In Dialogue with Mali, Experts of the Committee on Enforced Disappearances Commend the Establishment of a Forensics Directorate, Ask about Military Courts and about Investigations of Mass Graves

The Committee on Enforced Disappearances this morning concluded its consideration of the initial report of Mali on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts commending the State for establishing a forensics directorate within its police force, and asking questions about military courts trying enforced disappearance cases and about investigations of mass graves.

A Committee Expert said that the Committee was delighted that a forensics directorate had been set up within the police. Had that directorate been involved in investigating cases of disappeared persons? Would the directorate gather DNA of disappeared persons and their relatives? Was the State party reforming its military code to prevent military courts from overseeing cases of enforced disappearance? Did the State have a policy regarding excavation of mass graves?

Mamadou Henry Konate, Permanent Representative of Mali to the United Nations Office at Geneva and head of the delegation, said in opening remarks that the ratification of the Convention was an important step forward as it rendered the provisions of the Convention binding for Mali. Important steps taken to help improve quality and access to the country’s justice system included the overhaul of the Penal Code and the Code of Criminal Procedure, through a participatory and inclusive approach. It was difficult to have the exact figures of the number of enforced disappearances as well as the profiles of those who had disappeared because of the country's particularly fragile security context. Nonetheless, coordination between public authorities, human rights institutions and communities remained necessary for the effective protection of all persons against enforced disappearances.

In response to experts’ questions, the delegation responded that regarding the forensics directorate, its offices had been set up in various towns across the country. A biometric database with DNA and fingerprint data had been created, and this would be used in investigations, including of disappeared persons. Enforced disappearance was not a military offence and could not be tried by military courts. No member of the army was above the law, and all offences committed by military personnel could be tried by civilian courts.

The delegation also said that the forensics directorate had carried out initial sample gathering at mass graves. Samples would be recorded in the directorate’s database. In the past, the judiciary needed to seek outside support to conduct forensic investigations, but these could now be conducted domestically.

In concluding remarks, Carmen Rosa Villa Quintana, Committee Chair, thanked the delegation for participating in the dialogue. She said that the Committee and State party shared a common goal of implementing the Convention, and promised the Committee’s continued support in achieving this goal. The Committee and the State needed to pool their efforts to eradicate enforced disappearance.

In his concluding remarks, Mr. Konate said that the dialogue had shed light on Mali’s efforts to stamp out the phenomenon of enforced disappearance. Although progress had been made, there were still challenges that needed to be overcome, especially in the fight against terrorism.

The delegation of Mali was made up of representatives of the National Directorate of Judicial Affairs, the Ministry of Security and Civil Protection, Directorate of Military Justice, Ministry of Foreign Affairs and International Cooperation, and the Permanent Mission of Mali to the United Nations Office at Geneva.

The Committee will issue its concluding observations and recommendations on the report of Mali at the end of its twenty-third session, which concludes on 23 September. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.

The Committee is next scheduled to meet in public at 3 p.m. on Tuesday, 13 September to consider the initial report of the Czech Republic (CED/C/CZE/1).

Report

The Committee has before it the initial report of Mali (CED/C/MLI/1).

Presentation of the Report

MAMADOU HENRY KONATE, Permanent Representative of Mali to the United Nations Office at Geneva and head of the delegation, presented the report, explaining that the delay in its submission was the result of the difficulties associated with security and the institutional crisis the country had experienced since 2012. The report covered the period from 2013 to 2019. The ratification of the Convention was an important step forward as it rendered the provisions of the Convention binding for Mali. It also set out the rights to truth, justice and reparation for victims as well as having a preventive dimension, notably by establishing a committee on enforced disappearances, responsible for monitoring the implementation and respect for the Convention by the Malian State. The Convention was a major legal instrument in the fight against enforced disappearances, requiring the Government to act at the national level, and to cooperate with other States, to ensure respect for the rights of victims and to prevent impunity for perpetrators.

The report, he said, was structured around the legal and institutional framework for the prohibition of enforced disappearance and around the implementation of the provisions of the Convention. In terms of the legal framework, there were currently almost twenty bilateral agreements, at least six regional treaties and some fifteen multilateral conventions to which Mali was party, and which were intended to apply to the situation of enforced disappearances. At present, although enforced disappearance was not a stand-alone offense in Malian law, it remained a crime against humanity, and therefore was not subject to any statute of limitations.

