Big fish or little fish — who should the International Criminal Court target?
By Mark Kersten
The 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. Al Mahdi, a member of Ansar Dine, pleaded guilty to the war crime of destroying religious sites in Timbuktu, Mali, becoming the first member to face allegations of cultural crimes before the ICC. 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 articulate 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 “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 Office of the Prosecutor 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 criticise the strategies employed by the Office of the Prosecutor. 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. But one can’t say that the ICC is acting in violation of its goals. They have been explicit with them. Moreover, for a Court that is regularly, and rightly, pilloried for the duration of its proceedings, it seems sensible to focus on prosecuting perpetrators who can help build cases against those most responsible and on trials that can be concluded quickly.
The ICC won’t ever satisfy everyone. As has been cogently observed elsewhere, its actions will always and inevitably be seen as being too much for some, too little for others. But we shouldn’t judge the ICC’s case against al Mahdi solely on his conviction and guilty plea. If he is a mid- or even low-level perpetrator, we should judge his trial on whether it ultimately helps bring the “big fish” to justice.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.