The ICC dropped the ball on analysing the impact of cultural destruction on Timbuktu's population

28 October 2016 by Sebastian Green Martinez

On September 27, the International Criminal Court (ICC) delivered its judgment in the case of Ahmad Al Faqi Al Mahdi. The Islamist was sentenced to nine years for the single war crime of attacking protected objects. The case was hailed as a great success. It was short trial, the court's first guilty plea followed by a swift verdict [IJTblog]. But by accepting the prosecutor's arguments that Al Mahdi was only guilty of a single war crime, was the population of Mali let down badly? 

--- In this special guest blog for IJT by Sebastian Green Martinez,  lecturer at the University of Buenos Aires, who has followed the Al Mahdi case closely, argues the court should have tried the Malian for persecution over the destruction of mosques and mausoleums in Timbuktu---  

When addressing the destruction of cultural property, the trial chamber noted that “unlike other accused convicted by this Court, Mr Al Mahdi is not charged with crimes against persons but with a crime against property. In the view of the Chamber, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”. Does this mean that the attack carried out by  Ansareddinne was merely an attack against buildings? Or could it be argued that the destruction of cultural heritage is an attack against the civilian population of Timbuktu?

In the earlier stages of the case I analysed the Article 53(1) Report of the Office of the Prosecutor (OTP), critically assessing that the crime against humanity of persecution had not been included among the charges (here). The crime of persecution is defined in the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group”. The International Criminal Tribunal for the Former Yugoslavia (ICTY) decided on a plethora of cases that included charges of persecution through the destruction of cultural heritage. Just to mention a few, in the Prlic et al case the judges referred to destruction of institutions dedicated to religion -among other acts- and held that it was carried out due to its identification with Muslim people. In the judgment rendered in the case of Kordic and Cerkez, the ICTY referred to religious institutions and held that the destruction of such buildings “with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people”.

The Al Mahdi case at the ICC focused on the destruction of several Timbuktu mausoleums and mosques by  Ansareddinne, the armed group of which Mr Al Mahdi was a member. The group held that the targeted religious buildings were forbidden according to their strict interpretation of Sharia law. In this vein, two passages of the judgment can be highlighted: firstly, the trial chamber considered “the symbolic and emotional value for the inhabitants of Timbuktu” only to assess “the gravity of the crime committed.” And secondly, the trial chamber held that “all the sites but one were UNESCO World Heritage sites and, as such, their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community. (…) (A witness) testified 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 light of the displayed passages, the lack of further consideration regarding the impact on the civilian population of Timbuktu seems confusing. Also, the chamber seems to have given much importance to the fact that Timbuktu is a World Heritage Site. Being in the World Heritage List does not necessarily reflect the importance of a site or a building for a specific community since only States, and not communities, are entitled to designate cultural heritage before the World Heritage Committee.

I want to focus on one key question: was the destruction carried out by  Ansareddinne an attack against property or against the Muslim population of Northern Mali?

During the hearings the prosecution's senior trial lawyer Gilles Dutertre referred to witnesses who spoke of the important roles of the mausoleums in the daily lives of the inhabitants: “(witness P-431) stressed the importance of Timbuktu's cultural buildings in the eyes of the local people. In response to a question from the Bench he said that the mausoleums are public buildings, buildings belonging to the entire community, they are places where people go to pray, they represent a form of protection, and he said that the mausoleums were always very much admired”.

The OTP itself argued that the civilian population (the "infidels", as they were called by Ansareddinne) suffered directly from the destruction of mosques and shrines in Timbuktu, which had a central role in their religious and cultural life. For illustrative purposes, a few excerpts of the speech of Mr. Dutertre are displayed:

-- “…the destruction was deeply humiliating to the entire community, the people of Timbuktu, who found themselves oppressed by  Ansareddinne and AQIM (Al Qaeda in the Islamic Maghreb).”

-- “These armed groups only had their own ideological vision, so when an entire people must stand aside powerless and watch their history being destroyed, their memories being destroyed, their roots being destroyed. There are no words to describe the suffering that they endured”

-- “We are dealing with a crime that has hit and harmed the people in question at all levels, intellectually, spiritually, and at the very core of their being”

However, Al Mahdi's case focused only on the destruction of religious and cultural buildings. It did not include any charges for any other acts committed by  Ansareddinne as they tried to establish a society strictly governed by Sharia law in Northern Mali. According to several testimonies, displayed by the press and NGOs, the Islamist group committed rapes, amputations and murders in addition to the destruction of Timbuktu causing hundreds of thousands to flee the region. In this context, it is baffling that the existence of a widespread attack against the civilian population of Northern Mali was not considered. Although the analysis regarding the contextual elements of crimes against humanity falls outside the scope of this entry, now that the judgment has been released it is important to analyse the impact of the destruction of cultural heritage on the people of Timbuktu and whether it entailed a deprivation of fundamental rights.

