Concerns are being raised that the International Criminal Court (ICC) investigation into alleged war crimes in Mali is placing a serious strain on an already over-stretched and cash-strapped institution.
Announcing her first formal investigation since taking office, prosecutor Fatou Bensouda on 16 January promised justice to victims of “brutality and destruction” in three northern regions of Mali. But with a shrinking team of investigators and a budget that has barely increased despite a doubling of the workload, some analysts are doubtful she can deliver.
“There are serious questions to be asked of the new prosecutor as to whether it is a drastic overstretch to have eight African countries being dealt with simultaneously with essentially the same level of staff and the same level of finance as her office was operating on before,” said Phil Clark, a lecturer in comparative and international politics at the University of London’s School of Oriental and African Studies. “Is it really feasible for the office to be dealing with so many cases?”
The ICC intervenes in countries that cannot - or will not - prosecute perpetrators of mass atrocities. It is intended as a court of last resort in countries where prosecutions are unlikely to happen without its intervention.
Total court funding in 2013 is around US$144 million, with possible access to a contingency fund of up to $9.3 million, compared with $138 million in 2010. The prosecutor’s office, which carries out the investigations, was this year allocated $37 million. This represents an increase of just $1.3 million since 2010 despite the addition of Mali, Kenya, Côte d’Ivoire and Libya to the docket - and these countries were themselves in addition to the Democratic Republic of Congo (DRC), Sudan, Uganda and the Central African Republic (CAR).
“They are really at the edge of what they can do with their resources,” said Kevin Jon Heller, associate professor and reader at Melbourne Law School.
Investigating through intermediaries
The ICC is examining claims of murder, mutilation, torture, attacks on protected objects, executions, pillaging and rape since January 2012 when insurgent groups began their campaign to take over northern Mali. French troops and the Malian army have been reclaiming captured towns this month, but ongoing fighting means ICC investigators are unlikely to be gathering evidence on the ground.
“It isn’t like anyone from the ICC is going to Mali anytime soon,” said Heller.
Court investigators will instead speak to French troops, the Malian government and so-called intermediaries - usually local human rights groups who gather evidence and contact witnesses in areas the court cannot access.
Human Rights Watch, Amnesty International and the International Federation of Human Rights, among other groups, continue to actively investigate human rights abuses in Mali.
The use of intermediaries by ICC investigators has been controversial in previous cases, particularly during the trial of the DRC’s Thomas Lubanga. He was convicted of using children to fight in his Ituri rebel group but the intermediaries who helped prosecutors build the case were accused of bribing witnesses. Mathieu Ngudjolo Chui, who fought on the opposite side in the Ituri conflict, was late last year found not guilty of war crimes. The judges in that case were not convinced by the witnesses or the evidence.
Analysts hope the ICC will not repeat past investigative mistakes in Mali.
“Using intermediaries is unavoidable in those situations, because the intermediaries will know the field very well, be able to contact witnesses in a secure manner and arrange meetings in a way that can be done safely,” said Geraldine Mattioli-Zeltner, advocacy director in the international justice programme at Human Rights Watch.
“What needs to be improved is the way it is done; [there needs to be more] understanding [that] it is not the intermediaries who are conducting investigations but the investigators, and checking who your intermediaries are - whether they are credible and what kind of promises they have made to your witnesses.”
When possible, sending ICC investigators to the scene of the alleged crimes is the best way to investigate, she said. “It takes money to be able to deploy in the field which we believe is necessary in order to do good investigations.”
The Syria question
The ICC had asked for $157 million in 2013 to reflect its growing workload but major funders including the UK, France and Germany have resisted any increases. All three, however, signed a Swiss government letter to the UN Security Council earlier this month calling on it to refer Syria to ICC.
Russia, China and the USA - none of them ICC members - are unlikely to support such a referral.
Mattioli-Zeltner questions this pressure to add new cases to the already-crowded and unfinished docket.
“There is still more work to do in Darfur and DRC and now we are piling on new situations,” she said. “We don’t think the states parties have thought through what this means. It is very important that states commit to the justice process but also commit to an institution that has the means of doing its work properly.
“At this point we don’t think the ICC has the resources to do more situations, but we think there are a number of situations that deserve ICC intervention.”
Heller goes further: “I think if the Security Council should refer Syria and not give more money to the court, then Fatou [Bensouda] should refuse to investigate.”
But a UN request to intervene in Syria would be hard to resist for a young court that has yet to make its mark. Clark says the ICC wants to be seen as an active player in the conflict zones that matter most to the international community.
“The ICC is a new institution that is trying to build its own legitimacy,” he said. “It wants to be an option the Security Council can use in times of war, but this is leading the ICC to be too available even if they don't have the resources.”
The UN has already asked the ICC to investigate in Sudan and Libya. In Côte d’Ivoire and Kenya, the prosecutor’s office initiated the cases, while the governments of Mali, Uganda, DRC and CAR referred themselves to the court.
In Mali’s case the government asked the ICC to investigate in July 2012. Once a government asks ICC investigators to come into their country, investigators in theory, under their mandate, can pursue any case they find, which means they could end up charging government officials or members of the army. But to date, self-referrals have resulted only in cases against rebels.
Heller suggests that countries such as Uganda are using the ICC to “outsource their criminal justice problems” and should prosecute their own rebel groups. “Does the ICC need to spend all its time worrying about Joseph Kony and the LRA? Of course not,” he told IRIN. “If Uganda can get their hands on Kony, with international help they can give Kony a fair trial. Uganda has a very sophisticated legal system.”
The Uganda case faced sharp criticism when investigators failed to pursue evidence of widespread human rights abuses by the Ugandan army.
Likewise, instances of alleged extra-judicial killings carried out by the Malian armed forces this month and documented by human rights groups such as the International Federation of Human Rights, and Human Rights Watch, risk remaining untouched by the ICC.
One problem is that ICC investigators rely on governments to facilitate their visit to a country, which makes it difficult for them to pursue cases on all sides, even if it is within their mandate to do so, say observers. The ICC has no police force and thus relies on the goodwill of governments to make their investigations possible.
However, the ICC Prosecutor put up the pressure on the Malian authorities on 28 January, issuing the following statement: “My Office is aware of reports that Malian forces may have committed abuses in recent days… I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards.”
The prosecutor’s office did not respond to IRIN’s requests for an interview.