by Marina Lostal *
In September 2016, the International Criminal Court (ICC or the Court) found Ahmad Al Faqi Al Mahdi, a Tuareg Malian citizen, guilty of the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments in the context of the armed conflict in Mali. He was sentenced to nine years of imprisonment whereas, in theory, he could have been sentenced to a maximum of 30.
Some background facts are apposite. Al Mahdi was arrested in Niger and surrendered to the ICC in September 2015. Al Mahdi was accused of having been involved in the attacks against nine mausoleums[1] in Timbuktu as well as the mosque of Sidi Yahia, in the summer of 2012.[2] Regarding the Sidi Yahia Mosque, it was later established that only its door has been damaged. This, nevertheless, signified an apocalyptic threat to the local population since the door had been closed for 500 years and it was believed its opening “would lead to the Last Judgment”.[3] The impact was such that “some witnesses started crying when they saw the damage”.
Although Al Mahdi’s accusation concerned 9 mausoleums, in reality there were 14 destroyed in Timbuktu. Efforts to restore these mausoleums have since been conducted under the coordination of UNESCO, in cooperation with the Malian Ministry of Culture. Having said that, it is important to note that around 4,000 ancient manuscripts were also burned, stolen or lost. However, the ambit of the war crime against cultural heritage in the ICC Statute does not extend to movable objects (see Articles 8(b)(ix) and 8(2)(e)(iv)of the ICC Statute, applicable in international and non-international armed conflicts, respectively).
Al Mahdi was a member of the Ansar Dine (defenders the faith), a paramilitary Islamist group involved in the armed conflict in Mali which aimed to impose a harsh interpretation of Sharia Law. He also was the head of the Hisbah, the body which acted as a form of morality police. In Al Mahdi’s words, its function was:
“[T]o ensure the promotion of virtue and the prevention of vice […] reforming the apparent evils in the streets, such as the failure to wear the veil, revealing their feminine charms, social mix, smoking, photos, and posters displaying, for example, banned slogans.”[4]
The mandate of the Hisbah also included deciding on the fate of the shrines, mosques and antiquities of Timbuktu. This was an important role in light of Timbuktu’s status as a UNESCO World Heritage List site, deemed to be of outstanding universal value for the whole of humanity.
Rather than insisting on a full trial, Al Mahdi pleaded guilty. He sought the pardon of the people of Timbuktu, stating:
Al Mahdi is the fourth person to be convicted at the ICC, and has received the lowest sentence to date - In 2012, Thomas Dyilo Lubanga was sentenced to 14 years for enlisting and using child soldiers in the Democratic Republic of Congo; in 2014, Germaine Katanga was sentenced to 12 years for the crime against humanity of murder, and the war crimes of murder, attacking the civilian population, pillage and destruction of property in the Democratic Republic of Congo; and, in 2016, Jean-Pierre Bemba received 18 years for the crimes against humanity of murder and rape, and for the war crimes of murder, rape and pillage, perpetrated in Central African Republic.
The prosecution submitted that Al Mahdi’s sentence should be between 9 and 11 years. In determining the sentence of 9 years, the ICC Trial Chamber took into account the gravity of the crime and several mitigating circumstances. Concerning the gravity, the ICC Chamber factored in, for example, the fact that the buildings affected were not only of religious significance, but also of symbolic and emotional value for the local population; and that all sites but one were part of the World Heritage List. However, the Court also contended that “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.[5] As to the mitigating circumstances, the Chamber noted Al Mahdi’s initial reluctance to destroy the sites and choice of means to destroy them (i.e. he advised against using bulldozers save in the case of the Djingareyber mosque); his admission of guilt; his cooperation with the prosecution, his expression of remorse; and his irreproachable behaviour in detention.[6]
Al Mahdi remains detained in The Hague awaiting the final stages of the proceedings: the reparation/compensation stage. Reparations can take the form of “monetary compensation, return of property, rehabilitation or symbolic measures such as apologies or memorials.” The Trial Chamber will decide whether the reparation, if any, should be carried out on a collective or individual basis, depending on what it deems most appropriate for the victims of the case. At the ICC, the concept of victims encompasses not only individuals, but also organisations or institutions “that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments” (Rule 85(b), Rules of Procedure and Evidence). The Court admitted nine parties to participate as victims in the Al Mahdi proceedings: three individuals and six organisations (although one withdrew at the beginning of the trial). Their identity, however, remains unknown to the public.
Ordering some form of compensation, rehabilitation or symbolic measures for this crime would constitute another first. Never before has someone who has been found personally responsible for the damage and destruction of cultural heritage been required to be actively involved in the reparation of the harm. The decision of the Court in this respect may constitute an example for future processes (judicial or extra-judicial) concerning the damage and destruction of cultural heritage in various conflicts, such as Syria, Iraq, Libya or Yemen. That is, if such processes ever take place.
* 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 from the European University Institute. You may access her publications on the subject here.
[1] Sidi Mahmoud Ben Omar Mohamed Aquit, Cheick Mohamed Mahmoud Al Arawani, CheikhSidi Mokhtar Ben Sidi Mouhammad Ben Cheick Alkabir, Alpha Moya, Cheick Sidi Ahmed Ben Amar Arragadi, Cheick Mouhamad El Micky, Cheick AbdoulKassimAttouaty, AhamedFulane, and BahaberBabadié.
[2] ICC, Mandat d'arrêt à l'encontre d'Ahmad Al Faqi Al Mahdi (18 September 2015), p. 3.
[3] ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi: Judgment and Sentence (27 of September 2016), para. 38 (vii).
ICC, Collection of footage presented by the OTP during the Confirmation of Charges hearing (1 March 2015), translation from French. Original available at: https://www.icc-cpi.int/mali/al-mahdi.
[5] ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi: Judgment and Sentence (27 of September 2016), para. 77.
[6] Ibid, paras. 76-105 and 109.