Need to know: ICC Timbuktu destruction trial, #globalJUSTICE, 19th August, 2016


The International Criminal Court (ICC) trial of suspected Islamist Ahmad al-Faqi al-Mahdi for attacks on religious and historical structures during the 2012 occupation of Timbuktu opens on 22 August. Here’s some need to know information on the first international prosecution solely focused on the war crime of destroying cultural heritage – and the first ICC trial in which the accused is set to plead guilty.

There have been numerous documented  accounts throughout history of the destruction of historical and religious monuments. The al-Mahdi case is, however, the ICC’s first dealing with such crimes.

According to the Centre for Global Heritage and development, the al-Mahdi ICC trial also marks the first time under international criminal law where destruction of cultural property as a war crime features as the main grounds for prosecution.

As well as being the first such case to come before the ICC, this is also the first, and so far only, arising from the prosecutor’s Mali investigation, and the first time a suspected Islamic extremist has come before the ICC.

Al-Mahdi is also expected to become the first accused to plead guilty to ICC charges.

“I have not come under any pressure. I am fully aware of the meaning of the pleading guilty and the consequences that are – I am likely to face as a result of these charges. The testimony, the information provided reflect the truth. Thank you, Madam President,” al-Mahdi told ICC Judge Joyce Aluoch during the confirmation of charges in March.

“What is noteworthy is that the suspect in this case has already expressed his intention to plead guilty. This is significant, not the least because it has the potential to expedite the judicial process and ultimately trigger reparations proceedings, making justice more tangible for the victims, and paving the way for reconciliation,” noted the ICC Office of the Prosecutor’s Sam Sasan Shoamanesh and Gilles Dutertre.

Al-Mahdi is charged with the war crime of intentionally directing attacks against historical monuments or buildings dedicated to religion a war crime under the Rome Statute, suspected of having committed, facilitated or otherwise contributed – by himself or together with others – to the attacks.

He is suspected of ordering and carrying out the destruction of nine mausoleums as well as parts of Timbuktu’s famous Sidi Yahia mosque, dating back to the 15th and 16th centuries and classified as a UNESCO World Heritage site since 1988.

The ICC case will be an important step in clarifying the Court’s competence to deliver comprehensive justice for different types of victims and harms.

As a key component to accountability and thus justice, affected groups have been authorized to participate in al-Mahdi’s ICC trial, meaning the Court has identified potential emotional and economic harms linked to al-Mahdi’s alleged destruction of cultural property.

“Let there be no mistake: the charges we have brought against Ahmad al-Faqi al-Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots,” said ICC Prosecutor Fatou Bensouda, later adding, “What is at stake is not just walls and stones.”

The significance of victim participation in the trial becomes very apparent as the destruction of such cultural property demonstrates the social, cultural, and historic ties buildings and monuments can have to communities of peoples.

The ICC prosecutor’s decision to take up alleged destruction of cultural property from the situation in northern Mali has been regarded as an example of the OTP’s commitment to ensure that the gravity of such international crimes is appreciated and that the Rome Statute is effectively applied to deter their commission. In line with this commitment, the OTP is developing a comprehensive policy paper on protected cultural property under the Rome Statute.

Experts have noted that the ICC prosecution will not only encourage similar accountability around the world, but also demonstrate how international cooperation can improve the preservation of cultural heritage.

“This case […] sets historical precedent that should encourage similar accountability efforts in other instances of cultural destruction occurring around the world. […] Moreover, this case sends a strong message about the role of international organizations and multilateral frameworks in protecting the heritage of humanity and the values our heritage memorialises. Lastly, this case also shows that international cooperation can be an effective way to protect cultural objects and other artefacts,” said UNESCO Director-General Irina Bokova.

The International Federation for Human rights (FIDH) and the Malian Association for Human Rights (AMDH) have collected evidence of alleged war crimes and crimes against humanity, including sexual and gender-based crimes, against al-Mahdi and 14 other individuals.  During a field mission in northern Mali, the organizations collected numerous testimonies from victims of Islamist armed groups, of which 33 have been filed at a Bamako High Court.

“We appreciate the significance of prosecuting the destruction of cultural property, but deeply regret that the charges against Al Mahdi were not widened to include crimes against the civilian population, including sexual and gender-based crimes, whose victims are far too often ignored during accountability processes,” said FIDH.

Others, while acknowledging the significance of cultural war crimes prosecutions, have also insisted that the OTP investigate the other credible international crimes allegations against al-Mahdi, including rape, sexual slavery, and forced marriage.

“Destruction of historic and religious sites is a serious affront to humanity, as it impacts our common heritage. However, a focus solely on cultural damage should not overshadow horrific violence against individuals, especially when both types of crimes were perpetrated simultaneously by the same people,” said Journalists for Justice.

“Those victims feel abandoned since they don’t have access to justice, neither in Mali nor at the ICC,”  added Bintou Founé Samaké, president of the Malian NGO Women in Law and Development.