Mali, Niger and Nigeria are under pressure to stop the ongoing terrorist attacks in their countries. How to achieve this is the critical question. Steps have been taken to use the criminal justice system, as promoted by the United Nations and others. This is an improvement on the traditional military response to terrorism, but is placing immense strain on the police and courts. The solution may lie in alternative justice mechanisms for some terrorism cases.
Combating terrorism in these West African countries has until now focused on a military approach. This has curbed terrorism to an extent, but in the process the rule of law and human rights protections for civilians and terror suspects have been undermined. Evidence shows that repressive and violent tactics by security agencies can exacerbate the very threat they are trying to mitigate - leading to increased radicalisation and recruitment.
Mali, Niger and Nigeria are increasingly using the police and courts to deal with suspected terrorists. Special judicial units focusing on terror-related crimes have been set up, and detectives and prosecutors trained in handling these cases. This approach is globally recognised as necessary to protect human rights and uphold the rule of law.
The complexity and volume of terrorism cases would stretch even the most sophisticated justice system
However, increased efforts to investigate, detain, prosecute and adjudicate terror suspects have put pressure on these countries' under-resourced special units and criminal justice systems. By 2018, there were an estimated 200 pre-trial terror suspects (including women and children) in detention in Mali, 1 100 in Niger and over 5 000 in Nigeria.
Some of those in detention are civilians who have been subjected to arbitrary arrest - targeted for belonging to specific communities, apprehended because of their proximity to terrorists, or denounced by community members for a range of non-violent and sometimes inadvertent 'crimes'.
Motives behind such denunciations may have little to do with terrorism, relating instead to revenge, historical feuds, personal conflicts or religious intolerance. Despite there being little to no evidence against these 'suspects', they need to be processed through the justice system and reintegrated back into the community, sometimes years later.
The complexity and sheer number of terrorism-related cases in these countries would overstretch even the most sophisticated criminal justice system. Under these circumstances should alternative justice approaches - such as restorative, transitional and traditional justice - not be added to the official set of counter-terrorism responses?
Alternative justice approaches could relieve pressure on the formal criminal justice systems
A range of tools such as truth-telling commissions, mediation, arbitration, reconciliation and reparations, have been tested in countries transitioning out of conflict. These could help provide justice, accountability and healing in certain terrorism cases in countries like Mali, Niger and Nigeria. In all three nations, there have been various attempts to introduce alternative justice initiatives, many of which have encountered serious challenges.
Mali's Truth, Justice and Reconciliation Commission has been constrained by an overly broad mandate and ongoing insecurity. The Nigerien government is struggling to determine which Boko Haram defectors should go on trial and which should be deradicalised and reintegrated through an internment camp in Goudoumaria. And Operation Safe Corridor in Nigeria, aimed at rehabilitating Boko Haram fighters, lacks transparent guidelines on who constitutes high- or low-risk individuals as well as a clear reintegration strategy.
However, if done well, alternative approaches to justice could relieve the pressure on the formal criminal justice systems in these countries. These measures could also help resolve local conflicts that foster the grievances associated with violent extremism. Alternative justice methods also provide redress for victims of terrorism and ensure accountability in cases where evidence is available. They offer ways for individuals to be reintegrated and contribute to building tolerance in divided communities.
Alternative approaches could be more appropriate and legitimate for locals than formal justice systems
In many cases these approaches could be more appropriate and legitimate for local populations than formal justice systems. They would need to be systemically introduced to complement the criminal justice process, using clear parameters based on good planning and wide consultations with local actors. Formal justice system safeguards would need to be included such as human rights protections, access to legal representation, guarantees of due process and oversight mechanisms.
Alternative justice initiatives should be developed as part of broader strategies to prevent violent extremism. They would need the support of local communities, especially in remote areas. Paralegals and community leaders, for example, could help deliver the programmes and give the necessary attention to individual cases.
There is no single strategy for successfully combating terrorism. Adding alternative justice to the range of current interventions may seem daunting but must be carefully considered. The criminal justice systems in Mali, Niger and Nigeria are overburdened and are making slow progress against terrorism. If properly designed and implemented with human rights protections firmly in place, alternative justice mechanisms can be of value.
Romi Sigsworth, Research Consultant, Transnational Threats and International Crime, ISS Pretoria
For the full ISS report on this issue, read Counter-terrorism, human rights and the rule of law in West Africa.