The ICC and the Case of Firsts

The case of The Prosecutor v. Ahmad Al Faqi Al Mahdi was one of firsts for the International Criminal Court (ICC)– the first case which focused solely on cultural destruction as a war crime, the first prosecution of an Islamic militant and the first time a war crimes defendant has pleaded guilty in the ICC. During 2012 the groups, Ansar Deen and Al Qaeda in the Islamic Maghreb began destroying the mausoleums and other religious and historical sites in addition to imposing strict sharia law on the civilians of Timbuktu. Al Mahdi agreed, after direction from a superior, to conduct the destructive attacks on these sites. Al Mahdi was charged under Article 8 of the Rome Statute for ‘intentionally directing attacks against buildings, dedicated to religion….[and] historic monuments’ where these were not military objectives.[1]

The case was instrumental not only in establishing legal jurisprudence but also for the reputation of the ICC which has been criticised for only now securing three convictions since its inception and for having a bias towards African nations, as reported by the Guardian. In a statement made Fatou Bensouda, the ICC’s chief prosecutor at the opening of the confirmation of charges hearing in the case, she compared the attacks in Timbuktu to the damage and destruction conducted by ISIS of monuments in Aleppo and Palmyra. However the likelihood of this destruction being considered in the ICC is very low without a mandate from the UN Security Council, because Syria and Iraq are not parties to the Rome Statute.

The recognition of cultural destruction as a war crime is instrumental in the current political landscape. With so many religious and historical buildings and sites being destroyed through the violent conflicts currently in operation, it is imperative that such damage is seen as a weapon of war. The destruction of cultural and religious buildings is used to disseminate fear and hatred and to quell critical thinking and freedom of opinion. Fatou Bensouda, articulated the importance of culture when she outlined that

‘cultural destruction is tantamount to an assault on people’s history’,

as reported by Al Jazeera. The bombing and destruction of cultural and religious sites has the potential to deny human rights and create extreme divisions within cohesive societies.

Clearly, the destruction of cultural heritage cannot be compared to the destruction of human life. The ICC took this into consideration in its judgement by noting that ‘crimes against property are generally of less gravity than crimes against persons’. The court also took into account five mitigating factors which included: Al Mahdi’s admission of guilt, cooperation with prosecution, remorse and empathy expressed for the victims, initial reluctance to commit the crime and steps taken to limit the damage caused. The importance of the mausoleums in the everyday lives of the people of Timbuktu, and the fact that since their destruction the people could no longer devote themselves to their religious practices which was an inherent part of their lifestyle were important factors in sentencing. Consideration of these factors holistically resulted in Al Mahdi being sentenced to nine years in jail.

This case was an important and influential decision in international criminal law. It recognizes the significance of cultural heritage to a society. It further emphasizes the destruction of culture as a global strategy of hatred. The importance of culture for future generations was also recognized in this case. There is hope that the decision will be consequential for the future prosecution of international crime. However, this will be dependent on the effectiveness of the ICC into future.

[1] //www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/singleview-dg/news/ending_impunity_for_war_crimes_on_cultural_heritage_the_mal/#.V-2hrIp96Uk

 

Lili Smith
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