On September 27, 2016, the International Criminal Court (“ICC”) secured its first conviction for “destruction of cultural heritage.” The defendant, Ahmad Al-Faqi Al-Mahdi, 42, is a Malian national and a member of Ansar Dine, a para-military group that regularly carries out large-scale terrorist attacks in Mali which are, collectively, a part of the group’s campaign to enforce strict Sharia law in the country. Al-Mahdi was also, reportedly, the leader of Hisbah (sometimes transliterated as Hesbah), a squad which acted as Ansar Dine’s morality police. According to the Global Policy Forum, Hisbah’s mandate included the right to decide the fate of the shrines, mosques and antiquities of Timbuktu, all of which Ansar Dine considered to be forms of idolatry. This was an important role in light of Timbuktu’s status as a UNESCO World Heritage List site, deemed to be of outstanding universal value for the whole of humanity.
In 2012, along with Al-Qaeda in the Islamic Maghreb (“AQIM”) and a coalition of Tuareg rebels, Ansar Dine seized control over much of northern Mali. During this time, Hesbah members, armed with pickaxes and shovels, vandalized and destroyed many of Timbuktu’s mosques and mausoleums, and burnt tens of thousands of ancient manuscripts. The mausoleums were shrines to Timbuktu’s founding fathers, who had been venerated as saints by most of the city’s inhabitants, and most of the destroyed mausoleums were designated UNESCO World Heritage Sites. Much of this vandalism was caught on video. In 2013, after a French-led military force liberated northern Mali from Ansar Dine, AQIM, and the Tuaregs, Al-Mahdi fled to Niger, where he was captured and imprisoned by the Nigerien authorities.
Nigerien authorities turned Al-Mahdi over to the ICC in 2014. The ICC’s Chief Prosecutor, Fatou Bensouda, charged Al-Mahdi with the crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments (in violation of Article 8(2)-(e)(iv) of the Rome Statute) as well as various offenses under Article 25 of the ICC’s Rome Statute, including 25(3)(a) “perpetration and co-perpetration” of a war crime; article 25(3)(b) “soliciting [or] inducing” of a war crime; article 25(3)-(c) “aiding, abetting or otherwise assisting” during the commission of a war crime and article 25(3)-(d) “contributing in any other way” to the commission of a war crime regarding the attacks against Timbuktu’s cultural sites.
In court Al-Mahdi pled guilty and begged for the forgiveness of the people of Timbuktu. In determining his sentence, the ICC Trial Chamber considered the gravity of the crime and several mitigating circumstances. They also considered the option of monetary compensation to the victims, in this case, the residents of Timbuktu or symbolic reparations from Al-Mahdi. Ultimately, the court decided against these options, noting that someone who has been found personally responsible for the damage and destruction of cultural heritage has never been required to be actively involved in the reparation of that harm.
Concerning the gravity, the ICC Chamber factored in, for example, the fact that the buildings affected were not only of religious significance, but also of symbolic and emotional value for the local population. All sites but one were part of the World Heritage List. The ICC ultimately sentenced Al-Mahdi to nine years, the lowest sentence to date at the ICC. This may be due to his guilty plea, but also could be due to the fact that the attack was directed against property since, according to the Trial Chamber, “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.
Al-Mahdi’s conviction was historic because it was the first time that the ICC convicted someone for a crime of this kind. History is littered with the debris of crushed artifacts and defaced monuments, and Al-Mahdi’s conviction could open the door for similar prosecutions of people or groups that have looted countries’ museums and cultural sites during wars or occupations. This is particularly important given the fact that, far to the north of Mali, in The Levant, ISIL is actively destroying cultural artifacts, bulldozing and bombing archaeological sites.
Unfortunately, as Al-Mahdi’s trial was shorter than it might have been otherwise, due to his guilty plea, the ICC has not had the opportunity to flesh out many of the intricacies of this area of law. Many questions remain unanswered such as the question of the statute of limitations, the question of who can be tried (individuals or groups) and what items or buildings count as a part of a country’s “cultural heritage.” These points were largely moot in this case because of Al-Mahdi’s admission of guilt and because the sites in question were designated UNESCO World Heritage sites. Presumably, the cultural importance of objects and sites will be more difficult to determine in other cases, should any arise in the future. Even though it is still too early to know what the ultimate impact of Al-Mahdi’s conviction will be, his conviction could be used as precedent for future processes (judicial or extra-judicial) concerning the damage and destruction of cultural heritage in various conflicts, if such processes ever take place.
Whitney Lee is a second-year student at Columbia Law School and an assistant online editor for the Journal of Transnational Law. She graduated from Harvard University with a degree in Government.