A New Body of International Criminal Law Rises from The Dust of Crumbling Walls

CLAUDIA RUIZ – On September 27, 2016, the International Criminal Court (ICC) handed down an unprecedented sentence of nine years’ imprisonment against Ahmad al Faqi al Mahdi for the destruction of at least nine protected mausoleums and one mosque in Timbuktu, Mali. [1] This is the first instance in which the ICC has prosecuted the destruction of cultural heritage and property as a war crime under Article 8 of the ICC Rome Statute.[2]

Al Mahdi, a leader of the Al Qaeda-affiliated Islamic extremist group Ansar Dine, plead guilty to conducting and overseeing the attacks that took place in Timbuktu, a UNESCO World Heritage Site, between June and July of 2012.[3] During this time, Ansar Dine controlled the regions of Timbuktu, Kidal, and Gao, strictly enforcing Sharia law throughout, which included planned attacks to set fire to and destroy targeted historic sites housing Hebrew and Arabic texts and relics dating as far back as the 13th century.[4] After approximately 16 months of exclusive control, Timbuktu was liberated by Malian and French troops, deployed under Resolution 2100 by the Security Council of the United Nations.[5] In July 2012, the Malian Ministry of Justice requested that ICC Prosecutor Fatou Bensouda launch an investigation into alleged war crimes under Article 8 of the ICC Rome Statute, to which Mali has been a signatory since August 2000.[6]

Article 8 of the Rome Statute governs the ICC’s jurisdiction over war crimes committed “as part of a plan or policy.”[7] Specifically, Article 8 §2(e)(iv) includes in the definition of war crimes: intentional acts that are directed at “buildings dedicated to religion, education, art, science or charitable purposes, (or) historic monuments…provided they are not military objectives.”[8] Notable about these actions listed under §2(e) are their special application only to “armed conflicts not of an international character,” but rather those “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”[9]

At the time of sentencing, al Mahdi faced up to thirty years’ imprisonment for his actions. The ICC considered a host of mitigating factors that resulted in his final sentence of just nine years, including his own admission of guilt, demonstration of remorse and empathy, and good behavior throughout his detention since his arrest in September 2015.[10] Nonetheless, al Mahdi’s prosecution marks a number of unprecedented affirmative measures for both the ICC and the development of international cultural heritage jurisprudence. Since adoption of the Rome Statute in 1998, this is the first instance in which a respondent facing charges before the ICC has plead guilty.[11] It is also the first instance in which the convicted party has been affiliated with an Islamic extremist group.[12]

Finally, this is the first case in which the ICC has successfully tried the destruction of cultural heritage sites and property as a war crime.[13] Considering the most recent destruction of other major historical and religious sites by the Islamic State across Iraq, Libya, Turkey, and Syria, al Mahdi’s prosecution and sentencing will hopefully encourage the ICC to further expand and apply the principles of the al Mahdi case. Having been in force for only fourteen years, the Rome Statute, and by extension the ICC, may now also gain more traction with the global legal community. This verdict may also be the spark that ignites a new way of thinking about war crime prosecution and give shape to a new body of law governing acts of cultural heritage destruction.

[1] See Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15 (September 27, 2016), https://www.icc-cpi.int/mali/al-mahdi#7.

[2] See Sebastián A. Green Martínez, Jr., Destruction of Cultural Heritage in Northern Mali, J Int.            Criminal Justice 1073 (2015).

[3] Id.

[4] Id.

[5] UN Security Council, Security Council resolution 2100 (2013) [on establishment of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)], 25 April 2013, http://www.refworld.org/docid/519dffbe4.html.

[6] Supra, note 2.

[7] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July, 1998, http://www.refworld.org/docid/3ae6b3a84.html.

[8] Id.

[9] Id.

[10] Supra, note 1.

[11] Rebecca Hersher, Militant Who Destroyed Mali Cultural Sites Pleads Guilty To War Crimes, NPR International (August 2016), http://www.npr.org/sections/thetwo-way/2016/08/22/490962861/militant-who-destroyed-mali-cultural-sites-pleads-guilty-to-war-crimes.

[12] Mark Kersten, Why the Timbuktu case is a breakthrough for International Criminal Court, The Globe and Mail (August 25 2016), https://justiceinconflict.org/2016/08/25/the-al-mahdi-case-is-a-breakthrough-for-the-international-criminal-court/.

[13] Supra, note 11.



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