Is the ICC Fishing in The Right Pool?

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Written by Akshan de Alwis, UN Correspondent

The August 2016 trial of Ahmad Al Faqi Al Mahdi has exposed tensions over the kinds of perpetrators that the International Criminal Court (ICC) is expected to target.  A member of Ansar Dine, Al Mahdi, has been sentenced to nine years of jail time for the war crime of destroying religious sites in Timbuktu, during the 2012 civil war in Mali. But was he the type of perpetrator that the ICC should have been going after in the first place?

Just days after Al Mahdi was surrendered to the ICC, he was derided as a “small fish”, unfit for prosecution at the ICC because he wasn’t a sufficiently senior-level perpetrator. Fatouma Harber, a teacher in Timbuktu, wrote that Al Mahdi “is just a little fish. But in Mali it is the little fish who are caught.” Mixed in with criticisms that Al Mahdi didn’t warrant attention from the ICC, there have also been those who claim that he is, in fact, a senior perpetrator — but of sexual violence as well as cultural crimes.

Criticism of Al Mahdi’s trial at the ICC derives from a phrase regularly invoked by the ICC’s prosecutors, namely that the institution seeks to bring those “most responsible” for international crimes to justice. The ICC’s Office of the Prosecutor explains on its website that “[i]t is responsible for examining situations under the jurisdiction of the Court where genocide, crimes against humanity and war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes.”

The question is thus whether Al Mahdi can be considered the most responsible for the crimes with which he has been charged—the destruction of mausoleums and shrines in Timbuku. In their thougtful essay, Eva Vogelvang and Sylvain Clerc recently argued that Al Mahdi isn’t likely to be the most responsible:

“It is questionable whether Al Mahdi is indeed the most responsible for the crimes. He might have been involved in the destruction of the religious buildings, but it is likely that other members of Ansar Eddine and Al-Qaeda in the Islamic Maghreb were equally involved in the commission of these crimes. The fact that he was the head of the “Hisbah” does not make him the individual who bears the greatest responsibility for the destruction of religious buildings. Coincidentally, it has been argued that Al Mahdi is on trial because all of the militant leaders of the various extremist militia groups have been killed or otherwise escaped.”

Vogelvang and Clerc conclude that the decision of prosecutors to target Al Mahdi “can only be seen as an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction”.

The problem here, and one shared by both critics of the ICC as well as the institution’s prosecutors, is that it hasn’t been made sufficiently clear that the Court can, in certain cases, target low- and mid-level perpetrators when doing so will potentially help to identify and prosecute the most responsible perpetrators.

In recent years, there has been an apparent trend away from the previously iron-clad belief that ICC prosecutors must, in all situations, go after those most responsible. The struggles of the Court to ensure that the most senior figures it targets are successfully surrendered and prosecuted at the ICC is well known. Joseph Kony in northern Uganda, Omar Al Bashir in Sudan, Uhuru Kenyatta in Kenya, Muammar Gaddafi in Libya… the list goes on. One of the Court’s predecessors, the International Criminal Tribunal for the Former Yugoslavia, had similar troubles in its early days. As a matter of strategic policy, it subsequently focused on targeting “small fish” in order to build up evidence and a body of legal precedents which could consequently help it prosecute more senior perpetrators in the Balkans. Prosecutors and investigators at the International Criminal Court are doing the same thing.

Information on the Court’s website continues to state that the Office of the Prosecutor (OTP) “identifies the gravest incidents and those most responsible for these crimes.” However, according to the 2012-2015 Strategic Plan of the ICC’s Office of the Prosecutor, and reiterated in its Policy Paper on Sexual and Gender-Based Crimes, ICC investigators are willing to abandon a singular focus on the “most responsible” perpetrators if going after lower-level perpetrators will help build cases against those most responsible. According to the Plan, the ICC: “will aim at presenting cases at confirmation hearing that are as trial ready as possible. If meeting such a threshold would not be possible at the moment of applying for an arrest warrant or a summons to appear, the Office intends to only proceed with the application if there are sufficient prospects to further collect evidence to be trial – ready within a reasonable timeframe.”

“The required evidentiary standards to prove the criminal responsibility of the most responsible might force the OTP sometimes to change its approach due to limitations on investigative possibilities and/or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid – and high – level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible. The Office will also consider prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety.”

Given the ICC’s record to date, this seems to be a reasonable approach. Whether we blame it on the OTP or blame it the current state of global politics, singularly focusing on those perpetrators “most responsible” for international crimes has simply not worked almost in all cases.

It is, of course, fair to criticize the strategies employed by the OTP. It should certainly be more public in outlining its strategies, especially when it targets figures like Al Mahdi who may not be the most responsible for the crimes he faces. As Marieke de Hoon writes, “the Court should move toward openness and transparency, explaining its choices and why they are made, and engaging in a dialogue on these choices.”

Confirming the indictment against Al Mahdi could be considered a clear break from the initial rationale behind the establishment of the ICC. The ICC was set up to exercise its jurisdiction over persons for the most serious crimes of international concern. Inevitably, the question remains how to identify the “persons who have committed the most serious crimes of international concern”. Moreover, the question has arisen whether the destruction of religious buildings qualify as one of the most serious crimes of international concern. The Prosecutor has stated that attacks against religious buildings are so grave that they warrant action by the international community.  This is a fair interpretation of the gravity threshold of the ICC. However, the ICC needs to draw the line as to their jurisdiction.

