Niger and Mali should reconcile justice and military responses to terror attacks

First published by ISS Today

Underinvestment has left Mali and Niger’s criminal justice systems ill-equipped to deal with the complexity of terrorism trials, and unable to monitor and respond to human rights violations by the military.

They are among the Sahel states that in 2019 saw a significant resurgence of extremist violence, with Mali recording more than 2,500 deaths in the year to 18 July 2020, and Niger suffering more than 1,100 deaths. Boko Haram’s violent insurgency in north-east Nigeria has also spread to communities in Niger, leading to protracted conflict with severe humanitarian consequences.

The framework of justice in Mali and Niger is built on human rights and rule of law, but the threat of violent extremism has seen disproportionate resources given to military and security responses.

Mali and Niger are party to most United Nations (UN), African Union and Economic Community of West African States instruments that provide for the human rights of terror suspects. But the brutality and trauma of terrorist actions, including the killing of security forces, has led to summary executions and extrajudicial killings with the military as judge, jury and executioner.

This is an unjustifiable breach of the military code of conduct and national and international legal norms for combating terrorism. But the emphasis on a security and military approach to fighting terrorism has weakened criminal justice systems to the point that they can’t monitor these violations.

Suspects’ rights have also been violated during arrest and detention following military operations, but the circumstances and conditions of these activities fall outside judicial control. Extra-judicial killings and enforced disappearances have been widely reported in areas where there is no access to detainees, and extended states of emergency have weakened protection for terror suspects.

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has found that the absence of judicial control has led to torture and inhuman treatment in detention. Legal aid is often impossible when suspects are arrested in remote parts of Mali or Niger, and suspects are held incommunicado in military premises beyond the remit of criminal procedure legislation.

One of the challenges is the sheer volume of terror suspects, with thousands of people processed through an under-resourced criminal justice system. Once they get to court, trials are held in rudimentary military facilities with no civil society organisations able to monitor proceedings; and judgments are made on the basis of a confession rather than evidence presented to the court.

In some cases, suspects seized in mass arrests at different times and places have been grouped together, making it difficult to follow judicial procedures. Suspects are often not told the reasons for their arrest.

The governments of Mali and Niger have tried to meet their international human rights obligations in the fight against terrorism. They are both part of the G5 Sahel regional development and security group that gets international support. In June 2020 the G5 Sahel conference in Nouakchott, Mauritania, attended by the French President Emmanuel Macron and Spanish Prime Minister Pedro Sanchez, indicated that armed forces excesses and alleged human rights violations should be addressed.

The rights of suspects could be better protected if military police and judges had oversight of the fight against extremist groups. Arrest, investigation, detention, trial, judgment and sentencing of terror suspects must be conducted according to international and regional norms, such as the UN International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.

There is an urgent need for states to reconcile their security and criminal justice approaches to terrorism. They need to strengthen their structures and capacities for investigation, monitoring and protection of human rights in the field. One practical step could be the integration of a police unit into military operations.

The military should be familiarised with criminal procedure legislation and encouraged to support the integrity of the judicial process by allowing due legal process for terrorism suspects. The mandate of the military police should be strengthened, enabling them to supervise armed forces on the ground and to investigate and prevent crimes. Members of the security forces should be held accountable for human rights violations.

The criminal justice systems of Mali and Niger need to allocate sufficient resources to improve the human, logistical and material capacities of the judiciary, and coordinate roles between the judiciary and military and civilian police.

They should ensure conditions of detention and treatment of alleged terrorists meet international human rights standards. Terror suspects detained in military premises should be promptly handed to judicial authorities, and supported by a competent lawyer at all stages of legal proceedings. DM

Allan Ngari is a Senior Researcher, Complex Threats in Africa, ISS Pretoria