Some Justice for Timbuktu

On 27 September, Ahmad Al Faqi Al Mahdi was sentenced to nine years of imprisonment by Trial Chamber VIII of the International Criminal Court (ICC) for intentionally directing attacks against ten religious and historical monuments located in Timbuktu. The ICC Prosecutor had opened an investigation following the self-referral by Mali of its situation on 13 July 2012, immediately after the attacks took place. A week after an arrest warrant for Mr Al Mahdi had been issued by the Court, he was caught and surrendered to the ICC by the authorities of Niger on 26 September 2015.

This is the first time the ICC has prosecuted an individual for the war crime of attacking cultural heritage, which was also the only charge brought against Mr Al-Mahdi. It was also the first time that a person accused of a crime before the ICC admitted guilt, likely as a result of the large amount of evidence against him, including the public sermons and interviews he conducted with journalists before the attacks. His early admission of responsibility allowed for a swift judicial process, with a trial lasting just three days, sparing the Court not only time but also precious resources as the Prosecution did not have to prove the charge beyond reasonable doubt.

Since 1961, Mali has been a party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which obliges parties to an armed conflict to refrain from any act of hostility against monuments, including those of a religious nature, ‘of great importance to the cultural heritage of every people’, unless in case of imperative military necessity. The ICC Statute also considers that intentional attacks against such buildings,  ‘provided they are not military objectives’ constitute a war crime. In the case of the attacks perpetrated in Timbuktu, the buildings were not legitimate targets which would have offered a military advantage to their attacker if they were destroyed. In addition, the buildings in question, including nine mausoleums of saints and a mosque, were almost all listed as UNESCO World Heritage sites and were thus known as important cultural landmarks.

This obligation to respect monuments is applicable both in international and non-international armed conflicts. The ICC Statute also provides that intentionally directing attacks against buildings dedicated to religion or historic monuments constitute a war crime in those two types of armed conflicts. In late June and early July 2012, when the buildings in question were destroyed, Mali was clearly in a situation of non-international armed conflict, involving the Malian armed forces and non-state armed groups, which met the requirement of being sufficiently organised given that they took control over Timbuktu for a protracted period.  Therefore, members of a state armed force or a non-state armed group can be held criminally responsible for such attack. Mr Al-Mahdi has been associated with Ansar Dine and Al-Qaeda in the Islamic Maghreb, the Islamist militant groups for which he led the ‘Hesbah’, a morality brigade which sought to prohibit certain practices within the population of Timbuktu which were considered heretical, including the use of the mausoleums as places of prayer or pilgrimage. According to these groups’ beliefs, nothing should be built over a tomb and, as a consequence, the mausoleums had to be razed to the ground. Mr Al Mahdi led their destruction, even actively participating in five of the attacks. A witness in the case stated that “destroying the mausoleums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the people of Timbuktu.”

In her statement opening the trial, the Prosecutor underlined that “[T]he protection of cultural heritage is an essential part of the post-conflict social reconstruction and reconciliation process. This is because cultural heritage gives meaning as well as a sense of continuity and direction from the past to the future.” She added that Mr Al Mahdi’s recognition of criminal responsibility “is crucial for Timbuktu’s victims” and that “[I]t will also support the reconciliation process in the field.” In the course of the trial, the Chamber noted his remorse and empathy towards the victims, such as the imam of the Mosque which had its door destroyed. However, the longer term impact of this trial on the post-conflict situation in Mali will take some time to be properly evaluated.

In the meantime, the sentencing of Al-Mahdi will now be followed by a reparations phase, during which the scope and extent of any damage and loss to victims will be determined, with the assistance of experts called in to assess the harm caused to the international community by the destruction, as well as the monetary value of the damage caused to the monuments and the economic and moral harm caused to individuals or organisations. This process will allow the possible order of reparations, such as compensation, which should be decided during the course of next year.

This landmark trial, as the first of its kind focusing on attacks against cultural heritage before the ICC, delivers a clear message to those who may perpetrate this type of crime and could possibly serve as a deterrent in the future. It underlines that attacking cultural heritage is a serious international crime which affects not only the local populations, which were particularly attached to it, but all of us. While the ICC may in the future prosecute more individuals for such crime, it should be stressed that it functions on the basis of complementarity: it is only if domestic courts are unable or unwilling to prosecute the alleged perpetrators of crimes enshrined in its statute, that the ICC may open an investigation into such matter. The 1954 Hague Convention also provides that states must prosecute and impose penal or disciplinary sanctions upon individuals, of whatever nationality, who have committed (or ordered to be committed) an act of hostility against a monument of great cultural heritage importance. Therefore, this case will hopefully also have an effect on domestic proceedings as states should criminalise such unlawful conduct and prosecute the alleged perpetrators of such a serious crime.

Kristin Hausler

Kristin Hausler

Email: k.hausler@biicl.org
Tel: +44 (0) 20 7862 5151

Kristin Hausler is the Dorset Senior Research Fellow in Public International Law. Since joining the Institute in 2007, she has developed and led several human rights projects advising governments, international organisations and non-governmental organisations. Her expertise lies primarily in international human rights law. She is also a member of the Cultural Heritage Committee of the International Law Association, for which she co-authored a report on the import and export of cultural objects which has now been published in a handbook on cultural heritage. She also published a book chapter on cultural heritage in armed conflicts for the War Report and occasionally lectures on this topic

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About Kristin Hausler

Email: k.hausler@biicl.org
Tel: +44 (0) 20 7862 5151
Kristin Hausler is the Dorset Senior Research Fellow in Public International Law. Since joining the Institute in 2007, she has developed and led several human rights projects advising governments, international organisations and non-governmental organisations. Her expertise lies primarily in international human rights law. She is also a member of the Cultural Heritage Committee of the International Law Association, for which she co-authored a report on the import and export of cultural objects which has now been published in a handbook on cultural heritage. She also published a book chapter on cultural heritage in armed conflicts for the War Report and occasionally lectures on this topic