The Prosecutor v. Ahmad Al Faqi Al Mahdi
The International Criminal Court has held an individual accountable for a war crime under the Rome statute due to his active role in the deliberate destruction of cultural heritage sites in Timbuktu, Mali. Although the Court did not focus on this, such intentional attacks on cultural heritage can also be considered to be a violation of human rights, including the human right of everyone to take part in cultural life.
On 27th September 2016, the International Criminal Court (ICC) unanimously found suspected Islamist, Ahmad Al Mahdi, guilty beyond reasonable doubt as a co-perpetrator of a war crime pursuant to art. 8(2)(e)(iv) of the Rome Statute, in response to Mr. Al Mahdi’s intentionally directing of attacks against ten of the most important cultural heritage sites in Timbuktu, Mali, in June and July 2012. This war crime prohibits the intentional directing of “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.” These attacks were associated with a non-international armed conflict that took place in the territory of Mali and the subsequent occupation of Timbuktu by the armed groups Al-Qaeda in the Islamic Maghreb and Ansar Dine. Fact-finding has established that all these sites were dedicated to religious and historic monuments, and were not military objectives.
While assessing the gravity of the crime, the ICC Trial Chamber VIII (Chamber) considered that the targeted heritage sites were not only religious buildings but also had tremendous symbolic and emotional value for the inhabitants of Timbuktu. The mausoleums of saints and mosques of Timbuktu, destroyed in the attacks, were an integral part of the religious life of its inhabitants and constituted a common heritage for the community. The Chamber further noted the testimony of P-431 (a Malian expert in cultural matters) who testified that destroying the mausoleums, to which the people of Timbuktu had great attachment, was a war activity aimed at breaking the soul of the people of Timbuktu. Furthermore, all the sites but one were UNESCO World Heritage sites. As such, the Chamber considered the attacks on these sites to be of particular gravity as their destruction not only affected the direct victims of the crimes but also people throughout Mali and the international community.
The trial of Mr. Al Mahdi took place between the 22nd and 24th of August 2016 during which period Mr. Al Mahdi made an informed and voluntary admission of guilt. Noting certain mitigating factors, the Chamber sentenced Mr. Al Mahdi to nine years of imprisonment.
Mr. Al Mahdi is currently in ICC custody. According to ICC spokesperson Fadi ElAbdallah, Mr. Al Mahdi will not serve out his sentence in the detention centre at the ICC in The Hague. He will “serve his sentence in a national establishment of a state which has agreed to receive the convicted. Decisions on this issue will be made in due course by the ICC in dialogue with relevant states.”
This decision is of particular significance since it constitutes the first international prosecution exclusively focused on the war crime of destroying cultural heritage. The ruling has been celebrated as a critical step towards ending impunity for the deliberate destruction of cultural heritage, a practice that has increased in frequency and is often a deliberate strategy to promote persecution and cultural cleansing. ICC Prosecutor Fatou Bensouda has said that the charges brought in this case “…are about the destruction of irreplaceable historic monuments, and...a callous assault on the dignity and identity of entire populations, and their religious and historical roots. What is at stake is not just walls and stones.”
The case is especially important from a human rights perspective given that the intentional destruction of cultural heritage is simultaneously a war crime and also a violation of human rights, particularly cultural rights. Criminal prosecutions are one way to hold perpetrators of such violations accountable. The UN Secretary General Ban Ki-moon recently addressed various attacks on cultural heritage and noted that protecting cultural treasures is “…a part of our effort to defend human rights and save people’s lives.” He praised the ICC trial for helping put an end to impunity. In addition, the UN Special Rapporteur in the field of cultural rights has welcomed the ICC decision in her August 2016 report to the UN General Assembly (para 54). In this report, the Special Rapporteur addresses the links between human rights and the targeted destruction of cultural heritage.
While welcoming the decision, certain members of civil society have also criticized the failure of the ICC to prosecute additional grave crimes that took place in Mali during the 2012 conflict, including murder, rape, and torture. The court’s prosecutor has said that her office was still investigating other crimes and that this was only their first case in Mali. It is hoped that in light of the recent and targeted devastation of cultural heritage in conflict, for example, in Syria, Iraq and Afghanistan, that this ICC judgment will send a clear message to armed groups that demolishing culturally treasured artefacts will not go unpunished.