Mali: Justice Crucial to Peace Talks

A draft peace agreement to end the military and political crisis in northern Mali does not adequately address the need for justice for serious international crimes during the conflict, Human Rights Watch said today. The next round of negotiations between the Malian government and armed groups involved in the conflict is scheduled to begin on November 20, 2014, in Algiers.

All parties to the 2012-2013 armed conflict in northern Mali committed serious violations of the laws of war that included possible war crimes. Agreements that ended previous civil armed conflicts in Mali from 1962 through 2008 failed to address rampant impunity and weak rule of law, and some included provisions providing immunity from prosecution.

"Mali's peace talks need to succeed where previous deals have failed by bringing those responsible for atrocities to justice," said Corinne Dufka, senior West Africa researcher at Human Rights Watch. "The final agreement should include provisions to support the prosecution of war crimes, strengthen the truth-telling commission, and ensure the vetting of security force personnel."

Security has been deteriorating in northern Mali. While control of the north by the Malian government was largely restored in 2013 following a French-led military intervention, the groups negotiating with the government and others linked to Al-Qaeda are occupying territory and committing abuses against civilians and peacekeepers.

Following the conclusion of the third round of peace talks in late October 2014, Algeria's foreign minister, Ramtane Lamamra, said that the international mediation team had produced a "draft agreement for comprehensive peace," which would form the basis for discussion when talks resume.

Human Rights Watch research in Mali and elsewhere suggests that a failure to prosecute individuals responsible for serious wartime abuses enables and may even encourage future abuses. Providing immunity to those who committed war crimes denies the victims and their families a measure of justice for their suffering.

Human Rights Watch and other organizations documented hundreds of alleged war crimes and other serious abuses during the 2012-2013 armed conflict. These include the summary executions of up to 153 Malian soldiers in Aguelhok by opposition armed groups; widespread looting, pillage, and sexual violence by the ethnic Tuareg National Movement for the Liberation of Azawad (MNLA); and the recruitment and use of child combatants, unlawful amputations, and destruction of shrines by Islamist armed groups. Malian soldiers were also implicated in serious abuses, including extrajudicial executions, enforced disappearances, and torture or ill-treatment of suspected rebels.

The government has made little progress in holding to account those responsible for war crimes and other abuses. The provisional release of scores of men detained in relation to the conflict, including several commanders from northern armed groups credibly implicated in abuses, has raised concern of a de facto amnesty for these crimes.

International law encourages countries to provide a broad amnesty or pardon for captured combatants and others detained for their participation in a conflict, so long as they are not responsible for war crimes or other serious abuses.

However, the releases that began in late 2013 under the June 18, 2013 Ouagadougou Accord and characterized by the government as "confidence building measures" in advance of negotiations, have been carried out without sufficient review to determine whether any of those freed are implicated in serious international crimes. Amnesties for those responsible for serious international crimes are not recognized under international law.

"It is time to break the decades-long cycle of conflict, abuse, and impunity. Any deal which turns a blind eye to the need for justice will not only disregard the rights of victims and their families, but also encourage further abuses and sabotage a truly durable peace," Dufka said. "Ensuring that the talks incorporate measures to address long-standing impunity is all the more urgent given the deteriorating security situation, and increasing attacks, lawlessness, and banditry by armed groups in the north."

Recommendations

The upcoming negotiations in Algiers should overcome the failings on human rights and accountability in previous accords among warring factions in Mali, including the 1991 Tamanrasset Accords, 1992 National Pact, 1995 Accords of Bourem, and the 2006 Algiers Accords.

Any final agreement on Mali should incorporate the following recommendations, Human Rights Watch said.