Mr. Konate further highlighted that his Government had taken important steps to help improve quality and access to the country’s justice system. Those steps included the adoption of a Law of Orientation and Programming of Justice for the period 2020-2024. That law enabled judicial institutions to ensure the security of legal relations between citizens; the effectiveness of decisions rendered; and the protection of society against crime and delinquency. The overhaul of the Penal Code and the Code of Criminal Procedure, through a participatory and inclusive approach, would now make it possible to take on board many of Mali's international, regional and sub-regional commitments in the area of criminal law and improve the conduct of criminal trials. The crime of enforced disappearance had become an offense punishable by life imprisonment.

In addition, an ordinance creating a Truth, Justice and Reconciliation Commission was adopted in 2014. That structure was intended to investigate cases of human rights violations and establish the truth about those violations. It was within that framework that more than 20,000 statements had been collected via its regional offices and mobile teams. The third public hearing of the Commission, in 2021, was placed under the theme "the crimes of enforced disappearance." During that hearing, victims returned to the circumstances in which their parents disappeared, and demanded that justice was done.

Mr. Konate concluded that it was difficult to have the exact figures of the number of enforced disappearances as well as the profiles of those who had disappeared because of the country's particularly fragile security context. Nonetheless, coordination between public authorities, human rights institutions and communities remained necessary for the effective protection of all persons against enforced disappearances.

Questions by Committee Experts

MOHAMMED AYAT, Committee Vice Chair and Country Co-Rapporteur, welcomed the fact that Mali had ratified the Convention, yet expressed hopes to receive more information about what was happening on the ground. The fact that in Mali, enforced disappearances were classified as a crime against humanity was an extremely good start, as was the fact that it was about to be criminalised as a stand-alone crime. What was the status of the consultations on the revision of the Penal Code? According to the State party, the crime of enforced disappearance had been included in the draft text. Would it be possible to have access to the text in question?

On the role of the National Human Rights Institution in fighting enforced disappearance, the Expert asked what measures had been enacted to prove that the institutions had received enough autonomy. How often was the National Human Rights Institution conducting visits to official detention centres? On statistics, it had been asked why none had been provided, such as the number of cases of enforced disappearances and their frequency, despite the official existence of registers.

OLIVIER DE FROUVILLE, Committee Expert and Country Co-Rapporteur, asked how the release of detainees suspected or formally accused of involvement in serious crimes, including enforced disappearances, were compatible with articles 7 and 24 of the Convention? The Convention obliged States to establish jurisdiction and prosecute all perpetrators of enforced disappearances on their territory. Furthermore, victims had an absolute right to know the truth about the fate of their loved ones. How could that right to the truth be guaranteed if any judicial investigation was hindered? Could the delegation clarify its position: did the 2012 Law and the 2019 National Accord Law apply to the crime of enforced disappearance?

Could the delegation provide more information about the prosecutions and judgments against members of armed groups who allegedly committed enforced disappearances?

According to the information gathered by the Committee, most people responsible for enforced disappearance were not being prosecuted for crimes under international law, but rather for offences related to terrorism or other offences such as undermining state security, or possession of weapons of war. According to Amnesty International, as of November 2021, over two hundred trials had been held for terrorism-related offences at the Bamako and Mopti Courts of Appeal. In 2021, a special trial session on terrorism was organised by the Bamako Court of Appeal. At the end of that session, nearly 50 cases had been examined, resulting in one death sentence, 17 life sentences, and 7 acquittals, including 32 convictions in absentia. Could the delegation provide more information about those proceedings? What were the charges?

Several other reports highlighted the practices of the Directorate General of State Security (DGSE)–which in 2021 had become the National Agency for State Security–and the use of incommunicado detention of terrorist suspects in unofficial places of detention. What measures did the State party intended to take to put an end to that situation and to ensure that no one was subjected to any form of torture?

How did the State party ensure that anyone who committed, ordered or sponsored an enforced disappearance was held criminally responsible?