Article 17(1)(d) of the Rome Statute promulgates that a case is inadmissible before the ICC if the case is not of sufficient gravity to justify further action by the Court. The most recent example of a case that was not considered grave enough by the OTP is the so-called Flotilla incident. In this incident, Israeli special forces killed 10 activists on board a vessel that was about to breach the Israeli naval blockade of Gaza. The OTP concluded that the case was not of sufficient gravity and therefore decided to stop its investigation.

In its analysis, the OTP defined the principle of gravity as:

“(i) whether the individuals or groups of persons that are likely to be the object of an investigation, include those who may bear the greatest responsibility for the alleged crimes committed; and 

(ii) the gravity of the crimes committed within the incidents which are likely to be the focus of an investigation”

Subsequently, the OTP defined the elements that are to be taken into account when assessing the gravity of the crimes, namely, the “scale, nature, manner of commission of the crimes and their impact.”

The OTP considered in the Flotilla case that the investigation would not be directed against those most responsible for the crime, that the scale and nature of the crimes were of insufficient gravity, that the evidence was insufficient and finally, that there was insufficient evidence that the impact of the crimes went beyond the direct victims. While the issue of “gravity” in the Flotilla case, has – as of yet – not been completely resolved, the OTP’s position in this matter is clear. It is important to note that the Pre-Trial Chamber in the Flotilla case requested the OTP to reconsider its decision not to continue its investigation, a decision which was appealed by the OTP yet subsequently denied by the Appeals Chamber on the basis of a technicality.

When applying the above-mentioned gravity criteria to the case of Al Mahdi, it is not immediately understandable why the case would qualify for prosecution by the ICC, when the Flotilla case did not.

It is questionable whether Al Mahdi is indeed the most responsible for the crimes. He might have been involved in the destruction of the religious buildings, but it is likely that other members of Ansar Eddine and Al-Qaeda in the Islamic Maghreb were equally involved in the commission of these crimes. The fact that he was the head of the “Hisbah” does not make him the individual who bears the greatest responsibility for the destruction of religious buildings. Coincidentally, it has been argued that Al Mahdi was on trial because all of the militant leaders of the various extremist militia groups have been killed or otherwise escaped.

Even though the destruction of religious buildings is incorporated in the Rome Statute, one must assume that the drafters envisaged that these crimes would only be prosecuted once committed in combination with other crimes that qualify as a war crime.

The ongoing trial of Bosco Ntaganda in the ICC shows how the crimes of the destruction of religious buildings, albeit of the non-international variety, are prosecuted in connection with other war crimes. The destruction of religious buildings is merely one charge out of thirteen war crimes and five crimes against humanity allegedly committed by Ntaganda. As a result, the Ntaganda case as a whole passes the gravity threshold without question.

The problem with the Al Mahdi case is therefore not so much whether the war crime of destroying religious buildings passes the gravity test, but if the charges as a whole pass this test.

The OTP tried to demonstrate the impact of the crimes on the international community by reminding us of the public outcry that ensued after the footage that was released of the destruction of cultural heritage in Syria. There are grounds to state that, as the Prosecutor did, an attack on religious buildings affects humanity as a whole. However, this fulfils only one of the elements of the gravity of the crimes, and therefore does not automatically mean that the ICC should be the designated institution to target the perpetrators.

With the recent decision of the OTP in the Flotilla case and the confirmation of charges against Al Mahdi, the decision over whether or not a case is of sufficient gravity seems to be arbitrary. The composition of the Pre-Trial Chamber, and its interpretation of the gravity threshold, plays a larger role than envisioned by the States Parties in the establishment of the ICC. One has to wonder whether the OTP and ICC should not spend its already limited resources on the prosecution of the actual persons most responsible for the most serious crimes of international concern.

The confirmation of charges was also remarkable given that Al Mahdi had already been indicted for terrorism in Niger before the ICC issued its arrest warrant. When the ICC was established, the States Parties agreed that the ICC would be complementary to national legal systems and thus it would not replace the national legal systems. This means that if a state is able and willing to prosecute a suspect, this state would be given the opportunity to prosecute the suspect under its national law.

However, in this case, when Niger was informed that the ICC would be willing to investigate and prosecute Al Mahdi, they transferred him into the custody of the ICC and relinquished their jurisdiction over him. Niger never indicated that it was not willing or able to prosecute Al Mahdi, as required by the Rome Statute. According to the Rome Statute, Article 17(1)(a), a case is inadmissible when the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is genuinely unwilling or unable to carry out the investigation or prosecution.

Thus, the decision to prosecute and sentence Al Mahdi seems to be contrary to the complementarity principle of the ICC, and against the rationale of establishing the ICC in the first place. Furthermore, as it is disputable whether or not it would pass the gravity threshold, one must wonder whether it would not have been better if he had been prosecuted by the authorities of Niger. He would still have had to answer for his alleged crimes and, if successfully prosecuted, extremist militias would be shown that the destruction of cultural and religious heritage is indeed punishable by domestic law.

Photo by Tori Rector.