2017 | International Criminal Court, Prosecutor vs Al Mahdi, Reparations Order

On 17 August 2017, Trial Chamber VIII handed down its Reparations Order, holding Mr Al Mahdi liable for co-perpetrating the war crime of destructing protected objects of cultural heritage in Mali, for which the Chamber sentenced him to 9 years of imprisonment in 2016.

The Chamber identifies three groups of victims of the destruction of the protected objects, namely the inhabitants of Timbuktu, the people throughout Mali and the international community. Considering that the latter group suffered the most, the Chamber considers that addressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community (para. 54).

The Chamber contemplates that Mr Al Mahdi caused three kinds of harm:

Harm to the protected buildings

As regards to the destruction of the protected buildings, the Chamber considers that collective reparations through rehabilitation of the protected objects, are the most appropriate way to address the damages. Effective rehabilitation measures put forward by the Chamber are renovation of the protected objects –which has already taken place- and guarantee of non-repetition (paras. 67, 104).

At an earlier stage, Al Mahdi has offered his apology for damaging the protected buildings. Although some victims find his apology insufficient, the Court qualifies it as genuine, categorical and empathetic (para. 70) and finds a further apology unnecessary (para. 71). However, as a symbolic measure to ensure that all victims have access to Mr Al Mahdi’s apology, the Registry is ordered to post an excerpt of the video of Mr Al Mahdi’s apology on the International Criminal Court’s website.

Economic Loss

The Chamber awards individual reparations in the form of compensation for consequential economic loss, but only to those whose livelihoods exclusively depended upon the Protected Buildings, arguing that an individualised response is more appropriate for them, as their loss relative to the rest of the community is more acute and exceptional (paras. 81, 83). Collective reparations are awarded to the community of Timbuktu in the form of rehabilitation which may take the form of community-based educational and awareness raising programmes to promote Timbuktu’s important and unique cultural heritage, return/resettlement programmes, a ‘microcredit system’ that would assist the population to generate income, or other cash assistance programmes to restore some of Timbuktu’s lost economic activity (para. 83).

Moral harm

Although the Chamber recognizes that moral harm (‘mental pain’) has been inflicted on the whole Timbuktu community, it considers at the same time that of this group, victims whose ancestors’ burial sites were damaged have suffered the most. Therefore they are awarded individual reparations through compensation whereas the community of Timbuktu is awarded collective reparations through rehabilitation, including symbolic measures – such as a memorial, commemoration or forgiveness ceremony –, and public recognition of the moral harm suffered by the Timbuktu community (paras. 89, 90).

In addition, both the Malian state and the international community –represented by UNESCO- are granted 1 Euro as a symbolic reparations award.

Scope of liability

The Court considers that Mr Al Mahdi’s indigence does not impact awarding reparations (paras. 110, 114, 134), pointing out that a convicted person’s financial circumstances may affect how a reparations award is enforced, e.g. payments in instalments. However, since the enforcement of reparations awards is under the auspices of the Presidency, it is found beyond the current question of setting Mr Al Mahdi’s personal liability (para. 114). Consequently and in view of the extent of Mr Al Mahdi’s liability for each kind of harm found, the Chamber assesses his liability at 2.7 million Euros.

The Trust Fund for Victims (TVF) is requested to draft an plan to implement the Court’s orders before for 16 February 2018 and is encouraged to initiate steps to complement the reparations award and to provide broader assistance for victims in Mali (para. 139, p. 60).