MATAR DIOP, Committee Expert, noted that it appeared as if a dialogue had begun with all parties to the conflict in Mali; that dialogue was vital. Yet the Convention made it abundantly clear that an amnesty could not be the answer. Could the Committee receive a commitment from Mali that there would be no amnesty for any crimes committed throughout the whole period of the crisis in Mali?

Responses by the Delegation

The delegation confirmed that it was difficult to give precise statistics on enforced disappearances, as that crime was not a stand-alone crime in Mali, distinguishable from others. Many offences were covered by that terminology, making it difficult to keep specific statistical data. It was also highlighted that, although the death penalty was still in force in Mali, it has been 41 years since anyone had been executed. Moreover, that sentence was often commuted to life imprisonment.

With regard to the National Human Rights Institution, the delegation stressed that the institution’s existence was and remained in accordance with the Paris Principles, and was therefore administratively and financially autonomous. It had access to all legal places of detention in Mali, in accordance with criminal and administrative procedures. It was also involved in all pre-legislative processes within the Ministry of Justice, notably in its capacity as a member of the Permanent Legislative Commission, which was responsible for examining legislative texts in advance.

In response to the information from Amnesty International, in particular regarding allegations made against the Malian army, the delegation assured the Committee that all cases brought to the attention of the Malian authorities were systematically investigated and the reports transmitted to the public prosecutor. The figures put forward by the Committee were based on unreliable sources and did not correspond to reality. As for war crimes and crimes against humanity, they could be prosecuted before Malian courts and there were no plans at present to create specialised centres.

On the issue of amnesty, the delegation stressed that the security situation in Mali was partly inherited from the destabilisation of Libya. In that context, transitional justice, meaning a mixture of positive and traditional law, was the prevailing way to settle cases. The delegation nonetheless acknowledged that there were discrepancies in the laws in force, which should lead either to a revision of the legal frameworks or to a repeal, in particular of the 2019 National Reconciliation Law.

Follow-Up Questions by Committee Experts

MOHAMMED AYAT, Committee Vice Chair and Country Co-Rapporteur, asked if enforced disappearance could be deemed a political crime on the grounds of which extradition could be denied, how would foreign forces who might become guilty of enforced disappearance on Malian territory be managed? Underscoring the necessity of harmonising domestic laws with the convention, the Expert asked what could be done in the meantime?

OLIVIER DE FROUVILLE, Committee Expert and Country Co-Rapporteur, said he was happy to hear that the national law was going to be revised given that it appeared so far to have discrepancies with the text of the Convention. Could the delegation clarify the statute of limitations that applied to enforced disappearance when it could not be qualified as a crime against humanity? What was the duration of the statute of limitations, and did it begin to run before or after the cessation of the offence of enforced disappearance? What measures were taken to guarantee the right of victims of enforced disappearance to an effective remedy after the expiration of the statute of limitations?

Could the delegation comment on the provisions which, in accordance with article 9 of the Convention, would give universal jurisdiction to the courts or to certain courts in matters of enforced disappearances?

What measures did the State intend to adopt to comply with its obligations and ensure that judicial personnel did not expose themselves to prosecution by being complicit in enforced disappearance? Which judicial authority was competent to review measures of deprivation of liberty taken by the military authorities, including the army's counter-intelligence service?

Given the fact that the country was currently engaged in a process of reforming the Code of Military Justice, how did it plan to bring the Code into line with the Convention?

Responses by the Delegation

The delegation emphasised that there were no specific registers for missing persons. Furthermore, once the new Criminal Code and Criminal Procedure Code were adopted, enforced disappearance would be a stand-alone crime. All courts would therefore be able to deal with that crime. However, given that the offence of autonomous enforced disappearance did not exist as such in Malian law, amnesty measures could not relate to an offence that did not exist. That said, the delegation added that the National Conference on the rebuilding of the Malian state held in December 2021, with the participation of armed groups, clearly underlined that no amnesty would be granted for the most serious crimes committed by those groups.

With regard to the fight against trafficking in persons and its prevention, including the smuggling of migrants, the delegation said that the National Committee in charge of those matters had achieved good results in the pursuit of its mandate. Together with the International Organization for Migration (IOM), the National Committee was now in the process of setting up a National Referral Mechanism on trafficking in persons.

