Credit: UN Photo/Marco Dormino
On 27 September 2016, the International Criminal Court (ICC), in its first-ever case regarding the war crime of attacking protected objects, found Ahmad Al-Mahdi guilty as a co-perpetrator of the destruction of 10 religious and historic sites in Timbuktu, Mali and sentenced him to nine years’ imprisonment. See ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016. The crimes took place within the internal conflict that broke out in Mali in 2012 when various armed groups, including Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM), took control of the northern territory in Mali and began a religious and political reign over the population in Timbuktu. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, para. 31. In addition to being the first ICC prosecution of this type of war crime, the case was also the first to have a defendant plead guilty before the ICC, and is thus far the only case brought against a perpetrator of crimes that took place during the Mali conflict in 2012. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, paras. 1,14. While the decision was celebrated by many as progress towards ending the impunity for attacks on heritage, which is often a concerted strategy to promote persecution and cultural cleansing, some members of civil society criticized the failure of the ICC to investigate and prosecute additional grave crimes that took place in Mali during the 2012 conflict, including murder, rape, and torture. [Amnesty International; UN News Centre: ICC]
The Judgment of the ICC
Facts
The judgment established how Ahmad Al-Mahdi played a role in the destruction of culturally significant sites in Mali in 2012 while working with armed groups in control of Timbuktu. In April 2012, Al-Mahdi became involved with the leaders of both Ansar Dine and AQIM, two armed movements in the conflict in Mali. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, paras. 32-33. Al-Mahdi became the leader of AQIM’s morality brigade, Hesbah, from April 2012 to September 2012. See id. After initially advising against it, Al-Mahdi agreed to conduct attacks against culturally significant mausoleums of saints and mosques in Timbuktu. See id. at paras. 34-39. Between June 30, 2012 and July 11, 2012, Al-Mahdi worked with others to destroy 10 historical and religious sites in Timbuktu, including nine sites designated with United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage status. See id.
The Trial Chamber VIII found that Al-Mahdi contributed to the attacks by supervising the execution of the operations, administering the necessary tools to carry out the attacks, being present at the sites of the attacks, lending moral support and instructions, participating personally in attacks that destroyed at least five sites, and communicating with media about the attacks. See id. at para. 40.
Legal Reasoning
According to the Trial Chamber, the evidence of the case – that the sites qualified as both religious and historic buildings, that the sites were deliberately targeted with the purpose to destroy them, the admission of guilt, and other testimonial evidence – established the elements of the crime of attacking protected objects under Article 8(2)(e)(iv) of the Rome Statute. See id. at para. 43. First, the Chamber concluded that Al-Mahdi’s admission of guilt was informed and voluntary, and supported by the facts of the case. See id. at para. 42. Second, since Article 8(2)(e)(iv) states that intentionally destroying “buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments” during armed conflict is a crime, the ICC found that the religious and historical sites in question fall within those protected sites; the UNESCO designation and Al-Mahdi’s own statements demonstrated their cultural significance. See id. at para. 46. Third, after finding that the attacks were intentional and in the context of an armed conflict, the Chamber held that the elements for the war crime were established. See id. at paras. 47-52.
Finally, the ICC ruled that Al-Mahdi is guilty of the crime as a co-perpetrator. The Chamber found that Al-Mahdi’s contributions to the attacks amounted to “an essential contribution” to the crime “with the resulting power to frustrate the commission of the crime.” See id. at para. 53. Additionally, his contributions, the Chamber found, were made pursuant to a common plan that led to the commission of the crimes, as evidenced by his leadership roles in the armed groups; therefore, the Chamber concluded that the elements of co-perpetration under Article 25(3)(a) of the Rome Statute were satisfied. See id. at paras. 45, 53-54.
Sentencing
In order to determine the appropriate sentence, the Chamber considered the severity, or gravity, of Al-Mahdi’s actions. See id. paras. 64, 69-70, 75. Significantly, the Chamber noted that crimes against property are generally less severe than crimes committed against persons and that Al-Mahdi’s admission of guilt was a mitigating factor. See id. at paras. 72, 96.
The Chamber found other factors that either contributed to the severity of the crime or mitigated it, resulting in a nine year sentence. See id. at paras. 76-82, 98-105, 108-109. The fact that most of the sites were completely destroyed, the attack was carefully planned, the sites carried symbolic and emotional value for the inhabitants of Timbuktu, the sites were largely UNESCO World Heritage sites, and the crimes were carried out for discriminatory religious motives, the Chamber found, all contributed to the “significant gravity” of the crime. See id. at paras. 72, 76-82. The Chamber, though, concluded that Al-Mahdi’s initial reluctance to commit the crime, the steps he took to minimize damage to graves and constructions near attack sites, his cooperation with the prosecution, and his expression of remorse were all mitigating factors. See id. at paras. 89-93, 96, 98-105.
Significance of the Case
Although special protections for cultural property under international law date back to the 1907 Hague Regulations, international bodies and actors have praised the ruling for making progress on ending impunity for the destruction of protected cultural sites, a practice that has increased in frequency. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, para. 14. [UN News Centre: ICC; UNESCO Press Release; NY Times] According to UNESCO, the decision sheds light on the connection between protecting heritage and promoting security, and addresses the use of cultural attacks as weapons of war aimed to achieve cultural cleansing through the destruction of people’s identities. [UNESCO Press Release]. Additionally, the United Nations Secretary General Ban Ki-moon recently addressed the importance of preserving cultural heritage as “a part of our effort to defend human rights and save people’s lives,” and noted that the judgment was an important step to bringing an end to the impunity for crimes against protected objects perpetrated by “enemies of human dignity.” See United Nations, Secretary General’s message to the High-level Meeting on Protecting Cultural Heritage.
The ICC decision has also been met with some criticism from civil society. Amnesty International and the International Federation for Human Rights both showed concern that other crimes taking place in Mali, including murder, rape, and torture, have gone unaddressed. [Amnesty International; FIDH] Human Rights Watch remarked that the case highlighted the ongoing need for the Malian government to improve its investigation of serious crimes, including, murder, sexual violence, pillage, extrajudicial execution, enforced disappearance, and torture of suspected Islamic rebels by Malian forces. [HRW]
Context of the Conflict in Mali
In January 2012, an internal armed conflict erupted in Mali, resulting in various armed groups seizing control of the Northern territory of the country. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, para. 31. In April 2012, the groups Ansar Dine and AQIM took control of Timbuktu. See id. From April 2012 to January 2013, Ansar Dine and AQIM imposed their religious and political views on the population of Timbuktu through the use of an Islamic tribunal, police force, media commission, and morality brigade, known as the Hesbah. See id.
The UN Security Council created the Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) in 2013 to rehabilitate Mali in light of this conflict. [UN News Centre: ICC] MINUSMA works in coordination with UNESCO to promote peace and stability in the region. [UN News Centre: ICC]
Additional Information
Mali ratified the Rome Statute in 2000 and also referred the situation, including crimes committed since January 2012, to the ICC Prosecutor in 2012, giving the ICC jurisdiction over the case. For more information regarding the ICC and its functions, visit the ICC website.
For more information on international criminal law, international humanitarian law, the International Criminal Court, and economic, social and cultural rights, visit IJRC’s Online Resource Hub.