On August 17, 2017, the International Criminal Court (ICC) issued a Reparations Order in the case of Ahmad Al Faqi Al Mahdi, who in September 2016, upon pleading guilty to the destruction of 10 religious and historic sites in Timbuktu, Mali, was sentenced to nine years’ imprisonment. [ICC Press Release; IJRC] In its Reparations Order, Trial Chamber VIII of the ICC found Al Mahdi liable for 2.7 million euros (or approximately 3.18 million USD) in both individual and collective reparations for the community affected by the 2012 attacks, which occurred in the context of Mali’s internal armed conflict. [ICC Press Release] The Court, emphasizing the cultural and sentimental value of the destroyed property, ordered reparations for three categories of harm: damage to the targeted buildings, resulting economic loss, and moral harm. [ICC Press Release] The reparations are designed to rehabilitate the attacked sites, address the community’s financial losses, and potentially fund symbolic measures, such as memorials, to serve as public recognition of the harms incurred by the Timbuktu community. [ICC Press Release] Given Al Mahdi’s indigence, the Court encourages the Trust Fund for Victims (TFV), an agency that will implement the order, to supplement the reparations to the extent possible. [ICC Press Release; Guardian]
Taking into account numerous submissions – including from the victims’ legal representatives, the ICC prosecutor, and Al Mahdi’s defense team, among others – and focusing primarily on the harms suffered by the Timbuktu community, the Court ordered several reparations. See ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Reparations Order, 17 August 2017, paras. 4, 54–56. First, the Court ordered that measures be taken to protect, maintain, and prevent repeated attacks upon the targeted buildings. See id. at para. 67. Second, though the Court deemed any further apology from Al Mahdi to be unnecessary, it ordered a video of his earlier apology to be posted on the Court’s website, along with relevant translations and hard copies available upon request in order to ensure that all victims have sufficient access to it. See id. at para. 71.
Third, in order to address the economic harm suffered by the community, the Court ordered individual reparations in the form of financial compensation to those whose livelihoods were directly or indirectly affected by the destructions as well as community reparations in the form of educational programs to bring awareness to Timbuktu’s unique cultural heritage. See id. at para. 83. Fourth, the Court ordered reparations for the mental anguish caused by the attacks, which at the individual level may take the form of compensation and at the community level may include commemoration ceremonies or the establishment of memorials. See id. at para. 90.
Lastly, the Court ordered symbolic reparations in the amount of one euro each to the Malian State and the international community as recognition of the harm suffered. See id. at paras. 106–07. Taking into consideration the damage caused to the protected buildings, consequential economic loss, and moral harm, the Court assessed Al Mahdi’s total liability at approximately 2.7 million euros. See Prosecutor v. Ahmad Al Faqi Al Mahdi, 17 August 2017, paras. 118, 128, 133–34.
Principles of Reparations
The Court upheld the reparations principles established in the Prosecutor v. Thomas Lubanga Dyilo, which relied on both the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. See id. at paras. 24-26. Reparations, the Court reiterated, oblige perpetrators to repair the harm caused by their actions and ensure that perpetrators are held accountable. See id. at para. 27. Reparations must be directed against the convicted individual, must inform the convicted individual’s liability, must state reasons for the type of reparation ordered, must describe the harm to the victims caused by the convicted individual’s crimes, and must identify those who will receive the reparations. See id. at para. 38.
Further, the Court found that victims are to be equal in the receipt of reparations and access to information related to the proceedings, and reparations should be appropriate, adequate, and prompt. See id. at paras. 29, 31, 33. Reparations should also take into account local culture and customs, unless discriminatory, and should be self-sustaining. See id. at paras. 34-35.
In January 2012, an internal armed conflict began in Mali, during which time various armed groups took control of the country’s Northern territory. [IJRC] After gaining control of Timbuktu in April 2012, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) began to impose their religious and political views on the community. [IJRC] Al Mahdi became involved with both Ansar Dine and AQIM, eventually becoming the leader of AQIM’s morality brigade and ultimately agreeing to carry out attacks against various culturally significant objects in Timbuktu. [IJRC]
Ten such objects were attacked between June 30 and July 11, 2012, including mosques and mausoleums of saints. [IJRC] On September 27, 2016, after pleading guilty, Al Mahdi was convicted as a co-perpetrator of the war crime of attacking protected objects. [IJRC] His contributions to the attacks included supervising the operations, distributing the necessary tools, providing moral support and instructions, communicating with media regarding the attacks, and personally participating in the destruction of at least five sites. [IJRC] For his role, the Court sentenced Al Mahdi to nine years’ imprisonment, taking into account the severity of his actions and his admission of guilt. [IJRC]
This was the first ICC case in which the defendant pleaded guilty and the first to address the war crime of attacking protected objects. [IJRC] Al Mahdi’s conviction was viewed by many as a positive step toward ending the impunity that often comes with the destruction of protected sites, which has become a more common practice. [IJRC; UN News Centre; UNESCO Press Release] The ICC’s decision also drew criticism from members of civil society who expressed concern that other crimes taking place in Mali, such as murder, rape, and torture, have not been adequately addressed. [Amnesty International; FIDH]
Background on the International Criminal Court
The ICC, which was inaugurated in 2002 and has its seat in The Hague, Netherlands, tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 124 States parties to the Rome Statute, the crime was committed on the territory of a State party, the State involved authorizes the Court’s jurisdiction, or the United Nations Security Council refers a situation to the Court. The ICC is an international tribunal designed to complement national judiciaries; thus, it can only step in when national courts are unable or unwilling to prosecute.
Mali ratified the Rome Statute in 2000 and referred the situation in Mali, including crimes committed since January 2012, to the ICC in 2012, giving the ICC jurisdiction over the case.
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