With regard to mutual assistance and judicial cooperation between Mali and other States, the delegation said all requests were examined and extradition measures were carried out. In cooperation with the United Nations Office on Drugs and Crime (UNODC), Mali was seeking to develop simplified extradition procedures.

Regarding questions about "foreign forces in Mali," the delegation said that Mali did not host any foreign forces on its territory. The only foreign force in Mali was the United Nations Multidimensional Integrated Stabilization Mission in Mali, MINUSMA. Conventions signed with the United Nations and the troop-contributing countries provided immunities for the “Blue Helmets,” so much so that in case of crimes and allegations of crimes, Malian judges could not quote them or even hear them during national investigations or trial.

Questions by Committee Experts

MOHAMMED AYAT, Committee Vice Chair and Country Co-Rapporteur, asked if detainees had the right to inform their relatives, and to access doctors and lawyers. How were those rights exercised, and what happened if they were denied? Registers of detainees needed to be kept up-to-date and monitored. Such registers needed to be kept in all cases of depravation of liberty, including psychiatric hospitals and immigration detention centres. What happened when individuals failed to keep registers up-to-date? How many appeals had been lodged by or on behalf of persons deprived of liberty? What was the outcome of such appeals? Persons should be presumed innocent, and should be given the right to challenge their detention. Data on such challenges should not be difficult to obtain.

OLIVIER DE FROUVILLE, Committee Expert and Country Co-Rapporteur, said that in Malian law, military bodies could prosecute enforced disappearance cases involving military personnel. The Committee urged the State party to not oversee such cases in military courts, as that often led to impunity. Was the State party reforming its military code to prevent military courts from overseeing cases of enforced disappearance and from trying civilians? Could the State party extradite a person to a country where they were at risk of enforced disappearance?

The Committee was delighted that a forensics directorate had been set up within the police. Had that directorate been involved in investigating cases of disappeared persons? What was the purpose of the police’s fingerprint register? Would the State party use it to find disappeared persons? Would the directorate gather DNA of disappeared persons and their relatives?

Did the State party intend to include in State laws a definition of a “victim” that was in line with the Convention? Would there be convictions in the future regarding denial of the right to truth? What was the outcome of investigations carried out by the Commission on Truth and Justice? Would the Commission release a report on investigations? Would future mechanisms work to find disappeared persons? What mechanisms would be set up for redress and remedy? Would a mechanism be set up to enforce the national reconciliation law?

There were mass graves that needed to be excavated following international protocols to identify disappeared persons and exhumated remains. Did the State have a policy regarding excavation of mass graves?

A “declaration of absence” needed to be submitted to civilian courts by relatives of disappeared persons. Were there any other means of reporting disappearances in places of conflict? Did families need to wait for courts to rule on enforced disappearances before claiming compensation under the national reconciliation law? That procedure could take up to ten years. How did the State ensure the right to a fair trial and to reparation? Had the State party analysed the effect of enforced disappearances on women?

Responses by the Delegation

The delegation said that places of deprivation of liberty were duly monitored under the criminal procedure code. Reports were provided quarterly on detention conditions, and the Attorney General’s Office visited places of detention regularly. Migrants were not detained in Mali.

The criminal procedure code provided for legal aid and access to a lawyer and doctor from the moment persons were apprehended. Police officers had undergone training on informing detained persons of their rights upon arrest. Court-appointed lawyers guaranteed free and fair trials. Senior officers oversaw junior officials, and punishments, sanctions, and in serious cases dismissals were issued to police officers who infringed on the rights of detainees. Inspection units and United Nations peacekeepers conducted unannounced inspections of detention facilities and police offices. Lawyers and judicial officials were required to inform detainees’ families about their relatives’ detainment.

All persons deprived of liberty could ask to be released at any point. Work needed to be done to oversee officials who abused their right to issue committal orders. Judicial officials who breached rules of procedure were sanctioned or dismissed, in some cases without pensions. Judges’ decisions could be challenged by an appeals court within eight days under the draft criminal code.

