02.10.2015 |

The first of its kind

the ICC opens a case against Ahmad Al Faqi Al Mahdi for the destruction of cultural heritage in Mali

by Marina Lostal*

A few days ago, on 26 September 2015, the first suspect in the Mali investigation, Ahmad Al Mahdi Al Faqi was surrendered to the International Criminal Court (ICC) by the authorities of Niger. The charges against him centre on the destruction of cultural heritage.

The background of the conflict in Mali and the attacks against the World Heritage site of Timbuktu

The Tuareg, the ethnic group at the epicenter of the Malian conflict, live in the northern regions of Kidal, Gao and Timbuktu, an area they refer to as “Azawad”. Many Tuaregs (from Mali and Niger) fled to Libya in 2008 in the wake of a failed rebellion and were recruited into the Libyan army. When Gadhafi’s regime collapsed, they returned home with military vehicles and an arsenal of weapons.. While the government in Niger decided to disarm the returning soldiers, the Malian authorities let the Tuaregs keep their arms, in the hope of integrating them into the national army. Instead, in 2012 the Tuareg rebels used their new military resources to create the National Movement for the Liberation of Azawad (known by its French acronym MNLA) and launched an attack against the Bamako government, demanding Azawad’s full independence.

The rebels initially envisaged Azawad as a secular state but, in order to increase its military capabilities, the MNLA forged an alliance with three Islamist groups – Ansar Dine, Al-Qaeda in the Islamic Maghreb (AQIM) and the Movement for Unity and Jihad in West Africa (MUJAO) – all of which aspire to a state that would follow a strict interpretation of Sharia law. Around April 2012, the Tuareg declared an Independent State of Azawad – a state that was very short-lived as Ansar Dine, AQIM and MUJAO were quick to turn on their former allies and drive the MNLA out of Kidal, Gao and Timbuktu, proving true the pattern whereby Islamist groups act as parasites on local rebel groups to further their own fundamentalist agenda.

Unable to control the situation, the then Malian president asked his French counterpart, François Hollande, to intervene militarily. The war in Mali ended with Operation Serval where France deployed around 4,000 soldiers who, alongside troops from Mali and Chad, re-captured Gao, Timbuktu and Kidal at the end of January 2013.

Looking to the charges against Al Faqi, Mali has two declared World Heritage sites located in the northern territory affected by the armed conflict: Timbuktu and the Tomb of Askia. Timbuktu is sometimes referred to as the “City of the 333 (Sufi) Saints” – who are believed to lie buried in its sixteen mausoleums. It also houses thousands of sacred manuscripts, many dating back to the 13th century, and contains three ancient mosques – Djingrayber, Sidi Yahia and Sankoré. However, Sufism, which is one of the many different currents within Islam, is accused by followers of Salafism (the creed espoused by the fundamentalist groups) of being impious, even polytheist, not least because of the important role played by its saints. It was due to their so-called “idolatrous” nature that, according to the Office of the Prosecutor of the ICC, the Ansar Dine, AQIM and possibly MUJAO directed attacks at Timbuktu’s Sufi shrines in May 2012, as well as other mosques and some of its other historic monuments.

Despite threats to destroy the Tomb of Askia, this was fortunately saved thanks to the intervention of the local population but, out of fear, the site’s staff fled the city, for which the ancient site faced severe conservation problems. As a result, Both Timbuktu and the Tomb of Askia were inscribed on the List of World Heritage in Danger at the request of the Malian government.

The legal framework and the significance of the case

Mali is bound by different international instruments that deal with the protection of cultural heritage and that apply in this context, namely: the 1907 IV Hague Regulations concerning the Laws and Customs of War on Land (arts. 27 and 56); the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict; the so-called World Heritage Convention of 1972, and Protocol II additional to the 1949 IV Geneva Convention relating to the protection of victims (art. 16). Notably, Mali only ratified the 1999 Second Protocol additional to the 1954 Hague Convention in November 2012, after the attacks had been perpetrated. Although each of these treaties aims to preclude attacks directed against cultural property not being used for military purposes, there are important distinctions and nuances in the relevant provisions of the treaties.

Mali is also a party to the Rome Statute of the ICC. Article 8(2)(e)(iv) defines the war crime in non-international armed conflict of:

“Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives”.

Investigations at The Hague regarding the situation of Mali reportedly began after the country’s government referred the situation to the ICC Chief Prosecutor on 13 July 2012 “insofar Malian jurisdictions [were] unable to prosecute or try the perpetrators”. A few days ago, on 26 September 2015, the first suspect in the Mali investigation, Ahmad Al Mahdi Al Faqi was surrendered to Court by the authorities of Niger.

However, Al Faqi will not be the first accused in The Hague facing charges of destroying cultural property. The International Criminal Tribunal for the Former Yugoslavia (ICTY) dealt with charges connected to the destruction of places and worship and historic monuments in, for example, Prlic et al. (Mostar bridge) and Strugar and Jokic (both involving the shelling of the Old Town of Dubrovnik, a declared World Heritage site just as Timbuktu). However, the case against Ahmad Al Mahdi Al Faqi is an unprecedented development in this field in several respects. It is the first time that war crimes against cultural heritage constitute the main charge of an international criminal proceeding. An immediate question that will be raised is whether the destruction of cultural heritage in and of itself constitutes a war crime of sufficient gravity so as to deserve the full attention of the ICC. In this respect, it is notable that the preamble to the 1954 convention states that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”. Cultural heritage embodies a community’s identity and thus, ultimately may represent an attack against the population itself.

The case against Ahmad Al Mahdi Al Faqi is particularly timely in light of the vicious trend of deliberate destruction of cultural heritage we have witnessed in Syria and Iraq at the hands of Islamic State, and that echoes the chilling detonation of the Buddhas of Bamiyan back in 2001. One of the fundamental aims of international criminal law is to set a general example to deter the future perpetration of crimes. The Al Faqi case presents an opportunity for the ICC to re-shape the current landscape of non-compliance with the treaties addressing cultural heritage.

*Marina Lostal is Lecturer in International Law at The Hague University of Applied Sciences. She holds an LLM from the University of Cambridge and a PhD entitled “International Cultural Heritage Law in Armed Conflict” from the European University Institute (Florence). You may access her publications on the subject here.