Steps to Ensure Human Rights Accountability

The draft agreement presented to the parties in late October 2014 and called "Elements for a peace and reconciliation agreement in Mali" (Élements pour un accord pour la paix et la Réconciliation au Mali) supports a "profound reform of the judiciary" to help end impunity, affirms "the inalienable nature of crimes against humanity," and calls for all parties to cooperate with an international commission of inquiry. But it provides no details about the commission's mandate or a time frame for establishing it, and does not specifically support justice for crimes committed during the conflict. The final agreement should:

Clearly state that no immunity will be given to anyone who committed, ordered, or had command responsibility for war crimes and other serious crimes in violation of international law;

Call on the Malian government to investigate alleged violations of international human rights and humanitarian law by all parties during and since the 2012-2013 armed conflict, and bring those responsible to justice before fair, impartial, and independent courts;

Support the establishment of a Bamako-based special investigation unit consisting of prosecutors, investigative judges, and others to investigate alleged crimes. Creating such a unit would increase the likelihood of credible investigations of wartime atrocities, and would:

Centralize expertise in crimes not often handled by Malian courts;

Help address the absence of defense lawyers in the north;

Reduce the risk of attack on judicial personnel, witnesses, evidence, and judicial infrastructure; and

Facilitate creation of an effective system of witness protection;

Provide details about the establishment, mandate, time frame, and powers of the international commission of inquiry, and call for the final report to be public; and

Support the establishment of the proposed "mobile testimony gathering units" (cellules d'écoute mobile

Justice, Truth-Telling, and Reconciliation Mechanism

The draft agreement notes "the need to strengthen the mandate and organization of the Commission on Truth, Justice and Reconciliation" established by the government in 2014, though it fails to make specific recommendations. Truth commissions can make important contributions when they expose underreported atrocities committed during armed conflicts; explore the dynamics that underscored cyclical crises, including poor governance and corruption; and recommend reforms to prevent a repetition of past violations. The negotiating parties should support the following changes in the current commission:

Ensure that the commission is independent from other branches of government. The commission's current placement under the Ministry of National Reconciliation and Northern Development subjects it to political interference and undermines perceptions of neutrality;

Create a structured, broad-based consultation process on the commission's mandate and selection of commissioners, involving activist and human rights groups, women's groups, youth groups, political parties, labor unions, victims' groups, the diaspora, religious denominations, security forces, and opposition factions, among others; and

Implement regulations that provide for investigative powers, including to subpoena witnesses, hold public hearings, and issue a final public report that makes recommendations for accountability, including reparations and cases to be criminally investigated.

Demobilization and Integration of Combatants into the Security Forces

The draft agreement calls for the demobilization and integration of combatants from the warring factions into the state security forces, but does not include a program for vetting. The agreement should provide for the establishment of an independent vetting commission mandated to oversee a mechanism that would:

Screen any new proposed security force members with a view to recommending that those credibly implicated in serious human rights abuses are not allowed to join;

Recommend the removal of currently serving members of the security services credibly implicated in serious human rights abuses, against whom fair and appropriate disciplinary action, including dismissal, should be initiated; and

Given the size of the Malian security services, the vetting commission could focus first on vetting officers before addressing the lower ranks.

Mali's Peace Negotiations and Recent Hostilities

The Malian government is negotiating with several armed groups: the National Movement for the Liberation of Azawad (Le Mouvement National de Libération de l'Azawad, MNLA), the High Council for the Unity of Azawad (Le Haut Conseil pour l'Unité de l'Azawad, HCUA), the Arab Movement of Azawad (Le Mouvement Arabe de l'Azawad, MAA), the Coordination of Patriotic Movements and Forces of the Resistance 2 (Coordination des Mouvements et Forces Patriotiques de Résistance, CMF-PR 2), and the Coalition of the People for Azawad (Coordination du peuple pour l'Azawad, CPA).

The international mediation team facilitating the talks is led by Algeria, and includes members from the African Union, the Economic Community of West African States (ECOWAS), the European Union, the United Nations, and Organization of Islamic Cooperation, as well as from the governments of Burkina Faso, Nigeria, Chad, Niger, and Mauritania.

Since late September 2013, opposition armed groups have committed several dozen ambushes and suicide bombings, and deployed improvised explosive devices and landmines. Most of these attacks targeted Malian and French troops, though others targeted civilians and peacekeepers, in violation of the laws of war. Landmines on key roads and rocket attacks striking major towns have killed and wounded civilians and generated a climate of fear. Over 30 UN peacekeepers have died in attacks.

Several armed groups continue to recruit and arm child soldiers, and occupy some 20 schools. A visit by the prime minister to the MNLA stronghold of Kidal in May 2014 led to a brief resumption of hostilities there, during which eight civilians, including six civil servants, were allegedly summarily executed by the armed groups occupying the town.