Enforced disappearance was not a military offence and could not be tried by military courts. The army fought against impunity. No member of the army was above the law. All offences committed by military personnel could be tried by civilian courts.

The indictment chamber ruled on extraditions, and ensured the right to a fair trial and the security of the person involved. If the person involved would be put at risk in the destination country, they would not be extradited.

A forensics department had been created, and staff had been recruited from the police and gendarmes. Offices of the department had been set up in various towns across the country. A biometric database with DNA and fingerprint data had been created, which would be used in investigations including of disappeared persons. A decree on the financing and recruitment policies of the department was currently being prepared.

The code of criminal procedure included a definition of enforced disappearance that followed the definition used in the Convention. When a crime was committed, anyone who had been affected by the crime could file for civil damages. Civil damages could be claimed for war crimes, crimes against humanity, financial crimes, traffic offences and other crimes. Associations which had existed for five years could represent individuals in civil damage cases. The Commission on Truth and Justice had an inclusive reparation policy in place covering anything that had happened from 1960 to date. Its mandate ended this year, but a new agency for reparation with a seven-year mandate would be created next year.

The forensics department had carried out initial sample gathering at mass graves. Samples would be recorded in the department’s database. There was political determination to address the issue head-on. If funds were available, samples would be analysed within Mali. The Government planned to provide the department with sufficient funds and technologies to carry out its mandate. In the past, the judiciary needed to seek outside support to conduct forensic investigations, but these could now be conducted domestically. The delegation did not yet have detailed information on the results of investigations of mass graves.

Three years after a person went missing, their family could apply for a certificate of absence. Oversight judges made decisions on the inheritance of the assets of the disappeared person. “Wards of the nation,” minors with a parent who had died or disappeared, had access to free education, health-care and other services. The process for declaring absent persons could take up to 10 years, however requests for declaration of the death of missing persons were processed in less time. After those were processed, State support was provided to family members.

Questions by Committee Experts

MOHAMMED AYAT, Committee Expert and Country Co-Rapporteur, said that military courts should never hear cases of enforced disappearance. Military courts needed to only deal with cases involving the dismissal of a member of armed forces. If cases extended beyond that, they were required to be heard by civil courts.

What measures had been taken to guarantee that all individuals with a legitimate interest could access information on persons deprived of liberty? The State had reported that requests for such information could only be made by certain institutions. Could individuals not request such information?

Public officials, particularly those working at places of detention, needed to undergo general training on human rights. What training was provided to public officials?

What measures had been taken to establish accountability for the deaths of Malians in States of transit and destination States, and to repatriate their remains? How were investigations carried out in cooperation with such States? Who was responsible for trying such cases? What support was provided to the relatives of those who had died?

Mr. Ayat expressed hope that the dialogue would help to strengthen efforts to prevent enforced disappearance in Mali.

OLIVIER DE FROUVILLE, Committee Expert and Country Co-Rapporteur, said that military courts did not have a mandate to try cases of enforced disappearance, but legislation stated that military courts could try military personnel on all cases, included those involving international human rights abuses, and there were past cases where military courts had tried cases of enforced disappearance.

A declaration of death should not be taken as a substitute for a declaration of enforced disappearance. All steps needed to be taken to find the whereabouts of victims of enforced disappearance, and until this was done, such persons should be assumed to be living. Did any victims’ associations exist, and if so, what support did the State provide to them?

There was reportedly a shrinking of civil space in Mali. Journalists self-censored due to fear of reprisals. Some civil society actors had received death threats or had their property stolen. It was crucial that human rights defenders, victims’ associations and the press were able to freely investigate without fear of reprisal. What measures would the State party take to ensure that civil society could freely operate in Mail?

There had reportedly been 13 abductions of children since 2019. What measures were in place to investigate those abductions? What was the procedure for placement in foster families? What guarantees were in place to protect children from trafficking? Affiliation adoption could not be revoked. Could adoptions be reviewed if they were linked to an enforced disappearance? Had steps been taken to improve birth registration to prevent abduction?

CARMEN ROSA VILLA QUINTANA, Committee Chair, asked if the national information agency was civilian or military. What were its powers? What training was provided to officials on searching for disappeared persons?

