4 April, 2022
by Sam Biden, Global Leadership Fellow
In 2012, an ethnic rebellion in Northern Mali set off mass displacement. This was followed by the overthrowing of President Toure in March and the declaration of a new independent region called Azawad by Tuareg rebels the following month. By November of the same year, the African Union deployed troops to try and calm the emerging conflict, causing 112,000 people to become displaced from the region. In early 2013, offensive efforts by the French and Malian forces allowed for some recapturing of the North. This victory resulted in a peace agreement between the rebel armed groups and the Malian government in the wake of the upcoming elections.
Over the next three years, the peace agreement would fail to combat all ongoing conflicts. In 2015, a new peace agreement was sought between the Mali government and rebel armed groups in an attempt to recoup neutral actions, yet this had no significant effect. The effects of the ongoing conflict continued, causing further instability in 2017 when the security of the North continued to deplete. Terror attacks, extremist acts and rebellious ideology continued to displace many Malians: the number of Malian refugees rose to a staggering 142,000. The conflict began to spread South in central Mali, blocking off access to humanitarian aid and assistance for many in the region.
With a now rapidly escalating conflict, violence spread further and resulted in what has been described as a ‘new wave’ of civilian atrocities in late 2021-early 2022.
‘New wave’ of civilian atrocities
Since December 2021, an estimated 107 civilians from central and South-Western Mali have been murdered by the Mali government and Islamist armed groups. This new wave is a stark reminder of a 2015 bloodbath in central Mali where many of the early executions had occurred. There have been several individual convictions for these crimes, yet the overwhelming majority of participants from both sides have not been held accountable. This lack of accountability has allowed the two sides to continue to move town to town and execute civilians without punishment.
1. Songho executions
Armed Islamist groups ambushed a bus that was transporting market traders to the local market, resulting in the deaths of at least 32 people. Islamist rebels opened fire at the bus and caused it to crash and eventually burst into flames. Those who were not killed by the crash or fire were executed instead. Amongst the dead were 17 women and six children.
2. Ségou region executions & enforced disappearances
In March 2022, 35 charred bodies were discovered near Danguèrè Wotoro, they appeared to have been bound and blindfolded before being supposedly executed. One witness described how he discovered petrol bottles around the area, indicating that after they had been executed, the bodies were burned. Since February, 40 men had been arrested by military patrols during operations and have not been located since. Many men were held in detention at Diabaly military camp, some 30 men who were being held there were forcefully transferred to an unknown location, the next day, the 35 bodies were discovered.
During detention, many of the men faced actions that could amount to torture and inhuman or degrading treatment. A witness described how he was one of 16 local traders sent to the Diabaly military camp. Many of the prisoners were beaten and tortured to the point that one of them escaped from the facility. In an effort to combat this rebellion, many of the weak members being housed in cells together were forced into a truck and taken to another unknown location
3. Tonou executions
14 Dogon villagers were executed by the Malian military as a response to a supposed attack they were involved in just before the assault. The retaliation in question involved the detonation of an IED that ended the lives of two Mali soldiers. After the incident, the 14 villagers were rounded up and executed individually without any proof they were involved in the terror attack. One witness claimed that it was perhaps a rebel Islamist group that placed the IED and not any of the innocent civilians that were executed.
The above instances show disgraceful neglect of the livelihood of innocent Mali civilians. Although there are often difficulties in assessing the association with rebel groups during non-international armed conflicts (NIAC), no due care was taken to identify whether the executed civilians played any role in the ongoing conflict.
As well as the violations of the principle of distinction, the accountability mechanisms enshrined in international humanitarian law have not been acceded to. There are two primary legal avenues that must be upheld during the conflict, most notably these come from the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV) and the International Covenant on Civil and Political Rights (ICCPR).
Article 146 GCIV states that all High Contracting Parties shall search for persons alleged to have committed or were ordered to commit grave breaches of human rights and that they shall be brought before national courts.
Article 2 (3) ICCPR states that individuals whose rights have been breached are guaranteed effective remedy, this shall be handled by competent judicial, administrative or legislative authorities and that the findings shall be enforced.
Both of these requirements set in motion that an independent investigation into any alleged war crimes must take place. Procedural requirements are laid out by the Minnesota Protocol on the Investigation of Potentially Unlawful Death.
Minnesota Protocol requirements
The duty to investigate is triggered when a state knows or should know of any potential unlawful deaths or when allegations of an unlawful death are made. The trigger results from the inherent duty of the State to protect the right to life and since this is a jus cogens and non-derogable right in international law, therefore, Mali cannot deny they owe these obligations. The duty encompasses not just deaths caused between civilians not a party to an ongoing conflict but also when the State is alleged to be involved. Given the current state of the NIAC, investigations should be a top priority. The Mali government reached out to Human Rights Watch with a statement regarding some of these allegations, meaning they have an understanding that amounts to engagement of their duties under the Protocol.
