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2016 | INTERNATIONAL CRIMINAL COURT | Prosecutor vs. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, Case no. ICC-01/12-01/15, 27 September 2016

In January 2012, a non-international armed conflict took place in the territory of Mali. In early April 2012, following the retreat of Malian armed forces, the armed groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control of Timbuktu, Mali. From then until January 2013, Ansar Dine and AQIM imposed their religious and political edicts on the territory of Timbuktu and its people. Mr Al Mahdi, Ansar Dine member since April 2012, was active in the context of the occupation of Timbuktu, working closely with the leaders of the two armed groups and involved in the structures and institutions established by them.  It is alleged that, until September 2012, he was the head of the "Hisbah" – a body set up to uphold public morals and prevent vice - that was associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions.

Mr. Al Mahdi was accused of being responsible for intentionally directing attacks against historic monuments and/or buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, allegedly committed between about 30 June 2012 and 10 July 2012 (judgement para. 10). This charge constitutes the war crime of attacking protected objects under Article 8(2)(e)(iv) of the ICC Statute. Allegedly, Mr Al Mahdi had overall responsibility for the execution phase of the attack, he knew that he exercised joint control over the attack and was fully implicated in its execution. He was in fact present at all of the attack sites, giving instructions and moral support, and personally participated in the attacks that led to the destruction of at least five sites.

At the opening of the trial in August 2016, Mr Al Mahdi admitted guilt as to the war crime consisting in attacking 10 historic and religious monuments in Timbuktu, between around 30 June 2012 and 11 July 2012 (judgment para. 11).

Whereas Trial Chamber VIII expressed the view that crimes against property are generally of less gravity than crimes against persons, even if inherently grave (para. 77) , it also observed that the targeted buildings were regarded, and protected, as a significant part of the cultural heritage of Timbuktu and of Mali, and did not constitute military objectives. The targeted buildings, were not only religious buildings but also had a symbolic and emotional value for the inhabitants of Timbuktu, who, according to Trial Chamber VIII, are the direct victims of the crimes (para. 80). The sites were specifically identified and targeted because of their religious and historical character. As a consequence of the attack, they were either completely destroyed or severely damaged and the local population considered their destruction a serious matter. Assessing the gravity of the crime, Trial Chamber VIII considers relevant that the destruction of the buildings was motivated by religious discrimination  (para. 81).

On 27 September 2016, Trial Chamber VIII released its judgment. Considering Mr Al Mahdi’s  admission of guilt, the hearings held and the evidence brought forward, the Chamber unanimously found Mr Al Mahdi guilty beyond reasonable doubt as a co-perpetrator of the war crime consisting in intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012 (Articles 8(2)(e)(iv) and 25(3)(a) of the ICC Statute). Mr. Al Mahdi was sentenced to 9 years of imprisonment to be deduced by the time spent in detention since his arrest (paras. 109, 111).

Reparations

The court ends its judgment, indicating that reparations to victims, pursuant to Article 75 of the ICC Statute, shall be addressed in due course.

By means of the ‘Reparations Phase Calendar’, the Trial Chamber requested Parties (i.e. Defence, the victims’ legal representative, Prosecution, Registry) as well as the Trust Fund for Victims and Malian authorities for advice and observations on the reparations proceedings. In addition, the Registry was asked to call for expertise in the following matters:

  • the importance of international cultural heritage generally and the harm to the international community caused by its destruction;
  • the scope of the damage caused, including monetary value, to the ten mausoleums and mosques at issue in the case;
  • the scope of the economic and moral harm suffered by persons or organisations as a result of the crimes committed.

In addition, the organisations listed below were granted the right to make “amicus curiae” submissions by 2 December 2016:

  • The Queen’s University Belfast’s Human Rights Centre (HRC) and REDRESS. These parties filed a request to make joint observations, in particular, on restorative measures for damaged or destroyed cultural property, the impact of the destruction of cultural property, appropriate measures to address the victims’ harm and on appropriate apologies and acknowledgements of responsibility.
  • Fédération internationale des ligues des droits de l’Homme  and Association Malienne des Droits de l’Homme, who filed a request to make joint observations on reparations related issues, in particular on: (i) the identification of categories of victims affected by the crime committed by Mr Al Mahdi; (ii) the different types of harm suffered by the victims; and (iii) the methodology for designing and implementing the reparations.
  • UNESCO, addressing the importance of international cultural heritage generally and the harm to the international community caused by the destruction.

Trial Chamber VIII has delivered its reparations order on 17 August 2017 in a public hearing. The hearing was to be followed live on the ICC website at: http://player.cdn.tv1.eu/statics/66005/icc.html.