013. The market was ransacked in late July, along with other shops and stalls owned by Kidal's Songhai and Bambara populations that were looted and burned down in a show of intimidation by gangs of Tuareg youth claiming allegiance to MNLA. (AP Photo/Tanya Bindra)