There are several procedural requirements surrounding the investigations. These are; promptness, effectiveness and thoroughness, independent and impartial and transparent.
Investigations must occur without reasonable delay. Avoidance, ignorance and denial are not methods of investigative deterrence that are legally sound regarding the Minnesota Protocol. The promptness can be accompanied by government testimony such as public announcements regarding the launch of investigations alongside regular updates as to how the investigation is going. The failure to launch an investigation within a sufficient timeframe can constitute a violation of the Protocol. For example, the attacks in the Ségou region in March should have an investigation launched within at the maximum a couple of weeks. If the Mali government ultimately decided to investigate the deaths in September of this year, this would not be sufficient.
Promptness is most effective with adequate access to judicial intervention, yet the state of the court system in Northern Mali is a cause for concern. In 2012-2013, two Northern courts were shut down completely by a Supreme Court order. They were restored in 2015, yet were not in operation. Because of this delay, many human rights claims from that early period and the recent summary executions are being processed with major delay. Additionally, the Independent Expert for Human Rights in Mali cited some dangerous complications. They found that there was a severe lack of communication between authorities and the victims, courts and relevant authorities regarding claims of war crimes. This lack of cooperation between the competent authorities, government and judicial bodies only damages the legitimacy of the Malian investigative mechanisms.
The Mali government doesn’t even fall slightly short of this requirement; in fact, they have not launched any prompt investigations into many of the killings. 71 of 107 killings that have occurred since 2021 have been allegedly committed by Mali government forces. Because of this, the lack of impartiality regarding the initiation of an investigation is a major cause for concern. The Mali government has not satisfied this initial procedural requirement.
2. Effectiveness and thoroughness
This criteria is accompanied by a 5 stage list of minimum procedural requirements. First, all victims must be identified. This does not just relate to the direct victims of the crime, but also may relate to secondary victims such as immediate family or local communities. Second, all material that was probative to the cause of death must be recovered for analysis. Alongside this, the identity of the perpetrators and circumstances surrounding the death need to be finalized. Third, obtain all possible evidence from witnesses to the event and corroborate this with the material from the second requirement. Fourth, the cause, manner and time of death should be concluded, this should distinguish between natural, accidental, suicidal and homicidal deaths. Finally, determine any culprits and establish the extent of their involvement in the deaths.
Much of the information required by the 5 procedures has been given in testimonial form to Human Rights Watch. This information is not set in stone as there will always be details that need ironing out, but it does give the Mali government an advantage regarding base information for their investigation. Even though communications have been made between Human Rights Watch and the Mali government, any solid admittance or referral to any of the testimony has not been confirmed. In fact, the Defense Ministry for Mali has claimed in a closed response that allegations of some summary executions are “false and of a nature to discredit the FAMA (Mali military)”.
3. Independent and impartial
All investigative mechanisms and competent authorities involved in the investigative process shall act impartially throughout. Any form of undue influence whether political, financial or through intimidation will compromise the integrity of the investigation. Particular attention must be paid to the role of the State in these investigations when they are facing allegations themselves, as government corruption can sway any investigation behind closed doors. The investigations must be independent of the accused parties. For example, the Mali military cannot act as a competent authority into investigations where they may have to find themselves guilty of such acts.
This is the most troubling part of the investigative process in Mali. Impartiality and independence is a cornerstone of modern legal thinking. The personality of the competent authorities must exist outside of the direct government or any government actors alleged to have been involved in the crimes as to avoid any form of bias. When independence is not a driving factor it can cause major legal issues. Allocation of competent authorities for investigation who are in turn potentially responsible for the offences has been ruled unlawful at the EU level for at least the last 8 years, the same logic can apply to Mali. Alongside this, the majority of allegations of summary executions fall against the government. Because of the serious tensions amongst the ongoing conflict, it is possible they assess these allegations as false and apply them to the Islamist rebel groups instead. Additionally, the claim that the Mali military’s involvement is nothing but “false” is an assertion void of any independent investigation. From this, the Mali government has not and may not satisfy this procedure even if they begin a comprehensive investigation.
Transparency allows for public accountability, without this, the internal investigative mechanisms can act free from public and judicial intervention. If this occurs, a monopoly over the investigations conclusions can exist solely with the accused parties which may potentially result in a bias conclusion.
No significant evidence has been provided by the Mali government regarding ongoing investigations into all of the cases mentioned. While they have launched some investigations into other allegations regarding Islamist groups, investigations into the Mali military have not been commenced. The lack of transparency as to the current investigations is by design as there are no investigations going on regarding the Mali military. Transparent governance would reveal this, and the Mali government would rather avoid the criticism if the public found out their conclusions painted them in a bad light.
Overall, the essential investigative mechanisms that are required to be deployed by international law have not been initiated. When these are hopefully deployed, there is not a lot of hope for meeting the procedural requirements of the Minnesota protocol. This is mostly due to a reluctancy of the Mali government to admit any wrongdoing on behalf of any of their actors.