A Committee Expert asked for more information on registers in places of detention. Expulsion procedures often led to refoulement. Could an expulsion decision be challenged?

Responses by the Delegation

MAMADOU HENRY KONATE, Permanent Representative of Mali to the United Nations Office at Geneva and head of the delegation, said that the delegation had taken due note of the Committee’s concerns regarding legislation on the jurisdiction of military courts.

The delegation said that access to information was open to natural and legal persons who were charged with offences or detained, and to their relatives. Relatives were involved at every stage of proceedings involving enforced disappearances. Lawyers and all persons involved had access to case files, but all others did not. There was confidentiality in initial stages of investigations. The public prosecutor was responsible for giving information on cases to the public without jeopardising cases.

The National Institute for Judicial Training had included human rights training in its syllabi. Training workshops on human rights were held. Training was provided against gender-based violence and enforced disappearance. Prevention protocols regarding gender-based violence and enforced disappearance had been translated into local languages. Defence and security forces received training in human rights. There was a specialised office within the military working exclusively on human rights, and that office delivered human rights training in the field. There were also military training schools where personnel received human rights training.

Mali was a transit country and a departure point for migrants. It had signed agreements with almost all neighbouring countries to monitor and provide support around migrant flows. But the borders were too extensive to fully monitor, and terrorists operated in border areas. Judges and magistrates operated in major regional towns. The problem was exacerbated by anti-personnel mines, which made it difficult to move around the country. Investigative judges and whistle-blowers provided information on trafficking. Trafficking was often committed by terrorist groups, who were difficult to apprehend as they often fled across borders. The International Committee of the Red Cross was a key partner in efforts to repatriate disappeared migrants. More cooperation was needed with neighbouring countries to identify disappeared migrants.

There were no civil society groups for victims of enforced disappearance. However, the relatives of victims were free to establish such organisations and apply for funding. There was a need to establish such an organisation. Grassroots associations did put pressure on the judiciary to ensure that cases of enforced disappearance were investigated appropriately and in a timely manner.

The family code had discriminatory provisions concerning the rights of women, but the State party had made progress in revising these provisions. There were no gender discriminatory provisions in the revised criminal code.

The 13 cases of abductions referenced were allegations, rather than proven cases. Agreements had been signed with neighbouring countries to tackle cross-border trafficking of children. Mali had signed various international agreements aimed at preventing the use of children in armed conflict, and was working to implement the provisions of those agreements. Reports of disappeared children were investigated immediately. Many young people left the country without informing their relatives, leading to incorrect reports of enforced disappearance.

Birth registration was obligatory under the family and civil code, and failure to register a birth was punishable with a fine or imprisonment. Public officials who failed to register births were issued with harsher penalties.

The national information agency was a civilian agency. Decisions to deport individuals could be appealed.

Closing Statements

CARMEN ROSA VILLA QUINTANA, Committee Chair, thanked the delegation for participating in the dialogue. She said that the Committee and State party shared a common goal of implementing the Convention. Ms. Villa Quintana promised the Committee’s continued support in achieving that goal. The Committee and the State needed to pool their efforts to eradicate enforced disappearance.

MAMADOU HENRY KONATE, Permanent Representative of Mali to the United Nations Office at Geneva and head of the delegation, thanked all those involved in the dialogue. The dialogue had shed light on efforts made to stamp out the phenomenon of enforced disappearance. That was done in the context of an unstable security situation. The State party had domesticated the definition of enforced disappearance provided in the Convention in its revised criminal code. The Government requested the support of partners in co-financing efforts to prevent enforced disappearance. The roll-out of the forensic department would play a major role in establishing responsibility for crimes, including enforced disappearance. Although progress had been made, there were still challenges that needed to be overcome, especially in the fight against terrorism. The delegation would take careful note of the Committee’s concluding observations, and would share those with key members of cabinet to ensure that prompt decisions regarding their implementation were made.

Ce document produit par le Service de l’information des Nations Unies à Genève est destiné à l'information ; il ne constitue pas un document officiel.

Les versions anglaise et française de nos communiqués sont différentes car elles sont le produit de deux équipes de couverture distinctes qui travaillent indépendamment.

CED22.006E