Mali has referred 'the situation in Mali since January 2012' to the International Criminal Court, in accordance with article 14 of the Rome Statute. It is the fourth such 'self-referral' by a State. Like the three other 'self-referrals', the States in question were asking the Court to prosecute rebel groups rather than themselves. It is noteworthy that this is the first such referral by a State Party in seven and a half years.
The referral by Mali does not mean that the Court will proceed with prosecutions. An additional step is required. The Prosecutor must determine that there is a reasonable basis for an investigation. She has announced that she is proceeding with a 'preliminary investigation' but has not confirmed whether or not she will actually prosecute cases arising from the situation. This is a decision to be taken very cautiously.
It seems that there is very compelling evidence that a number of crimes within the jurisdiction of the Court have been committed in Mali in recent months. From the standpoint of jurisdiction and admissibility, the Prosecutor will probably not have much difficulty reaching a conclusion that the basics for a full-blown investigation followed by prosecution are present.
The enormous challenge is to weigh the political factors that are involved in deciding to proceed the situation in Mali.
First, the Court is quickly reaching the saturation point in terms of the number of prosecutions it can sustain. There must be concerns that it will find itself so burdened with existing situations that it cannot then take on something new and, perhaps, more deserving of attention.
Second, does the Court really need yet another situation in Africa? When the situation is looked at in isolation there may be compelling reasons to proceed with Mali. Yet the optics of enhancing still further the Court's distorted focus on Africa should be considered.
Years ago, when the first Prosecutor was launching the initial cases at the Court, neither of these challenges were really present. The task of selecting situations for prosecution is more complex now because it involves ensuring that the Court is viewed as being truly global. In addition, resources must be conserved to ensure that the Court can respond to the most important cases, should they arise. For example, if Syria were referred to the Court, would it have the resources to respond adequately?
When the first Prosecutor launched the 'self-referral' cases in 2004 and 2005, there was much concern about the danger of directing the Court towards rebel groups. In reply, it was argued then that this would ensure cooperation by the State Party and thereby contribute to the effectiveness of the Court. Eight years of practice have shown that State Party cooperation adds very little to the process. The Ugandan arrest warrants remain unenforced. Bosco Ntaganda is still at large in the Democratic Republic of the Congo. A single prosecution has resulted from the Central African Republic, of an individual who miscalculated by travelling to Belgium.
In other words, some of the compelling arguments invoked several years ago in support of self-referrals have proven to be rather hollow.
The profound flaw in the 'self-referral' model is that it flies in the face of 'positive complementarity'. If Mali wants to ensure that its rebels are prosecuted, the Court should encourage it to do so by itself. Referring the situation to the Court doesn't do anything to bring the rebels into custody. And if perchance they are captured, why can't Mali prosecute the cases?