The OTP and the trial chamber missed every possible opportunity to analyse the effects of the destruction of cultural heritage on its community. Affirming that Al Mahdi was not charged “with crimes against persons but with a crime against property” is understandable in the context of the charges submitted by the OTP, but is still a dangerous statement. The judges of the chamber could have stressed that other crimes not charged by the OTP might have taken place. Instead, they decided to narrow their perspective.

On the other hand, regarding the specific crime of persecution, the breach of fundamental rights of the civilian population of Timbuktu remains a possibility. In any case, it is hard not to see the direct effect of the destruction of Timbuktu on the local community, especially taking into account that those “buildings [belong] to the entire community, they are places where people go to pray, they represent a form of protection, and [...] were always very much admired.” In a world being struck by iconoclast non-state armed groups (such as  Ansareddinne), potential new detentions and situations are plausible. Then a cautious approach and a thorough consideration of potential crimes against humanity through the destruction of cultural heritage are not only advisable, but necessary.

Related articles

Mali war crimes suspect Ahmad Al Faqi Al Mahdi at his confirmation of charges hearing before the ICC (Photo: Twitter/ICC-CPI)
01 March 2016 by Benjamin Duerr, The Hague (The Netherlands)

In the first case of its kind, judges at the International Criminal Court (ICC) have to decide whether the destruction of cultural property and related psychological harm to the population in Mali deserves the attention of the global court. At the confirmation of charges hearing which began Tuesday, the prosecutors said Ahmad Al Faqi Al Mahdi should be tried for war crimes committed during the Islamist occupation of the city of Timbuktu.

Defence lawyers Mohamed Anouini and Jean-Louis Gilissen at the ICC (Photo: Flickr/ICC-CPI)
01 October 2016 by Janet H. Anderson, The Hague (The Netherlands)

In chapter seven of Thierry Cruvellier’s book ‘Court of Remorse’ about the International Criminal Tribunal for Rwanda (ICTR), he described the two defence lawyers, Belgian Jean-Louis Gilissen and Tunisian Mohamed Aouini as inseparable. “You never saw one without the other. They were always chatting. They had the same walk, the same honest handshake with their bodies learning forward slightly to convey sincerity, matching smiles and identical moustaches.”

Fast-forward fifteen years, and the same two were again tag teaming, this time at the ICC. They were representing their client Ahmad Al Faqi Al Mahdi during the shortest trial the court has ever seen in its own short history. From Mahdi’s arrest warrant in September 2015 when he was already in the custody of the authorities of Niger , to a judgement and sentencing, has been little more than a year. That’s because Al Mahdi pled guilty and his lawyers Gilissen and Aouini negotiated a deal with the prosecution that allowed judges to give him a sentence of nine years for the single war crime of cultural destruction, safe in the knowledge that the prosecution would not appeal.

The ruins of the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi in June 2013. The mausoleum is one of the structures named in the preliminary charges against Ahmad Al Faqi Al Mahdi (Photo: Flickr/MINUSMA-Sophie Ravier)
06 October 2015 by Benjamin Duerr, The Hague (The Netherlands)

Some see the case concerning cultural destruction in Mali as a blueprint for the International Criminal Court’s prospective, more successful prosecutions. Others call it the debut of the prosecutor’s new strategy in action: building cases from bottom-up instead of directly pursuing the most responsible perpetrators. Still, some critics say the case’s first suspect, Ahmad Al Faqi Al Mahdi, just fell into the court’s lap.

24 September 2014 by Christopher Stephen, Tripoli (Libya)

Just when The Hague thought it was finished with Libya, the International Criminal Court finds itself preparing fresh investigations for the strife-torn country.

 Ahmad Al Faqi Al Mahdi at the opening of his trial (Photo: Flickr/ICC-CPI)
08 September 2016 by Janet H. Anderson, The Hague (The Netherlands)

Amid much fanfare jihadist Ahmed Al Faqi Al Mahdi, in August became the first Malian to stand trial at The Hague-based ICC. Because he pled guilty, there wasn’t much of a procedure, lasting a bare three days. The judges will announce their decision later this month on whether he can indeed be found guilty of destroying a range of cultural monuments in the dusty, far northern city of Timbuktu, during the period when two Islamic groups, Ansareddine and al Qaeda in the Maghreb (AQIM) occupied the town and much of the north of the country.

His confession raises the prospect of those most responsible for serious crimes in Mali being brought to justice if he continues to cooperate with ICC prosecutors. However, away from The Hague, experts suggest that further prosecutions of for crimes during Mali's resurgent 2012 conflict in the country itself are far off.